Photo by Alejandro Garay on Unsplash
Stephen Stafford, Associate Member, University of Cincinnati Law Review
Picture a container of ping pong balls, all numbered, swirling around in a drum and someone picking out a ball in dramatic fashion. This could be a description of your State’s Powerball drawing, the National Basketball Association’s draft lottery, or maybe a part of some cheesy gameshow on network television. Surprisingly, the federal judicial system has a use for this lottery system, as well. When petitions for judicial review of agency orders are filed in multiple federal circuit courts, a lottery system is used to determine in which court to file the record. In November, this lottery decided which circuit court would hear the legal challenges to the Biden Administration’s recent vaccine rule. Twelve ping pong balls, numbered one through twelve, were placed in a wooden drum, and one ball was randomly selected. This is a simple way to decide which court hears the legal challenges on such a monumental issue. Who knew a tiny white ball filled with air could carry so much weight?
The lottery process is used for petitions for review of orders by federal agencies. The random court selected could influence whether or not an agency order is upheld. Circuit court judges vary in their political ideologies and interpretation of the law. One circuit court may be more conservative than another and vice versa. The current compositions of each circuit court and which court wins the lottery could influence decisions on agency orders. This article will analyze the lottery process and the relevant statutes governing the process. This article will then look at the current lottery selection method and its alternatives.
The most recent iteration of the lottery system was used for the Biden Administration’s new vaccine rule. On November 5th, the rule was formally issued by two federal agencies, the Occupational Safety and Health Administration (“OSHA”) and Centers for Medicare and Medicaid Services (“CMS”). The rule requires that employers with 100 or more workers ensure that their workers are vaccinated against COVID-19 or undergo weekly testing. Additionally, the rule includes a requirement that all healthcare workers at facilities participating in Medicare and Medicaid are fully vaccinated. Over 100 million workers are affected by the rule. Petitions to this rule were filed in all 12 federal circuit courts. As a result, the ping pong ball lottery system was used to pick one circuit court to handle the case. The 6th Circuit’s ping pong ball was chosen randomly from the drum containing a ball representing each circuit court. The 6th Circuit Court of Appeals “won” the lottery, and the rest of the petitions will be consolidated.
This random lottery was not created overnight just for the Biden Administration’s new rule. This situation is governed by federal statute and the judicial panel on multidistrict litigation. 28 USCS § 2112 states that the judicial panel on multidistrict litigation shall designate one court of appeals “by random selection,” and the remaining petitions will be consolidated. The panel shall designate a single court of appeals when there are two or more petitions for review of a federal agency order. Two or more petitions must be filed within 10 days of the issuance of the order to trigger the notification of the panel and the random selection process. After the random selection, the panel will prescribe rules for consolidation of the petitions and the agency shall file record in the designated court of appeals.
The statute does not provide any detail about the random selection process. However, Rule 25.5 of the Rules of Procedure for the Judicial Panel on Multidistrict Litigation describes the selection process. The rule provides that the Clerk of the Panel shall randomly select a circuit court of appeals from a drum containing an entry for each circuit where a petition is pending. There is only one entry per circuit where a petition is pending regardless of the amount of petitions in each circuit. The selection shall be witnessed by a designated deputy and an order will be signed by the selector and deputy. Sadly, ping pong balls are not officially mentioned in the federal rule or statute. Prior to the 1988 amendment to 28 USC § 2112, the petitions were filed on a first come first served basis. Prior to 1988, the choice of the appropriate forum for review of the order was to be made by the court in which a petition was filed first. At the time, the first come first served selection process was viewed as way to avoid confusion and simultaneous proceedings. The 1988 amendment added multiple subsections, including § 2112(a)(3) which requires the court to be chosen at random.
There are many possible ways to decide which court is chosen when petitions are filed in multiple circuit courts. The decision could be made on a first come first served basis, a random selection, or a different method all together. The previous method of deciding the forum on the first petition led to races to the courthouse to file petitions as early as possible after the order was issued. That method is disorderly at best. Now, the current random selection process has its pros and cons. The current system perpetuates political polarization and gamesmanship. Challenges to the Biden Administration’s rule were brought by those that do not oppose it, but instead want to keep the rule. For example, unions that supported the Biden Administration’s new rule filed petitions likely in the attempt to get more liberal courts involved in the lottery. Furthermore, political polarization incentivizes interested parties to want as many courts involved in the lottery as possible to level the playing field for their side, as having more courts in the lottery leads to more randomization. On the other hand, the system promotes parties filing petitions that are not opposed to the agency rule, filing only to influence the lottery. As a result of presidents pushing federal agencies to use their administrative powers, more petitions and bigger lotteries are likely.
The random selection process to decide this issue may not be discussed in first-year law courses or be a mainstream legal topic; however, it is an important issue because the fate of agency orders is at stake and could be influenced by which court is randomly selected. Random selection is a better system than first to file because it does not create a chaotic race to the courthouse and allows different circuit courts to decide important decisions. The lottery promotes the increase in petitions filed, but that is not a negative—more courts in the lottery means more diversity in the decisions. The greater number of petitions creates a larger lottery pool and balances out the effects of political polarization amongst judges.
 28 U.S.C § 2112 (2021).
 Andrea Hsu, 6th Circuit Court ‘Wins’ Lottery to Hear Lawsuits against Biden’s Vaccine Rule, Nat’l Pub. Radio (Nov. 16, 2021, 4:07 PM), https://www.npr.org/2021/11/16/1056121842/biden-lawsuit-osha-vaccine-mandate-court-lottery.
 28 U.S.C § 2112 (2021).
 Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies, The White House (Nov. 4, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.
 Hsu, supra note 2.
 28 U.S.C § 2112 (2021).
 U.S. Jud. Panel. Multidist. Lit. R. P. 25.5 (Oct. 4, 2016).
 Westinghouse Electric Corp. v. United States Regulatory Com., 598 F.2d 759, 766 (1979).
 28 U.S.C § 2112 (2021).
 Robert Iafolla, Lottery Will Pick Court to Hear Biden Short-or-Test Challenges, Bloomberg Law (Nov. 5, 2021), https://news.bloomberglaw.com/daily-labor-report/lottery-will-pick-court-to-hear-biden-shot-or-test-challenges?context=search&index=3.
 Lydia Wheeler, Circuit Court Lottery a System of Gridlock and Gamesmanship, Bloomberg Law (Nov. 17, 2021), https://news.bloomberglaw.com/daily-labor-report/circuit-court-lotteries-a-symptom-of-gridlock-and-gamesmanship?context=search&index=1.