— NEWS — The Daily Wire Appears To Be Lead Plaintiff In Fighting Biden Vaccine Mandate In Court

By Ryan Saavedra • Nov 16, 2021 DailyWire.com

The Daily Wire appears to be the lead plaintiff in challenging Democrat President Joe Biden’s vaccine mandate after the Ohio-based 6th US Circuit Court of Appeals was chosen to take on the issue following a ping-pong ball lottery. The Daily Wire was the first plaintiff to file a challenge to the mandate in the 6th circuit.

The case challenges the Biden administration’s mandate, which is enacted through OSHA, that forces employers with more than 100 employees to have their employees vaccinated or to conduct regular coronavirus testing.

https://www.dailywire.com/news/breaking-daily-wire-appears-to-be-lead-plaintiff-in-fighting-biden-vaccine-mandate-in-court

https://www.npr.org/2021/11/16/1056121842/biden-lawsuit-osha-vaccine-mandate-court-lottery

BUSINESS –6th Circuit Court 'wins' lottery to hear lawsuits against Biden's vaccine rule ==

November 16, 20214:07 PM ET Andrea Hsu, photographed for NPR, 11 March 2020, in Washington DC. https://twitter.com/andrea_c_hsu Twitter

The 6th Circuit Court of Appeals has won the lottery to hear legal challenges to the Biden administration's vaccine rule that affects some 84 million workers.

The lottery was announced after multiple lawsuits against the administration were filed in several federal appeals courts. In a process resembling a Powerball drawing, a dozen ping pong balls, each representing one court, were placed into a wooden drum on Tuesday. The winning ball was drawn in Washington, D.C., by a selector from a judicial panel that oversees multidistrict litigation.

The Biden administration rule was formally issued on Nov. 5 by the Occupational Safety and Health Administration. It requires employers with 100 or more workers to ensure their workers are vaccinated against COVID-19 or undergo weekly testing starting Jan. 4.

Lawsuits were filed in all 12 regional circuit courts

Lawsuits challenging the rule came in quick succession. Within 10 days, 34 lawsuits were filed, covering all 12 regional circuit courts and giving each of those courts one entry into the lottery.

The 6th Circuit Court of Appeals, based in Cincinnati, Ohio, is known to lean conservative, with most of its judges appointed by Republican presidents. Six were appointed by President Donald Trump and five were appointed by President George W. Bush, while a total of five were appointed by Democratic Presidents Bill Clinton and Barack Obama.

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Bloomberg Law reports:

https://news.bloomberglaw.com/daily-labor-report/sixth-circuit-wins-lottery-to-weigh-biden-shot-or-test-rule

While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.

And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.

Immediately following the release of the OSHA rule, The Daily Wire was the first major company to file a lawsuit against the Biden administration, as the company noted in a report earlier this month:

The lawsuit does not take a position on whether someone should receive the vaccine or not, only against Biden’s mandate, announced earlier this year and unveiled on Thursday morning. The mandate applies to all companies with 100 or more employees and forces those businesses to police the vaccine status of their employees. The Daily Wire, with over 100 employees, falls under the mandate.

The Daily Wire’s lawsuit seeks to overturn Biden’s executive action, arguing that the order is unconstitutional and that the Biden administration violated federal law in drafting it.

Jeremy Boreing, co-founder and co-CEO of The Daily Wire, explained the company’s decision, saying, “We’re not the enforcement arm of the federal government.”

“Forcing Americans to choose between their livelihoods and their freedom is a grotesque abuse of power and we won’t be a party to it,” Boreing added. “We will not incur the cost of implementing this testing regime. We will not incur the liability of inserting ourselves into the private health decisions and information of our employees. Our company was founded to stand against tyranny, and we will.”

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Sixth Circuit Wins Lottery to Weigh Biden Shot-or-Test Rule (1)

Nov. 16, 2021, 4:14 PM; Updated: Nov. 16, 2021, 5:22 PM

Consolidated challenge to workplace safety rule

Sixth Circuit judges are majority Republican-appointed

A federal appeals court in Cincinnati has won the lottery to handle the consolidated case challenging the Biden administration’s emergency regulation requiring large employers to mandate that their workers either get vaccinated against Covid-19 or test regularly.

The case will go to a panel of three judges from the U.S. Court of Appeals for the Sixth Circuit, a federal panel on multidistrict litigation announced Tuesday. The majority of judges in that circuit were appointed by Republican presidents.

While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.

And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.

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The Sixth Circuit’s roster of active and senior status judges includes 20 judges appointed by Republicans and six appointed by Democrats, tilting the odds towards a GOP majority panel and potentially giving the shot-or-test rule’s opponents an advantage. About a third of the circuit’s active status judges were tapped by the Trump administration.

Republican-appointed judges are generally expected to be more skeptical of the emergency regulation, given partisan differences in views on administrative agency power and the need for vaccine mandates, legal observers said.

An all-GOP, three-judge Fifth Circuit panel in New Orleans trashed the rule—calling it unlawful and probably unconstitutional—in an opinion last week that upheld a stay on the standard. That decision revealed how hostile some Republican-appointed judges are to the regulation. Two of those three judges were appointed by the Trump administration.

The Occupational Safety and Health Administration finalized its contentious rule earlier this month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule applies to employers with at least 100 workers.

Republican attorneys general, employers, unions, and other organizations filed 34 petitions seeking review of the OSHA rule in 12 different circuit courts, according to the U.S. Judicial Panel on Multidistrict Litigation. Unions sued in an apparent—and ultimately unsuccessful—attempt to steer the litigation to one of the circuits that may have been more inclined to uphold the regulation.

Although the Fifth Circuit temporarily halted the rule before the case was transferred, the Sixth Circuit will have the authority to modify or lift that order.

The case eventually will be assigned to a three-judge panel, meaning the Republican-appointed judge majority in the entire circuit doesn’t guarantee the panel will havethe same majority.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com