Header graphic for print

6th Circuit Appellate Blog


Justice Kagan Highlights Day 3 of the 2015 Sixth Circuit Judicial Conference

Posted in News and Analysis

Several keynote speakers delighted the audience earlier on Thursday at the 73rd Sixth Circuit Judicial Conference in Detroit.  During lunch, the conference attendees were treated to a whimsical talk by Professor Noah Feldman from Harvard Law School who discussed the battles and triumphs of President Franklin D. Roosevelt’s great Supreme Court Justices.  Professor Feldman explained how the four great justices appointed by FDR, who included Felix Frankfurter, Robert Jackson, Hugo Black, and William O. Douglas, each developed their own unique judicial philosophies that still are reflected on the Court today and that will inform the Court’s upcoming decision on same-sex marriage.  One of Professor Feldman’s most interesting discussions involved his overview of Justice Black, a former Ku Klux Klansman who became an absolutist advocate of civil rights and readily accepted being ostracized in his own community for voting with the Court majority in Brown v. Board of Education in 1954.

marriott picIn an engaging presentation on the enduring legacy of the Voting Rights Act of1965, Bryan Stevenson, the Executive Director of Equal Justice Initiative, explained how the Act led to a political realignment in the United States that opened up new opportunities for minorities.  At the same time, Mr. Stevenson demonstrated how the United States still faces significant challenges in achieving racial equality.  Mr. Stevenson was introduced by Sixth Circuit Judge Bernice Bouie Donald, who played a video of a feature story from ABC News Nightline regarding Mr. Stevenson’s successful effort in securing the release of Anthony Ray Hinton who falsely had been imprisoned in Alabama for 30 years.  Mr. Stevenson’s presentation earned him two standing ovations from the conference attendees.

Finally, at the dinner, Justice Kagan (the Sixth Circuit’s Circuit Justice) sat down for a candid interview with Chief Judge Guy Cole.  This covered a range of topics, including her work on the Court, interpersonal relations with the Justices, and the Court’s role in our system.  It was a fascinating behind-the-scenes look at life on the Supreme Court.

The Sixth Circuit Judicial Conference concludes on Friday morning with a presentation by Erwin Chemerinsky, one of the preeminent scholars in the United States on constitutional law and federal civil procedure.

Highlights from Day Two of the 2015 Sixth Judicial Conference in Detroit, Michigan

Posted in News and Analysis

I arrived in the Motor City early this morning for the 73rd Sixth Circuit Judicial Conference where I’m serving as a delegate for Sixth Circuit Judge Alan E. Norris.  One of the most interesting presentations of the day featured a panel discussion of judges and lawyers who offered their no-holds-barred perspectives and observations about one another.  The panel included Sixth Circuit Judge Jane B. Stranch, Chief District Judge Solomon Oliver, Jr. from the Northern District of Ohio, lawyer Thomas W. Cranmer from Michigan, and our very own Pierre Bergeron, who addressed a packed room of judges and lawyers.  Sixth Circuit Judge Julia Smith Gibbons presided over the panel.

marriott picDuring the presentation, Judge Stranch expressed pride in the fact that the Sixth Circuit remains very liberal in allowing oral argument and giving parties an opportunity to be heard, but at same time she lamented that the Court struggles with managing the workload and issuing opinions promptly (at least when compared to other Circuits that maintain less liberal policies on oral argument).  During his remarks, Judge Oliver touched upon the need for lawyers to properly and accurately cite to the record when addressing the Court.  Indeed, in our prior blog posts, we have stressed the importance of practitioners portraying the factual record accurately and fairly.  Sixth Circuit Rule 28, for example, addresses “references to the record” and states that “[a] brief must direct the court to those parts of the record to which the brief refers.”  Factual statements without record citations are an immediate red flag to the judge and their law clerks, and Judge Oliver’s comments reflected this fact.

During his portion of the presentation, Pierre Bergeron discussed the importance of developing the record at the trial court level to ensure a successful appeal.  This is an often overlooked factor that can shape a party’s prospects on appeal, and it should not be ignored.  Indeed, as Pierre pointed out, sometimes the success of an appeal can be traced to the very beginning of a case and can hinge on the what is—or is not—included in the Complaint.  Pierre’s comments clearly resonated with the audience. 

Pierre also drew audience reaction when he discussed the difficulty that some parties face in getting district courts to rule on their motions.  Sometimes a district court will rule on a summary judgment motion even though the outcome of the motion fairly should be predicated on an earlier discovery dispute (perhaps the admissibility of a key evidence) that never was ruled upon.  This creates issues on appeal.  On this point, Thomas Cranmer stressed the need for parties to work out discovery issues on their own, whenever possible.

