Whirlpool filed its petition for rehearing en banc back on May 17 arguing that the panel’s decision conflicts with binding Supreme Court authority and decisions of the Sixth Circuit.  Ten amici (including three represented by Squie Sanders) joined Whirlpool in calling for a rehearing of the panel’s decision.  The Court ultimately allowed the amicus briefs to be filed after initially rejecting them.

Now, in the Sixth Circuit, a plaintiff bringing a discrimination claim under the ADA must prove that the plaintiff’s disability was a “but-for” cause of an adverse employment decision, as opposed to the “sole” reason or a mere “motivating factor.”  Judge Sutton, writing for the en banc majority in support of the Sixth Circuit’s new rule, reasoned that the Court’s ruling was commanded by the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), in which the Justices construed language in the Age Discrimination in Employment Act (“ADEA”) that parallels language in the ADA.  As Judge Sutton wrote: “The ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning that they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.”  The same standard applies to both laws.”  In refusing to adopt the standard followed by at least ten other Circuits, Judge Sutton explained that “[j]ust as we erred in reading the ‘solely’ language from the Rehabilitation Act [of 1973] into the ADA based on the shared purposes and histories of the two laws, so we would err by reading the ‘motivating factor’ language from Title VII into the ADA.”  Judge Sutton made clear that “in the end it is the text that matters.”

Judge Clay, concurring in part and dissenting in part, lamented that “[t]he majority opinion fails to accomplish the original goal of this Court in choosing to hear this case en banc—which was to bring this Circuit into accord with the prevailing legal opinion on the issue addressed by the en banc Court,” and instead “continues to leave the Sixth Circuit opposed to the multiplicity of other circuits on the issue of the standard of causation required to prove discrimination under the [ADA].”

So what does the Sixth Circuit’s newly crafted standard mean for plaintiffs bringing discrimination claims under the ADA in the Sixth Circuit?  In Judge Clay’s view, “a but-for standard suggests the availability of a much more limited basis for recovery by a plaintiff than would be indicated by the motivating-factor standard . . . .”  However, only time will reveal exactly where the Sixth Circuit’s new standard falls on the continuum between the restrictive “sole” reason standard repudiated by the Sixth Circuit and the more liberal “motivating factor” standard followed in most other Circuits.

We’ll of course continue to follow subsequent Sixth Circuit cases addressing the new standard, as well as to monitor whether any of the other Circuits become compelled to reconsider the “motivating factor” standard in light of today’s Sixth Circuit’s decision.

As expected, Whirlpool has filed a petition for rehearing en banc arguing that the panel’s decision conflicts with binding Supreme Court authority and decisions of the Sixth Circuit.  In its en banc petition, Whirlpool advances three main arguments justifying en banc review.  First, Whirlpool argues that the panel’s ruling on the commonality requirement under Rule 23(a)(2) of the Federal Rules of Civil Procedure conflicts with the Supreme Court’s Wal-Mart decision because, among other things, the panel ignored that commonality requires proof that all class members have suffered the same injury.  Whirlpool asserts that under Wal-Mart, proof that class members have suffered the same injury is “not only relevant but essential to class certification.”  Second, Whirlpool argues that the panel gave short shrift to Federal Civil Rule 23(b)(3) and effectively eliminated the demanding certification requirements of predominance and superiority, once again in conflict with Wal-Mart as well Sixth Circuit decisions. 

Third, and finally, Whirlpool argues that en banc review is warranted because the panel’s holding conflicts with Sixth Circuit decisions recognizing that “a predominance analysis must consider the elements and defenses of the underlying claims to determine how a class trial on the merits would be conducted.”  Whirlpool contends that the panel failed to consider the elements of the Ohio tort claims that it certified, which include tortious breach of warranty, negligent design, and negligent failure to warn.  Whirlpool highlights that most of the class members have not experienced any problems with mold and mildew, and thus they have no tort claim under Ohio law. 

Although the Sixth Circuit’s grants of en banc review are infrequent, this case has attracted the attention of several amicus parties that have supported Whirlpool’s petition for rehearing, including the Association of Home Appliance Manufacturers, the Ohio Manufacturers Association, the Ohio Business Roundtable, DRI – The Voice of the Defense Bar, and the Product Liability Advisory Council.  Still other parties supporting Whirlpool’s en banc petition include the Business Roundtable, the Chamber of Commerce of the United States of America, and the National Association of Manufacturers, who are being represented by Pierre Bergeron, Phil Calabrese, and Emily Root of Squire Sanders.  We’ll be watching this case closely.

