Some have referred to this as a “lottery.” When petitions for review of federal agency action are filed in multiple federal circuit courts, a federal statute requires the judicial panel on multidistrict litigation to select “by means of random selection” one court of appeals to hear all consolidated cases no matter where they were filed.
What Is the Random Selection Among the Circuits all About? Judicial Panel on Multidistrict Litigation will conduct a statutorily required random selection to decide which circuit will hear the consolidated cases from around the country. This order is the second response from the three-member panel of the Fifth Circuit to the petitioners’ motions for a “stay barring OSHA from enforcing the during the pendency of judicial review.” The order reaffirms the court’s initial stay on November 6 and will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.”Ī “further court order” will eventually come from the federal judicial circuit that gets assigned the consolidated petitions for review of the ETS pending in 11 of the 12 United States circuit courts of appeals. The judges participating in the decision were Edith Jones (appointed by President Reagan), Kyle Duncan (appointed by President Trump), and Kurt Engelhardt (appointed by President Trump), with Judge Engelhardt authoring the panel’s opinion. The order grants that request and orders OSHA to “take no steps to implement or enforce the until further court order,” without any geographic limitation on that restriction. The order is silent as to whether it applies only in the Fifth Circuit or nationwide, but the petitioners did not limit their request for “an order staying the enforcement of the ETS” to any jurisdiction. The order criticized the ETS for not making an attempt to “account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the purports to address.” The order went on to question whether OSHA has shown a “grave danger” and that the ETS is “necessary.” The order concluded that petitioners are entitled to a stay because (1) they are likely to succeed on the merits and are suffering irreparable harm, (2) a stay pending adequate judicial review of the underlying motion for permanent injunction will not harm OSHA, and (3) the public interest favors a stay.
The order found the ETS “imposes a financial burden upon by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.” It further stated that the Occupational Safety and Health Act was not intended to allow the agency to make sweeping pronouncements on matters of public health. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021. On November 12, 2021, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued a sweeping order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S.