Sixth Circuit Appellate Blog

Appellate lawyers think about arguments in terms of the applicable standard of review, as that is the lens the court will use to evaluate an appeal.  There are four main standards of review:  

• Under “de novo” review, an appellate court decides an appeal without any deference to the lower court’s decision.  
• Review for “clear error” grants significant deference to the district court’s decision.  It requires the appellate court to have a “definite and firm conviction that a mistake has been committed.”
• “Sufficient evidence” review asks whether a reasonable person could accept the available evidence as adequate to support the decision.
• “Abuse of discretion” nearly defines itself.  The standard description is that it applies where “the district court has made a clear error of judgment, or has applied an incorrect legal standard.” 

These standards often seem to run together – which is not helped by the use of “clear error” in the definition of abuse of discretion.  And well-reasoned district court opinions will receive substantial deference regardless of the standard.  Judge Posner has suggested that there are really just two standards of review:  plenary (de novo) and deferential (everything else).  But do standards of review actually influence the results in appeals?  

Judges are certainly aware of the standard in every case, and usually cite the relevant standard at the beginning of opinions.  But if a judge believes that a case was wrongly decided, there will be a dozen ways to write an opinion that accommodates the right standard of review.   Opinions are, after all, usually written after the result has been decided.  Scholars are skeptical about whether standards of review have any meaning at all, and statistical studies in state courts in Texas and California have shown that significant changes in the standard of review often fail to have any effect on reversal rates. 

We looked at this question in the Sixth Circuit, using a combination of broad searches through the last five years of cases on Lexis, and a case-by-case analysis of three months’ worth of decisions.   We found that appeals that were decided “de novo” were nearly 20% more likely to be reversed than those under the more deferential standards.   Case reviewed for abuse of discretion were the most likely to be affirmed, followed by clear error and sufficiency of the evidence.  Our results support the view that the standard of review matters, at least in the Sixth Circuit. 

In Lisa Bridge v. Ocwen Federal Bank, the Sixth Circuit reversed a dismissal in a FDCPA case brought by pro se plaintiffs regarding their mortgage. 

Lisa Bridge, the only person listed on her mortgage, owed monthly payments to Aames Capital Corporation.  Her bank, Firstar, refused to honor her April mortgage check.  Thereafter, Lisa ordered Firstar issue an “official check” to Aames, but Firstar refused to honor that check as well.  Aames then notified Lisa that she was in default and assessed a late fee.  Firstar ultimately honored a second “official” check and, additionally, Lisa’s personal check.  Therefore, Lisa satisfied April’s payment and paid May’s in advance.

In the meantime, Aames assigned the mortgage to Ocwen, which the Bridges alleged is a division of Deutsche Bank.  Ocwen began “dunning” both Lisa and her husband William (who is not listed on the mortgage).  Ocwen repeatedly called the Bridges, despite cease and desist requests made to the federal “Do Not Call” directory; threatened foreclosure; assessed monthly late fees; and reported negative information to credit reporting agencies.  Further, Ocwen apparently retained a law firm, which sent a foreclosure threat by mail.  Plaintiffs Lisa and her husband William Bridge sued Oscwen and Deutsche and related parties under the Fair Debt Collection Practices Act (“FDCPA”).  The district court dismissed the Complaint, holding that defendants did not fall within the Act’s definition of “debt collector.”

On appeal, the Sixth Circuit reversed, holding that the Bridges alleged facts sufficient to satisfy the statutory definition of debt collector under the FDCPA (15 U.S.C. § 1692(a)(6)), which requires—in addition to persistent collection efforts intended to harass, oppress, or abuse—that the defendant seek collection of debts “owed or due or asserted to be owed or due another” and utilize interstate commerce in collection efforts.  Furthermore, the Court rejected as “disingenuous” and “exemplary of an unsettling trend in FDCPA claims” Ocwen’s argument that plaintiffs’ position that the mortgage was not in default relieves Ocwen of liability under the Act.  Although the FDCPA does exclude from the definition of debt collector efforts related solely to a debt which is not in default at the time it is obtained, the Sixth Circuit held that defendants could not “have it both ways”—for years demanding payment on a defaulted mortgage then, for purposes of avoiding liability, denying the mortgage was in default to begin with. 

The Court held that “the definition of debt collector pursuant to §1692(a)(6)(F)(iii) includes any non-originating debtor holder that either acquired the debt in default or has treated the debt as if it were in default at the time of acquisition.”  This holding, the Court noted, is supported both by the language of the FDCPA itself, which uses the word “asserted to be owed or due another,” and the legislative history suggesting that Congress meant to enact a sweeping reform to a “widespread problem.”  These holdings were also applicable to William Bridge because Congress intended to protect family members “who do not owe money, but may be deliberately harassed.”  Judge Clay concurred in the judgment regarding one of the defendants, but effectively dissented as to the thrust of the majority’s opinion. 

The Sixth Circuit will soon have a chance to consider the extent of the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011).  Plaintiffs in the federal multi-district litigation In re: Darvocet, Darvon and Propoxyphene Products Liability Litigation, Case No. 11-md-2226-DCR, MDL Docket No. 2226, raised a host of claims against generic manufacturers of the drug propoxyphene (a generic equivalent of Darvon) that the Eastern District of Kentucky recently dismissed as either preempted by Mensing or inadequately pleaded. 

Just before the MDL was transferred to the Eastern District of Kentucky the Supreme Court in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) held that federal law, which requires warning labels on generic drugs to match those of the corresponding brand-name drugs, preempted plaintiffs’ state-law failure-to-warn claims against generic drug manufacturers.  Id. at 2572.  Even though the In re: Darvocet plaintiffs were permitted to amend their complaints following the publication of the Mensing, the district court held that plaintiffs could not avoid the effect of Mensing no matter how they framed their allegations. 

The district court first held that two Sixth Circuit decisions, Wimbush v. Wyeth, 619 F.3d 632 (6th Cir. 2010) and Tobin v. Astra Pharmaceutical Products, Inc., 993 F.2d 528 (6th Cir. 1993), were inapposite to plaintiffs’ “wrongful marketing” claims (which included design defect, negligent design, negligence, and breach of implied warranty) because both cases involved a different regulatory scheme and were decided prior to Mensing. As to the plaintiffs’ argument that the generic manufacturers were free to remove propoxyphene products from the market -  “failure to remove” – the court agreed with the Eighth Circuit decision on remand Mensing v. Wyeth, Inc., 658 F.3d 867 (8th Cir. 2011), that the Supreme Court’s opinion in Mensing prohibited these claims:  “the idea that [defendants] should have simply stopped selling [the generic drug] is an oversimplified solution that could apply anytime the issue of impossibility preemption arises: avoid a conflict between state and federal law by withdrawing from the regulated conduct altogether.”

The district court then held that plaintiffs’ conclusory allegations of failure to warn did not meet the basic pleading requirements.  The rest of plaintiffs’ claims, such as misrepresentation, fraud, consumer protection, express warranty and statutory negligence, all related to the sufficiency of the warnings on the propoxyphene products, and were therefore preempted in accordance with Mensing.  Finally, the district court denied plaintiffs discovery and another chance to amend their complaints pursuant to Iqbal. 

No briefing schedule has been set, but we will update you as In re: Darvocet, Darvon and Propoxyphene Products Liability Litigation, Case No. 12-5368 goes forward. 

Yesterday I had the opportunity to speak with Colin O'Keefe of LXBN TV to discuss the Sixth Circuit’s long-awaited opinion in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing.  See Opinion, Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235) (PDF).  The Sixth Circuit case was the first major challenge to the Tobacco Control Act brought by tobacco companies, and it attracted a number of amicus briefs.  The case also has attracted extensive national coverage (see here, here, and here) since the Court’s decision last week.

In the video interview, I explain the background of the Sixth Circuit case, analyze why the panel arrived at the rulings that it did, and offer some interesting insights on the case, along with images of the controversial new color graphic warning labels that were at the center of the case. 

/p>

The Sixth Circuit today issued its long-awaited opinion in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing.  See Opinion, Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235) (PDF).  The Sixth Circuit case was the first major challenge to the Tobacco Control Act brought by tobacco companies, and it attracted a number of amicus briefs.

Sixth Circuit Judge Jane B. Stranch and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation, voted to uphold a key element of the new tobacco law which requires new color warnings graphically depicting the negative health consequences of smoking.  Beginning in Fall 2012, these new warnings must occupy the top half of the front and back of all cigarette packages, and must occupy 20% of all cigarette and smokeless tobacco advertising.  The warnings, which were formally unveiled by the FDA on June 21, 2011, include graphic images of, among other things, a dead man's body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.

The panel majority determined that the color graphics requirement is constitutional because it materially advances the government’s interest in curing an information deficit in consumers regarding health hazards.  Judge Eric L. Clay dissented.  Even though he agreed that the government had demonstrated that an “information deficit” still exists among consumers, Judge Clay concluded that the government had “not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm.”  Judge Clay wrote that “[i]t appears, from the government’s own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make the consumer less emotionally likely to use or purchase a tobacco product.”  Judge Clay’s dissent is not surprising and, indeed, was foreshadowed during oral argument back in July when he asked U.S. Department of Justice attorney Mark Stern during oral argument why the government did not develop a more narrowly tailored warning, “instead of those disgusting pictures.” 

In addition to upholding the constitutionality of the new color warnings, the Sixth Circuit affirmed the district court’s decision upholding several other provisions of the new tobacco law, including the restrictions on speech concerning modified risk tobacco products, the marketing bans on brand-name sponsorships and merchandise and sample tobacco products, and the new requirements for textual health warnings.  The Sixth Circuit also affirmed the district court’s decision invalidating the Act’s restriction on the use of color and imagery in tobacco product advertising because the ban was “vastly overbroad.”  Finally, the Sixth Circuit reversed the district court’s holding invalidating the Act’s restrictions on representations that tobacco products are safer or less harmful due to FDA regulation, as well as the district court’s decision upholding the constitutionality of so-called continuity programs, pursuant to which existing age-verified adult customers are rewarded for their purchases with non-branded, non-tobacco merchandise.

The Sixth Circuit’s 2-1 ruling today comes on the heels of a decision by Judge Richard Leon of the U.S. District Court for the District of Columbia, who ruled on February 29 that “these mandatory graphic images violate the First Amendment by unconstitutionally compelling speech.”  See Memorandum Opinion, R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., Case No. 11-1482 (D.D.C.) (PDF).  The United States is appealing that decision.  Judge Clay cited Judge Leon’s decision in dissent as support for his conclusion that the color graphic warning requirement violates the First Amendment.  

This is a case that could end up at the U.S. Supreme Court, and we will continue to follow it closely. 

The Third Circuit recently sided with the Fifth and Eighth Circuits in holding that the Family and Medical Leave Act ("FMLA"), 29 U.S.C.§ 2601 et seq., permits individual liability against supervisors at public agencies.  In reaching its conclusion, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole declined to follow Sixth and Eleventh Circuit decisions that do not permit individual liability against supervisors at public agencies. 

The Third Circuit rejected the Sixth Circuit's reasoning in Mitchell v. Chapman, 343 F.3d 811 (2003) that the FMLA does not permit individual liability because the the statute's individual liability provision does not refer to the its public agency provision.  The Third Circuit also rejected the Eleventh Circuit's reasoning that an individual supervisor in a public agency always lacks sufficient control over an employee's employment to subject him or her to individual liability under the FMLA. 

Instead, the Third Circuit followed the Fifth and Eighth Circuit decisions in looking to the FLSA (29 U.S.C. § 203(d)) for guidance in interpreting the definition of "employer" to include supervisors and in refusing to distinguish between public agencies and private employers under the FMLA insofar as individual liability is concerned.

We will continue to follow this split to see how other Circuits weigh in and whether the United States Supreme Court will resolve this broad-sweeping liability issue.

Over the past months, we have reported on developments in Coalition to Defend Affirmative Action, et al. v. Regents of the University of Michigan, et al (See here, here, here, and here). In the latest development in this Michigan affirmative action case, the Sixth Circuit held oral arguments in an en banc rehearing yesterday afternoon. 

From the atmosphere both inside and outside the courthouse, it became clear how strongly people feel about this case: Proposal 2 protestors circled the courthouse yelling and chanting; the courtroom filled to capacity nearly an hour before the oral arguments were scheduled to begin; and during oral arguments, a court employee sharply rebuked a man in the audience for clapping in favor of the appellants. 

