Sixth Circuit Appellate Blog

A recent Sixth Circuit case pithily illustrates the potential fate facing plaintiffs who, after failing to obtain injunctive relief against ongoing land development, discover that subsequent events have outstripped the very purpose of the litigation.

In Weiss v. Sec'y of the U.S. Dep't of the Interior (6th Cir., 10-1313, Jan. 25, 2012) (PDF), Julie Weiss and other citizens of Benton Harbor, Michigan sued Benton Harbor, the National Park Service and the Army Corps of Engineers after the city leased a portion of a public park to a developer for conversion into a golf course.  Seeking to block the development, Weiss alleged, among other things, that the development would have adverse environmental consequences and would also violate the National Historic Preservation Act.  Weiss sought, but was denied, injunctive relief below, and she did not appeal that ruling.  Meanwhile, the development project and litigation moved forward in tandem.  After the district court rendered summary judgment to the defendants, Weiss sought appellate relief.  By the time the matter reached the Sixth Circuit for decision, the golf course had been completed.

Writing for a unanimous panel that included Judges Cook and Daughtrey, Judge Kethledge generally affirmed the district court ruling but also found certain of Weiss's claims to be moot.  Under federal law, before a federal agency can approve a major project, it must "predict the project's environmental consequences.  Weiss asks us to order the agencies to redo their predictions."  Because the golf course had been completed, the Court refused, observing that such predictions "are beside the point": they "have either come to pass or not."  Under such circumstances, the Court likened Weiss's argument to "ask[ing] a meteorologist on Friday to redo the Thursday forecast."  Equally moot, the Court found, were Weiss's historic preservation claims: "any effects on the Park's historical character have already occurred," preventing the Court from providing "meaningful relief" and rendering "any declaratory judgment ... an advisory opinion."  Based upon the practical effect of the defendants' actions, the Court vacated the district court's judgment as to those claims and remanded with instructions to dismiss as moot.

Weiss serves as an object lesson regarding the potentially crucial importance of preliminary injunctive relief.  Having lost below on the injunction and having declined to appeal such loss, Weiss continued litigating even as events overtook the very relief she sought.  In cases where one party's unimpeded action can moot the point of the the lawsuit, the first few weeks or months -- where injunctive relief will be decided -- can prove dispositive, and appellate review of an adverse decision should be sought immediately.

This post is the Sixth Circuit Appellate Blog's latest update and analysis in a series that has been tracking developments in the ongoing, blockbuster appeal involving Michigan Proposal 2.

Last summer, a divided panel of the Sixth Circuit struck down as unconstitutional Proposal 2, which prohibited Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity, or national origin.”  See Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111, July 1, 2011) ("CDAA") (PDF).  Writing for himself and Judge Daughtrey, Judge Cole reversed the district court's grant of summary judgment against the plaintiffs and ruled that Proposal 2 violated equal protection; in a strenuous dissent, Judge Gibbons argued that Proposal 2 was consistent with equal protection and relevant caselaw of the U.S. Supreme Court.  On September 9, 2011, the full Court -- with Judges McKeague and Kethledge having recused themselves -- voted for rehearing en banc, subsequently establishing a briefing schedule that concluded in December 2011.  In addition to briefing by the parties, the matter has attracted an outsized number of amicus briefs, and has recently been set for oral argument on March 7, 2012.  With oral argument approaching, the Sixth Circuit Appellate Blog has examined the arguments that will confront the full Court this March.

First, the Court will examine two briefs from two different collections of plaintiffs.  The Coalition plaintiffs consist of several organizations established for the promotion and defense of affirmative action.  In their brief (PDF), the Coalition plaintiffs assert that Proposal 2 "denies racial minorities equal political rights and subjects them to a special law restricting minority admissions alone."  In doing so, the Coalition rejects what it argues is the Michigan Attorney General's effort to characterize "political rights" as attempts by minorities to obtain "'preferences.'"  The Coalition argues that the Attorney General's interpretation of the U.S. Supreme Court's decision in Grutter v. Bollinger, 539 U.S. 306 (2003), is errant, and also that the Attorney General's proposed means of assuring admissions based upon "'merit'" -- reliance on grade-test score criteria and grade point averages -- "impose[s] an enormously disparate burden on minority applicants -- and confer[s] a converse advantage on white applicants."