Another highlight of the day was the lunchtime presentation by Thomas Ginsburg, the Deputy Dean of the University of Chicago College of Law, who delivered a highly engaging presentation on the enduring influence of Magna Carta on contemporary constitutions around the world.  The year 2015 marks the 800th anniversary of the sealing of Magna Carta, and a wide range of events and activities have been planned around the world to celebrate Magna Carta’s central place in English history and its impact around the world.

A full day of presentations is scheduled for Thursday’s session at the Sixth Circuit Judicial Conference, culminating in an evening banquet where the guest speaker will be U.S. Supreme Court Justice Elena Kagan.


New Working Paper Examines Staff Management by Federal Appellate Judges

Posted in News and Analysis

Last month, Prof. G. Mitu Gulati of the Duke School of Law and Judge Richard A. Posner of the Seventh Circuit Court of Appeals released paper No. 531 in the Chicago Public Law and Legal Theory Working Paper Series, The Management of Staff by Federal Court of Appeals Judges. In this essay, the authors examined exactly what the title says: how federal appellate court judges manage, utilize, and interact with their staffs. As the authors state, appellate “staffs are essential, given judicial workloads and judges’ limitations,” but unfortunately, “not much is known about how the judges manage their staffs,” and so Gulati and Posner aimed to fill this knowledge gap by a series of personal (but anonymously reported) interviews with over 70 federal appellate judges.

Gulati and Posner reduced their interview results to three “styles” of staff management among federal appellate judges: Editing Judge (the “Standard Model”), Authoring Judge (the “Stripped-Down Model”), and Delegating Judge (the “Hierarchical Model”), while also accounting for popular deviations among judges. Under the Editing Judge/”Standard Model”—the most widespread among the federal appellate judges interviewed—the judge hires four fresh law clerks each year to assist with cases that will result in written opinions, prepare and exchange bench memo and opinion drafts, and maintain egalitarian collegiality even after finishing their clerkship. The authors mention Judge Friendly as an example of the Authoring Judge, under which model the judge generally writes the opinions and uses clerks as research aides in an informal and collegial atmosphere. According to Gulati and Posner, the Delegating Judge often employs a “career clerk” to help manage and coordinate the more junior clerks, who work quite closely with both the career clerk and the judge himself, and the judge maintains a more formal atmosphere with a stricter code of secrecy.

The authors also noted several interesting deviations from the three models they described, including tactics for interviewing and selecting clerks, the use of secretaries as workflow managers, and the prevalence of judges’ use of a “family atmosphere” to describe their staffs, and proposed several new avenues for research by academics or the Federal Judicial Conference. In all, Gulati and Posner provide a comprehensive understanding of staff management practices across the federal circuits in an insightful Working Paper.

Sixth Circuit Judicial Conference Begins Today

Posted in News and Analysis

This morning saw the opening of the 2015 Sixth Circuit Judicial Conference in the Detroit Marriott at the Renaissance Center. Today is mostly sessions for judges and administrators, though there will be a general reception tonight. Sessions Wednesday and Thursday are open to everyone, running the gamut from the Magna Carta to social media and cyber security. Our own Pierre Bergeron will be speaking on a panel tomorrow morning. The agenda is available here, and Chief Judge Cole’s annual report is available here.

The Sixth Circuit and Pro Se Appellants in FY 2014

Posted in News and Analysis

Just over half—51%—of appeals nationwide are commenced by pro se appellants, and last year, we endeavored to see how these pro se appellants fared in the Sixth Circuit. This year’s official federal court statistics give further insight into the Circuit’s overall pro se caseload.

The Sixth Circuit slightly outpaced the national trend with a pro se caseload of 54.4% Thus, although the Sixth Circuit ranked sixth last fiscal year in terms of appeals commenced, it ranked fifth for number of pro se appeals. Nationwide, pro se appeals were down 2.6% from FY 2013 to FY 2014, the same percentage decrease as overall federal caseload, and the Sixth Circuit followed this trend, as we have previously reported it tends to do. Indeed, the number of pro se appeals commenced in the Sixth Circuit decreased year-over-year by just over 100. However, as a percentage of the Circuit’s caseload, pro se appeals increased, from 52% in FY 2013 to this year’s 54.4%.

Private civil and prisoner petitions by far make up the largest part of the Sixth Circuit’s caseload (48% combined), but private prisoner petitions are a distant first among pro se appeals, at 36.6%. Although it is likely not surprising that prisoner petitions make up over a third of pro se appeals in the Sixth Circuit, it is worth noting that this fraction of the Circuit’s pro se caseload is second only to the Fifth Circuit, for whom prisoner petitions make up 37.6% of pro se appeals.