The en banc panel was comprised of eleven active judges and Senior Judge Daughtrey, continuing her participation from the panel at the original hearing. The court first heard oral argument from the appellants, who contend that Michigan’s Proposal 2 referendum is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Although the appellants proposed various arguments, they focused on the idea that Proposal 2 amounts to political restructuring, which is both “toxic” to the Fourteenth Amendment and precludes a “fair fight” for minorities in admissions decisions. One appellant went so far as to characterize Proposal 2 as a “gag order”. The rhetoric was intense and heated. 

The appellees’ arguments were more varied, as some of the appellees contest their position as proper parties to the suit, while others focus on the constitutional issues. The last appellee to speak was Michigan’s Solicitor General. He argued that Proposal 2 does not violate the Equal Protection Clause. The Supreme Court, according to the appellee, encouraged race-neutral policies in Grutter v. Bollinger, which have become “salutary” to minorities in admissions decisions.  He also explained that while diversity should be achieved through the admissions process, “artificial proxies” for diversity should be eliminated. Although both sides agree that Hunter v. Erickson and Washington v. Seattle Sch. Dist. No. 1 control this case, they diverge in their analyses and applications of the two cases. They also disagree as to whether Proposal 2 applies to the sex of applicants as well as their race. Appellants contend that Proposal 2 applies only to race, while the appellees argue that it applies to race, sex, ethnicity, and national origin. 

With judges also seeming to disagree on various points during oral arguments yesterday, we expect this case to be under review for the next few months. We will keep you abreast of developments as they occur.

Thanks to Lauren Henderson, a law clerk at Squire Sanders, for attending the oral argument and providing this update.

Last summer, we brought you highlights from oral arguments at the Sixth Circuit in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing.  See Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235).   The plaintiffs argued to the panel that several provisions of the Tobacco Control Act violate their First Amendment rights to free speech.  One key element of the Act is the requirement of new color warnings which graphically depict the negative health consequences of smoking.  Beginning in Fall 2012, these new warnings must occupy the top half of the front and back of all cigarette packages, and must occupy 20% of all cigarette and smokeless tobacco advertising.  The warnings, which were formally unveiled by the FDA on June 21, 2011, include graphic images of, among other things, a dead man's body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck. 

A similar lawsuit was filed in the U.S. District Court for the District of Columbia back in August 2011 by five of the country’s largest tobacco manufacturers.  On Wednesday, District Court Judge Richard Leon granted summary judgment in favor of the tobacco companies, ruling that “these mandatory graphic images violate the First Amendment by unconstitutionally compelling speech.”  See Memorandum Opinion, R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., Case No. 11-1482 (D.D.C.) (PDF).  Judge Leon thus permanently permanently enjoined the FDA’s final rule establishing graphic warnings for cigarette packaging and advertising.

We’re still waiting for a ruling in the Sixth Circuit case, which was argued over seven months ago.  The panel includes Sixth Circuit Judges Eric L. Clay and Jane B. Stranch, and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation.  It will be interesting to see whether Judge Leon’s recent opinion influences the Sixth Circuit’s decision.  We’ll, of course, give you a full report on the Sixth Circuit’s decision as soon as it is handed down.  

Last August, we discussed recent procedural changes surrounding oral argument in the Sixth Circuit. In an effort to shed more light on the topic of oral argument in the Sixth Circuit in general, we recently observed three days of oral argument. We attended 18 oral arguments presented before various panels that, taken together, were composed of 7 Sixth Circuit judges and 2 visiting district judges.

After observing the Court over this three-day period, we have compiled various tips for what to expect during oral argument at the Sixth Circuit: 

Anticipate a “hot bench”. Each Circuit has a unique style and frequency of questioning parties. Consistent with our own experiences, judges at the Sixth Circuit did not listen passively to oral argument.  The panels we observed asked an average of 37 questions in each case.  Both appellants and appellees were actively engaged in questioning throughout oral argument.  Judges posed an average of 18 questions towards the appellant and directed an average of 14 questions towards the appellee. Appellees should therefore be just as prepared for questioning as appellants. We also found that during rebuttal (which lasted 2-5 minutes), appellants were asked an average of 5 questions. The importance and frequency of these questions demonstrated the importance of the rebuttal for appellants. 

Know your audience. In an effort to ingratiate himself with the panel, one attorney from Michigan began his oral argument by remarking that unlike most Michigan attorneys, he enjoys visiting Ohio.  Unfortunately for him, only one of the judges was from Ohio (and one was from Michigan) – and the panel obviously did not think much of his comments.  The attorney lost any momentum he hoped to gain before beginning his argument.  Even if an attorney does not know the relevant cases authored by each judge, he should at least look at the oral argument calendar (which is posted weeks ahead of the argument) to see who will be on the panel. 

Know your caselaw. Oral argument can make or break a close case, and so important to come to court well-prepared. In some arguments we observed, attorneys were unaware of recent Sixth Circuit cases and were unable to respond to judges’ questions about their impact on the appeal.  The judges also became frustrated when attorneys attempted to bolster their arguments with irrelevant cases. One judge warned an attorney that his argument’s “allegations” needed to be replaced with “real facts.” Though this preparation should be obvious, a surprising proportion of attorneys arrived at court ill-prepared for questions on important facts and cases.      

In the upcoming months, we will be posting additional entries addressing the practice of oral argument in the Sixth Circuit. These posts will identify matters such as the various ways in which judges use questioning during oral argument, and how the manner in which judges question attorneys may reveal the eventual outcome of the case. 

Thanks again goes to Lauren Henderson, a law clerk at Squire Sanders, for her work in researching and writing this post.

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.

In Nemier v. Nationwide Mutual Insurance Company,  the Sixth Circuit ruled that  Karen Nemier, a former Nationwide Insurance Company agent,  had not raised a genuine issue of material fact to prevent summary judgment on her fraud and breach-of contract claims, holding the general statements by Nationwide about potential returns were not promises to her, were not knowingly false when made, or were mere puffery.  Nemier had sued Nationwide for fraudulently inducing her to take out loans from Nationwide to open a new office.    Nationwide  agreed to  forgive the loan in full  if her new office met specific growth rates .  Nemier accepted a loan in the amount of $100,000 based on studies by a Nationwide consultant and Nationwide’s assurances that given Nemier’s past success she would likely meet the sales goals required to waive her loan payments.  But Nationwide’s loan program allegedly drove insurance premiums up, causing Nationwide to lose customers.  Nemier missed her loan forgiveness target by 7 percent. 

Nemier raised three separate theories of fraud.  First, she claimed that Nationwide fraudulently induced her to take out a loan by promising lower rates in  the   new office’s location.  The Sixth Circuit ,  in reviewing the district court's grant of summary judgment to Nationwide,  held, however, that Nemier’s evidence that Nationwide identified the location as a “target expansion market” and that the loan program would spawn “competitive” rates were not promises to Nemier.  Moreover, these alleged promises could only be fraudulent if Nationwide intended to break them, evidence which Nemier did not have.

Second, Nemier claimed that Nationwide’s business projections were so optimistic that they qualified as dishonest.  The Court rejected this claim, stating that Nationwide warned her that sales may be difficult and, in any event, these types of projections are mere “puffery, not fraud.” 

Finally, Nemier alleged “silent fraud” because Nationwide failed to disclose its plan to compete with its agents directly. The Court rejected Nemier’s competition theory on the basis that Nemier provided so little information about the competition from Nationwide and its affiliates that it is “impossible to gauge whether that competition constituted a change in Nationwide’s business plan upon which Nemier would have  ' naturally relied '  when deciding whether to open the Hartland store.”  Furthermore, Nemier, the Court held, signed a contract permitting Nationwide to “make business decisions adverse to her interests.”

We have been following the ongoing federal investigation into political corruption and posting from time to time as the Sixth Circuit addresses cases and issues arising from it.  That investigation has targeted conviction of former Cuyahoga County Commissioner Jimmy Dimora as one of its top objectives.  Yesterday, the Sixth Circuit rejected an interlocutory appeal taken by Dimora’s counsel after selection of a jury but before opening argument that raised a double jeopardy challenge to a later indictment.  The panel’s two page disposition agreed with the district court that Dimora had no claim for double jeopardy from the two indictments because the trial will be the first time Dimora is placed in jeopardy.  As a result, opening arguments in the Dimora trial will begin tomorrow, January 12, 2012.  

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.

The Sixth Circuit is one of only five federal appellate courts to institute a bankruptcy appellate panel under 28 U.S.C. § 158(b).  (The others are the First, Eighth, Ninth, and Tenth circuits.) As the bankruptcy appellate panel is unfamiliar to many non-bankruptcy attorneys, this post will review the Sixth Circuit’s bankruptcy appellate panel. 

Section 158(b) encourages the federal appellate courts to create three-judge panels to hear appeals from the bankruptcy courts that would otherwise be heard by district courts.  It also allows each district to choose whether to use the bankruptcy appellate panel (“BAP”).  All appeals from bankruptcy courts in those districts are heard by the BAP unless one of the parties chooses to have the appeal heard by a district court judge.  The Sixth Circuit BAP began in 1997, with the goals of promoting the uniformity of bankruptcy law within the Sixth Circuit and minimizing the cost and delay of a bankruptcy appeal.  All districts in the Sixth Circuit use the BAP except the E.D. Mich., W.D. Ky., and E.D. Tenn.  Parties can appeal to the Sixth Circuit from a BAP decision just as they would from a decision by a district court. 

The Sixth Circuit BAP judges are bankruptcy judge that sit for staggered four-year terms, and cannot hear appeals from their home districts.  The bankruptcy judges currently sitting on the Sixth Circuit BAP are Judges Boswell (W.D. TN), Fulton (W.D. KY), Harris (N.D. OH), McIvor (E.D. MI), Rhodes (E.D. MI), and Shea-Stonum (N.D. OH).  As in other circuits, some judges are re-appointed to multiple terms.  The Sixth Circuit BAP hears about 60% of the total bankruptcy appeals from the districts that have elected to use it, which comes to about 150 appeals each year.  

Despite the Sixth Circuit’s local rules state that BAP decisions are precedential unless the panel states otherwise, see 6th Cir. BAP LBR 8013 – 1(a)); Specker Motor Sales Co. v. Eisen, 393 F.3d 659, 663 n.3 (6th Cir. 2004) (BAP decisions are “equivalent to review by a district court”), there are significant disagreements within the Sixth Circuit about whether those decisions have binding effect.  Some bankruptcy courts have held that BAP decision are “binding authority,” Rhiel v. OhioHealth Corp., 380 B.R. 753, 775 (Bankr. S.D. Ohio 2008), while others state those decisions “do not have binding precedential effect,” In re Boyd, 414 B.R. 223, 232 (Bankr. N.D. Ohio 2009).  A recent survey by Professor Kuney found similar confusion in all circuits, finding that most bankruptcy judges do not feel bound by their circuit’s BAP decisions or even by district court decisions.  Similarly, BAP decisions are often persuasive to district courts, but are not binding.  Q Tech. Inc. v. Allard, 2009 U.S. Dist. LEXIS 36953, *12 n.1 (E.D. Mich. May 1, 2009); see also Threadgill v. Armstrong World Indus., 928 F.3d 1366, 1371 (3d Cir. 1991) (“The doctrine of stare decisis does not compel one district court judge to follow the decision of another.”) (citation omitted).  At the least, Sixth Circuit BAP panels should be bound by their own past decisions under 6th Cir. BAP LBR 8013 – 1(a). 

Parties elect to use the BAP a little more than half the time in the Sixth Circuit, but making that decision in a particular case can be difficult.  Adverse but distinguishable BAP precedent may suggest that the district court could be a more favorable venue, but the choice often comes down to the whether the appeal focuses on bankruptcy or non-bankruptcy grounds.  Bankruptcy judges have more experience with bankruptcy law, but bankruptcy appeals often turn on issues unrelated to bankruptcy that may be more suitable for a district court.   

Continue Reading

Sixth Circuit Rule 10 defines the "record on appeal" as the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk. If the district court record does not accurately reflect the proceedings before the district court, Federal Rule of Appellate Procedure 10 provides for "correction" or "modification" of the record.   But what happens if a party on appeal does not seek to "correct" or "modify" the record, but rather to supplement the record on appeal with information not presented to the district court?  Does the Sixth Circuit have any authority other than that set forth in FRAP 10 to supplement the record?