The Cantrell plaintiffs, a separate group of plaintiffs composed of students, faculty and prospective applicants to Michigan's public universities, also filed a brief.  Their brief (PDF) concedes from the outset that "race-conscious" admissions policies "are not constitutionally required," and also that repeal of such policies "through the ordinary political process ... would be constitutionally permissible."  Proposal 2 differs, they argue, because it "singles out otherwise permissible considerations of race" by placing control over such policies "in the hands of the electorate" while leaving other admissions practices to the discretion of state universities or their boards.  This, the Cantrell plaintiffs argue, amounts to a "racially selective restructuring of the political decision-making process" that politically disadvantages minorities from pursuing "'legislation that is in their interest.'"

Second, the en banc Court will also have to consider several briefs filed by the defendants in rejoinder.  The principal brief (PDF) of the defendants was filed by Michigan's Attorney General, Bill Schuette.  This brief leads off by asserting that Proposal 2 "is nearly identical to [California's] Proposition 209" and arguing that, following enactment of Proposition 209, underrepresented minorities actually improved their standing in California in terms of college admissions offers, enrollment and graduation rates.  Following such factual/policy-based assertions, the Attorney General then distinguishes Proposal 2 from the initiatives found to be politically discriminatory in Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), and argues that Proposal 2 places no burden on minority participation in the political process.

The university defendants also submitted a brief (PDF), but they refrain from engaging the main issue.  Instead, the university defendants argue that the district court wrongly concluded that they were proper parties to the case, asking the Sixth Circuit to reverse on that issue and to dismiss them.  But the university defendants also request the Court to "clarify the role of [the universities'] governing boards with respect to admissions policy."  Specifically, the university defendants argue that, under the Michigan Constitution, they have "plenary power over their institutions; their bylaws ...; and their proceedings ... including admissions."  Similar arguments and questions of law were set forth in a separate brief (PDF) that was independently filed on behalf of defendant Wayne State University.

Third, not surprisingly, the CDAA matter has attracted substantial attention from interested amici.  To date, a total of 12 amicus briefs were filed for the en banc court to consider, the substantial majority of which -- 10 briefs -- sided with the plaintiffs: the Michigan Civil Rights Commission (PDF); the City of Grand Rapids, Michigan (PDF); several Michigan-based corporations (PDF); numerous organizations acting in defense of Asian-American, Latino and women's interests (PDF); the California State Conference NAACP (PDF); the City of San Francisco, California (PDF); and numerous law professors (PDF), historians (PDF), political scientists (PDF) and social scientists (PDF). Two briefs were filed in support of the Attorney General: one by the Michigan Civil Rights Initiative Committee (PDF) together with allied organizations, and one by four former attorneys (PDF) of the U.S. Department of Justice's Civil Rights Division.

Given their number, the arguments of the amici supporting the plaintiffs defy easy summation.  Even so, several trends are apparent.  Most of these amici seek to lend support to the panel majority's conclusion that Proposal 2 constitutes political discrimination against minorities, violating the rules established by the U.S. Supreme Court in Hunter and Seattle School District.  But the amici also advance a host of legal or policy considerations to support the panel decision, as well.  For instance, the Michigan Civil Rights Commission argues that Proposal 2 violates a federally guaranteed right to academic freedom by preventing universities from seeking diversity in their student bodies.  The City of Grand Rapids argues that power over such decisions should reside in individual universities exercising home rule, rather than through statewide constitutional amendment.  Corporate amici Cascade Engineering, Inc. DTE Energy Co., Herman Miller, Inc. and Steelcase Inc. argue that Proposal 2 will impede minority college admissions, depriving Michigan businesses of important "human capital."  And the various scholars' briefs advance arguments that stress the historical bases purportedly underlying the enactment of Proposal 2, along with the purportedly deleterious political or social impact that Proposal 2 threatens.

The amici siding with the Attorney General do so straightforwardly.  The Michigan Civil Rights Initiative Committee does not venture into the policy, wisdom or results of Proposal 2 -- or its California counterpart, Proposition 209.  Instead, the Committee directly supports the Attorney General's legal argument distinguishing Proposal 2 from the Hunter and Seattle School District cases.  The brief of the former DOJ attorneys makes similar arguments, but hits with blunter force, characterizing the plaintiffs' appeal as "ask[ing] this Court to supplant the People of Michigan as the ultimate source of authority over admissions to the State's public universities, and undo the electorate's overwhelming adoption of colorblindness and equality of opportunity as Michigan's governing standard."