Sixth Circuit Orders Lawyer To Show Cause Why He Should Not Be Sanctioned For Filing A Frivolous Appeal

Posted in Recent Cases

Last Friday, the Sixth Circuit affirmed a district court decision ordering Terry Jacobs, a former employee of Cincinnati-based Lambda Research, and his attorney to pay Lambda’s attorney’s fees for filing a frivolous lawsuit.  See United States of America, ex rel. Terry Jadcobs v. Lambda Research, Inc. (6th CIr. Case No. 14-3705) (PDF).  Although the loss on appeal already was a bad outcome for Jacobs’s attorney, the Sixth Circuit went further.  It invoked its authority under 28 U.S.C. § 1927 and Rule 38 of the Federal Rules of Appellate Procedure and ordered Jacobs’s attorney to show cause why he should not be sanctioned for filing a frivolous appeal.

Terry Jacobs had worked at Lambda from 2000 to 2002 before leaving to become vice president of Ecoroll Corporation, a German competitor.  Lambda later sued Jacobs in Ohio state court alleging that Jacobs had misappropriated Lambda’s trade secrets and gave them to Ecoroll.  Following a jury trial, Jacobs was hit with an $8 million judgment in Lambda’s favor, along with an additional $1.4 million in attorney’s fees that he was ordered to pay to Lambda.

Shortly after judgment in the state court action, Jacobs sued Lambda in Ohio federal court under the False Claims Act, 31 U.S.C. § 3730.  Although Jacobs filed the complaint under seal (as required by law), he later told his associates at Ecoroll about the complaint.  At the outset of the case, the district judge repeatedly warned Jacobs’s attorney that he would be sanctioned if the lawsuit turned out to be frivolous.  Jacobs’s attorney, however, assured the district court that the lawsuit was legitimate.  After discovery, Lambda moved for summary judgment and sanctions under 28 U.S.C. § 1927, Rule 11 of the Federal Rules of Civil Procedure, and the False Claims Act.  The district court granted Lambda’s motion, finding that “[t]here is abundant evidence that the claims alleged in this case are frivolous and that Jacobs brought this action . . . as retaliation for Lambda’s successful state court action [and/or] as an attempt to obtain Lambda’s sensitive business information.”

On appeal, the Sixth Circuit agreed that the district court correctly granted summary judgment to Lambda.  The Sixth Circuit further stated that “we are inclined to conclude that this appeal is both baseless and brought primarily for purposes of harassment, and that Jacobs’s attorney . . . should be sanctioned as a result.”  The panel gave Jacobs’s attorney 14 days to respond to its show cause order.

As regular readers of our blog know, the Sixth Circuit in recent years has not hesitated to sanction attorneys for frivolous and unwarranted appeals.   Just last year, we posted an in-depth analysis of recent Sixth Circuit case law on sanctions and passed along the Sixth Circuit’s warning that lawyers risk being sanctioned if they act “ostrich-like” by “prosecuting a case while refusing to recognize the relevant legal standard or counter the opposing party’s factual arguments.”  Kempter v. Michigan Bell Telephone Co., 2130 FED App. 0786N (6th Cir. 2013).  The Jacobs opinion is the latest stark reminder to appellate attorneys that pursuing a frivolous and unwarranted appeal can easily draw the ire of the judges.

Sixth Circuit Explains Minimal Cost-Measurement Standards in Antitrust Case

Posted in Recent Cases

Last week, the Sixth Circuit issued an opinion in a lengthy and complex antitrust case about the prices of replacement truck hoods in the American auto parts industry. In Superior Production Partnership v. Gordon Auto Body Parts (“PBSI v. Gordon”), the court affirmed summary judgment in favor of the defendant Gordon based largely on several discovery disputes resolved favorably for Gordon and, in the process, clarified the minimum standard a plaintiff must meet for a claim of below-cost pricing under either the “concerted” or “independent” antitrust provisions of the Sherman Act.

As the court explained, Gordon was one of several Taiwanese manufacturers that dominated the replacement truck hood market for certain models of American trucks prior to the mid-2000s. Gordon and a couple of these other manufacturers engaged in joint ventures in plants and equipment. PBSI, also an auto parts manufacturer, decided to enter the replacement truck hood market in 2006. PBSI then sued Gordon shortly after Gordon and the other manufacturers lowered their prices on hoods about the time PBSI entered the market, claiming that Gordon violated the Sherman Act in attempting to force PBSI out of the market.

In affirming summary judgment in favor of Gordon, the Sixth Circuit first turned to the district court’s resolution of several discovery disputes in the case. PBSI had filed an initial motion to compel discovery in 2008, upon which the district court set up a document sampling procedure for PBSI to obtain discovery from Gordon. In this case, PBSI appealed the court’s denial of its second motion to compel, which, the Sixth Circuit held, was no more than a motion for reconsideration of the first sampling order, and so PBSI’s had waived its right to appeal this denial and had suffered no injustice sufficient to excuse this default. PBSI also sought to overturn the district court’s order denying it price data about other parts (not truck hoods) from Gordon, but the Sixth Circuit found these irrelevant to the disposition of the case and so not warranting remand. Finally, the Sixth Circuit affirmed the district court’s admission of Gordon’s expert report and the denial of PBSI’s expert’s report on the grounds that PBSI’s expert report: (1) would not assist a factfinder in diving Gordon’s intent under the Sherman Act, and (2) relied on a test for predation—the “no economic sense” test—that was “flatly contrary to law.”