In a commercial case from 2003, the Sixth Circuit stated that "[w]hile other circuits have embraced the notion that the record can be supplemented under an appellate court's equitable authority, we as of yet have not." Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003) (PDF).  In the habeas context, however, the Sixth Circuit has since exercised its equitable authority to supplement the record in two capital cases with evidence as to a petitioner's mental condition at the time of the crime.  See Thompson v. Bell, 373 F.3d 688, 690-91 (6th Cir. 2004) (PDF) and Smith v. Anderson, 402 F.3d 718, 727 (6th Cir. 2005) (PDF) (Cole, J., dissenting on supplementation issue).

District courts within the circuit are unclear as to whether equitable authority to supplement the record exists, and if so, whether it is reserved to the Court of Appeals.  Some have held that no such equitable authority is currently recognized by the Sixth Circuit.  See, e.g., Gonzalez v. Lapping, 2011 U.S. Dist. LEXIS 79648, *3 (N.D. Ohio July 20, 2011) (PDF) ("The respondent's argument that the Court possesses an equitable power to expand the record in extraordinary circumstances has no merit. First, the rule cited by the respondent involves the equitable power of an appellate court to expand the record. Second, the Sixth Circuit has not even adopted it.") and Mize v. Tedford, 2009 U.S. Dist. LEXIS 53319, *6-7 (E.D. Mich. June 24, 2009) (PDF) ("Alternatively, a minority of courts have discussed the existence of an 'inherent equitable power to supplement the record on appeal to include information not presented to the district court,' but only in unique cases that, in the interest of justice, require special consideration... To the court's knowledge, however, the Sixth Circuit has never adopted such a view.")

Others have held that such equitable authority exists, but it is reserved to the Sixth Circuit.  See, e.g., Connolly v. Howe, 2007 U.S. Dist. LEXIS 76395, *6 (W.D. Mich. Oct. 15, 2007) (PDF) ("Petitioner's request should be directed to the Sixth Circuit, which has the authority to address 'questions as to the form and content of the record' pursuant to Rule 10(e)(3) or to exercise its 'inherent equitable power to supplement the record.'")

This issue of equitable authority to supplement the record is ripe for clarification by the Sixth Circuit.  Whether, and under what circumstances, the Sixth Circuit will exercise equitable authority to supplement the record, especially in civil cases, remains to be seen.

Sixth Circuit Judge Jeffrey Sutton received high praise on Wednesday from former Supreme Court Justice John Paul Stevens for his decision upholding President Obama’s health care overhaul.

Justice Stevens observed: “I admire Jeff’s work.  He’s a very fine judge, and is very conservative,” and commended Judge Sutton’s ability to “separate the policy issue from the constitutional issue.” At the same time, Justice Stevens questioned whether Judge Sutton’s independence “may have killed his chances of elevation to the Supreme Court.” Ironically, Justice Stevens likened Judge Sutton’s health care opinion to his dissent in Groppi v. Leslie (1970), a dissent in which then-Judge Stevens demonstrated his fierce independence by opposing the incarceration of a Roman Catholic priest, Father James Groppi, who was jailed for contempt and for leading a parade of protestors to disrupt a legislative session. This dissent, Justice Stevens opined, might have been my most “significant court of appeals opinion because I thought it put an end to any possibility that I might be considered for appointment to the Supreme Court.”

Offering admiration for Judge Sutton’s ability to “cal[l] them as he sees them,” Justice Stevens suggested that Judge Sutton’s health care opinion may very well “be his Groppi case.”

The Sixth Circuit closed the class-action doors on classes based on violations of various state consumer protection laws yesterday.  In Pilgrim v. Universal Health Card, LLC, Case No. 10-3211/3475, the Sixth Circuit affirmed the Northern District of Ohio’s decision to strike the class allegations in the plaintiffs’ complaint.  Plaintiffs alleged that Universal Health Card, LLC (“Universal”) and Coverdell & Company engaged in deceptive practices in the advertisement of their healthcare discount membership program and sought to represent a nationwide class of all people who had joined the program.  Universal filed a motion to strike the class allegations, which the district court granted.  The district court reasoned that under Ohio’s choice of law rules, each class member’s claim would have to be analyzed under the law of their home state.  Because the differences in state consumer protection laws would outweigh any common issues of fact Plaintiffs may establish, the court held that the class failed to meet the predominance requirement under Rule 23(b)(3). 

The Sixth Circuit found no abuse of discretion in the district court’s holding for three reasons.  First, Ohio’s choice of law rules are clear that the consumer protection laws of the state where each injury took place would govern the claims and because the consumer protection laws of the affected states varied in material ways, “no common legal issues favor a class-action approach to resolving” the dispute.  Second, even if a class could overcome varied legal standards with “considerable factual overlap,” that was not the case with plaintiffs’ alleged class.  Since the defendants’ program operated differently in different states, the facts would vary from place to place.  Third, the decision was consistent with decisions from the Sixth Circuit and other courts that refused to permit a nationwide class that would be analyzed under the laws of different states.    

Finally, the Sixth Circuit addressed the timing of the district court’s ruling on the defendants’ motion to strike class allegations, which came before plaintiffs’ had filed a motion to certify the class.  The Sixth Circuit held that Rule 23(c)(1)(A) says nothing about waiting for the plaintiffs’ motion:  “[t]hat the motion to strike came before the plaintiffs had filed a motion to certify the class does not by itself make the court’s decision reversibly premature.”  The Sixth Circuit further held that plaintiffs’ desire for more discovery or time would have done nothing to change their conclusion. 

A few hours ago, the D.C. Circuit upheld the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Opinion, Seven-Sky, et al. v. Holder, et al., Case No. 11-5047 (D.C. Cir. Nov. 8, 2011) (PDF).  In doing so, the D.C. Circuit joined the Sixth Circuit in upholding the constitutionality of the individual mandate under the Commerce Clause.  See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  By contrast, as we reported back in August, a divided Eleventh Circuit held that the individual mandate is unconstitutional because it “exceeds Congress’s enumerated commerce power and is unconstitutional.”  See Opinion, State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021). 

The D.C. Circuit’s opinion is significant because the Circuit Court reached the merits of the plaintiffs’ claims.  As we have previously reported, both the Third and Fourth Circuits have held that plaintiffs challenging the individual mandate lacked standing.  Similarly, Judge Brett Kavanaugh of the D.C. Circuit dissented on the ground that the court lacked jurisdiction under the Anti-Injunction Act because plaintiffs’ lawsuit constitutes a pre-enforcement action seeking to restrain the assessment of a tax.

In their majority opinion upholding the individual mandate, Senior Judge Laurence Silberman and Judge Harry Edwards noted that “[s]ince so much has already been written by our sister circuits about the issues presented by this case–which will almost surely be decided by the Supreme Court–we shall be sparing in adding to the production of paper.”  Nonetheless, the majority and dissenting opinions still span 103 pages.  But it is interesting that the judges believe—in line with most legal observers—that the U.S. Supreme Court is almost certain to take on the challenge to the health care statute.  As we have reported, cert petitions were recently filed in both the Sixth and Eleventh Circuit cases, and opponents of the individual mandate are hopeful that the U.S. Supreme Court will hear the case in March 2012.  We will report to you as soon as the Supreme Court makes its decision. 

Earlier this month, Arlington Video Productions, Inc. filed a notice of appeal from denial of class certification (and later summary judgment) in a case it brought against Fifth Third Bank in the Southern District of Ohio.  Challenging certain fees assessed by Fifth Third, Arlington Video sought to certify a class of:

All individuals and entities who have or have had checking accounts with Fifth Third Bank in the United States, who were charged and paid a fee for a service that was not listed on a then current Fifth Third Fee Schedule, or was in an amount that was different from that stated on a then current Fifth Third Fee Schedule, prior to the assessment of the charge, during the applicable limitations period.

The district court declined to certify the class, holding that there were “valid concerns as to whether the numerosity requirement has been satisfied,” and finding that Arlington Video met none of the other three class requirements of commonality, typicality, and adequacy of representation.  Practical problems plagued the certification request, as the court expressed concern over the necessary and onerous factual inquiry to identify the class and, thus, to determine numerosity.  Such an inquiry would require surveying all account holders for those who had not only been charged fees, but fees not listed on specific agreements and of which they were not given adequate notice.  These same individualized concerns, the court held, pervaded the commonality requirement and, thus, no common legal or factual thread ran through all potential class members. 

The court noted that typicality cannot exist “where litigation of the individual circumstances of each account holder’s negotiations of the terms of his or her account and a breach of duty to each account holder on the part of defendant is necessary to establish liability and to support an award of damages.”  The court echoed this reasoning in holding that Plaintiff failed to establish adequacy of representation.  For instance, there are 75 types of business accounts with “infinite potential for variations” in those account holder agreements.   This case may give the Sixth Circuit an opportunity to explore issues relating to class certification that practitioners regularly face; therefore, we'll keep an eye on this case.

Congratulations to Judge Bernice Bouie Donald, who formally joined the Sixth Circuit today.  She was sworn in by Judge Daughtrey at a ceremony in downtown Memphis.  Judge Donald's brief remarks at her investiture can be found here.  With Judge Donald on the bench, all sixteen seats are filled and the circuit is now at full strength.  Our prior coverage of her background and path through confirmation (on a 96-2 vote) is chronicled here, here, and here.

When should you cite an unpublished opinion?  This frequent question has a different answer in every circuit, and can be extremely important because most decisions are unpublished.  The percentage rate of unpublished decisions varies widely, from 60% in the Seventh, 84% in Sixth, to 93% in the Fourth.  Appellate Rule 32.1 now allows parties to cite any written disposition issued after January 1, 2007 regardless of its status as unpublished or nonprecedential.  While the circuits have broad disagreements about what cases should (and can) be cited, the Sixth Circuit is among the circuits most receptive to unpublished opinions.

Prior to the 2006 adoption of Rule 32.1, the Sixth Circuit’s local rules said the citation of unpublished opinions was “disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.”  They now state only that citation of unpublished opinions is “permitted.”  But unpublished opinions are not precedential:  “Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels, but their reasoning may be ‘instructive’ or helpful.”  Crump v. Lafler, 2011 U.S. App. LEXIS 19253 (6th Cir. Sept. 20, 2011); see also Music v. Arrowood Indem. Co., 632 F.3d 284, 288 (6th Cir. 2011) (choosing not to follow unpublished decision).  While Crump is not a ringing endorsement, unpublished decisions are frequently cited in current Sixth Circuit decisions.  

The Sixth Circuit also has a long history of using unpublished opinions.  The Sixth Circuit was the first to officially allow its unpublished decisions to be included in electronic databases.  Many other circuits did not take this step until ten or even twenty years later.  Unpublished opinions in the Sixth Circuit are more likely to be longer, with more discussion and reasoning, and to give the author’s name than the opinions of other circuits.  Tim Reagan of the Federal Judicial Center has found that Sixth Circuit judges are far more likely than those of other circuits to believe that unpublished opinions are helpful to decide cases.  Perhaps as a consequence of their more frequent use, they are also the most likely to be concerned that unpublished opinions are inconsistent with published authority.  

As noted above, unpublished opinions receive a different reception in each circuit.  The Second, Seventh, and Ninth circuits forbid citing any unpublished decisions issued before 2007, and the Fourth, Eighth, and Federal circuits discourage their citation.  See 4th Cir. R. 32.1 (“If a party believes, nevertheless, that an unpublished disposition of this Court issued prior to January 1, 2007, has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if the requirements of FRAP 32.1(b) are met.”).  As judges on the Third Circuit almost always avoid citing unpublished opinions, litigants should think twice before relying exclusively on such precedent to that court. 

As in every circuit, individual judges in the Sixth Circuit choose whether to make an opinion published on unpublished.  Usually this is based on whether the question of law is novel, the case particularly interesting, the opinion analyzes a particularly difficult question.  It is also influenced by the possibility of encouraging a dissent with the choice to publish (writing a dissent can also encourage publication as well).  Some judges are also much more likely to designate their opinions as published than others.  

Relevant unpublished decisions can and should be cited in appellate briefs in the Sixth Circuit with a few caveats:  Unpublished decisions are not binding on subsequent panels, and so should not be favored over older published decisison.  Such decisions may not be as well-reasoned or persuasive as a published decision from another circuit.  Because the factual discussion is generally shorter, judges may also be more inclined to distinguish unpublished decisions in cases involving complex facts.  But unpublished decisions also show that an argument has been accepted before, and a panel may hesitate before completely rejecting a priopr unpublished decision. 

This is part of a series of posts on the procedures and practices of the Sixth Circuit.  Earlier posts in this series have discussed oral argument, the court’s backlog, staff attorneys (two posts), and visiting judges.