Taken together, the amicus briefs significantly broaden the range of arguments facing the en banc Court.  As this Blog has previously observed (here, here and here), it is an open question as to how influential such arguments ultimately prove to be, but there is certainly no shortage of them in CDAA for the Court to consider.

Set for March 7, oral argument is now a month and a half away.  Perhaps second only to the Sixth Circuit's ruling on the national healthcare legislation last year, the CDAA panel decision was among the most watched and significant of the Sixth Circuit's rulings in 2011.  There is every reason to believe that the Court's forthcoming en banc decision in CDAA will be atop the 2012 list, as well.

The Sixth Circuit ruled last Friday in favor of Carl Thom in his claim under the Family Medical Leave Act (FMLA) against American Standard, Inc.  Thom v. American Standard, Inc., Case No. 07-00294.pdf  Thom’s claim arose out of FMLA leave he took due to a shoulder injury that was not related to work.  Thom requested FMLA leave from April 27, 2005, until June 27, 2005.  American Standard granted this request in writing.  Thom’s shoulder healed more quickly than expected, leading his doctor to approve light duty work beginning May 31 and a full return to work on June 13.  After not being permitted to work light duty, Thom did not return to work on June 13.  On June 14, American Standard called Thom because he had not returned to work.  Thom told American Standard that he was experiencing increased pain and would return to work on June 27.  Thom's doctor wrote a note requesting an extension of Thom's FMLA leave until July 18, but when Thom took the note to work, he had already been terminated due to his failure to return on June 13. 

The district court granted Thom partial summary judgment and awarded a total of over $200,000 in back pay, attorney fees, and costs based on American Standard’s failure to “adequately notify [Thom] of its method for calculating FMLA leave . . ."  Depending on which calculation method American Standard used, “rolling” or “calendar,” Thom’s leave would have expired on either June 13 or July 14.  Thom was terminated based on a June 13 expiration date calculated using the rolling method.  However, the only written document Thom received from American Standard stated that his leave would expire on June 27.  The first time he was told by American Standard that his return-to-work date had been changed was the day after he first missed work on June 14.  The Sixth Circuit held that “employers should inform their employees in writing of which method they will use to calculate the FMLA leave year.”  Thom had not received actual notice of American Standard's use of the rolling method, and he was entitled to rely on the date he received in writing from the company. 

The district court found that American Standard had acted in good faith and with reasonable grounds when discharging Thom, so it denied Thom’s request for liquidated damages.  The Sixth Circuit reversed this finding.  The Sixth Circuit found that American Standard’s purported defense of its actions – that it was relying on the rolling method to calculate Thom’s FMLA leave date – was pretextual and was never articulated until after Thom was fired.  According to the court, American Standard could not have relied upon its rolling method after it departed from this policy in giving Thom his written leave date. Such a defense was not sufficient to overcome the “strong presumption in favor of awarding liquidated damages that are double the amount of any compensatory damages.”

As we reported previously here, there has been a long-standing split among the Circuits over when the time for removal runs in a multiple defendant case, with the Sixth Circuit adopting the “later-served” rule under which each defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served.  Other Circuits followed the "first-served” rule, holding that the thirty day period ends thirty days after the first defendant is served.

The Federal Courts Jurisdiction and Venue Clarification Act of 2011, H.R. 394, P.L. 112-63, resolves the split for all cases filed after January 6, 2012.  Deeming the later-served rule to be more equitable, the Act provides that, “[e]ach defendant" shall have 30 days after receipt by or service on that defendant to file the notice of removal.” The Act also codifies the “rule of unanimity,” which requires all defendants to consent to removal of cases under 1441(a).  As a result, earlier-served defendants can join in or consent to removal by a later-served defendant in such cases.

The Act also significantly amends other key aspects of the federal jurisdiction statutes, including the provisions governing diversity jurisdiction, venue, and removal.

Click below to learn more about these other important amendments.

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In honor of Martin Luther King Jr. Day, we share this photograph of Senior Sixth Circuit Judge Damon Keith with the Reverend Dr. Martin Luther King, Jr.  Judge Keith is the second from the left with his arm around Dr. King.  This photograph, by Sonny Edwards photography, is from Judge Damon Keith's personal collection available from the blog of the Charles H. Wright Museum of Natural History. Judge Keith was appointed to the Sixth Circuit in 1977 and has served the Court for nearly 35 years. He assumed senior status in 1995 but still remains an active member of the Court.

