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6th Circuit Appellate Blog


Are You Free To Eavesdrop on Pocket Dials?

Posted in Recent Cases

Most people have experienced a “pocket dial” – be it as the sender or receiver – and some have found themselves in embarrassing situations as a consequence.  But should people reasonably expect that conversations overhead during a “pocket dial” call are private and protected? Should the recipient feel obligated to end the call?  The Sixth Circuit says no.

Yesterday, the Sixth Circuit decided whether a reasonable expectation of privacy exists with respect to “pocket dialed” communications.  Carol Spaw, assistant to the CEO of Cincinnati/Northern Kentucky International Airport, received a call from James Huff, chairman of the airport board.  It didn’t take long for Spaw to figure out that she had received a pocket dial, and that the conversation in the background was not intended for her ears.  Spaw stayed on the line for an hour and a half – taking notes and recording the audio as Huff discussed private business matters with another board member, and later with his wife. Spaw sent the recording to a third party company to enhance the quality, and shared the recording with other board members. Huff and his wife sued Spaw for intentionally intercepting their private conversation in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968. The district court granted summary judgement in favor of Spaw, finding no “reasonable expectation” that the conversation would not be heard.  On appeal, the Sixth Circuit affirmed in part, reversed in part, and remanded.

Title III only protects communication when the expectation of privacy is subjectively and objectively reasonable.  The Sixth Circuit agreed with the district court that James Huff did not have a reasonable expectation that his conversation was private. Although Mr. Huff did not deliberately dial the call, he knew that “pocket dials” were possible, and did not take any precautions to prevent them.  The court analogized Huff’s situation to a homeowner who neglects to cover his windows with drapes; under the plain view doctrine, the homeowner has no expectation of privacy in his home when the windows are uncovered. Huff could have easily utilized protective settings on his phone to prevent pocket dials.

The Sixth Circuit reversed with respect to Bertha Huff’s claim.  Bertha Huff was communicating with her husband in the privacy of a hotel room. She had a reasonable expectation of privacy in that context, and she was not responsible for her husband’s pocket dial. The Sixth Circuit feared that affirming the district court’s decision with respect to Bertha’s claim would undermine what we currently consider a reasonable expectation of privacy in face-to-face conversations. The court remanded the case back to the district court to decide whether Spaw’s actions made her liable for “intentionally” intercepting oral communications.

The Sixth Circuit’s decision leaves us with this: if you receive a pocket-dialed call, feel free to listen, record, and share (but be wary of the privacy interest of the other participants in the conversation); if you are a pocket dialer, lock your phone.

Circuit Court Warns: Don’t Raise Too Many Issues on Appeal

Posted in News and Analysis, Recent Cases

It’s the appellate lawyer’s eternal challenge:  How many issues to raise on appeal?  Several years ago, Judge Kethledge offered a not-so-gentle reminder to lawyers in the Sixth Circuit about the importance of limiting issues on appeal when he opened an opinion with the following sentence: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.”

Earlier this month, the Sixth Circuit’s sister circuit in Pierce v. Visteon Corp., 7th Cir. Case No. 14-2542, gave us another reminder about the importance of limiting issues on appeal when it criticized a plaintiffs’ lawyer for presenting 13 separate issues for decision on appeal in a certified class action.  The case involved Visteon Corporation’s alleged failure to give notice of continued health insurance coverage to former employees under the Consolidated Omnibus Budget Reconciliation Act of 1985.  Judge Easterbrook, writing for the Court, summarized the appeal as really involving just three issues:  “the penalties are too low, the class too small, and the attorneys’ fees too modest.”  The Seventh Circuit viewed the 13 issues raised on appeal as “violating the principle that appellate counsel must concentrate attention on the best issues.”  The Court noted parenthetically that “[t]o brief more than three or four issues not only diverts the judges’ attention but also means that none of the issues will be addressed in the necessary depth; an appellate brief covering 13 issues can spend only a few pages on each.”

The Seventh Circuit’s view on issue-raising is in accord with the prevailing view among the appellate bar.  Indeed, as Judge Ruggerio Aldisert writes in his excellent book, Winning on Appeal: Better Briefs & Oral Argument (a must read for all appellate lawyers): “The most important decision you make in writing a brief is to limit the issues to about three, no more.”  Winning on Appeal 129 (2d ed. 2003).

Of course, as seasoned appellate practitioners know, this is only the general rule.  Sometimes it may be necessary to raise multiple issues on appeal, especially in criminal cases.  Several years ago, my colleague and I raised 14 different issues in a habeas appeal before the Sixth Circuit.  We did not only because our pro bono client demanded it, but also because it was necessary to establish ineffective assistance of counsel based on cumulative error.  (We were successful in obtaining a remand.)