In my breaking news post the other day, I reported on how the government filed its cert petition asking the U.S. Supreme Court to reverse the Eleventh Circuit’s high profile ruling striking down the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  Hours after it filed its cert petition in the Eleventh Circuit case, the government filed its brief responding to the plaintiffs’ July 29 petition for writ of certiorari seeking review of the Sixth Circuit’s June 29 divided panel decision upholding the constitutionality of the individual mandate.  See Thomas More Law Center, et al. v. Obama, et al. (U.S. Supreme Court, Case No. 11-117).  In its brief, the government urged the Court not to grant review of the Sixth Circuit’s decision because the relevant issues can be more fully explored in the Eleventh Circuit appeal.

So is the Eleventh Circuit case a better vehicle for Supreme Court review than the Sixth Circuit’s Thomas More case? 

Yesterday, I offered my in-depth analysis on this issue when I was interviewed on the “Legally Speaking” program on the Voice of Russia, the international radio network heard in such international cities as New York, Washington, D.C., London, and Moscow.  I also discussed this issue (and many others) in my video interview yesterday on LexBlog TV, hosted by Colin O’Keefe.  LexBlog TV is part of The LexBlog Network, which is the largest professional blog network in the world.  Click below to watch my interview and find out the answer to the question above:

Link to LexBlog TV page: http://lxbn.lexblog.com/2011/09/30/lxbn-tv-steve-delchin-of-squire-sanders-on-the-ppaca-insurance-mandate-heading-to-the-supreme-court/ 

Youtube link: 

The challenge to the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, is making front page news today.  That’s because the government has decided not to seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate. 

As we reported in a breaking news post back in August, a divided Eleventh Circuit held that the individual mandate is unconstitutional.  See Opinion, State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).  The Eleventh Circuit’s decision directly conflicts with the Sixth Circuit’s June 29, 2011 decision upholding the individual mandate.  See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  While the Supreme Court has already been eyeing the constitutional challenges to the health care statute given the national importance of these cases, the Circuit split only enhances the odds that the Supreme Court will weigh in.  And, of course, Supreme Court review is always more likely when the government files a cert petition.

If the government had sought an en banc hearing before the Eleventh Circuit, the lawsuit likely would have been delayed for almost a year, which would mean that the Supreme Court would not have decided the case until after the 2012 presidential election.  As it stands, it is quite possible that the Eleventh Circuit case will be consolidated with the Thomas More case from the Sixth Circuit, which has already landed at the U.S. Supreme Court.  As we previously reported, the plaintiffs in the Thomas More case filed their petition for writ of certiorari back in July.  The government’s response to the plaintiffs’ cert petition is due tomorrow.

Last Friday, the D.C. Circuit heard oral arguments in yet another lawsuit challenging the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Seven-Sky v. Holder (D.C. Circuit, Case No. 11-5047).  This is the fourth challenge to the individual mandate that has been heard in a federal Circuit Court.

The D.C. Circuit panel includes Circuit Judges Brett Kavanaugh, Laurence Silberman, and Harry Edwards.  One of the key issues before the panel is whether the individual mandate exceeds Congress’s powers under the Constitution.  As one legal observer notes, however, the D.C. Circuit could avoid ruling on the constitutional issue altogether if it concludes that the individual mandate is a tax, which would mean that the plaintiffs could not challenge the mandate until it goes into effect in 2014.  As we reported two weeks ago, this is the exact approach that was taken by the Fourth Circuit in Liberty University, Inc. v. Geithner (Fourth Circuit, Case No. 10-2347).  Like the Third Circuit, but unlike the Sixth and Eleventh Circuits, the Fourth Circuit in Liberty University held that the challengers lacked standing to bring their suit. 

Although it is sometimes hazardous to guess how a judge will rule based on statements made at oral argument, Judge Kavanaugh did appear to be interested in the Fourth Circuit’s line of reasoning.  He stated several times that it was a “close” call whether the individual mandate is a tax that would strip the court of jurisdiction under the Anti-Injunction Act.  What’s interesting, though, is that the government has not advanced this reasoning in defending in the health care statute.  Indeed, in defending the requirement, President Obama himself has insisted that the individual mandate is not a tax.

As we previously reported, the Sixth Circuit was the first Circuit Court in the country to rule on the health care statute’s constitutionality when it upheld the individual mandate under the Commerce Clause back on June 29, 2011.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  In so ruling, the Sixth Circuit concluded that the plaintiffs had standing to bring their lawsuit.  In will be interesting to see whether the D.C. Circuit follows the Fourth Circuit’s approach and concludes that the challengers lack standing, or whether instead it will follow the Sixth Circuit’s lead in Thomas More and reach the merits of the constitutional challenge to the individual mandate.  Either way, though, it will probably be a few months before the D.C. Circuit issues its opinion, which could be after the U.S. Supreme Court decides to take up the challenge.  Indeed, the Thomas More case has already landed at the U.S. Supreme Court, with the plaintiffs filing their petition for writ of certiorari back in July.  The government’s response to the plaintiffs’ cert petition is due on September 28, 2011.  We will, of course, keep you updated on the latest arguments being made by the government.

A recent article in the National Law Journal considered the impact of amicus briefs on the U.S. Supreme Court, attempting to discern how much influence amici have on the high court's decisions.  As one might expect, amici weigh in on cases before the Supreme Court in significant numbers -- the NLJ article found that, in the most recent term, an average of nine briefs were filed per case.  Interestingly, the NLJ article also suggested that, based upon the number of times an amicus brief is cited in a decision, "the Supreme Court is finding amicus briefs increasingly helpful."

With the NLJ article's findings in mind, the Sixth Circuit Appellate Blog has examined amicus filings for the Sixth Circuit, focusing on two periods for comparative purposes.  First, filings for the past year were examined, looking at the period from September 1, 2010 through August 31, 2011.  Then, for a 10-year comparison, the filings for the 2001 calendar year were examined.  This analysis was conducted through a combination of electronic searches and inspection of the Sixth Circuit's dockets via PACER.

In 2001, a total of 75 amicus briefs were filed on behalf of 97 amici in 32 cases.  Of those 32 cases, the Court cited amicus briefs in only seven cases (21%) and made substantive use of amici arguments in a mere three cases (9%).  By comparison, in 2010-11, a total of 64 amicus briefs were filed on behalf of 156 amici in 38 cases.  And of those 38 cases, the Court cited amicus briefs in 15 cases (39%), making substantive use of amici arguments in three cases (8%).

These numbers suggest that the filing of amicus briefs is relatively rare in the Sixth Circuit.  While there is some indication that filings may have increased from 2001 to 2010-11, such growth is not significant and the absolute number of cases in which amicus briefs were filed annually in the Court – between 30 and 40 – remains rather small.  Amicus practice is clearly the exception and not the rule before the Court.  Tomorrow, this blog will examine some of the qualitative findings regarding amicus filings in the Sixth Circuit.

Interlocutory appeals under 28 U.S.C. § 1292(b) are granted “sparingly and only in exceptional cases.”  See e.g. In re City of Memphis, 293 F.3d 345, 350 (6^th Cir. 2002).  But this month the Sixth Circuit accepted just such an appeal.

In Community Trust Bancorp., Inc., v. Community Trust Financial Corporation, et al., No. 10-cv-00062.pdf, which is pending in the Eastern District of Kentucky, plaintiff Community Trust Bancorp, a Kentucky corporation, sued non-Kentucky Community Trust Financial Corporation and its wholly owned subsidiaries for trademark infringement under the Lanham Act.  Defendants moved to dismiss the complaint for lack of personal jurisdiction.  The Eastern District denied Defendants’ motion, holding that Defendants conducted sufficient activities in Kentucky to establish personal jurisdiction because Defendants “contract[ed] to supply services or goods in this Commonwealth,” most notably online banking services.

Defendants thereafter filed a motion with the Eastern District certifying an appeal to the Sixth Circuit from the Eastern District’s “Order finding that the Plaintiff had established a prima facie case of personal jurisdiction over the Defendant’s and denying the motion to dismiss for lack of personal jurisdiction.”  The Eastern District held that 28 U.S.C. 1292(b) grants the Court discretion to certify an appeal when certain conditions are met:  “(1) The question involved must be one of law; (2) it must be controlling; (3) there must be substantial ground for difference of opinion about it; and (4) an immediate appeal must materially advance the ultimate termination of the litigation.”  Concluding that each of these conditions were met in this case, the Eastern District granted Defendants’ motion to certify an appeal under § 1292(b).  Defendants then petitioned the Sixth Circuit for permission to appeal.

On September 2, 2011, the Sixth Circuit granted the petition.  The Court held that even though the case had been certified, Defendants “must still persuade us that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.”  The particular issue, as framed in the district court, was whether the actions of Kentucky residents signing up for online banking accounts and Community Trust sending them, via the internet, passwords for those accounts "revealed a specific intention to interact with these customers, even after they became Kentucky residents." Following the same factors set forth by the district court, the Sixth Circuit granted permission to appeal because the law in this area is unsettled and the question of personal jurisdiction arose early in the case and will recur throughout the proceedings. 

Given the rarity of § 1292(b) appeals, this case is important for defining § 1292(b) jurisprudence.  The Sixth Circuit appears willing to short-cut the final appeal rule in cases with a well-defined jurisdictional issue, which will ultimately need to be resolved on appeal anyway. 

Continuing our exploration of case management practices in the Sixth Circuit, this post compares the Sixth Circuit’s use of visiting judges with that of other circuits and weighs the potential for impact of the visits on the circuit’s procedures.   We have previously explained how visiting judges handle a large portion of the Sixth Circuit’s caseload and how the use of visiting judges may affect the circuit’s decisions.  Though the Sixth Circuit’s heavy reliance on visiting judges is unusual, it is unlikely to have a large impact on the circuit’s other case management practices.

Visiting judges participated in 4,398 decisions for all circuits in 2010 – about 7.5% of the total number of appeals terminated.  But the use of visiting judges is concentrated in just a few circuits.  The Second, Sixth, and Ninth circuits accounted for 70% of the panels with visiting judges.  Adding the Third and Tenth Circuits pushes that number to 85%.  The Second (at 19%) and Sixth (at 17%) circuits have by far the largest percentage of total terminations involving visiting judges, with the Ninth Circuit a distant third (at 11%).  Most other circuits are in the low single digits, with the Fifth Circuit using visiting judges for only 1% of its total caseload.  The D.C. Circuit does not use visiting judges at all.

Marin Levy of Duke Law School opines that the low rate of visiting judges contributes to the difficulty that some judges have in comparing procedures across circuits, and writes that the program is “an ineffective means of significant information exchange.”  As to cross-fertilization between case management procedures across circuits, even that conclusion may be optimistic given that a full 80% of the judges visiting circuit courts in 2010 were district court judges.  And 75% of the appellate judges that visited other circuits were senior judges.  Judges from the Third Circuit accounted for almost all of the visits by active judges to other circuits. 

Given that active judges are responsible for setting circuit policy and case management, the impact of visiting district court or senior circuit judges on those policies is likely minimal or non-existent.  None of the active Sixth Circuit judges visited another circuit in 2010, and only one active judge from another circuit visited the circuit during the year.  The visiting judges program, however, allows the circuit to draw on outside resources to reduce its heavy docket load, and in that respect, it carries a significiant impact on the Sixth Circuit's ability to manage its docket.  Historically understaffed for years, the Sixth Circuit grew to depend on assistance from visiting judges.  Without this assistance, cases would have languished for lack of judges.

The visiting judge program may also yield intangible benefits.  It can promote collegiality between circuit and district court judges, and current district court judges may have a unique perspective to bring to the consideration of certain appeals.

For more posts in this series, see here, here, here, and here.

After just deciding a case last week regarding Medicare regulations, the Sixth Circuit will undertake the exercise again -- and this time against the backdrop of a circuit split.  A recent Eastern District of Michigan case interpreting the proper rate of reimbursement for inpatient hospital services between 2002 and 2010 under 42 U.S.C. § 1395ww(b)(3)(A) is currently pending before the Sixth Circuit.  Michigan Dep’t of Cmty. Health, et al. v. Sec’y of the Dep’t of Health and Human Servs., Case No. 11-1905.  Briefing is set to close in late October.

Plaintiffs in this case are inpatient hospitals providing psychiatric services to Medicaid and Medicare patients that were reimbursed until 2003 for their actual “operating costs” as long as those costs did not exceed a defined “target amount.”  The “target amount” was a cap defined as not exceeding the seventy-fifth percentile of target amounts for other hospitals in the same class and adjusted annually.  42 U.S.C. § 1395ww(b)(3)(A)(i); 42 U.S.C. § 1395ww(b)(3)(H)(i)-(ii).  In 2003, after the cap expired, psychiatric hospital services were supposed to join other medical care providers in the Prospective Payment System (“PPS”), but the Secretary did not begin to implement the PPS until 2006.

