In ProMedica Health System, Inc. v. FTC, the Sixth Circuit upheld the FTC’s decision to block ProMedica’s purchase of St. Luke’s hospital in Lucas County, Ohio. A unanimous panel held that the merger would substantially lessen competition in the county’s highly concentrated market for primary and secondary case from four hospitals to just three. ProMedica did not make any argument that the merger would increase efficiencies or produce benefits for the consumers—in fact, the St. Luke’s CEO stated that the merger could “harm the community by forcing higher rates on them.” Nor did it challenge the FTC’s definition of the relevant geographic market. Instead, ProMedica focused on its increased ability to negotiate with managed-care organizations and St. Luke’s weak pre-merger financial position. The opinion roundly rejected those arguments and affirmed the FTC’s reliance on the increase in market concentration to create a presumption of illegality. Because it relies heavily on the FTC’s market-concentration analysis, including the Herfindahl-Hirschman Index, this opinion will be felt most strongly in mergers in smaller markets in which only a handful of hospitals compete.
Cases interpreting state constitutions do not typically make national headlines the way that cases interpreting the federal Constitution do, but perhaps they should. In a recent review of Looking For Rights In All The Wrong Places: Why State Constitutions Contain America’s Positive Rights, Judge Sutton of the Sixth Circuit agrees with Professor Emily Zackin that state, rather than federal, constitutional jurisprudence ought to lead the way in establishing new constitutional rights.
Judge Sutton describes himself as “a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights,” and does not appear enthused at the potential proliferation of “positive” constitutional rights (rights obligating the government to act, such as a “right to education” or “right to healthcare”) that “a revival of state constitutionalism” might entail. Nonetheless, he is supportive of state constitutions—typically easier to change than the federal constitution—taking on a more prominent role in shaping Americans’ rights because he believes such a revival could “ease the pressure on the U.S. Supreme Court to be a vanguard rights innovator in modern America.”
Academic articles by judges often shed insights on their perspectives, and this review is certainly interesting in that light. It also reflects some of the influences from earlier in Judge Sutton’s career – when he served as State Solicitor of Ohio, charged with representing the state in appellate proceedings, including at the Supreme Court.
There is a split of authority within the Sixth Circuit concerning the scope of federal question jurisdiction and the reach of federal courts. Viewed narrowly, the split is important for those who litigate claims of “off-label” use and marketing under the Medical Device Amendments (“MDA”) to the Food, Drug, and Cosmetic Act. But the heart of the debate is trans-substantive and involves the reach of federal courts. As such, this split of authority should be of interest to all judges and practitioners within the Sixth Circuit, and beyond. On one side of the split is the Western District of Tennessee (Jenkins v. Medtronic, Inc.) and the Southern District of Ohio (H.R. v. Medtronic, Inc. ). On the other side is the Eastern district of Kentucky (Dillion v. Medtronic, Inc.).
The cases concern medical bone graft devices, allegedly promoted and used “off-label,” resulting in injury to the plaintiff. Each case was brought in state court and removed to federal court. The devices at issue fall within the scope of the MDA and are designated Class III devices, which means that they are the most heavily regulated by the federal government. And, importantly, the MDA includes a preemption provision that could potentially foreclose the claims of each plaintiff. In short, the resolution of each case involves an important interpretation of federal law concerning a medical device that the federal government regulates with the utmost oversight. But the federal issue in question – preemption – is a defense; it is not necessary for the plaintiff to make out their claim. As a result, the plaintiff’s claims do not satisfy the well-pleaded complaint rule. The legal question then becomes whether or not that failure bars federal question jurisdiction. The Eastern District of Kentucky said yes; the Western District of Tennessee and Southern District of Ohio said no.
The crux of the debate stems from differing interpretations of case precedent, specifically, the Supreme Court’s 2005 decision in Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg. and the Sixth Circuit’s 2007 decision in Mikulski v. Centerior Energy Corp. Preceding Grable, and for nearly one hundred years, the well-pleaded complaint rule served as the analytical focus of federal question jurisprudence. The lodestar of that analysis was a famous test formulated by Justice Holmes that a “suit arises under the law that creates the cause of action.” But the boundaries of federal question jurisdiction extended beyond Justice Holmes’s famous test which, over time, created a doctrinal maze where the only certainty became confusion. In Grable, the Supreme Court cleared up some of that confusion but also created new areas of uncertainty. This intra-circuit split highlights one of those areas. Under what has been termed the substantial-federal-question doctrine, the Grable Court said that “the question is, does a state-law claim  necessarily raise a stated federal issue,  actually disputed and  substantial,  which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” (emphasis added).
