The bite is facing uphill as a vaccine mandate case is handed over to a new court, experts say

The legal battle over the Biden administration’s workplace vaccine mandate was transferred to a Cincinnati-based federal appeals court on Tuesday, where experts say the administration may soon face an uphill battle as it seeks to have the mandate reinstated.

The move came after a court panel in Washington DC randomly selected the court from the country’s 12 regional federal appellate courts and combined the various legal challenges filed across the country in a single lawsuit.

The random draw took place after the New Orleans-based Fifth Circuit Court of Appeals temporarily blocked the workplace mandate, which requires companies with at least 100 employees to have their employees either receive the COVID-19 vaccine or undergo regular testing and mask wearing.

Although the Cincinnati-based Sixth Circuit Court of Appeals, where the case has been redeployed, is considered somewhat less conservative than the Fifth Circuit Court that rejected the mandate, Tuesday’s move was hardly a resounding victory for the administration, legal experts said.

“Overall, the Sixth Circuit may not be as hyperconservative as the Fifth Circuit, but it is among the most conservative in the country,” said Lawrence Gostin, a law professor at Georgetown University. “This is not good news for the Biden administration.”

The Biden administration is expected to soon ask the newly assigned court to lift a temporary freeze on the mandate last week of a panel of three judges in the fifth circuit. In lawsuits, the administration has argued that every day the mandate is blocked, “would probably cost dozens or even hundreds of lives.”

The administration, through the Occupational Safety and Health Administration (OSHA), issued its emergency vaccination or testing requirement in early November, triggering immediate legal challenges from states, employers and religious groups.

Sean M. Marotta, a partner at law firm Hogan Lovells, said OSHA “faces an uphill battle and a little more” in the upcoming battle before the newly elected sixth circuit.

“This is a good draw for the mandate challengers, one of the best they could have hoped for,” he said, referring to the election of the Cincinnati-based federal Court of Appeals.

Marotta added that the degree of difficulty will depend on which three of the court’s judges are randomly selected to preside over the case – or whether the court decides to bypass a panel of three judges and deal with the case before the full bench.

Gostin of Georgetown called the sixth circuit “a perfect example” of where before President TrumpDonald TrumpHouse Freedom Caucus elects rep. Scott Perry as new chairman Meadows ‘between a rock and a hard space’ with Trump, January 6 panel On The Money – Biden closes infrastructure week MORE succeeded in pushing federal courts in a strongly conservative direction through the judges he nominated in office.

“Once considered a center-right circle, the sixth circle, thanks to Trump appointments, has swung sharply in the conservative direction,” he said.

Updated at 17.50


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