In Visteon, by contrast, the 13 different issues were viewed as overboard.  The Seventh Circuit also highlighted other shortcomings by plaintiffs’ counsel.  First, plaintiffs’ counsel ignored an express request by the Court at oral argument for supplemental briefing to address an issue raised under the federal civil rules.  Second, plaintiffs’ counsel took positions on appeal that threatened to undermine the clients’ interests.  Indeed, the lead argument in counsel’s brief urged the Court to remand because some of counsel’s clients “will get too much money!”  (Italics and exclamation mark in original).  As the Court commented, “it is unfathomable that the class’s lawyer would try to sabotage the recovery of some of his own clients.”  Third, and finally, plaintiffs’ counsel’s brief writing was “careless to boot; it conveys the impression of ‘dictated but not read.’”  The Court excerpted two sentences from the brief as an example: “This Court should be entered a high daily statutory penalty in this matter.  Respectfully, the award of the District Court to the contrary law and an abuse of discretion.”

What’s the bottom line takeaway from Visteon?

  •  Be cautious in raising too many issues on appeal.
  •  Proofread your appellate brief.
  •  Make sure to submit a supplemental brief if the Court requests it at oral argument. (And do so timely.)
  •  Proofread your appellate brief again.
  •  Don’t advocate against your client’s position.

Solid advice for lawyers practicing in the Sixth Circuit.

Bankruptcy Mischief: Fraudulent Concealment and Bad Faith Do Not Matter When It Comes To Disallowing Bankruptcy Code Exemptions

Posted in News and Analysis, Recent Cases, Uncategorized

Desperate times call for desperate measures.  It is not surprising then that a less than scrupulous debtor might be less than candid when disclosing assets and liabilities to a bankruptcy court.  But what happens if an individual debtor is discovered to have concealed assets – possibly fraudulently or in bad faith – and then seeks to exercise his or her statutory right under the Bankruptcy Code to exempt all or a portion of the discovered assets from being available to satisfy creditors?  Can a bankruptcy court in that circumstance look to the bad acts of the debtor as a basis to take away the otherwise legitimate right to exempt property in a bankruptcy case?  In the Sixth Circuit, the answer is no.

On July 2, the Sixth Circuit issued its opinion in Ellmann v. Baker, Case No. 14-2149, in which a chapter 7 trustee sought to re-open a bankruptcy case after discovering that the debtors failed to disclose their interest in litigation involving their former residence.  Once the case was re-opened, the debtors amended their schedules of assets and liabilities to include their interest in the former residence and related litigation as exempt property under section 522 of the Bankruptcy Code unavailable for distribution to creditors.  The trustee objected to the amendments arguing that the debtors should not be permitted to exempt the property given their failure to previously disclose their interest in the property during the bankruptcy, which the trustee characterized as fraudulent or otherwise a result of bad faith.  The bankruptcy and district courts agreed with the trustee.  On appeal, however, the Sixth Circuit reversed the lower courts.

According to the Sixth Circuit, this was really an open and shut issue given the Supreme Court’s decision in Law v. Siegel, 134 S. Ct. 1188 (2014).  In Siegel, the Supreme Court explained in dicta that section 522 was very detailed about when the exemptions can and cannot be invoked, and there is no prohibition against applying exemptions where the debtor has acted fraudulently or in bad faith.  As such, a bankruptcy court does not have the power to deny a claimed exemption under those circumstances.  Although some courts have characterized these statements by the Supreme Court as “mere dictum,” the Sixth Circuit explained that “lower courts are obligated to follow Supreme Court dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statements undermining its rationale.”  The Sixth Circuit in Baker clarified that the Supreme Court’s Siegel opinion effectively overruled a prior Sixth Circuit opinion (Lucius v. McLemore, 741 F.2d 125 (6th Cir. 1984), which came out the other way on this issue.


Needless to say, this opinion is not a license for a debtor to hide assets.  However, there is no longer any question as to a bankruptcy court’s ability to deny exemptions based on fraud or bad faith, at least in the Sixth Circuit.


Per Curiam Opinions in the Sixth Circuit

Posted in News and Analysis, Recent Cases

In a recent post, we noted that per curiam opinions made up 14% of the Sixth Circuit’s opinions over the past five years.  This post analyzes the types of legal issues addressed by those per curiam opinions over the past year.  We would expect that per curiam opinions would be used primarily for run of the mill, uncontroversial cases.  Some law review articles have criticized the Supreme Court for issuing per curiam opinions in precedential cases too often, which, they argue, diminishes accountability.  We were curious to see whether the Sixth Circuit followed the same pattern, and whether other common perceptions about per curiam opinions held true.

