When a president serves two terms (as the last three have), they can have a significant impact of the face of the federal judiciary. An analysis by the New York Times focuses on President Obama’s federal appellate legacy. Interestingly, in looking at all of the circuits, only four (out of 13, including the Federal Circuit) now have majorities of active judges who were appointed by Republican presidents – and one of those is the Sixth Circuit. President Obama has only had the opportunity to make two appointments to the Sixth Circuit (Judges Stranch and Donald), although there is currently an open seat for Kentucky based on Judge Martin’s retirement. Only the Fifth Circuit, with two vacancies, has more than one vacancy right now – most are at zero or one. We will continue to monitor any developments related to the potential Kentucky nomination.
Judge R. Guy Cole, Jr. became the Chief Judge of the Sixth Circuit on August 15. Prior to his nomination to the Sixth Circuit, Chief Judge Cole had a diverse range of experience, including both public service and private practice: a litigator at the United States Department of Justice, a law firm partner, and a bankruptcy judge. For years, Chief Judge Cole, whose chambers are in Columbus, Ohio, has also taught courses on habeas and the fourteenth amendment at the Ohio State University’s Moritz College of Law.
The role of Chief Judge typically means increased administrative responsibilities in exchange for a reduced case load. Not only will Chief Judge Cole will be the second chief judge in a row from Ohio, he will be the second chief judge in a row to have previously served as a bankruptcy judge, a role which also required managing a very complex docket system requiring quick decisions on major issues. We look forward to seeing what changes Chief Judge Cole implements during his tenure.
In Burgett v. Troy-Bilt, LLC, the Sixth Circuit affirmed summary judgment on behalf of the defendant in a products liability case after the district court struck the plaintiff’s expert under Daubert. The key question in this case was the appropriateness of the expert’s qualifications. The plaintiff’s expert had sought to opine on electrical issues, biomechanical issues, and human factors. On the latter two points, the expert admitted that he was not an expert by educational training, and therefore the Sixth Circuit had little trouble upholding the district court’s decision to exclude his testimony in these areas. On the electrical issues question, it was “a much closer call.” On the one hand, the Court emphasized the limited training by the expert on electrical issues and how remote it was, but on the other, it acknowledged that plaintiffs “only needed a witness who met the ‘minimal qualifications’ requirement – not one who could teach a graduate seminar on the subject.” In this dispute over the malfunctioning of a lawn mower, the Court suggested that a lawn mower repairman would likely have been able to opine on the manufacturing defect but struggled to decide whether this forensic engineer and accident reconstructionist could pass Daubert muster. At the end of the day, the Court punted on the question because it found that summary judgment was proper even if the expert’s testimony was considered.
The decision prompted an interesting concurrence from Judge Stranch, who wrote separately to address “the apparent confusion here and in a number of cases regarding the admissibility of expert testimony. This recurring issue arises at the intersection of the expert requirements of qualification, relevance, and reliability and the nature of our adversary system.” Building on the struggles in the majority opinion, Judge Stranch would have found the expert qualified to testify on the electrical issues because the qualification inquiry does not ask whether the expert was the best expert, but simply whether the expert possesses minimal qualifications. Assuming appropriate qualifications, the proposed expert must still offer testimony that is reliable and relevant. Judge Stranch emphasized that the qualifications of the expert should not be confused with the reliability of the proposed testimony.
As the Court is taking a closer look at Daubert and related issues over the last several years, it is difficult to say that the Court’s jurisprudence has progressed in a linear fashion. Part of this is because of the abuse of discretion standard and the fact that some of the opinions are reviewing decisions to admit expert testimony where as others are dealing with exclusions. Judge Stranch aptly notes confusion surrounding some of these issues, it remains to be seen how that confusion will be alleviated. One possibility would be that the Court could take a significant Daubert decision en banc, but the difficulty often is finding one that would be useful for broad pronouncements rather than heavily fact-dependent. In the meantime, however, we will continue to monitor how the Sixth Circuit’s Daubert decisions evolve.
Yesterday, the Sixth Circuit issued an order in EEOC v. Ford Motor Company granting rehearing en banc in the case and vacating the panel decision. As we previously explained, the divided panel decision carried significant repercussions for employers, and attracted significant attention across the country. The en banc review signals that the Court may change course on this issue, and it will likely be argued at the Court’s traditional December en banc hearing. Another interesting side note is that Judge McKeague dissented from the panel result, and as we noted at the last en banc hearing , Judge McKeague dissented in the last two cases that the Sixth Circuit heard en banc.
Yesterday, the Sixth Circuit tried to bring some clarity to the role of res judicata in arbitration proceedings. W. J. O’Neil Company v. Shepley, Bullfinch, Richardson & Abbott, Inc. In a construction project gone awry, the W.J. O’Neil Company sued its construction manager in state court but the parties ended up in arbitration. The two defendants in this case did not have a direct contract with O’Neil but also ended up in the arbitration on indemnity claims. In the arbitration, however, O’Neil did not assert claims against the defendants in this action, and it ultimately prevailed in the case against the construction manager. After the arbitration, O’Neil set its sights on the defendants. Although the district court dismissed the case based on res judicata, the Sixth Circuit, in a divided decision, reversed.