The position of the Western District of Tennessee and the Southern District of Ohio is that this formulation is the third true exception to the well-pleaded complaint rule (joining complete preemption and artful pleading), which means that it can apply in situations where the federal issue is not necessary for the plaintiff’s affirmative claim (i.e. the defense of preemption). In contrast, the position of the Eastern District of Kentucky is that the Grable test defines the extent to which the well-pleaded complaint rule expands beyond Justice Holmes’s famous formulation. Or to frame the debate another way, does the Grable test’s first requirement retain the traditional limitation that prevents the existence of a preemption defense from giving rise to federal jurisdiction? That depends on how one interprets the words “necessarily raise a stated federal issue,” which is why we emphasized them above.
This intra-circuit debate presents a genuinely difficult question of law. On the one hand, the analysis to determine federal question jurisdiction has long resisted a true bright line rule, and it makes a lot of sense to think that federal courts should be able to interpret federal law concerning important objects of federal regulation. In addition, a plain reading of some language in Mikulski suggests that the Grable test is a true exception to the well-pleaded complaint rule. On the other hand, it also makes sense to interpret Supreme Court precedent as not setting aside century-old boundaries absent clear direction. And the Eastern District of Kentucky reads Mikulski, as a whole, to be consistent with its opinion, which is consistent with the Grable Court’s admonishment that “an opinion is to be read as a whole.” Finally, as we noted here, where legal uncertainty exists in other areas of law, the Sixth Circuit has shown restraint in not displacing state authority without clear direction. In sum, this is an important and interesting (but also difficult) debate that the Sixth Circuit may have to clarify at some point, and we will keep our eye on any developments.
The Sixth Circuit may certify state law questions, even sua sponte, in cases where the answer(s) “might avoid in whole or in part the necessity for federal constitutional adjudication.” Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 446 (6th Cir. 2009) (quoting Bellotti v. Baird, 428 U.S. 132 (1976)). In such cases, both parties may be primarily interested in forcing the court to confront a high-profile constitutional question, and prefer that the outcome not turn on state law. See Planned Parenthood Cincinnati Region v. Strickland, 531 F.3d 406, 408 (6th Cir. 2008) (“When asked about certification at oral argument, both Planned Parenthood and the State encouraged this court to speculate on how the Supreme Court of Ohio would interpret the statute as opposed to seeking an authoritative interpretation from the Ohio high court via certification.”). But the court has repeatedly certified state law questions to avoid thorny constitutional dilemmas. See, e.g., Planned Parenthood, 531 F.3d 406; House v. Bell, 311 F.3d 767 (6th Cir. 2002) (en banc) (certifying to avoid the question of whether the habeas petitioner’s showing of actual innocence sufficed to render his conviction unconstitutional); Am. Booksellers, 560 F.3d at 446; cf. Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007) (declining certification because “[c]ertification . . . is appropriate only where . . . . a construction . . . is fairly possible that will contain the statute within constitutional bounds.” (citations and internal quotation marks omitted)).
When employing certification as a means of constitutional avoidance, the Sixth Circuit may hint at the consequences of the state court choosing one interpretation over another. For example, when certifying a question of Ohio statutory interpretation in Am. Booksellers, the court strongly implied that “the narrowing construction the Attorney General puts forth” would lead to a finding that the statute in question was constitutional. Am. Booksellers, 560 F.3d at 446-47. However, such hints are not always appreciated by state courts. See, e.g., In re Certified Question from United States Dist. Court, Eastern Dist. etc., 420 Mich. 51 (Mich. 1984) (“Thus, it is plain that the certified question procedure has not been employed to obtain an expression of this Court’s opinion on a matter of Michigan law at all . . . . It has been employed instead to obtain a ruling from this Court on a question of First Amendment federal constitutional law with very explicit instructions from the federal court to this Court how that answer should be written to avoid federal court adjudication that the statute is unconstitutional . . . .”).
Although constitutional controversies draw more attention, litigants must remain mindful of potentially dispositive state law issues because the Sixth Circuit may certify sua sponte and may even provide some subtle direction to the state court.
Completing the trifecta of arbitration decisions this week, the Sixth Circuit handed down Physicians Insurance Capital v. Praesidium Alliance Group in which it affirmed confirmation of an arbitration award. Two points of note from this opinion, which is unpublished. First, the Court seemed to lend credence to the notion that manifest disregard to the law endures as a standard for vacating arbitration awards. That currently is an open question in light of recent Supreme Court decisions, but the Court seemed to suggest that it does represent an independent basis for vacating arbitration awards. At the same time, however, since it did not actually vacate the award, the Court analysis in this respect is arguably dicta.