Over the past year, the Sixth Circuit has released 188 per curiam opinions. Only 5.8% of those were published.  The publishing rate is much lower for per curiam opinions than signed opinions, of which 21.7% were published over the past year.  This is not surprising, since per curiam opinions are not typically used in precedent-setting cases.  In fact, all of the eleven published per curiam opinions dealt with standard procedural questions.  One case, however, was a little more complicated as it dealt with free speech, campaign buffer zones, and a well-known politician. See Russell v. Lundergan-Grimes, 769 F.3d 919 (6th Cir. 2014). It may be the decision was issued per curiam more because it was issued quickly during an election cycle (a la Bush v. Gore) than whether it involved a novel legal question.

The unpublished per curiam opinions covered a wide range of issues, from the First Amendment to bankruptcy, though a few categories stood out.  Criminal sentencing cases represented the largest category, with over 40% of the total.  After that were immigration cases at 16%, criminal procedure at 13.8%, and civil cases (often dealing with procedural questions) with 13.3%.  These numbers are a significant percentage of the total for some types of cases:  no less than 33% of immigration cases and 29% of all sentencing appeals resulted in per curiam opinions.  On the other side, only 1.6% of decisions mentioning the First Amendment were per curiam.

Defying a common perception, the data also showed that pro se appeals are not more likely to result in an unsigned opinion, as pro se cases made up about 8.5% of both signed and per curiam opinions.  However, per curiam opinions do result in affirmances more frequently than signed opinions.  Only 2.1% of per curiam opinions resulted in reversals, but the Sixth Circuit had a reversal rate of 7.2% for all cases before it in 2014, according to the 2014 Judicial Business Report.

In short, the Sixth Circuit issues per curiam opinions exactly as we would expect: in non-controversial, non-precedential cases.  And immigration and sentencing decision are far more likely to result in a per curiam affirmance than any other type of case.

Are Cases with No Oral Argument More Likely to be Affirmed?

Posted in News and Analysis

Following up on our recent analysis showing that the Sixth Circuit usually takes slightly longer to reverse than affirm, this post examines whether cases with no oral arguments are more likely to be affirmed. We expected that decisions made without oral argument would be affirmed more often because courts presumably grant oral arguments when judges have substantive questions after reading the briefs that might control the disposition of the case (particularly in the Sixth Circuit, which has recently been restricting oral arguments over the past few years).  It is long accepted that oral arguments provide attorneys the opportunity to answer judges’ concerns, clarify their arguments, and provide reasons for the panel to decide in their favor.

We reviewed 203 cases from the first quarter of this year and found that no less than 23% of the civil cases without oral argument were reversed, which was significantly higher than roughly 13% of civil cases that were reversed during 2014.  The difference was much smaller on the criminal side, where 6.5% of criminal cases without oral argument were reversed which was only slightly higher than the general average of 5.8% for 2014.  Surprisingly, these numbers suggest that an appeal is more likely to be reversed where the court does not grant oral argument.  Perhaps there are more cases where a reversible error is clearly apparent on the record than cases where oral argument is helpful to resolve tricky cases of law or fact.  Admittedly, the sample size is relatively small, and this could be an aberrational quarter, but this is a statistic that will require further analysis. And, again, it highlights the critical importance that the brief plays in the overall effectiveness of appellate advocacy.

Either way, this data shows that civil clients on the appellant side should not necessarily take a grant of oral argument as a sign of an impending reversal.  If the easy reversals have already been taken care of before oral argument, as suggested by this data, it may be a sign obtaining a reversal will be doubly difficult.  We will follow up on this issue with the benefit of additional data in future posts.

Sixth Circuit Resurrects Gender Discrimination Class Action Against Wal-Mart

Posted in News and Analysis, Recent Cases

After the Supreme Court denied class certification to female Wal-Mart employees in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) on the grounds that plaintiffs were unable to demonstrate any “nationwide” policy or practice of discrimination, Wal-Mart employees began to press their gender discrimination claims in a spate of narrower, regionally-focused class-action suits in hopes that narrowing the prospective class would increase their odds of certification.  Among these was Phipps v. Wal-Mart Stores, Inc., 3:12-cv-1009 (M.D. Tenn. Filed Oct. 2, 2012), which targeted policies and management decisions in a Wal-Mart region centered on Tennessee,  with portions of surrounding states included.  The district court dismissed the suit as time-barred, and this week in Phipps v. Wal-Mart Stores, Inc.,  the Sixth Circuit reversed.