In a 9-0 decision yesterday, the Supreme Court reversed the Sixth Circuit and affirmed a religious body's right to make employment decisions free from government intervention.  It was the Supreme Court's first decision on the ministerial exception to employment discrimination laws.

The plaintiff was a "called teacher" within the Lutheran Church, where part of her job included teaching religion and leading chapel services. After being diagnosed with a sleep disorder and taking a leave of absence, the church refused to reinstate her. The plaintiff sued, and the Sixth Circuit ultimately sided with the plaintiff on appeal. Because plaintiff’s religious duties only occupied 45 minutes of her day, the Sixth Circuit held that the ministerial exception to employment discrimination laws did not apply.

But in a majority opinion by Chief John Roberts, the Supreme Court reversed and noted that the issue was not one that could be "resolved with a stopwatch." Instead, the Court looked to several factors. The plaintiff received her "call" after "a significant degree of religious training followed by a formal process of commissioning." She "held herself out as a minister," and claimed "a special housing allowance on her taxes that was available only to employees earning their compensation 'in the exercise of the ministry.'" Her job gave her "a role in conveying the Church's message and carrying out its mission." She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church. "Given all the circumstances of her employment,"  the plaintiff fell within the ministerial exception.  However, the Supreme Court gave only limited guidance about how courts should decide who counts as a minister, saying it was "reluctant to adopt a rigid formula." 

The Supreme Court ultimately found the balance in favor of the church’s protected ability to make its own decisions.  The Court's ruling will undoubtedly have significant consequences for countless people employed by religious groups to perform religious work. "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission," Roberts wrote. "The First Amendment has struck the balance for us," Roberts continued. "The church must be free to choose those who will guide it on its way."

In a prior post, we found that the Sixth Circuit reverses each federal district court at significantly different rates in civil (including prisoner) cases.  The results were so surprising – cases originating in some districts were almost twice as likely to be reversed as cases from other districts – that we decided to run the numbers for another two year stretch.  We also looked at the reversal rates for the individual judges in each district. 

The results for each districts were generally consistent with our prior post.  The Eastern and Western districts of Michigan, and the Eastern and Middle districts of Tennessee were still reversed the most (around 21% of the time).  The Western District of Tennessee and the Southern District of Ohio had the lowest reversal rates, with the federal district courts of Kentucky close behind.  The Northern District of Ohio was close to the average reversal rate of 17% for that two-year period.  

The differences in reversal rates for individual district judges were much more variable.  The Sixth Circuit reversed roughly one out of every ten non-criminal appeals for the vast majority of district judges.  As would be expected, judges in Michigan and Tennessee had their decisions overturned more frequently.  About a third of the total reversals resulted from the decisions of a relatively small group of judges.  In one two-year period, just eight district judges authored roughly a quarter of the reversals handed down by the Sixth Circuit in civil and prisoner cases.  

But don’t think that the Sixth Circuit keeps tabs on certain district judges.  Most of the oft-reversed judges only had a year or two of bad luck before the Sixth Circuit and were soon back to the average reversal rate of their colleagues.  And even the most frequently-reversed district judges had just twelve appealable decisions reversed in that four-year period – out of many hundreds of such decisions in civil and prisoner cases.  

Based on our limited analysis, the cost-benefit calculation for whether to take an appeal in a civil case should rest more on the district’s overall reversal rate rather than the rate (or counsel’s perception of that rate) for an individual judge.  The facts and law of an individual appeal, of course, remain far more important than any general statistics for making decisions about an appeal.

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We have previously addressed the Sixth Circuit’s reversal rate, and found that the circuit reverses at a rate very close to the average for all of the circuits.  This post will briefly review the reversal rates in civil (including prisoner) cases from each federal district court within the Sixth Circuit.

In the past two years, the Sixth Circuit has reversed roughly 200 civil cases in its written opinions (that are available on Lexis), which is about 16% of the circuit’s total civil decisions.  About half of those dispositions completely reversed the decision below, and half affirmed and reversed in part.  But the surprise was that the rates varied significantly by district.  The federal districts in Kentucky were reversed about 13% of the time, with honors going to the Eastern District of Kentucky which only had a singe case reversed in full.  By contrast, the Sixth Circuit reversed about 25% of the cases from the Western District of Michigan and the Eastern and Middle districts of Tennessee.  The Northern and Southern districts in Ohio, as well as the Western District of Tennessee, fell near the average of 16%. The size of each district didn’t matter nor did the state – the Western District of Tennessee had one of the lowest rates, while the Eastern District of Tennessee had one of the highest.