This is one of the highest profile cases that the Sixth Circuit will hear in 2012, and it is one of a handful of cases that the Court will hear en banc.  The Sixth Circuit is permitting extended oral argument in this appeal, and we’ll continue to provide you updates.

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 Appellate Blog has been anticipating a ruling on the en banc petition, and this widely watched matter promises to garner considerable attention in the circuit and well beyond.  Be assured, this Blog will keep readers abreast of developments going forward.

In the first response (PDF), citing caselaw dating back to the early 1980s and late 1960s,  the Cantrell Respondents argue that the panel “correctly applied long-standing Supreme Court jurisprudence” when it ruled that “Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”  And, in rejoinder to the Attorney General's claim that the panel ruling is incompatible with an earlier ruling by the Ninth Circuit as to a similar California referendum, Proposition 209, the Cantrell Respondents state that “to the extent that a circuit split exists, it should be left to the Supreme Court to correct the Ninth Circuit’s misinterpretation of established law.”

In the second response (PDF), the Coalition to Defend Affirmative Action ("CDAA") argues that the panel decision correctly struck down Proposal 2 for “denying black, Latino/a, and Native American residents access to the governing boards of Michigan’s public universities on terms equal to those available to all other citizens.”  Specifically, citing Grutter v. Bollinger, 539 U.S. 306 (2003), the CDAA Respondents argue that Proposal 2 is unconstitutional because it “depriv[es] racial minorities of the right to persuade the university governing boards to approve by simple majority vote the exact affirmative action program that the Supreme Court so recently held was the only practical means by which significant numbers of black, Latino/a, and Native American students could be admitted to Michigan’s most selective universities” (emphasis in original).

Several institutional amici were granted leave to jointly file a brief on the merits of the petition: Michigan Civil Rights Initiative Committee, American Civil Rights Foundation, Pacific Legal Foundation, Center for Equal Opportunity and the National Association of Scholars.  These amici subsequently filed their brief (PDF), which supports the petition for rehearing.  In addition, several former career attorneys and one political appointee of the Civil Rights Division of the U.S. Department of Justice moved the Court for permission to file an amicus brief in support of the petition.  Without explanation, the Court denied their motion.  Finally, on August 16, the day before the Respondents' briefs were due, the Michigan Civil Rights Commission sought permission to file an amicus brief opposing the petition.  No ruling as to that request has yet been issued.

We expect a decision on the en banc petition within the next 3-6 weeks, and will continue to monitor the case.

Michigan's attorney general, Bill Schuette, now seeks en banc review of the divided panel decision.  In his petition, the attorney general characterizes the issue as follows: "whether a state violates the Equal Protection Clause by prohibiting discrimination based on race or sex" (emphasis in original).  In urging the full court to hear the matter, Michigan argues that the panel's ruling opened a circuit split, citing the Ninth Circuit's 1997 order upholding the constitutionality of California's Proposition 209, a measure akin to that of Proposal 2.  Michigan further claims that the panel decision is at odds with the Sixth Circuit's earlier decision at the preliminary injunction stage of the case at bar when, according to Michigan, "three members of this Court followed [the Ninth Circuit's ruling] and rejected the exact claim the panel majority has now upheld."  Finally, Michigan draws the Court's attention to the fact that the panel decision "invalidates a provision of Michigan's Constitution that was ratified by 58% of Michigan's voters," which it observes is "no small matter."

The Sixth Circuit Appellate Blog will keep an eye open for the Court's decision on the petition.

Predictably, an avalanche of court observers are saying that the Sixth Circuit got it wrong, characterizing the Sixth Circuit’s June 29, 2011 decision as “an exercise in unwarranted judicial deference,” and lamenting its “flawed” reasoning.  A number of authors, found here, here, and here, are predicting that the Sixth Circuit's decision is sure to make it to the U.S. Supreme Court by the fall, particularly in light of Circuit Judge Jeffrey S. Sutton’s poignant challenge to the Supreme Court to reevaluate its Commerce Clause jurisprudence.  (As you know from our Wednesday report, Judge Sutton joined Circuit Judge Boyce F. Martin in upholding the individual mandate under the health care statute as a constitutional exercise of Congress’s commerce power, while Senior District Judge Graham dissented, claiming that the majority's decision effectively gives Congress a general police power that the Tenth Amendment is supposed to reserve for the states and the people.)