In its decision, the Sixth Circuit rejected a “bright-line rule” that would have “prohibit[ed] . . . tolling for any purported class action brought after a previous denial of class certification.”  Normally, the filing of a class-action tolls the statute of limitations for all members of the putative class.  The tolling ends if the court declines to certify the class.  At that point, putative class members can intervene or file their own suits.  In an earlier case, Andrews v. Orr, 851 F.2d 146 (1988), the Sixth Circuit had held that such “tolling” does not apply to “additional class actions by putative members of the original asserted class,” but only to individual claims.  In Phipps, the Sixth Circuit held that, as long as no “previous court” had denied certification of the specific class being proposed in the subsequent class action, the statute of limitations would be tolled by the previous suit.  The Court acknowledged that a prior denial of certification could potentially be preclusive on certain issues in the new action, but left such questions to be decided on a case-by-case basis under “existing principles . . ., such as stare decisis and comity among courts.”

With several similar suits pending in other circuits, it will be interesting to see how the tolling doctrine evolves and what influence this week’s Sixth Circuit decision will have.

Opinions: The Sixth Circuit’s Most Active Authors

Posted in News and Analysis

This post examines which Sixth Circuit judges write the most opinions. My analysis examined opinions available on Lexis over a five-year span. On average, the Sixth Circuit issues 1,348 signed opinions per year, and 212 per curiam opinions per year. The average active judge writes 59 signed opinions, which is about average for federal appellate judges, which comes to about 4.4% of the total signed opinions each year. Of the active Sixth Circuit judges, Judge Sutton and Judge Rogers authored the most opinions over the past five years, with each writing just over 5% of the total signed opinions. Since the outliers are only 10% more than the average, the judges appear successful in distributing the circuit’s workload evenly.

Senior judges combined to write 12.9% of the total signed opinions, with Judge Siler being the most active of them with an impressive average of 2.6% of the total opinions. As we have previously discussed, district judges frequently sit by designation on panels. Visiting judges authored no less than 32% of signed opinions.

Per curiam opinions made up 14% of the total number of Sixth Circuit decisions. Notably, judges seem to have different philosophies about using per curiam opinions. For instance, Judge Boggs had one of the highest rates of participation in per curiam opinions. Judge Boggs sat on 168 panels that issued per curiam opinions over the five year period—over 40% more than the average active judge at 119. By contrast, Judge Batchelder, who also served as Chief Judge, participated in only 50 panels that issued per curiam opinions.

We also found that some judges write separate opinions (dissents or concurrences) more often than others. Judge Moore led the group, writing a separate opinion in 11% of the cases she heard. Judge Cook concurred and dissented the least, writing a separate opinion for only 1% of the cases before her. See more on this in our previous post on dissenting and concurring in the Sixth Circuit.

Does It Take Longer To Affirm Or Reverse?

Posted in News and Analysis

We have previously reported that the time the Sixth Circuit takes to decide appeals has declined significantly in recent years from 15.5 months in 2011 to 10.6 months in 2013.  The latest official data shows that number to be at just 9.1 months in 2014, which is certainly good news for our clients.  For this post we looked at whether the Sixth Circuit takes longer to issue opinions after oral argument that reverse the district court than decisions that affirm.

Reviewing cases decided this year, we found that the average time between oral argument and decision is generally longer for decisions that reversed the district court.  Affirmances in civil cases took about 3.7 months from oral argument to decision, while reversals were almost a month longer, at 4.5 months.  The effect was almost non-existent for criminal cases.  Affirmances in criminal appeals took an average of 4.0 months after oral argument, while reversals took 4.1 months.  It makes sense, of course, that it would take a little longer to write an opinion disagreeing with and reversing a district court’s opinion rather than a simple affirmance.  In both cases, however, the difference was smaller than we expected.

But what was most surprising was that civil and criminal cases took about the same amount of time on average to decide after oral argument—4.1 months in civil appeals and 4.0 months in criminal appeals.  This runs contrary to the common wisdom that courts of appeal often fast-track criminal appeals while civil appeals languish.  But the continuing good news for all litigants is that the circuit continues to reduce the time it takes to decide appeals.


NLRB-Tribe Dispute Heading for En Banc Review?