In their Complaint, Plaintiffs alleged that they were not fully reimbursed for services provided between 2003 and 2006 -- the time period when a cap had expired, but the Department of Health and Human Services (“HHS”) had not yet implemented the PPS for inpatient psychiatric care.  HHS has only reimbursed them for their capped target amount from 2002.  Plaintiffs alleged that because the cap had expired, they should be reimbursed for their “actual costs” under 42 U.S.C. § 1395ww(b)(3)(A)(i). 

The Eastern District of Michigan held that when the implementation of the PPS was delayed, the agency was required to reimburse Plaintiffs under the statutory language that was in place from 2003 and 2006.  The court held that because it was unambiguous that the paragraph allowing reimbursement of “actual costs” applied only in the first year that the statute was in effect – which was in the early 1980s, paragraph (ii) applied instead.  The court held that under paragraph (ii), the target amount for 2003 must be based on the capped target of 2002, multiplied by the applicable update factor.  42 U.S.C. § 1395ww(b)(3)(A)(ii). 

Two other circuits that have already considered the issue are split.  In Ancora Psychiatric Hosp. v. Sec’y of the U.S. Dep’t of Health & Human Servs., 417 Fed. Appx. 171, 176 (3d Cir. Feb. 17, 2011), the Third Circuit concluded, like the Eastern District of Michigan, that the statute was not ambiguous and the capped amount from 2002 was the appropriate figure to use when calculating the hospitals’ target amounts for fiscal year end 2004.  But in Hardy Wilson Mem’l Hosp. v Sebelius, 616 F.3d 449, 456–57 (5th Cir. 2010), the Fifth Circuit concluded that the statute was ambiguous after the expiration of the cap.  We’ll keep you posted as this case progresses in the Sixth Circuit.  

The Sixth Circuit first began using staff attorneys in 1971, with a staff of three attorneys.  The staff grew to 18 attorneys by 1993, and their duties expanded to reviewing and drafting outcomes for pro se and prisoner-related appeals.  Since then, both the number of attorneys and the scope of their responsibilities has grown with the court’s docket.
 
The Sixth Circuit has developed a unique structure where four attorneys are formally part of the clerk’s office.  Those attorneys are dedicated to reviewing motions and making recommendations to the panel on the disposition of particular motions.  Dedicating some attorneys exclusively to motions may result in more uniformity in the circuit’s handling of motions.  It may also give the staff attorneys’ decisions more importance as the slate of judges on the motions panel is always changing, but the staff attorneys are always the same.  This may also account for something I have repeatedly seen in my own practice:  the Sixth Circuit usually decides motions faster than other circuits.
 
The Sixth Circuit’s staff attorneys are also unique in that about half are permanent or career staff attorneys, while the balance were hired for two-year terms.  Some other circuits have a larger proportion of term-employees, who are appointed for two-year terms that may be extended.  For example, in the D.C. Circuit, only four of twelve staff attorneys were permanent, and none of the regular staff attorneys in the Second Circuit are considered to be so.  The Third and Fourth Circuits are split roughly equally between term and career attorneys.
 
However, the staff attorneys in the Sixth Circuit generally do not specialize based on subject matter as in many other circuits.  The Second Circuit has eleven staff attorneys that do only immigration appeals and who are only hired for a one-year renewable term.  The Fourth Circuit also encourages specialization in various subject areas.  It may be worth investigating whether asking staff attorneys to be more like generalists results in better employee retention or draft opinions.

Continue Reading

In a recent unpublished decision, Smith v. ABN AMRO Mortgage Group, Inc., the Sixth Circuit delved into the propriety of a district judge serving as a mediator in a case pending before him.  The plaintiffs in the case agreed to a settlement, which the district court orally memorialized on the record after a day-long mediation session.  They subsequently disputed that a settlement had been reached and claimed undue pressure by the district court in reaching the settlement.  The Sixth Circuit squarely rejected all of plaintiffs’ arguments, finding that the district judge had fairly summarized all key terms of the settlement on the record in the presence of the plaintiffs.  The Court also searched the record in vain for any evidence of undue pressure by the district court and rejected similar arguments of bias raised by the plaintiffs.

Although the case is not remarkable insofar as the evidence before the Circuit demonstrated that an agreement had been reached by the parties, it does provide a note of caution about the memorialization of settlement agreements, particularly when reached by judges as mediators.  This case demonstrates a number of best practices, such as getting the court to orally describe the material terms on the record, which should hopefully minimize disputes going forward.  This is more problematic in a mediation context without a trial judge, because of certain states’ (such as Ohio’s) mediation privilege that might bar introduction of such evidence.  The case also illustrates the difficulty of making an argument of undue pressure from a district judge in the course of mediation, because of the absence of any record evidence of that point.  A party that feels so pressured should obviously resist any sort of settlement, or if they agree to a settlement, at least put something on the record.  In other words: preserve, preserve, preserve! 

Even though the burgeoning dockets of the federal courts of appeal are well known (there were nearly 5,000 new appeals in the Sixth Circuit last year) most attorneys would be surprised to learn that over 50% of those cases were decided pursuant to recommendations made by staff attorneys.  Like all other circuits, the Sixth Circuit has a staff attorney’s office that prepares memoranda and proposed orders in certain cases.   Of course, the judges review all recommendations and make the final decisions, but the staff attorneys are an essential part of the court.  The Sixth Circuit has approximately 28 staff attorneys and four motions attorneys who handle motions in orally argued cases.  

Staff attorneys in the Sixth Circuit draft memoranda and proposed orders in cases that are considered less complicated or  in some cases where the litigants do not  request oral argument.  This includes many prisoner and immigration cases, cases with pro-se litigants, requests for certificates of applicability, and many habeas cases.  The attorneys do handle civil cases but rarely see commercial appeals.  While briefs that ask for oral argument do not ordinarily go to staff attorneys, there is a some movement in the Sixth Circuit (and other circuits) to push all appropriate cases to staff attorneys  for a screening review regardless of the parties’ preferences or the type of appeal.  As noted by 6th Cir. I.O.P. 34(e), the staff attorneys are also involved in the initial identification of which cases can be decided without oral argument under Rule 34(a)(2).

After a staff attorney writes a memorandum and proposed order, a supervisor reviews the draft, then the draft is sent to the motion judge or panel.  As in the First, Second, and Third Circuits, there is generally no interaction between the staff attorneys and the judges in the vast majority of the cases.  The Fourth Circuit presents an interesting contrast.  Its judges discuss each case with the responsible staff attorney before the case is decided.

It is also worth noting that the Sixth Circuit may rely less on staff attorneys than some other circuits as measured by the ratio of staff attorneys to the cases per active judge.  The D.C. and Third Circuits have one staff attorney for every 9 cases per active judge.  The Fourth Circuit uses one attorney per 10 cases/judge.  The First Circuit has one staff attorney for every 13 cases, which is just more than the Sixth Circuit’s use of one staff attorney for every 12 cases.  In absolute terms, the Sixth Circuit has about two staff attorneys per active judge, while the First, Second, and Fourth Circuits have roughly three attorneys per active judge.  The difference between the relative and absolute numbers of staff attorneys is probably due to the relative volume of immigration or prisoner appeals (or similar cases) in each Circuit.  

Continue Reading

Former Cuyahoga County Court of Common Pleas judge Bridget McCafferty has appealed to the Sixth Circuit her conviction and sentence on charges that she lied to FBI agents about whether she was ever approached by former Cuyahoga County Auditor Frank Russo or former Commissioner Jimmy Dimora about cases in her courtroom.  The case stems from a years-long far-sweeping federal investigation of political corruption in Northeast Ohio.  A jury convicted McCafferty of making ten distinct false statements to federal officials and she was sentenced last week to 14 months in prison.   Given the short sentence, the case has been placed on an expedited track before the Sixth Circuit with briefing to be completed just before Thanksgiving.

In  Pulte Homes, Inc. v. Laborers’ International Union of North America, Nos. 09-2245; 10-1673 (6th Cir. August 2, 2011).pdf, the Sixth Circuit reversed in part the district court’s dismissal of Pulte’s Federal Computer Fraud and Abuse Act (“CFAA”) claims and, in the process, further elucidated the “independent-federal-exception” to Garmon preemption over conduct “arguably subject” to section 7 or 8 of the National Labor Relations Act (“NLRA”).  The Court also clarified the standards for pleading intent and damages on a transmission claim under the CFAA

Pulte terminated Roberto Baltierra from its construction crew for misconduct and poor performance.  The Laborers’ International Union of North America (“LIUNA”), of which Baltierra was a member, claimed Pulte terminated Baltierra in retaliation for wearing a LIUNA shirt to work.  As the Court explained, LIUNA “bombarded” Pulte’s offices and three of its executives with phone calls, both from hired automatic dialers and its members, and emails intended to overload Pulte’s systems in an effort to damage Pulte’s goodwill and relationships with its employees, customers, and vendors.  Many of the thousands of emails included threats and obscene language.  Four days into the phone and email “barrage,” Pulte’s general counsel contacted LIUNA requesting that LIUNA cease its attack.  LIUNA, however, did not relent.  Pulte then filed suit claiming, inter alia, violations of the CFAA.  Pulte also sought a preliminary injunction to stop LIUNA’s communications.  The district court, in separate rulings, denied the preliminary injunction request and dismissed the CFAA claims.  Pulte appealed both rulings, and the appeals were consolidated before the Sixth Circuit.

This case is notable for three reasons:

     1)  The Sixth Circuit solidified the “independent-federal-remedy” exception to Garmon preemption, which permits a federal court to “decide labor law questions that emerge as collateral issues in suits brought under independent federal remedies.”  The Court held that Pulte could prove LIUNA violated the CFAA without proving—or even implicating—the NLRA.   

     2)  The Sixth Circuit, following the Third and Seventh Circuits as well as several district courts, endorsed the concept of “diminished ability” for damages under the CFAA.  The court held that “a transmission that weakens a sound computer system—or, similarly, one that diminishes a plaintiff’s ability to use data or a system—causes damage.”

     3)  Even though the Sixth Circuit reinstated Pulte’s CFAA claims, the Court affirmed the district court’s denial of Pulte’s request for a preliminary injunction—but for a different reason.  The Court held that dismissal was proper because Pulte failed to comply with section 8 of the Norris-LaGuardia Act ("NLGA").  Any party seeking a preliminary injunction in a case arising out of a labor dispute must strictly conform to the NLGA, and section 8 thereof requires a plaintiff to make “every reasonable effort to settle the dispute by negotiation.”  The Court held Pulte had failed to do so.

The case is also significant for its interpretation and application of the CFAA.  For more discussion of that subject, see this post.

Last week, the Sixth Circuit heard oral arguments in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing.  See Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235).   The panel included Sixth Circuit Judges Eric L. Clay and Jane B. Stranch, and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation.  The Sixth Circuit case is the first major challenge to the Tobacco Control Act brought by tobacco companies, and it attracted a number of amicus briefs.

The plaintiffs argued to the panel that several provisions of the Tobacco Control Act violate their First Amendment rights to free speech.  One key element of the Act is the requirement of new color warnings which graphically depict the negative health consequences of smoking.  Beginning in Fall 2012, these new warnings must occupy the top half of the front and back of all cigarette packages, and must occupy 20% of all cigarette and smokeless tobacco advertising.  The warnings, which were formally unveiled by the FDA on June 21, 2011, include graphic images of, among other things, a dead man's body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.

The plaintiffs’ position is that these warnings are a “shocking” and “gratuitous” defacement of tobacco companies’ cigarette packaging and serve no other purpose than to deliver “a visually striking, attention-grabbing anti-smoking message.”  Indeed, Judge Clay asked U.S. Department of Justice attorney Mark Stern during oral argument why the government did not develop a more narrowly tailored warning, “instead of those disgusting pictures.”  Stern responded that the warnings are reasonable and constitutional. He argued that the government has a right to regulate how tobacco is marketed.    

The Tobacco Control Act also imposes a number of other new marketing restrictions on tobacco companies, including a ban on brand-name sponsoring of athletic, musical, artistic, and social and cultural events, and a ban on name-brand merchandise and free samples.  All of these marketing techniques, the government contends, attract young persons to use tobacco products, which Stern noted to the panel are “lethal and addictive.” Indeed, Stern stated that tobacco “would be banned if it came out now.” 