Just as predictable, numerous authors have praised the Sixth Circuit, finding its decision to uphold the health care statute to be thoughtful and generally well-reasoned, as reported here, here, and here.  One author correctly highlights that Judge Sutton’s most critical moment was in obliterating the notion that the individual mandate somehow was a regulation of “inactivity.”  As you'll recall from our prior posts, the plaintiffs have relied on an “activity” vs. “inactivity” distinction to argue that there is not a single controlling U.S. Supreme Court case that allows Congress to stretch its Commerce Clause authority to regulate intrastate inactivity or, in effect, mere “existence" within the borders of the United States. 

You can be sure that the Sixth Circuit’s decision will be closely scrutinized by the other Circuit Courts currently addressing constitutional challenges to the health care statute, including the Fourth Circuit (which heard oral arguments on May 10, 2011), and the Eleventh Circuit (which heard oral arguments on June 8, 2011).  See Commonwealth of Virginia, et al. v. Sebelius (Fourth Circuit, Case No. 11-1057); State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).

We will let you know if the plaintiffs in Thomas More Law Center file a motion for rehearing en banc within 14 days of the Court's ruling. 

On June 27, 2011, the panel denied HCP's request for rehearing, and, without dissent, the full Court declined en banc review.  In a press release (PDF) issued the same day, Ventas applauded the Court's decision.  According to a report by Business Week, perhaps in reaction to this most recent ruling by the Court, shares of Ventas climbed 13 cents to $52.88, while HCP stock fell 5 cents to $36.50.  Based on the panel's original order, the matter will now be remanded to the district court for a trial solely to determine whether Ventas should also be awarded punitive damages.  Whether HCP will appeal to the U.S. Supreme Court remains to be seen.

In its March 17, 2011 opinion in Lewis, the three-judge panel declined to adopt the rule followed in a supermajority of Circuits for bringing a discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.  In at least ten other Circuits, a plaintiff bringing a discrimination claim under the ADA need only show that the plaintiff’s disability was a “motivating factor” for the adverse employment action in order to prevail.  The Sixth Circuit, however, has followed the rule set forth in its 15-year old panel decision in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), which requires a showing that the disability was the “sole reason” for the adverse employment action.  Id. at 1178.  The panel in Lewis was constrained to follow Monette because one panel of the Sixth Circuit cannot overrule the decision of another panel.

A noteworthy practice pointer emerges from the Lewis case that should be emphasized.  It turns out that the plaintiff could have saved substantial time and resources (of both the parties and the Court) if she had requested that her appeal initially be heard en banc, rather than by a three-judge panel which was not in a position to overrule the Monette panel’s prior decision.  Indeed, Judge Merritt, who wrote the panel opinion in Evans, specifically highlighted the benefits of “avoid[ing] the inefficiency of appealing to the panel that could not grant [the plaintiff] the remedy that she seeks . . . .”  It’s true that en banc hearings generally are “not favored,” but in certain cases, en banc petitions in the first instance make sense, and the Sixth Circuit would have welcomed one in this case.

The Sixth Circuit only hears approximately 8 to 12 cases en banc per year, and thus the grant of rehearing en banc in Lewis is indeed rare (as we previously highlighted).  We’ll continue to monitor this important case for you. 

The majority of the time when the Sixth Circuit takes a case en banc, it departs from the result that the panel reached.  Thus, before we close, we would like to make one more prediction: The Sixth Circuit in Lewis, sitting en banc, will overrule Monette and adopt the rule followed in the majority of other Circuits for bringing a discrimination claim under the ADA.  You read it here first.

First, HCP requests that the panel reconsider its determination that a declaratory judgment issued by a Canadian court prior to the filing of the lawsuit by Ventas, Inc. ("Ventas") in the United States cannot be given preclusive effect under Kentucky law.  HCP claims that a such determination not only clashes with a previous unpublished opinion of the Sixth Circuit (Holbrook v. Shelter Ins. Co., 186 F. App'x 618 (6th Cir. 2006) (PDF)), but also does not jibe with Kentucky courts' rulings on the subject.  HCP suggests that if the Court has doubt regarding this aspect of Kentucky law, it should certify the issue to the Kentucky Supreme Court.

Second, HCP requests en banc review of the panel decision to apply the Kentucky state law standard for reviewing sufficiency of the evidence.  HCP acknowledges that the panel correctly applied circuit precedent, but it observes that the Sixth Circuit's other sister circuits apply a federal sufficiency standard and also that the Ventas panel expressed the belief that those circuits "have the better view."  HCP urges the en banc Court to reverse circuit precedent on this issue, claiming that application of the federal standard of review would have resulted in a different conclusion by the lower court.