Posted in En Banc Watch, Recent Cases

We recently reported on a decision governing the NLRB’s jurisdiction over tribal casinos, NLRB v. Little River Band of Ottawa Indians Tribal Government.  Shortly after that split decision, another panel of the Sixth Circuit handed down a decision that addressed similar issues yesterday, Soaring Eagle Casino and Resort v. NLRB .  Apparently, both panels were considering some of the same issues independently, but at the same time.  The Little River panel issued its decision first, which bound the subsequent Soaring Eagle panel.  However, in an unusual move, the latter panel expressly disagreed with the prior panel’s decision from two weeks ago but nevertheless followed it as it was obliged to do.  The second panel held:  “Given the legal framework adopted in Little River and the breadth of the majority’s holding, we must concede in this case that the casino operated by the tribe on trust land falls within the scope of the NLRA, and that the NLRB has jurisdiction over the casino.  We do not agree, however, with the Little River majority’s adoption of the Couer d’Alene framework or its analysis of Indian inherent sovereignty rights.”  This panel then embarks on an extended discussion detailing the error of the prior panel’s ways.  (It stands to reason that this opinion was initially drafted prior to receipt of the Little Eagle opinion, which then generated a need for substantial revisions).  Judge White concurred in part and dissented in part, but did agree with the majority that Little River was wrongly decided.  That means that of the six judges to consider this question in the past month, only two agreed with the framework adopted by Little River, but paradoxically that currently prevails as the law of the Circuit.

Needless to say, however, this presents an issue that is ripe for en banc review.  Although the Court has been restricting en banc review, such a flagrant disagreement between two panels certainly should attract en banc attention.  We will continue to monitor these two cases and see if petitions are filed and how the Court responds to them.

Sixth Circuit Approves NLRB’s Jurisdiction over Michigan Indian Tribe

Posted in Recent Cases

In a recent split decision, the Sixth Circuit held that the National Labor Relations Board (NLRB) possessed jurisdiction to enforce provisions of the National Labor Relations Act (NLRA) against the Little River Band of Ottawa Indians—a Michigan Indian tribe—to prevent the Tribe from enforcing its new labor regulations against a casino on its land.

The controversy in NLRB v. Little River Band of Ottawa Indians Tribal Government began when the Little River Ottawa Band’s Tribal Council amended the Tribe’s Fair Employment Practices Code to allow the Band to set the terms and conditions of collective bargaining, and “prohibits strikes, work stoppage, or slowdown by the Band’s employees. Thereafter, the NLRB sought to prohibit enforcement of some parts of the amended FEPC on the grounds that they violated the NLRA. The Band’s sole objection the NLRB’s order was that the NLRB lacked jurisdiction over the Tribe in this matter. The NLRB found it had jurisdiction, even after reconsideration in light of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), and sought enforcement of its cease and desist order in the Sixth Circuit.

The Sixth Circuit granted enforcement of the order. Judge Gibbons, writing for the majority (along with Judge Merritt), began by noting that the NLRA is a statute of general applicability, is silent as to Indian Tribes, and that Chevron was inapposite because the NLRB’s jurisdiction was “predicated on its analysis of federal Indian law and policy,” not upon a statutory interpretation. Next, the court noted that Indian sovereignty is derived from federal statutes, treaties, and “inherent” sovereignty, but that “the sovereignty of Indian tribes ‘exists only at the sufferance of Congress and is subject to complete defeasance.’” Then, citing a long list of sister circuits’ precedent, the court posited that “a federal statute creating a comprehensive regulatory scheme presumptively applies to Indian tribes,” and that the Ninth Circuit’s test from the 1985 case of Donovan v. Coeur d’Alene Tribal Farm for determining exceptions to this presumption was the appropriate framework to evaluate the NLRB’s jurisdiction.

Evaluating the case under Coeur d’Alene, then, the Sixth Circuit held that the Band could not take refuge under the two applicable prongs of the Ninth Circuit’s test. First, application of the NLRA to the casino did not undermine “tribal self-governance in purely intramural matters,” because the Tribe’s asserted protection of net revenues or Tribal laws did not show such a destabilization. Second, the absence of “Indian tribes” from the NRLA’s private right of action section did not demonstrate an intent to prevent the application of the NLRA to Indian tribes, because “Congress may choose to impose an obligation on Indian tribes without subjecting them to . . . a private right of action.”

Judge McKeague issued a marked dissent, taking issue largely with the majority’s underlying reasoning and precedential evaluations. Noting the NLRB’s attempt to subject Indian tribes to the NLRA was a relatively recent innovation, the dissent argued that the application of Coeur d’Alene was not so clear cut, nor in line with more recent Supreme Court precedent. Thus, evaluating “Congress’s silence as reflective of intent to uphold tribal sovereignty,” the dissent reached the conclusion that the NLRA could not conclusively apply to the Band, absent an express Congressional intent to do so.