While the chances of obtaining a reversal on appeal are almost entirely dependent on the facts of the particular case, it may also be important to consider the identity and location of the district judge when calculating whether an appeal is worth the cost.

Last week, the Sixth Circuit affirmed that disabled Army veteran, James McKelvey was only entitled to reinstatement and back pay on his constructive discharge claim, in lieu of a $4.4M jury award for front pay. McKelvey v. Secretary, No. 10-1172 (Dec. 14, 2011).

After returning from Iraq in 2006, McKelvey obtained employment as a civilian operations specialist with the Secretary of the United States Army (Secretary), in Michigan. McKelvey resigned two months later, however, and brought suit alleging, in relevant part, hostile work environment and constructive discharge.

At trial, a jury found in McKelvey’s favor on both counts, awarding no compensable damages on the hostile work environment claim and $4.4 million in front pay on the constructive discharge claim.  The district court, however, vacated the jury award, granted judgment as a matter of law and ordered reinstatement as the appropriate remedy.

The Sixth Circuit reversed the district court, in part, holding judgment as a matter was improperly granted because reasonable jurors “could have gone either way on this issue,” finding the “repeated…taunting” went beyond what one finds in even an ordinary hostile work environment and that resigning after two months was too short a gap to say, as a matter of law, that McKelvey’s workplace was no longer intolerable or precluded a finding of constructive discharge.

But the Sixth Circuit affirmed the district court's decision to vacate the $4.4 million verdict, finding no abuse of discretion in awarding reinstatement in lieu of a front pay award. The Court noted that reinstatement “is the presumptively favored equitable remedy” when an employee is improperly discharged. In addition, the Sixth Circuit looked at the test outlined in Roush v. KFC Nat’l Mgmt, Co., 10 F.3d 392, 399 (6^th Cir. 1993) in deciding whether to award front pay and found sufficient grounds for the lower court’s decision not to grant that type of relief. The Sixth Circuit noted that while it is within the authority of a court to award front pay, there is no case law identifying a court’s decision not to award front pay as an abuse of discretion.

In Dassault Systemes, SA v. Childress (No. 10-1987), the Sixth Circuit analyzed the factors for setting aside a default judgment under Rule 55(c).  Though the pro se defendant made any number of filings, he never filed an answer.  Rather than move for a default under Rule 55(a), the plaintiff moved directly for default judgment.  The district court granted the default judgment, but did not decide the amount of damages until after the defendant moved to set the default aside.  Therefore, the first question addressed by the Sixth Circuit panel was what standard to apply:  the strict standard under Rule 60(b) for setting aside a judgment, or the more lenient Rule 55(c) standard for setting aside a default.  The panel decided the default judgment should be treated like a mere default under Rule 55(c) because it was not final (as it did not decide the amount of damages).  This opinion, following cases from the First and Second circuits, quietly overrules the Court’s previous decision on this subject in INVST Fin. Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391 (6th Cir. 1987).  A panel cannot overrule a previous panel’s decision, so the Court justifies this result by arguing that INVST is itself inconsistent with earlier decisions that discuss the need for damages hearings. 

The Sixth Circuit panel then made the most of the “less deferential” abuse of discretion standard of review that applies to a district court's refusal to set aside a default under Rule 55(c).  Judge Moore’s opinion takes pains to explain that while the defendant's actions may have looked intentional and calculated, it was likely that the plaintiff “as a pro se litigant, was merely attempting to navigate the none-too-intuitive labyrinth of procedural rules.”  The plaintiff claimed prejudice from the defendant’s delays, including the spoiling of data on hard drives, continued copyright and trademark violations, and increased legal fees.  But the court explained that such prejudice could not be considered -- “the relevant inquiry concerns the future prejudice that will result from reopening the judgment, not prejudice that has already resulted from the defendant’s conduct.”  Finally, the court emphasized that “even conclusory assertions may be sufficient to establish the ‘hint of a suggestion’ needed to present a meritorious defense” for the Rule 55(c) analysis.  The panel therefore reversed on the basis that the defendant had demonstrated “good cause” for refusing to file an answer even after he was ordered to do so.  

The panel acknowledged the district court’s justified exasperation with a pro se litigants that make lengthy filings and refuse to comply with orders.  But this opinion appears to lower the bar for the evidence that is required to show “good cause” to set aside a default under Rule 55(c), even where the default is the result of apparently deliberate dilatory conduct.