Finally, HCP argues that en banc review is also required on the panel's decision to enter final partial judgment as to the compensatory damages award and then to remand the punitive damages issue for trial.  According to HCP, compensatory and punitive damages may not be treated as separate claims, and, therefore, splitting punitive damages off for trial before a different jury would violate the Seventh Amendment and conflict with determinations by other circuits.  HCP suggests that the Court rule that Ventas can either retry the entire matter -- including liability, compensatory damages and punitive damages -- or accept its compensatory damages award and forego any award for punitive damages.

The Sixth Circuit Appellate Blog will keep an eye open for the Court's decision on the petition.

The Sixth Circuit has denied Abercrombie & Fitch’s petition for rehearing and en banc review of its decision in Booth Family Trust v. Jeffries (09-3443) that the voluntary recusal of a member of a special litigation committee served as an effective admission that he was not independent.  None of the active judges on the Court voted to accept the case, which centered on questions of Delaware law.  Judge Griffin voted for panel rehearing for the reasons given in his dissent.  We covered the en banc petition here, and our analysis of the original panel decision is here.

Abercrombie, named as a nominal defendant, has now asked the Sixth Circuit for rehearing en banc.  In its petition [PDF], relying upon Judge Griffin's strong dissent in Booth Family Trust, Abercrombie claims that the panel has substantially misinterpreted Delaware law, warranting review by the entire Court.  By way of relief, Abercrombie suggests reversing the panel decision or, alternatively, certifying the question to the Delaware Supreme Court for a definitive ruling on Delaware law.

Given the national importance of Delaware corporate law, the Sixth Circuit Appellate Blog will monitor the status of Abercrombie's petition going forward.

A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda.

The dissent, written by Judge Siler, emphasizes the breath Elstad and minimizes the effect of Seibert.  Judge Siler finds that the second confession was permissible as a voluntary confession under Elstad because of the four-hour lapse between the two confessions and the police officers' claims that Dixon said his attorney advised him to talk to the police (however crazy that sounds).  

In an opinion written by Judge Merritt, the Sixth Circuit in Lewis explained that a three-judge panel of the Sixth Circuit cannot overrule the decision of another panel.  “The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”  This principle also is set forth in Rule 206(c) of the Sixth Circuit Rules (PDF).  Accordingly, the panel in Lewis (like four separate panels in other cases) could not overrule the holding in Monette, which remains good law in the Sixth Circuit. 

A good practitioner’s point emerges from the Lewis case.  As Judge Merritt noted, the plaintiff could have a filed a petition pursuant to Rule 35 of the Federal Rules of Appellate Procedure requesting that her appeal initially be heard en banc, rather than by a three-judge panel, so as to “avoid the inefficiency of appealing to the panel that could not grant her the remedy that she seeks . . . .”  While en banc hearings are “not favored” (and, indeed, they remain rare), the Sixth Circuit apparently is signaling that judicial inefficiency is more disfavored.

Judge Griffin wrote a concurring opinion stating that the question presented in Lewis is appropriate for rehearing en banc on the grounds that the Sixth Circuit’s “precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits.”  As the Sixth Circuit noted in its Lewis opinion, the Tenth Circuit is apparently the only other Circuit that follows the Sixth Circuit’s rule set forth in Monette.  See, e.g., Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134, 1144 (10th Cir. 2005).

It looks like the Lewis case may be one of those rare candidates for rehearing en banc.  We’ll of course monitor the case to apprise you of any developments, including whether the Sixth Circuit will consider overruling its Monette decision.

Following decision by the U.S. District Court for the Northern District of Ohio, plaintiff Brandon Chapman appealed to the Sixth Circuit, basing his assignments of error on two previously decided cases from the Sixth Circuit: Williams v. Molpus, 171 F.3d 360 (6th Cir. 1999), and Burkholder v. United Auto Workers Local 12, 299 Fed. Appx. 531 (6th Cir. 2008) (PDF). The union filed its appellee brief in the matter and, the next day, also filed a petition for hearing en banc (PDF).  In its petition, the union argued that, pursuant to Rule 35(a)(1), the Court should hear the matter en banc and reverse the panel decisions in Molpus and Burkholder because those rulings run contrary to precedent of both the U.S. Supreme Court and the Sixth Circuit. Perhaps the strongest aspect of the union's petition was the inclusion of a extended quotation by Judge Gilman from the Burkholder decision in which he criticized the Molpus holding -- for which he was himself the author -- and suggested that "Molpus ... be closely scrutinized if the issue comes before a future en banc panel of this court."  That moment appears to have arrived.

The Court's decision to grant a rare en banc hearing clearly suggests the possibility that Molpus and Burkholder will be reversed.  Whether it portends more frequent en banc hearings by the Court under Rule 35(a)(1) going into 2011 remains to be seen.