On Dec. 15, 2021, the Sixth Circuit Court of Appeals denied OSHA’s request to hear its ETS vaccine-or-test mandate via the court’s full panel of 16 active judges – also known as en banc – instead of a three-judge panel.
The decision, however, wasn’t a landslide. Eight judges voted in favor of an initial hearing en banc. To win a decision under the circuit court’s rules, a majority of the 16 active judges had to vote for en banc. That didn’t happen.
The reason given for the denial is the three-judge panel already devoted significant time to the case.
This is an important case on an accelerated timeframe. And yet, many challengers proposed initial hearing en banc, an “often unproductive, always inefficient process,” stated Karen Nelson Moore, Circuit Judge, in the denial. “Because initial hearing en banc would subvert our normal process and require the full court to grapple with a sprawling record, I concur in the denial of the initial hearing en banc.”
In a case as important as this, hearing the case en banc would force all 16 judges to review “the voluminous record” and all the relevant underlying legal doctrines. Doing this would have delayed the case even further.
That said, because the three-judge panel has already devoted significant time to this case could mean we may see a decision on the ETS vaccine mandate by the end of the year.
Everything to do with this case stirs up a lot of controversy.
In the decision from the Sixth Circuit court, are the dissention opinion of the eight judges who dissented from the denial to hear the matter en banc. It covers nearly 36 pages of the 42-page document. So only time will tell how this all turns out.
But however it does, we will keep you updated!