We are following this case closely, and will update you when the Sixth Circuit issues its opinion, which could be in the next two to three months.

Earlier this week, Thomas More Law Center and several other plaintiffs filed their petition for writ of certiorari in the U.S. Supreme Court, asking the High Court to reverse the Sixth Circuit’s June 29, 2011 divided panel decision upholding the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Thomas More Law Center, et al. v. Obama, et al. (U.S. Supreme Court, Case No. 11-117).  The plaintiffs elected not to seek en banc review before the Sixth Circuit.

As we have reported extensively (and previously predicted), the Sixth Circuit on June 29, 2011 became the first Circuit Court in the country to rule on the health care statute’s constitutionality when it issued a decision just 28 days after oral argument.  The divided Sixth Circuit panel included Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation.  All three judges issued separate opinions, and only Circuit Judges Martin and Sutton agreed that the individual mandate was a constitutional exercise of Congress’s Commerce Clause power. 

In their cert petition, the plaintiffs argue that U.S. Supreme Court review of the Sixth Circuit’s June 29 decision “is necessary to establish a meaningful limitation on congressional power under the Commerce Clause.”  The plaintiffs argue if the individual mandate falls within the commerce power, then “the federal government will have the absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law, such as eating certain foods, taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy, among others.”  The plaintiffs argue that “Congress will be incentivized to create intrusive regulatory schemes as constitutional cover for the naked power grabs, thereby turning the Constitution on its head.”

To enhance their chances of obtaining Supreme Court review (which already are higher than in a typical case), the plaintiffs point out that while Judge Sutton and Judge Graham disagreed on the constitutionality of the individual mandate, they both agreed about the need for the Supreme Court to address the limits of congressional power in the context of this case of national importance.  Indeed, Judge Sutton effectively challenged the Supreme Court to review the Sixth Circuit’s decision.

Now that the Sixth Circuit case has made it to the High Court, the question is whether the justices are ready to address one of the most important constitutional questions facing the country or whether instead the Court will wait for one of the other Circuit Court decisions (since health care challenge appeals remain pending in the Fourth, Eleventh, and D.C. Circuits).  Will the Supreme Court take on Judge Sutton’s challenge and address the limits of congressional power?  Will the Supreme Court influence Presidential politics by rendering a decision before the 2012 elections?  Keep following our blog, and you’ll know the latest.

The Sixth Circuit released its first opinion interpreting the impact of Mohawk Industries, Inc. v. Carpenter, — U.S. — , 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009).pdf, on an interlocutory appeal from an order compelling production of attorney-client communications between a party and its former attorney.   Holt-Orsted v. City of Dickson, 641 F.3d 230 (2011).pdf, eliminates  certain pre-Mohawk exceptions to the final judgment rule and holds that the attorney-client privilege is generally protected so long as an appeal is available after final judgment.

The plaintiffs in Holt-Orsted claimed that the city and county of Dickinson issued racially selective warnings to its citizenry about allegedly contaminated wells.  During discovery, the City of Dickson moved to compel the deposition of plaintiffs’ former counsel, claiming that her activities prior to suit should establish a statute of limitations bar to the action.   The  motion was referred to a magistrate, who ultimately granted the motion in part, holding that most of the information sought in defendants’ written questions to Jacobs was neither privileged attorney-client communications nor attorney work-product.   

The plaintiffs appealed, but the Sixth Circuit dismissed the appeal for lack of a final appealable order.  The final judgment rule is subject to certain exceptions, such as the long-standing exception in Perlman v. United States, 247 U.S. 7, 1 (1913).pdf, which plaintiffs argued applied here.  The Perlman rule (pre-Holt-Orsted) allowed the privilege-holder to appeal from an order compelling disclosure of privileged material from a disinterested third party because the third party lacks a sufficient stake in the proceedings to risk contempt (which would allow an appeal).  Agreeing with the Seventh Circuit’s position in Wilson v. O'Brien, 621 F.3d 641 (7th Cir. 2010).pdf, the Sixth Circuit concluded that Mohawk significantly narrows the application of the Perlman rule. 

In the new post-Mohawk landscape, the Court held that the Perlman exception is limited to situations in which the privilege-holder is a non-litigant.  Although the contempt citation route is effectively eliminated where, as here, the third party is merely a custodian of privileged material, plaintiffs possessed an adequate remedy.  Indeed, because plaintiffs were both the privilege holders and actual parties to the suit, they could “avail themselves of a post-judgment appeal,” which would fully protect the “vitality of the attorney-client privilege.”   The Court, agreeing with a recent Ninth Circuit decision, concluded that the "application of the Perlman doctrine will likely be limited" to situations where the privilege-holder is not a party and thus would lose all ability to appeal without an interlocutory appeal."

 This case illustrates, in a post-Mohawk world, the difficulty of securing immediate appellate review over privilege rulings.  The main door left open by the court's ruling is mandamus, which does remain a viable option (although the Sixth Circuit has even narrowed that option in recent years).  

The Eighth Circuit in ABF Freight System, Inc. v. International Brotherhood of Teamsters, recently created a circuit split with the Sixth and Third Circuits on the question of jurisdiction under §301(a) of the Labor Management Relations Act.  The question concerns whether the existence or violation of a labor contract is an element of the plaintiff’s case or a limit on subject matter jurisdiction.  In Winnett v. Caterpillar, Inc., 553 F.3d 1000 (6th Cir. 2009), the Sixth Circuit held that it was not jurisdictional.  Interpreting the Supreme Court’s recent decision in Arbaugh v. W & Y Corp, 546 U.S. 500 (2006), the Sixth Circuit held that Congress did not clearly state that the existence of a union contract is a jurisdictional prerequisite for a §301(a) claim.  The Sixth Circuit walked through not only the language of §301(a) in the course of its analysis, but also the pragmatic effects of the holding.  The court highlighted a number of practical problems that would be attendant with the rule that the existence of a contract was jurisdictional.  In a brief concurrence, Judge Rogers argued that the court should not even address that question, essentially characterizing the majority’s opinion on that issue as dicta.  Notwithstanding the claim of dicta, the Sixth Circuit’s view was expressly followed by the Third Circuit in Pittsburgh Mack Sales & Service, Inc. v. International Union of Operating Engineers, 580 F.3d 185 (3d Cir. 2009).  The Eighth Circuit rejected both decisions, but did not delve too deeply into the question.  Rather, it simply concluded that because the U.S. Supreme Court had previously treated §301(a) as jurisdictional and because Congress had done nothing to disturb those decisions, the Third and Sixth Circuits had erred in reaching the conclusion that the existence of the contract was not jurisdictional.  Is Supreme Court review of this question looming on the horizon?

The FDIC has recently appealed a loss it suffered at trial on the question of whether the debtor in bankruptcy (the holding company of a failed bank) made a “commitment” to maintain the capital of its subsidiary bank under Section 365(o) of the Bankruptcy Code.  After a week-long bench trial with an advisory jury, the Northern District of Ohio rejected the FDIC’s claim that a commitment had been made by the holding company to the Office of Thrift Supervision.  The FDIC brought the case after being appointed receiver for the bank.  This is the first case in the country that has actually been tried under Section 365(o).  While there are a handful of judicial decisions interpreting Section 365(o), the Sixth Circuit has yet to address the subject.  The case carries significant implications for federal bank regulators seeking to hold holding companies responsible for maintaining the capital of a failed bank, and we expect that this case will be the first one in the Circuit to address the meaning and purpose of Section 365(o) (although since the case is coming from a trial, it is unclear exactly which issues the court will have to reach).  Representing the debtor, AmFin Financial Corporation, at trial were Ricky Gurbst, Phil Oliss, and Sarah Rathke.

A divided panel of the Sixth Circuit today struck down an amendment to the Michigan constitution added by voters in 2006 that 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.”  In Coaltion 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) (PDF), the panel majority ruled that the amendment, known more popularly as "Proposal 2", ran afoul of U.S. Supreme Court precedent interpreting the Equal Protection Clause.

Writing for himself and Judge Daughtrey, Judge Cole found that "Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities."  In dissent, Judge Gibbons argued that the Equal Protection Clause did not clash with Proposal 2, and that Supreme Court precedent had not "require[d]" the use of rece in college admissions but, instead, merely "tolerate[d]" it, leaving Michigan free to prohibit the practice.

Proposal 2 was passed by 58% of Michigan voters, and in 2008 the federal district court in Detroit had found the amendment constitutional.  In the immediate aftermath of today's ruling, reaction came swiftly, with opponents of Proposal 2 hailing the decision while supporters of the proposal denounced the ruling as "activist" and predicted reversal of the panel decision as being inconsistent with Supreme Court case law.

The Sixth Circuit Appellate Blog will keep its eye on this case for a possible petition for en banc review.

As we previously reported and analyzed, Acting Solicitor General Neal Katyal was in Cincinnati, Ohio last week before the Sixth Circuit to argue the government’s position in the appeal involving a constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  Circuit Judge Sutton and District Court Judge Graham, sitting by designation, both had pressing questions for General Katyal regarding the constitutionality of the individual mandate, and both judges requested General Katyal to articulate a constitutionally significant limiting principle that would cabin the power of Congress under the Commerce Clause.  The mp3 audio link to the oral argument is available here (65 minutes).

On Wednesday, General Katyal appeared before the Eleventh Circuit in Atlanta, Georgia to once again defend the constitutionality of the individual mandate.  And once again, General Katyal was sharply challenged by the judges regarding the scope of the commerce power.  As we reported previously, the Eleventh Circuit case involves the high profile appeal from Florida District Judge Roger Vinson’s January 31, 2011 ruling that the individual mandate under the health care statute is unconstitutional.  See State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).  The lawsuit was brought by governors and attorneys general from 26 states, and it is generating the most publicity of any of the cases currently before the Circuit Courts. The states were represented at oral argument by Paul Clement, who was solicitor general under President George W. Bush.

The Eleventh Circuit panel included Chief Judge Joel Dubina, who was appointed by President George H.W. Bush, and Circuit Judges Frank M. Hull and Stanley Marcus, who both were appointed by President Bill Clinton.  All three judges questioned whether upholding the individual mandate would open the door to other sweeping economic mandates by Congress. 

And so ends a very busy one-month period for oral arguments in the Circuit Courts addresing challenges to the health care statute.  Which Circuit will issue the first opinion?  The Fourth Circuit (which heard oral arguments on May 10, 2011)?  The Eleventh Circuit?  Or the Sixth Circuit?  Whichever Circuit it is, it likely will happen before Labor Day.  And we'll give you the full report.

Three significant cases involving the rights of Ohio distributors of beer and wine are currently pending before the Sixth Circuit.  At issue is Ohio's Alcoholic Beverage Franchise Act, R.C. 1333.82 et seq., and when a manufacturer of beer or wine may or may not terminate its existing wholesale distributors.  Given the increasing efforts by many manufacturers to consolidate their distributor networks, these cases are likely to set important precedent for the industry in Ohio and be important guidance in other states that provide similar distributor protections.

The case Tri-County Wholesale Distributors, Inc., et al. v. The Wine Group, Inc., Case No. 10-4202 (pdf), was appealed by the manufacturer last fall, has been fully briefed, and is awaiting assignment for oral argument. 

The other two cases -- Bellas Company, et al. v. Pabst Brewing Company, Case No. 11-3417 (pdf), and Beverage Distributors, Inc. v. Miller Brewing Company, et al., Case No. 11-3484 (pdf) (consolidated with Case Nos. 11-3485, 11-3487, 11-3488, and 11-3490) -- were both recently appealed by the manufacturers and are set for briefing over the summer. 

Dave Alexander and Emily Root of Squire Sanders represent the distributor plaintiffs/appellees in each of the three cases.

Back in March, when we reported on the Sixth Circuit’s decision in Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF), we noted that Lewis was “one of those rare candidates for rehearing en banc."  Our predictive powers proved accurate yesterday when the Sixth Circuit voted for a rehearing en banc in the Lewis case.  See June 2, 2011 Order (PDF).

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 Evans, 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.

Tomorrow is the big day in the Sixth Circuit.  The Court will hear oral argument in the high-profile appeal involving a constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  Oral argument is scheduled for 1:30 p.m. in Room 607.  A live video feed of the oral argument also will be available at the courthouse to accommodate attendees for whom there are no available seats in the courtroom.

The complete oral argument will be available for listening or downloading on the court’s website approximately one hour after oral argument ends. 