Second, this case provided an illustration of what not to do if you want to try to get an arbitration award vacated. Apparently the losing party never had a transcript made of the arbitration proceedings. As a result, it was left scrambling to gather affidavits in an attempt to recreate a record for judicial review. Relatedly, the parties did not request a reasoned award, and as a result it did not receive one. These two factors, working in tandem, provided a very limited basis upon which the Court could review the arbitration award. As a result, it is little wonder that the Court affirmed confirmation of the award.
Consistent with several of the arbitration decisions have been coming out of the Circuit recently, this decision highlights some best practices that could be taken but were not. If a party desires to preserve its ability to challenge an arbitration award, it is incumbent upon the party to ensure that an accurate record is established. With no transcript and no reasoned award, it is difficult for a court to second-guess an arbitration decision, particularly in light of the high standard.
Arbitration seems to be at the forefront at the Sixth Circuit’s docket right now, as numerous published opinions have been issued recently on various facets of the arbitration process. Yesterday, the Court handed down an interesting decision in Savers Property and Casualty Insurance Company v. National Union Fire Insurance Company of Pittsburgh, PA . The case has a complicated procedural backdrop, but the gist of the issue was whether a party to an arbitration agreement that was in the middle of an arbitration could effectively seek interlocutory judicial review during ongoing arbitration proceedings. The complaining party alleged that after the arbitration panel issued an interim final reward, and turned it sights to damages, situations arose that suggested the possibility of partiality of one of the arbitrators. After having its applications denied by the arbitration panel, the party turned to state court, and after removal, found a willing audience with the district court.
Although the district court acknowledged that courts are generally prohibited from reviewing arbitration proceedings until a final reward has been issued, it nevertheless intervened based on the threat of irreparable harm and the prospect for success on the merits under the traditional injunction test. The Sixth Circuit, however, reversed, explaining, “Our court and several of our sister circuits have interpreted . . . the overall structure of the FAA to preclude the interlocutory review of arbitration proceedings and decisions.” The Court pointed both to the text of the FAA, which did not permit this type of interlocutory review, as well as to policy considerations, explaining that allowing interim review by the courts would effectively eradicate many of the benefits of arbitration.
The district court also relied on Section 2 of the FAA to support its authority to issue an injunction, and even though the appellee did not defend this basis of the ruling, the Sixth Circuit addressed this portion of the decision in order “to resolve any ambiguity over the type of judicial review that 9 U.S.C. § 2 does and does not permit.” The Court emphatically held that Section 2 does not permit interlocutory review of arbitration proceedings. Thus, the Court explained, “nothing in the text of the FAA suggests that Section 2 was intended to displace the limitation of judicial review in contained in Section 10 of the FAA.” In other words, it refused endorse a theory that would allow Section 2 to prevent a new means for review of arbitration decisions.
Against a recent spate of proarbitration decisions reported on here, here and here, the Sixth Circuit has now bucked that trend, refusing to apply retroactively an agreement to arbitrate to bar pending claims where the language used in the arbitration agreement indicates an intent to “head off future lawsuits, not to cut off existing ones.” In Russell v. Citigroup, Inc., Russell had filed a class action against his employer Citigroup at a time when his arbitration agreement with the company did not reach class claims. He was rehired at a time later when Citigroup had updated its standard arbitration contract to cover class claims. Notably, Russell did not consult with his lawyers before signing the new contract and the outside law firm directly representing Citigroup in the pending case did not know that Russell had reapplied to work at Citigroup.
Citigroup sought to compel Russell to arbitrate the pending class action, but the district court concluded that the new arbitration agreement did not cover lawsuits commenced before the agreement was signed. The Sixth Circuit agreed, focusing on the use of the present tense “arise” to describe the disputes covered in the agreement, rather than the past tense “arose” or present-perfect “have arisen.” Also the preamble to the agreement was similarly forward-looking, referring to disputes that “may arise.” Facing this plain language, the Federal Arbitration Act’s directive to resolve “any doubts concerning the scope of arbitrable issues…in favor of arbitration” was not enough to require arbitration.
The Sixth Circuit’s decision in Owner Operator Independent Drivers Assoc. v. Comerica Bank, presents interesting issues about the need for cross appeals and the mandate rule. In a prior appeal, the district court found that the defendant was liable for $5.5 million in damages on one theory, but entered judgment for the defendant on another theory. The plaintiffs successfully appealed, but the defendant did not file a cross appeal challenging the amount of the damages. The Sixth Circuit’s opinion “tacitly” accepted the amount of $5.5 million to be correct. The opinion identified the a statute of limitations issue as needing resolution and then remanded “for further proceedings consistent with this opinion.” After the district court found for the plaintiffs, the defendants appealed.
