By Tom Hals
(Reuters) – The administration of U.S. President Joe Biden said on Monday that a court should be chosen randomly to review its COVID-19 vaccine requirement, casting doubt on an order by an appeals court on Saturday that blocked the workplace rule.
The law governing the selection of the court provides for a lottery that should take place on or about Nov. 16, according to a U.S. Department of Justice letter filed with at least four of the six federal appeals courts that are hearing challenges.
On Saturday, the 5th U.S. Circuit Court of Appeals in New Orleans suspended the rule, which requires businesses with at least 100 employees to require staff get vaccinated against COVID-19 or be tested weekly and wear a face covering at work.
The court cited “grave statutory and constitutional” issues with the rule, which applies to tens of millions of workers and 1.9 million U.S. employers.
Sean Marotta, an attorney with Hogan Lovells who specializes in appellate cases, said unions may file challenges to the rule in the coming days in more liberal appeals courts which would be less likely to block the rule.
“Who gets picked is going to matter,” he said of the court lottery, “because that circuit court will get a second look at what the 5th Circuit did.”
States, private employers, trade groups and religious organizations filed cases in at least six U.S. Circuit Courts of Appeal, saying the Biden administration exceeded its authority.
The Justice Department letter said the law governing parallel cases in multiple federal appeals courts required the judicial panel on multidistrict litigation (JPML) to randomly select a court to hear the consolidated cases.
If any court had issued a suspension, that order will then be reviewed by the randomly selected court and could be modified, revoked or extended, according to the department.
(Reporting by Tom Hals in Wilmington, Delaware; additional reporting by Mike Scarcella in Washington; editing by Grant McCool)
