As the OSHA COVID ETS saga continues to unfold, several union groups have filed a motion requesting that the 6th Circuit transfer all of the consolidated petitions to the D.C. Circuit, arguing that the D.C. Circuit is better equipped to handle the matter. The United Food and Commercial Workers International Union, AFL/CIO-CLC and the American Federation of Labor-Congress of Industrial Organizations (“Unions”) requested that the court transfer the case to the D.C. Circuit because the D.C. Circuit handled the Unions’ litigation to compel OSHA to promulgate an ETS for COVID-19 in 2019. The D.C. Circuit also adjudicated the United Mine Workers of America’s writ of mandamus seeking to compel the Mine Safety and Health Administration (MSHA) to issue an ETS for infectious diseases. The Unions also point out that they petitioned for review of OSHA’s healthcare ETS issued on June 21, 2021, claiming it was too narrow, and that action is still pending before the D.C. Circuit. The Unions argue transfer is appropriate because the D.C. Circuit is the only court where petitioners on both sides of the ETS filed petitions for review, the government is located, and many lawyers representing various petitioners are located. The Unions further argue that the D.C. Circuit hears more agency challenges and specifically challenges to OSHA rulemaking than any other Circuit. As a result, they believe the D.C. Circuit has expertise in adjudicating complex administrative law cases, which make up a disproportionate share of its docket. The Unions also argue that a transfer would foster judicial economy because there could be natural overlap between the issues pending before the D.C. Circuit in the challenge to the healthcare ETS. Last week, several petitioners opposing the ETS moved to transfer the case back to the 5th Circuit.
Meanwhile, the government has opposed the motions for the 6th Circuit to review the case en banc with all sixteen active judges. The government argues that an en banc hearing of the case would unduly delay adjudication of the merits and the exigent circumstances and grave danger requiring an ETS in the counsel against such delay. The government also argues that there is no inter-circuit or intra-circuit split requiring the extraordinary and rarely used procedure to have the case heard en banc at this point in the proceedings. In making this argument, the government notes that the ETS challengers claim that there is binding 6th Circuit and Supreme Court (referring to the CDC eviction moratorium litigations) which control the case and which they are not seeking to overturn. Therefore, the case should follow the normal procedures and be reviewed by a three-judge panel.