Sitting by designation, Judge Gwin wrote the majority opinion affirming on most of the district court’s decisions, though he wrote a dissent on the waiver and mandate issues. He believed that the prior opinion gave a limited remand that only allowed the lower court to address the statute of limitations issue. He also argued that the defendant waived the damages issue when it did not file a cross appeal or challenge the damages calculation in its brief, when that issue had already been decided by the district court. However, a concurrence by Judges Moore and Cook contained the majority’s opinion on waiver. Interpreting Supreme Court cases on Article III, they held that the defendant did not need to cross appeal because it had won complete relief in the district court—and therefore there was no waiver. They also explained that a limited mandate should “explicitly outline” the issues that the district court should address and emphasized that the language creating this limited mandate should be “unmistakable.”
Although unpublished, this opinion could be a significant case in the Sixth Circuit on when a successful defendant should file a cross appeal, and further strengthens the Court’s longstanding reluctance to find that a prior panel meant to limit the remand without an explicit statement it was doing so.
Solicitor General Donald B. Verrilli, Jr. will be the keynote speaker at the Sixth Circuit Practice Institute, which will be held on May 6th in Cincinnati. The Sixth Circuit Practice Institute is sponsored by the Cincinnati/Northern Kentucky and Dayton Chapters of the Federal Bar Association, in connection with the Litigation Section of the Federal Bar Association. Typically, this event is held once every four or five years, and the significance of it is perhaps greater this year given the cancellation of the open Sixth Circuit Judicial Conference. If you are interested in learning more about the Practice Institute or registering, please click here. As in years past, there will be a number of panels of judges addressing various topics, including error preservation, brief writing, and oral argument. There will also be panels on the technological changes impacting appellate practice, and we will be fortunate to have speakers on criminal appellate practice, the practice of the state solicitors general, as well as representatives of the clerk’s office and the mediator’s office providing valuable insights. This program will be very beneficial to the novice appellate attorney and the seasoned veteran alike. Moreover, as an added bonus this year, attorneys who are not yet admitted to practice at the Sixth Circuit can be sworn in by Chief Judge Batchelder at the conclusion of the program. We certainly hope that you will join us at this great event!
As you know from our recent coverage, Judge Bernard A. Friedman of the Eastern District of Michigan entered an order late in the day on Friday, March 21, 2014 striking down Michigan’s ban on same-sex marriage as violating the Equal Protection Clause of the Fourteenth Amendment. See Judgment, DeBoer, et al. v. Snyder, et al., Case No. 12-cv-10285 (E.D. Mich.). By the evening of March 21, Michigan’s Governor and Attorney General already had filed an emergency motion with the Sixth Circuit asking the Court, pursuant to Rule 8 of the Federal Rules of Appellate Procedure, to stay Judge Friedman’s opinion and order pending appeal to the Sixth Circuit. See Emergency Motion (PDF).
It did not take the Sixth Circuit long to act on the emergency motion. By Saturday, the Sixth Circuit had entered an order temporarily staying Judge Friedman’s order. See Order, DeBoer, et al. v. Snyder, et al., Case No. 14-1341 (6th Cir.). The Sixth Circuit later extended the stay of Judge Friedman’s order until final disposition of Michigan’s appeal. See Order, DeBoer, et al. v. Snyder, et al., Case No. 14-1341 (6th Cir.). That means that gay marriages will not go forward in Michigan for at least the near future while the Sixth Circuit considers the parties’ legal arguments.
Only one problem. Before the Sixth Circuit could issue its Saturday order staying Judge Friedman’s ruling from the prior afternoon, 321 same-sex marriage licenses were issued in four Michigan counties, and approximately 300 same-sex marriages were performed. Michigan Governor Rick Snyder has issued a formal statement saying that the rights tied to these 300 same-sex marriages will be suspended until either the Sixth Circuit’s stay is lifted or until Judge Friedman’s decision is upheld on appeal. U.S. Attorney General Eric Holder, however, has stated that the Michigan marriages would be recognized and all relevant federal benefits would be extended.
The speed at which this case has moved illustrates practical problems attendant with stay practice at the appellate level. Even though the Sixth Circuit acted expeditiously (even on a weekend), the gap between the district court ruling and the stay creates uncertainty for a number of people. It will remain to be seen (with the duel state/federal battles potentially impacting these individuals) how or whether the Sixth Circuit’s ultimate ruling will address these affected individuals.