Sixth Circuit Appellate Blog

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.

As this blog has previously reported, in late July Michigan's attorney general filed a petition (PDF) for rehearing en banc in 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).  In that case, a divided panel struck down Michigan’s voter referendum Proposal 2 as violative of the 14th Amendment.  The Court subsequently requested that the various respondents file responses by August 17, and the respondents have now done so.  (It should be noted that the Sixth Circuit generally only requests a response to 10% of petitions for en banc review). 

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.

Recently, the Sixth Circuit has handed down decisions in two of the most high-profile cases currently pending in the federal appellate courts.  First, as we previously reported, the Sixth Circuit upheld the federal health care statute in the wake of a number of constitutional challenges.  Second, a few days later, the Sixth Circuit struck down an affirmative action ban passed by the State of Michigan.  Both cases will presumably prompt en banc petitions, and indeed, the Michigan Attorney General has already indicated his desire to petition the Sixth Circuit en banc in the affirmative action case.  Under Federal Rule of Appellate Procedure 35, an appellate court may grant rehearing en banc when “the proceeding involves a question of exceptional importance.”  “Exceptional importance,” of course, often lies in the eye of the beholder.  However, it would be difficult for anyone to argue that neither one of these cases passes that test, regardless of how a judge might define it.  So that brings into play the unwritten exception to the exceptional importance prong of Rule 35: if a case is exceptionally exceptionally important, the court might simply pass on en banc and let the U.S. Supreme Court decide it.  Although there might be several reasons why a court would turn down an en banc petition in this manner, the chief driver is the wise use of judicial resources.  An en banc rehearing consumes a substantial amount of the judicial resources, and it generally generates a multitude of opinions (concurring and dissenting), particularly in the most controversial cases.  If it is likely that the U.S. Supreme Court will weigh in, a Sixth Circuit judge might reasonably ask why the full court should devote its resources to hearing another round of the same case.  We will continue monitoring these cases for the en banc petitions as well as any further action from the Sixth Circuit.

As we previously reported, the Sixth Circuit did not have an en banc sitting in June of this year, which was somewhat unusual.  Based on a recent article in the Michigan Bar Journal, however, this may be part of a trend.  The recent article notes that the Sixth Circuit issued only two en banc decisions in 2010.  The article cites my 2001 law review article in the Tennessee Law Review (Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990-2000, 68 Tenn. L. Rev. 771 (2001)) which noted that in the 1990s, the Sixth Circuit handed down an average of 6.4 en banc decisions per year.  Some circuits, like the Second Circuit, almost never hear cases en banc.  Is the Sixth Circuit moving in that direction?  Although it is too early to tell, there are some indications that the Sixth Circuit may be heading down that path.  As we reported back in December, Judge Sutton recently expressed his views on why, even though he disagreed with a particular decision, it did not merit en banc review.  The en banc standard in FRAP 35 is certainly malleable, and if the majority of Sixth Circuit judges are now adopting a more restrictive view of what it means for a case to be “exceptionally important” under Rule 35, we may continue to see more sporadic en banc hearings than in previous years.

Traditionally, the Sixth Circuit hears en banc cases twice a year, in early June and in December.  Last week was the week when the Sixth Circuit generally holds its June en banc session.  However, the court did not have a single en banc case on its docket for the June sitting.  Apparently, the court had granted en banc in one case but had to “un banc” the matter because of a recusal of a Sixth Circuit judge that left the court without a majority favoring en banc review.  The lack of an en banc case for the June sitting illustrates the difficulty of securing en banc review at the Sixth Circuit.  Generally, the circuit averages around six to eight en banc cases per year, but perhaps this year will be even less than that.  The lack of an en banc case also is noteworthy relevant to the recent discussions over potential disharmony at the Sixth Circuit.  One would expect that if the Sixth Circuit judges were internally at odds with one another, it would precipitate a greater, rather than fewer, number of en banc cases.  We will certainly keep our eyes out to see how many cases are slated for the en banc hearing in December.

Following the Sixth Circuit's ruling upholding a $101 million jury verdict last month in Ventas Inc. v. HCP, Inc. (6th Cir. Case Nos. 09-6385/6413) (PDF), a petition for rehearing and rehearing en banc has been filed.  In its petition for rehearing (PDF), defendant-appellant HCP, Inc. ("HCP") raises three issues -- one for panel rehearing and two for en banc review.

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.

Earlier this month, this Blog reported the Sixth Circuit's decision in Booth Family Trust v. Jeffries (6th Cir. 09-3443) [PDF], which involved a shareholder derivative action against certain officers and directors of Abercrombie & Fitch Co.  In Booth Family Trust, a divided panel ruled that the decision by a member of a special litigation committee ("SLC") to recuse himself from considering the claims against one of the named defendants functioned as an effective admission that he was not independent.  On that basis, the panel found that the SLC was not independent under Delaware law, and it reversed the district court's dismissal of the case, which had been founded, in turn, on the SLC's determination that the derivative claims were meritless.

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.

The Sixth Circuit yesterday 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.  See Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF).  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, follows 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.

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.

As reported previously, the Sixth Circuit in Wimbush v. Wyeth become the first circuit to weigh in on the scope of the Supreme Court’s recent decision on federal preemption (Wyeth v. Levine ), by holding that FDA approval does not preempt state law negligence claims.  Wyeth petitioned for rehearing en banc, but on October 14th the Court denied its petition, with no judge voting for rehearing en banc (PDF).  It remains to be seen whether other Circuits will follow the Sixth Circuit's lead in extending Wyeth v. Levine beyond the context of failure to warn claims.

As we reported earlier, Wyeth v. Wimbush was one of the first cases interpreting the Supreme Court’s decision in Wyeth v. Levine, and the first to extend Levine beyond failure to warn claims.  Wyeth has now filed an en banc petition (pdf) challenging that decision.  

Wyeth argues that the claim that it was negligent during the FDA approval process is no different from the “fraud-on-the-FDA” claims that the Supreme Court found preempted in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001).  Buckman held that “fraud-on-the-FDA claims” would “cause applicants to fear that their disclosures to the FDA, although deemed appropriate by the [FDA], will later be judged insufficient in state court,” leading to a “deluge” of information that the FDA “neither wants nor needs.”  Id. at 351.  Wyeth argues that there is some conflict between the panel’s decision and Buckman.  Other FDA-regulated companies will be eager to see whether the full court tackles the question.

Wyeth also argues that the panel should not have addressed preemption because of two alternative arguments.  One is that Ohio common law does not recognize a “negligent-bringing to market” claim, and the other is that plaintiff did not present evidence of negligence.  These arguments are likely aimed at achieving a panel rehearing, since they are not usually a basis for en banc review.  See 6 Cir. R. 35(c) (“Alleged errors in the determination of state law or in the facts of the case (including sufficient evidence) . . . are matters for panel rehearing but not for rehearing en banc.”).

Although the Sixth Circuit does not keep statistics what percentage of en banc petitions are granted, a statistical study by Pierre Bergeron in the Tennessee Law Review finds the number to be about two percent.