The Court began by wrestling with whether Michigan or federal law governed the res judicata analysis, acknowledging, “the issue is underdeveloped and murky when it involves an unreviewed arbitration award.” In the end, the Sixth Circuit elected not to resolve the thorny choice of law question based on general agreement between the parties that federal and Michigan law were largely uniform.
The Court then explained that it was aware of no circuit that had held that an unreviewed arbitration award bars later litigation of a claim not subject to the arbitration. Because the arbitrator’s authority derives from the contract, “it makes little sense to allow an arbitration proceeding or award to preclude a claim the arbitrator had no authority to decide.” As a result, the Court concluded that “res judicata yields where the claims sought to be precluded were not subject to the arbitration.” The majority then turned to an analysis of the contractual relationship between the parties and found the lack of the contract between O’Neil and the defendants significant to its determination that any claims between those parties were non-arbitrable. It reached its finding notwithstanding the fact that all of the parties were involved in the previous arbitration; according to the majority, simply because the parties were all there that did not compel O’Neil to raise claims against the defendants.
Judge McKeague dissented, emphasizing some of the practical realities of the problem created by O’Neil’s failure to bring claims in the arbitration. He emphasized the length and complexity of the hearings and that O’Neil and the defendants were actively hostile to each other in the arbitration. He also would have found a contractual basis for the arbitration because the contract between O’Neil and the arbitration defendant had a “flow-through” provision that operated to bind the present defendants.
As this case illustrates, arbitration preclusion rules are not always a portrait of clarity. This opinion has significance because of its efforts to clarify some of these issues within the Circuit. It also provides a good road map for parties arbitrating claims and evaluating potential res judicata implications.
This week, the Sixth Circuit issued a pair of significant criminal decisions. In the first, U.S. v. Mateen , the Court issued its en banc decision in this criminal sentencing case concerning offenses against a minor. We initially reported on the en banc hearing here. The en banc decision was unanimous (with Judge Clay concurring) and per curiam (an unusual disposition for an en banc decision). What was also interesting about the result was that the Court was unanimous notwithstanding the fact that the panel result was divided. That means that all of the judges were able to coalesce around the result in this case notwithstanding previous differences of opinion. The en banc Court vacated the judgment and remanded to the district court for resentencing, after a disposition on the grammatical “rule of the last antecedent.”
The case that may attract more attention, however, is the Court’s opinion from yesterday in U.S. v. Miller , more commonly known as the Amish haircutting case. The case involved assaults in certain Amish communities that were ultimately prosecuted as hate crimes. After several individuals were convicted, they appealed, and the Sixth Circuit, in a divided opinion, reversed. There is a very interesting Commerce Clause issue posed by this case, but the majority ended up not addressing it based on its reversal premised on the jury instructions. The Court found that an intervening U.S. Supreme Court decision, Burrage v. U.S., 134 S. Ct. 881 (2014), rendered the instructions given by the district court erroneous. In light of the Supreme Court’s decision, the victim’s protected characteristic must be a but-for cause behind the defendants’ decision to act. While the government sought to salvage the trial result based on harmless error, the majority was not persuaded. Acknowledging that some religious discord undoubtedly influenced the assaults, the Court nevertheless explained “untangling the role of religion, family, personality and other issues in the assaults was the point of the trial.” Judge Sargus (sitting by designation from the Southern District of Ohio) dissented, criticizing the majority’s interpretation of the statute. This case received national attention, and it is now headed back for another trial. Stay tuned.
If you ever have become confused regarding the timing and procedures related to notices of appeal, you are in good company. Last week, the Sixth Circuit freely acknowledged that a motions panel of the Court reached a decision on this issue that is directly at odds with binding Circuit precedent. Wallace v. Fedex Corporation. Notwithstanding this blatant error, the Court could find no way to remedy the error at this point. Confused? Let’s try to explain it.
The underlying case involves a fairly unremarkable FMLA claim that ended up prompting several years of litigation. Ultimately, the individual plaintiff prevailed in part after trial and received a judgment of $173,000 (later remitted to $90,000). After trial, both sides filed competing motions for new trial, with FedEx also moving for judgment of the matter of law. The trial court initially denied the plaintiff’s Rule 59 motion in December 2010, but did not rule on FedEx’s motion until March 2011. The plaintiff filed her notice of appeal in April 2011, seeking to challenge not only aspects of the ruling related to FedEx, but also the earlier rulings in December 2010 and earlier. However, the Sixth Circuit clerk’s office issued a show cause order as to why the appeal for the decisions in 2010 should not be dismissed. The plaintiff, who was pro se at the time, did not offer much of an explanation, and accordingly a motions panel dismissed her appeal in part, reasoning that because FedEx’s post-judgment motion was not timely filed (there was an extension granted), that motion did not stay the clock for the notice of appeal. This decision, however, according to this panel, “directly conflict with a prior published decision of this Court.” That prior decision, National Ecological Foundation v. Alexander, 496 F3d 466 (6th Cir. 2007), “is directly on point, and it is the law of the Circuit, meaning that it binds all subsequent panels.” But what to do given the motions panel prior contrary ruling? The Court acknowledged that motions panel determinations are not “strictly binding upon subsequent panels” because they are generally interlocutory in nature. However, later panels cannot simply disregard motion panel decisions: “If a litigant wishes to challenge a motion panel’s decision on a dispositive motion, the proper course of action is to request panel rehearing or rehearing en banc.” Wading through the procedural morass here, the Court held “unfortunately for Wallace, however, the motion panel’s clear error is not – in and of itself – enough to warrant us reopening her appeal three years later.” Although this ruling “appears harsh” the Court found that the plaintiff did not adequately contest the show cause order (even though she was pro se at the time), never sought rehearing, and the procedural quagmire was not of FedEx’s making. As a result, the Court felt itself unable to “revisit the motions panel’s erroneous three year old decision.”