In the final pages of the opinion, the court turned to the issue of whether summary judgment for Gordon was proper. The court reasoned that, without its expert’s report, PBSI had “little to support an essential part of its case,” i.e., Gordon’s alleged predatory pricing below average variable cost. Because it was “not helpful to [PBSI] that Gordon’s prices” merely may have had a “‘close proximity’ to average variable cost,” or that Gordon’s price cuts “coincided with competitive entry,” PBSI had failed to meet its burden of production, and so summary judgment for Gordon was proper.

Sixth Circuit Clarifies: Demanding Supervisor Cease Harassment Is Protected Activity

Posted in News and Analysis, Recent Cases

This week, the Sixth Circuit made clear that for purposes of Title VII retaliation cases, an employee’s demand that a supervisor stop his or her harassing conduct is a protected activity. Affirming the findings of several district courts in the circuit, the Sixth Circuit held that an employee need not file a formal complaint with their employer to be protected under Title VII.

In EEOC v. New Breed Logistics, three female former employees sued New Breed when they were fired after complaining about sexual harassment by their supervisor. A fourth former employee, a male who witnessed the harassment, was fired after he spoke with an investigator about the supervisor’s conduct. At the trial level, a jury awarded the four employees $1.5 million in damages.   New Breed, a supply-chain logistics company, appealed the verdict, arguing that the employees had not engaged in protected activity, that the people who decided to fire the plaintiffs were not aware of the protected activity, and that the protected activity was not the actual reason the employees were fired.

According to the Sixth Circuit, the “opposition clause” of Title VII, which prohibits retaliation against an employee who opposes an unlawful practice, requires an “expansive definition.”  “Sexual harassment is without question an ‘unlawful employment practice,’” the court wrote. “If an employee demands that his/her supervisor stop engaging in this unlawful practice . . . the opposition clause’s broad language confers protection to this conduct.” In addition to determining that the employees’ complaints to the harassing supervisor were sufficient, the Sixth Circuit found that one employee was terminated by the harassing supervisor after she complained. The others were terminated by other supervisors acting under the harassing supervisor’s influence.

Employers in the Sixth Circuit should note now that an employee’s complaints to anyone at the company about a supervisor’s harassment could constitute protected activity for the purposes of a Title VII claim. Whether the company knows about the protected activity will require more in-depth analysis in each case, but employees now have a fairly low bar to proving they engaged in protected activity.

Sixth Circuit Vacates Decision Sustaining 2Am Challenge To Gun Ban For Previously Involuntarily Committed, Will Rehear En Banc

Posted in En Banc Watch, News and Analysis, Recent Cases

The Sixth Circuit has voted to rehear en banc its recent decision in Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, in which it became the first court of appeals to sustain a Second Amendment challenge to a federal firearms regulation since Heller was decided.  The parties have been directed to file supplemental briefs.

Our analysis of the original decision is here, and some discussion of potential implications is here.

Ohio State Law Journal releases first-ever issue of Sixth Circuit Review

Posted in News and Analysis

With its first issue published yesterday, the Ohio State Law Journal’s new Sixth Circuit Review  is meant to be a “digital public square” for discussion of Sixth Circuit cases and longer-term circuit trends.  The new online-only publication invites all—whether practitioners, academics, judges or students—to contribute articles that are both practical and scholarly, as well as to respond to articles previously published in the SCR.  SCR articles, like those of the Journal’s online supplement, Furthermore, are shorter and less footnoted than traditional law review pieces. 

Chief Judge R. Guy Cole, Jr., together with former clerk Noah Litton, provided the Foreword to the SCR’s first issue, emphasizing the importance of “frank and ongoing dialogue” and encouraging “court watchers” to participate by promising that “the judges of our circuit and their law clerks will surely read in earnest whatever you write.”  The remaining articles—including three from Sixth Circuit Appellate Blog contributors—covered a diverse range of topics: ethics and professionalism, pro se appeals, application of Circuit Rule 32.1 by district courts, critiques of whistleblower protections, summary dispositions, First Amendment balancing, and scienter pleading standards in securities fraud litigation.

As avid Sixth Circuit “court-watchers,” we applaud the Ohio State Law Journal’s decision to provide this forum for Sixth-Circuit-specific discussion and look forward to both reading and contributing to future issues.