The panel includes Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation.  As one Beltway blogger observes, “[t]he makeup of the panel hearing the oral argument in Cincinatti is, on the surface, more favorable for opponents of the law, as it includes two Republican appointees and a Democratic appointee, which is a big difference from the Fourth Circuit panel that heard the Virginia-based suit last month, which was comprised entirely of Democratic-appointed judges (two of whom were appointed by President Obama himself).”

In addition to oral argument, the panel has before it a motion to dismiss filed on May 27, 2011 by the Defendants-Appellees seeking to dismiss plaintiffs’ appeal on mootness grounds.  Defendants-Appellees contend that the plaintiffs lack standing because they cannot show that the individual mandate will cause them economic injury, much less that such injury is imminent.  On Memorial Day, the plaintiffs filed a response to the motion to dismiss arguing that they have standing to challenge the health care statute, and that their claims are ripe for review.

Be sure to check back with us for a summary of tomorrow’s oral argument. 

In an article about an ethics decision that cleared a bankruptcy judge of misconduct for membership in an exclusive country club alleged to discriminate, Adam Liptak of the New York Times says the Sixth Circuit is an “odd institution” that is “surely the most dysfunctional federal appeals court in the nation.”  An article in the ABA Journal echoed the point, asking if the Sixth Circuit is “the Nation’s Most Dysfunctional Appeals Court.”  As a frequent practicioner before the Sixth Circuit (and as an adjunct teaching a law school clinic focusing on that court), I feel that sweeping accusation deserves further scrutiny.

Beyond his disagreement with the ethics decision itself, which I will not address, the genesis of Mr. Liptak’s observation is doubtless the public airing of private disagreements between some Sixth Circuit judges in recent years.  The most notable disagreements concerned Grutter v. Bollinger and In re Byrd where certain judges accused other judges of ignoring the circuit’s procedures to influence the results in each case.  Some have speculated that ideologically-driven review in death penalty cases may be the catalyst for the circuit’s 0-15 record before the Supreme Court over the past few years.    

But is there any empirical evidence that the Sixth Circuit is actually dysfunctional as an institution?   This post will look at Supreme Court reversal rates, reversal rates for district courts, productivity per judge, the influence of the circuit, the number of dissenting opinions, and the lag time for decisions.    

The Sixth Circuit’s current 0-15 record before the Supreme Court is certainly unfortunate.  But that was almost certainly a statistical fluke.  From 2004 to 2007 – immediately after the events in Grutter and Byrd – the circuit’s success rate in the Supreme Court was an above-average 42%. 

The rate that the Sixth Circuit reverses district courts, which reflects the quality of the guidance it gives to those courts, is average at 16%.  Productivity per judge, as measured by the number of signed opinions, is also close to the national average of 53. 

Another way to evaluate a federal court of appeals is to see how often other circuits cite its opinions.  Using this data, Professors Lawrence Lessig and William Landes have found that the Sixth Circuit is tenth (out of the thirteen federal courts of appeal) in its overall influence, and ninth in the average quality of its opinions.  These numbers indicate that the Sixth Circuit is within the mainstream of its sister circuits in terms of influence on the overall development of the law. 

The Sixth Circuit consistently has a high percentage of dissenting opinions, but this phenomenon dates back well before Grutter and Byrd.  Professors Lee Epstein, William Landes and Richard A. Posner found that the dissent rate averaged about 2.8% for all circuits from 1990-2006, with the Sixth Circuit the highest at 4.8% and the Eleventh Circuit the lowest at 1.1%.  (The D.C. and Ninth Circuits also tend to have much higher dissent rates closer to the Sixth Circuit’s rate).  Another study found that the increased dissent rate in the Sixth Circuit was not confined to ideologically-charged cases, but extended into contract interpretation cases that are unlikely to provoke partisan-influenced dissents.  

Nor is it clear that a larger number of dissents is a bad thing.  It was the strong dissents to the ethics opinion that drew attention to the ruling.  Indeed, the media attention the circuit's decisions receive are often only possible because of the judges’ willingness to actively dissent.  The percentage of dissents in all circuits has diminished as the caseload has increased, indicating that judges might write more dissents if they were willing to spare the time.  So the high number of dissents in the Sixth Circuit does take up additional resources, perhaps contributing to the Sixth Circuit’s long wait times for decisions – which is currently four months longer than average (only the Ninth Circuit is worse). 

The Sixth Circuit is certainly not without its problems, but this quick review of the data suggests that singling the circuit out for criticism as “dysfunctional” is unfair.

As you know, for months now we have been following the case making its way through the Sixth Circuit involving a constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). 

Earlier today, the Sixth Circuit announced the three-judge panel that will hear oral arguments currently scheduled for Wednesday, June 1, 2011 at 1:30 p.m.  The panel includes Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation.

Judge Martin is the most senior active judge on the Sixth Circuit. He was nominated by President Carter in 1979 and has served as the Chief Judge of the Circuit. 

Judge Sutton was nominated by President George W. Bush in 2001 and was confirmed in 2003.  He clerked on the United States Supreme Court for Justices Antonin Scalia and Lewis Powell. 

District Judge Graham was nominated by President Reagan in 1986 to a seat on the district court.  He served as chief judge from 2003 to 2004, and assumed senior status on August 31, 2004.  We previously blogged about the role of visiting judges and the fact that about one in three panels in the Sixth Circuit currently has a visiting judge.

The Thomas More case is one of the highest profile appeals in the Sixth Circuit at the moment, and we will continue to monitor the case closely, along with similar appeals making their way through other Circuits.  As we reported yesterday, the Fourth Circuit just heard oral arguments in the appeal from Virginia District Court Judge Henry Hudson’s December 13, 2010 decision declaring unconstitutional the individual mandate under the health care statute.

It will be interesting to see which Circuit Court renders an opinion first.

On May, 5, 2011, the Sixth Circuit reversed a decision from the District Court for the Eastern District of Kentucky that had held unconstitutional a Kentucky statute shortening the period after which state law imposes a presumption on abandonment on traveler's checks. American Express Travel Related Services Company, Inc. v. Commonwealth of Kentucky, et al., No. 09-5898 (6th Cir. May 5, 2001).

Until recently, all 50 states followed the presumption that a traveler's check was abandoned if still outstanding more than 15 years after issuance, as recommended in the Uniform Unclaimed Property Act.  In an apparent attempt to increase revenue since abandoned funds must be remitted to the state, Kentucky became the first state to reduce the 15-year period - to 7 years.

The District Court had determined that the Amendment violated the Fourteenth Amendment's Due Process Clause because it lacked a rational basis.  On appeal, the Sixth Circuit held that the Amendment did not violate the Due Process Clause and vacated the District Court's decision.  The Court entertained the Treasurer's "rational speculation that the [Amendment] was intended to facilitate Kentucky's interest in assuming possession of abandoned property, even though, as the district court found, the legislative history does not reflect whether this goal was actually considered by the General Assembly."  Because American Express could not demonstrate that a 7-year presumptive period is irrational, the Sixth Circuit held that the District Court erred in finding a due process violation.

The Court withheld, however, consideration of whether the Amendment violates the Takings Clause or the Contract Clause, remanding to the District Court for consideration of American Express's remaining constitutional challenges.

This is the second in a series of posts touching on overlooked or misunderstood parts of the Sixth Circuit.  We already briefly looked at senior judges, and now we turn to the role of visiting judges.  

Any Article III federal judge can be assigned to temporarily sit on another federal court under 28 U.S.C. § 292.  Judges assigned to a court of appeals typically sit for a singe two-day session of cases.  Inter-circuit assignments (also called “designations”) are made by the chief judge of a circuit, and assignments between circuits are approved by the Judicial Conference Committee on Intercircuit Assignments, though the statutory authority ultimately rests with the Chief Justice of the Supreme Court.  About 370 judges visited other circuits to hear appellate cases last year, handling about 5% of all cases decided on the merits.  Senior judges, who have the most flexibility with their workloads, take the great majority of visiting assignments.  

The Sixth Circuit has historically had a very high dependence on visiting judges, often the highest of all the circuits.  In the early 1980’s visiting judges shouldered around 15% of the Sixth Circuit’s caseload.  That number rose to around 20% during the Senate’s refusal to confirm Sixth Circuit judges during 2001-2007.  At that time, a majority of the circuit’s panels contained one visiting judge.  The number of visiting judges has recently declined to the current level of participation in roughly 10% of the circuit's decisions on the merits.  When combined with the Sixth Circuit’s strong reliance on senior judges, most panels will have a senior judge or a visiting judge and some will have both.  (This assistance is essential.  While the other circuits averaged a 9.6% decline in the number of pending cases last year, the number of cases pending in the Sixth Circuit rose by 11.2%.) 

Aside from providing assistance to overloaded circuits, visiting judges are praised as a source of cross-fertilization and collegiality among the circuits.  Visits give district court judges the opportunity to gain perspective on the appellate courts.  Less often, appellate judges will try cases on the bench.  The program is doubtless an incentive for some senior judges to accept higher appellate caseloads that they would otherwise accept.  It is also one of the last remnants of the traditional practice of judges traveling extensively through their jurisdiction, including Supreme Court justices "riding circuit."  (In fact, Justice O'Connor recently sat on a Sixth Circuit panel after her retirement from the Supreme Court).  

Reliance on visiting judges is, however, frequently criticized as undermining uniformity and clarity in circuit law – though possibly fostering a more uniform federal law.  These concerns have led the D.C. Circuit to its policy of accepting very few, if any, visiting judges.  A more worrisome criticism is that visiting judges produce, on average, lower-quality opinions.  Another study found that visiting district court judges were “markedly less assertive than their appellate colleagues” and less likely to dissent.  A panel with only one active resident judge might defer to that judge, reducing the benefits of three-judge panels.  (One district judge responded to this criticism by remarking that very few of his colleagues “fit into the shrinking violet category.”).  

These concerns are difficult to measure and largely speculative, while the benefits are far more concrete:  visiting judges reduce the Sixth Circuit’s caseload without affecting its budget or requiring Congress to create new judgeships.  The practice has been a necessary and integral part of the intermediate federal appellate courts for many years.

This is the first in a series of posts briefly touching on overlooked or misunderstood parts of the Sixth Circuit.  It will look at topics like senior judges, visiting judges, staff attorneys, the role of clerks and case managers, the clerk’s office, the bankruptcy appellate panel, and the circuit mediators.  The series begins by looking at the Circuit’s senior judges.  

Nine of the Sixth Circuit’s twenty-four judges – 38% -- are on senior status:  Judges Daughtrey, Keith, Kennedy, Guy, Gillman, Merritt, Norris, Siler, and Suhrheinrich.  Any of the judges could retire at any time with full salary guaranteed for life (actually, more than a full salary, as they would then be exempt from FICA taxes and could collect Social Security), but instead choose to remain on the court.  Senior judges have reduced administrative duties and, to some extent, are able to pick what kind of cases they judge – many, for example, will not take pro se or death penalty cases.  Some senior judges work at the Federal Judicial Center or in other administrative duties, and others frequently sit by designation on other courts. 

The Sixth Circuit has a special reliance on its senior judges.  During the Senate’s refusal to confirm judges to the Sixth Circuit in 2002, the circuit had twelve senior judges but only eight active judges.  Under the federal statute creating senior status, 28 U.S.C. § 371, a judge with senior status need only take one quarter of the workload of a judge in active service.  But even with the circuit up to nearly full strength, with only one vacant seat, senior judges still account for about 25% of appeals decided on the merits.  (Another 9% are decided by visiting judges, many of whom are also on senior status).  Leaving out administrative duties, senior judges in this circuit – who are allotted only two clerks instead of four – appear to be taking around 60% of the workload of an “active” judge. 

The Sixth Circuit’s heavy reliance on senior judges reflects a trend across the circuits.  The number of senior judges as a percentage of circuit judges has slowly grown from 30% in 1990 to 40% today.  The Second Circuit, in particular, relies upon its senior judges for a full 36% of its cases.  Though there is some criticism of senior judges as being unwilling to retire, even from official sources, our current system could not function without them.

On Wednesday, the Senate Judiciary Committee is scheduled to hold a hearing to consider the nomination of Judge Bernice Bouie Donald to replace retiring Judge Ronald Lee Gilman on the Sixth Circuit. 

President Obama originally nominated Judge Donald on December 1, 2010, but the Senate Judiciary Committee was unable to conduct a hearing on Judge Donald’s nomination before the 111th Congress adjourned.  President Obama re-nominated Judge Donald on January 5, 2011.    