This case really illustrates some of the difficulties incumbent in applying the timing rules in connection with notices of appeal. The root of the problem in this case appeared to be at the extension of time of the Rule 50/59 motion that FedEx received (making its eventual motion untimely). While that issue addresses part of the problem, another problematic development was the district court’s failure to resolve all of the post-judgment motions at the same time, which certainly can create litigant confusion. If there is a lesson to take away from this particular case, it is to reinforce the basic notion that one should always be extra conservative in calculating deadlines for notices of appeal!
Although judges typically admonish lawyers to be succinct, I suspect there are few of us out there who would say that they’ve never had a problem fitting a federal appellate brief within the 14,000 word limit. That may soon become an even bigger challenge, as the rules committee is currently contemplating cutting the word limit from 14,000 words to 12,500 words. How Appealing contains this report on the contemplated rule change, and the actual commentary regarding the rule change is available here. With the 14,000 word limit, you can usually prepare a brief of about 62 pages. Scaling that back to 12,500 words would translate into roughly a 55 page brief. This change, if it is adopted, could have dramatic consequences at the Sixth Circuit, which is notoriously stingy in granting requests for expanded briefing. In fact, there is effectively an unwritten rule at the circuit that the Court will never grant parties the right to exceed the 14,000 word limit. Other circuits are slightly more flexible than that (although, be careful what you ask for, reading an 80-90 page brief can be a challenge). So the question that would remain to be seen is whether the Sixth Circuit would start being more flexible in terms of granting expansions of the page limit if the rules cut the length back to 12,500. I suspect the answer is probably no, and the rule change accordingly force counsel to make the extra effort to streamline their briefs and cut out extraneous details. In the majority of cases, this is probably fine, but some complex cases or a record-intensive cases would certainly be a challenge to cram into 12,500 words. For all who are interested in this rule change, comments are being accepted through February 2015, and you should certainly let your voice be heard.
Law360 recently published an interesting profile of Judge Danny Boggs, available here (subscription required). Although the article emphasizes the infamous “quiz” that Judge Boggs gives prospective law clerk candidates, it also contains a nice biographical sketch as well. It is certainly worth a read, particularly for any trivia buffs out there.
In National Mining Association v. Secretary of Labor , the Sixth Circuit evaluated consolidated challenges to the promulgation of a new pattern of violations regulation by the Mine Safety and Health Administration and the Secretary of Labor. However, the Court never reached the merits of the challenge because it concluded that it lacked subject matter jurisdiction. The Mine Act sets forth a somewhat complicated scheme for judicial review of various regulations. This confusion prompted different results between DC federal courts and the Sixth Circuit on the question of jurisdiction.
According to the Sixth Circuit, the Mine Act vests jurisdiction in the federal appellate courts in only two situations: (1) a party cited for violation of the Mine Act may challenge the citation before the agency and then seek judicial review in the appropriate United States Court of Appeals; and (2) any person adversely affected by a mandatory health or safety standard may likewise challenge the standard in the appropriate federal appellate court. The petitioners, relying on authority from a DC district court (as amplified by subsequent cases following it) argued that the federal appellate courts may review all substantive rule making pursuant to the Mine Act. In reviewing this authority, the Sixth Circuit essentially concluded that those courts did not fairly address the question of broader appellate jurisdiction or did so in relatively loose dicta. Because the regulation at issue was not a mandatory health or safety standard, the Sixth Circuit accordingly concluded that it lacked jurisdiction.
In light of that finding, it begs the question of whether a federal district court would have jurisdiction. The Secretary took the position that the federal district court may not have jurisdiction, but the petitioners requested, in the alternative, transfer of the case to an appropriate federal district court under 28 U.S.C. § 1631. However, because there was no clarity as to which district court the matter should be transferred to (in addition to the lack of clarity as to whether the federal district court would have jurisdiction at all) the Sixth Circuit declined an invitation to transfer.
This opinion certainly is a cautionary tale about challenges to agency regulations where the path for judicial review is not a portrait of clarity. The Sixth Circuit compared this regime to that under the Occupational Safe and Health Act, and parties seeking judicial review under either act should certainly carefully review both the statutory structure as well as this opinion.