Fifth Circuit stays Biden administration coronavirus vaccine or testing requirement

Our weekly summary of federal news highlights the Fifth Circuit’s decision to stay the Biden administration’s vaccine or testing requirement and SCOTUS’ accepting three more cases for argument. Read all about it in this week’s edition of the Federal Tap.

Congress is in session

Both the House and Senate are in session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday, Biden returned to Washington, D.C., from Rehoboth Beach, Delaware. 

On Tuesday, Biden remained in Washington, D.C. 

On Wednesday, Biden met with President of the European Commission Ursula von der Leyen in Washington, D.C. He also attended former Governor Ruth Ann Minner’s funeral in Milford, Delaware, and delivered remarks on the infrastructure deal at the Dundalk-Marine Terminal at the Port of Baltimore, Maryland. 

On Thursday, Biden participated in the centennial anniversary of the Tomb of the Unknown Soldier in Arlington National Cemetery, Virginia.

On Friday, Biden departed Washington, D.C., for Camp David, Maryland. 

Opinion polling comparison during the Trump and Biden administrations

President Biden’s approval rating for the 41st week of his term was 43.8%, down 0.3 percentage points from the week before. President Trump’s approval rating at the same point in his term was 38.3%, down 0.4 percentage points from the week before.

Federal Judiciary

  • 77 federal judicial vacancies
  • 26 pending nominations
  • 33 future federal judicial vacancies

Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 33 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 21, 2021, when U.S. District Court for the Southern District of Texas Judge Vanessa Gilmore announced that she would retire on Jan. 2, 2022. The most recent announcement was on Nov. 4, when U.S. Court of Appeals for the 2nd Circuit Judge Susan Carney announced that she would assume senior status upon the confirmation of her successor. As of Nov. 12, sixteen vacancy effective dates are unknown because the judge has not announced the date they will leave the bench. The next upcoming vacancy is scheduled to occur on Nov. 23, when U.S. District Court for the Eastern District of Virginia Judge Raymond Alvin Jackson assumes senior status.

For historical comparison, the week of Nov. 8-14, 2020, there were 65 federal judicial vacancies and three upcoming vacancies in the federal judiciary reported by the U.S. Courts.

SCOTUS accepts three cases for argument during the 2021-2022 term

The Supreme Court of the United States (SCOTUS) on Nov. 5 accepted three additional cases for argument during its 2021-2022 term:

Ruan concerns the good faith defense available to defendants charged under the U.S. Controlled Substances Act. The question presented to the court in the case is: “[W]hether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under Section 841(a)(1) without regard to whether, in good faith, he ‘reasonably believed’ or ‘subjectively intended’ that his prescriptions fall within that course of professional practice.” Ruan originated from the U.S. Court of Appeals for the 11th Circuit, and Kahn came from the U.S. Court of Appeals for the 10th Circuit.

Marietta Memorial Hospital originated from the U.S. Court of Appeals for the 6th Circuit and concerns the Medicare Secondary Payer Act. The Act prohibits group health plans from considering a plan participant’s eligibility when the individual has end-stage renal disease, and from providing different benefits to these individuals compared to other covered participants. 

Egbert came from the U.S. Court of Appeals for the 9th Circuit and concerns the U.S. Supreme Court’s ruling in Bivens v. Six Unknown Federal Narcotics Agents (1971). In Bivens claims, private individuals may sue FBI agents for violating their Fourth, Fifth, and/or Eighth Amendment rights. 

The court had agreed to hear 48 cases during its 2021-2022 term as of Nov. 5. Three cases were dismissed, and one case was removed from the argument calendar. Fifteen cases had not yet been scheduled for argument. To date, the court has issued decisions in two cases, both of which were decided without argument.

Fifth Circuit stays Biden administration coronavirus vaccine or testing requirement for companies with more than 100 employees

On Nov. 6, the United States Court of Appeals for the Fifth Circuit stayed the implementation of the Biden administration’s coronavirus vaccine or testing requirement for companies with more than 100 employees, which was set to take effect on Jan. 4, 2022. The Occupational Safety and Health Administration (OSHA) issued the rule as an emergency regulation on Nov. 5, 2021.

On the same day the rule was released, five states, led by Texas, filed a lawsuit against OSHA and the U.S. Department of Labor. In the plaintiffs’ motion to stay, they argued the rule exceeded OSHA’s scope of authority and its enactment violated administrative law standards. Louisiana, Mississippi, South Carolina, and Utah are also plaintiffs in the suit.

This lawsuit is one of four multistate lawsuits filed against the OSHA emergency regulation. As of Nov. 11, there were at least five additional multistate lawsuits filed against the Biden administration’s vaccine requirement rules for federal contractors and healthcare workers.

Redistricting Roundup

Montana

On Nov. 12, the Montana Districting and Apportionment Commission enacted a new congressional map following the 2020 redistricting cycle. The commissioners voted 3-2 to approve the map and to transmit it to the Montana Secretary of State. Both Republican commissioners and Maylinn Smith, the nonpartisan tiebreaker, voted in favor of the map, and the two Democratic commissioners voted against the map.

A version of the congressional map enacted by the commission had previously been approved on Nov. 4. The map that received final approval on Nov. 12 made a minor change in Pondera County, allocating a smaller portion of it to the western district.

Following the 2020 census, population increases in Montana gave the state two congressional districts. Previously, the state was an at-large congressional district. The next deadline ahead of the commission will be preparing a legislative redistricting plan by the 10th day of the upcoming regular legislative session.

Ohio

On Nov. 10, the Ohio Joint Committee on Congressional Redistricting held the first of two required public hearings on congressional redistricting proposals. The deadline for enacting new maps is Nov. 30. For any map to be put in place for a full 10 years, support from at least a third of the members of the minority party is required, and any approved plan that does not meet this threshold will only be effective for four years. The joint committee consists of three state Senators and three state Representatives and has four Republicans and two Democrats.

The Ohio Redistricting Commission did not meet an Oct. 31 deadline to draw and approve a congressional district plan, meaning the authority to create such districts passed to the state legislature. Dan Tierney, a spokesperson for Gov. Mike DeWine (R), said the delayed release of U.S. Census Bureau data “essentially took five months out of the process,” and did not leave sufficient time for the commission to draft and debate new congressional districts. 

Virginia

On Nov. 12, the Virginia Supreme Court disqualified one of the Republican nominees for the position of Special Master as the court began its process for deciding the state’s congressional redistricting plan. According to the order, “the Court believes that [Thomas Bryan’s] work for the Senate Republican Caucus related to the very subject matter for which the Court is called upon to appoint Special Masters creates a conflict.” The court also expressed concerns about the other two Republican nominees and unanimously ordered party leaders to submit three or more additional nominees by Nov. 15. 
The state supreme court is now responsible for drawing new maps after the Virginia Redistricting Commission missed a Nov. 8 deadline to produce an approved congressional district plan. Under the constitutional amendment that established the state’s redistricting process, party leaders of the House of Delegates and Senate are each required to nominate three special masters to assist the court in the redistricting process. The court will then select one special master from each party’s list of nominees. The special masters will have 30 days to draft a proposal to submit to the court for review.




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