As we previously reported back in December when she was first nominated, Judge Donald currently sits as a district court judge on the U.S. District Court for the Western District of Tennessee, to which she was appointed in 1995 by President Clinton.  Judge Donald is a graduate of the University of Memphis Law School and has more than 28 years of judicial experience.  

A very detailed public questionnaire for Judge Donald is available here.

Judge Donald is President Obama's second nominee to the Sixth Circuit.  His first nominee, Judge Jane Branstetter Stranch, was commissioned as a circuit judge on September 15, 2010.

Comparing the court to a sports team, the Cincinnati Enquirer announced the “U.S. 6th Circuit Court of Appeals on 0-15 losing streak,” reporting that the Supreme Court has now reversed fifteen cases in a row from the Sixth Circuit.  The article calls this a “poor showing,” but cannot find any pattern in the cases.  In death penalty cases, the Sixth Circuit affirmed execution in two, but in three it held execution improper.  The Supreme Court reversed each time.  Though the circuit’s  "liberal"  judges were more likely to be reversed, the article reports that “almost all of the appeals court’s 15 active judges were on the wrong side of at least one overturned decision.”  This blog has covered many of these cases, see here, here, and here.  Unable to figure out if the losing streak is meaningful, the article quotes Judge Martin's comment that “I don’t think you can read anything into it.” 

It is hard to see how the 0-15 record is a meaningful indicator of the Sixth Circuit's jurisprudence:  the Supreme Court reviews only about one in a thousand of the 4,400 appeals before in the Sixth Circuit each year.  Other statistics, collected by the judiciary, are more significant.  For example, reversal rates (reflecting the quality of the guidance given to district courts) place the Sixth Circuit at the average among the circuits with a 16% overall reversal rate.  Unfortunately, the Sixth Circuit is well below average on the time it takes to decide appeals.  Nationally, appeals are decided in 11.7 months, but the Sixth Circuit currently takes around 15.5 months – only better than the Ninth Circuit’s 16.3 months.  The other circuits average around 10 months.  Some scholars also look at productivity to measure the circuits, including the number of signed opinions per judge.  By that standard, the Sixth Circuit’s 51 signed opinions per judge is very close to the national average of 55. 

Like other legal commentators, the article speculates that the reversal rate is attributable to  certain disagreements between judges that have been well-publicized.  But it is hard to see any link between that and the circuit's apparent inability to predict how the Supreme Court will decide on a close question.  At this point, it seems unlikely that the “losing” streak is anything but a statistical anomaly.  

For the last two months, we have been following the case making its way through the Sixth Circuit involving a constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  Since our last blog entry on the Thomas More Law Center case two weeks ago, there has been a flurry of new activity.

First, nine additional amicus briefs have been filed in the case, each urging the Sixth Circuit to affirm the district court’s decision upholding the individual mandate under the new health care statute.  See Amicus Curiae Brief of American Association of People with Disabilities, et al. (PDF); Amicus Curiae Brief of the American Cancer Society, et al. (PDF); Amicus Curiae Brief of the American Hospital Association, et al. (PDF); Amicus Curiae Brief of American Nurses Association, et al. (PDF); Amicus Curiae Brief of Constitutional Law Professors (PDF); Amicus Curiae Brief of Economic Scholars (PDF); Amicus Curiae Brief of the Governor of Washington (PDF); Amicus Curiae Brief of Oregon, Iowa, New York, California, Vermont, Hawaii, Maryland, Delaware, and Connecticut (PDF); Amicus Curiae Brief of Senator Majority Leader Harry Reid, et al. (PDF).

Second, last Friday, the plaintiffs in the Thomas More Law Center case filed their reply brief.  See Appellants' Reply Brief (PDF).  Plaintiffs continue to argue that there is not a single controlling 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.  Plaintiffs contend that upholding the individual mandate under the health care statute would be an unprecedented expansion of congressional power.  They highlight how this case “transcends the public debate on healthcare” because “[a]t its core, it is about the constitutional limits of the federal government.”

Finally, just as the briefing in the Thomas More Law Center case was finished, Florida District Judge Roger Vinson made national headlines when he ruled yesterday that the individual mandate under the health care statute is unconstitutional.  See State of Florida, et al.  v. United States Department of Health and Human Services, et al., Case No. 3:10-cv-91 (N.D. Fla.).  He also ruled that the entire law must be invalidated.  As Judge Vinson wrote in his opinion (PDF), “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.  This has been a difficult decision to reach, and I am aware that it will have indeterminable implications.”

Judge Vinson is the second district court judge to rule that the individual mandate is unconstitutional.  As we reported back in December, Virginia District Court Judge Henry Hudson also declared the individual mandate to be unconstitutional.  See Commonwealth of Virginia, et al. v. Sebelius (E.D. Va., Case No. 3:10-cv-188) (PDF).  Two other federal judges, including Judge George Steeh of the U.S. District Court for the Eastern District of Michigan in the Thomas More Law Center case, have upheld the health care law, evening the score at 2 to 2 in the district courts.

The Sixth Circuit is poised to become the first appellate court in the country to rule on the constitutionality of the health care statute, and we’ll continue to watch the case closely as it makes its way to oral argument.

On December 17, 2010, in In re Settlement Facility Dow Corning Trust (6th Cir., Case Nos. 09-1827/1830, Dec. 17, 2010) (PDF), a Sixth Circuit panel split over divergent arguments on two provisions present in a bankruptcy reorganization plan involving Dow Corning: 1) whether "tissue expanders" should be considered "breast implants" within the meaning of the plan, and 2) whether the term "total disability" should be construed to require claimants to be disabled in either "vocation" or "self-care", or both categories.  All three panelists agreed that the term "total disability" requires claimants to show disability in both categories, but the panel split on the other matter, with the majority vacating the district court's determination on "tissue expanders" and remanding for further examination of the factual record.

The ruling involves an issue stretching back to the mid-1990s: thousands of lawsuits brought against Dow Corning relating to the company's breast implants.  The sheer weight of these lawsuits forced Dow Corning into Chapter 11 bankruptcy, and in 2004 a reorganization plan was confirmed.  Following a previous appeal (PDF) decided in 2006 by the Sixth Circuit, the district court ruled on the meaning of two provisions.  First, the district court determined that the term "breast implant" included within its definition "tissue expanders" -- devices implanted in a body and gradually filled with saline in subsequent weeks.  Second, the district court determined that, in order to meet the definition of the term "total disability," a claimant need only show disability as to "vocation" or "self-care," but not to both.

Writing for himself and Judge Sutton, Judge Kethledge first addressed the standard of review, in doing so parting ways with Judge Batchelder, in dissent.  Recognizing that the district court judge had presided over the bankruptcy for 15 years, the majority attempted to "characterize" the "measure of deference" owed to her.  Ultimately, the majority ruled that, when determining which of the reasonable readings of an ambiguous provision in a bankruptcy plan was best, the district court must examine the extrinsic evidence.  Where the lower court "assessed extrinsic evidence in choosing among reasonable interpretations of the Plan, we will not disturb its choice."

Applying this standard, the majority examined the definition of "breast implants" and found that, because the district court wrongly concluded the key provision was unambiguous, the district court failed to examine the extrinsic evidence offered by both parties.  Moreover, because the district court was not the same court that entered the plan's confirmation order, the majority concluded that it had even greater need to examine the extrinsic evidence.  On these bases, the majority vacated the district court order, remanding for such examination to occur.  As to the definition of "total disability," the majority found that the district court wrongly concluded that claimants need only show disability as to "vocation" or "self-care," but not both.  Here, the majority reversed the district court outright, finding that claimants must show disability as to both categories in order to qualify under "total disability."

Writing in dissent, Judge Batchelder took particular aim at the standard of review crafted by the majority.  Expressing concern that the majority's effort only "mudd[ied] the waters" and would "inevitabl[y]" create a "flood of new litigation, with litigants attempting to define the boundaries of the majority opinion's new standard," Judge Batchelder wrote that the Court should instead have "simply restate[d] what was once plain -- a district court's legal conclusions are reviewed de novo, and its factual findings are reviewed for an abuse of discretion."  In her judgment, the language of the majority opinion threatened to "further confuse an area of law already beset with significant confusion."  Because she agreed with the majority on the definition of "total disability," Judge Batchelder applied what she argued was the proper standard of review to the provision regarding "breast implants."  She concluded that "[c]ommon sense and New York law compel the conclusion that the term 'breast implant' unambiguously excludes tissue expanders, as a matter of law."  And she further concluded that, even had the provision been ambiguous, the extrinsic evidence "clearly favored" the conclusion that tissue expanders did not fall within the definition of "breast implant."

Following issuance of the Court's opinion, the claimants' advisory committee decried the ruling and lamented the "gross injustice for Dow Corning claimants who have waited patiently for years to be compensated."  At the time of this posting, Dow Corning had released no statement on the ruling.

A federal district judge in Virginia ruled today that the new health care law's mandate requiring individuals to purchase health insurance is unconstitutional, becoming the first court in the country to invalidate any part of the Patient Protection and Affordable Care Act, Public Law 111-148, signed into law by President Obama on March 23, 2010. See Virginia v. Sebelius  (E.D Va., Case No. 3:10CV188-HEH) (PDF).

Judge Henry E. Hudson wrote that the law’s requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. Judge Hudson wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

This decision is in contrast to decisions from the District Court for the Eastern District of Michigan and from the Western District of Virginia, in which both courts upheld the constitutionality of the mandate requiring individuals to purchase health insurance.  See Thomas More Law Center, et al. v. Obama (E.D. Mich., Case No. 10-CV-11156) (PDF) and Liberty University v. Geithner (W.D. Va., Case No. 6:10-CV-00015) (PDF). These decisions are currently on appeal to the United States Court of Appeals for the Sixth Circuit and the Fourth Circuit respectively. This Virginia case may leapfrog those appeals, however, if the Justice Department agrees to the Virginia attorney general's request to bypass the Court of Appeals and file for expedited review by the Supreme Court.

On December 1, 2010, President Obama nominated Judge Bernice Bouie Donald to replace retiring Judge Ronald Lee Gilman on the Sixth Circuit.  Judge Donald currently sits as a district court judge on the U.S. District Court for the Western District of Tennessee, to which she was appointed in 1995 by President Clinton.

In announcing the nomination, President Obama stated: "Judge Donald has shown an outstanding commitment to public service throughout her career and as a District Judge in Tennessee.  I am proud to nominate her today for a seat on the United States Court of Appeals and I am confident she will serve the American people with distinction."

Born and raised in Mississippi, Judge Donald graduated in 1974 from Memphis State University (now the University of Memphis) and received her law degree in 1979 from the Cecil C. Humphreys School of Law at Memphis State University.
 
After graduating from law school, Judge Donald worked variously as sole practitioner, a staff attorney at Memphis Area Legal Services, and an attorney for the Shelby County Public Defender's Office.  In 1982, Judge Donald was elected to serve as a judge on the Court of General Sessions in Shelby County, making her the first female African-American judge in the history of Tennessee.  Similarly, Judge Donald became the first female African-American federal bankruptcy judge in the United States when she was appointed in 1988 to that position by the Court of Appeals for the Sixth Circuit.

Judge Donald is President Obama's second nominee to the Sixth Circuit.  She follows Judge Jane Branstetter Stranch, who was nominated by the President in August 2009 and was commissioned as a circuit judge on September 15, 2010.

On a discretionary appeal under 28 U.S.C. § 1292(b), the Sixth Circuit recently held that section 12112(b)(6) of the Americans with Disabilities Act, which prohibits employers’ use of qualification standards and other tests that tend to screen out disabled individuals, only extends protection to disabled individuals.  Bates v. Dura Automotive Systems, Inc., No. 09-6351 (6th Cir. Nov. 3, 2010).

In a unanimous and succinct opinion, the Court relied heavily on the plain language of 48 U.S.C. § 12112(a) and (b), citing the references to “qualified individual[s] with a disability...,” unlike other parts of the statute, which refer simply to "employee[s]."  As further support for its holding, the Court noted that its narrow interpretation of section 12112(b)(6)'s scope is consistent with Congress’s goal in enacting the ADA:  to prevent discrimination against the disabled. 

The Court rejected the claimants’ argument that the subsection should be read in conjunction with subsection (d)(4), which extends protection against medical evaluations to "employee[s]" generally.  Indeed, the Court cited Congress's use of the different terms as supporting its narrow interpretation of section 12112(b)(6).  Read the Court's full decision at Bates v. Dura Automotive Systems, Inc., No. 09-6351 (6th Cir. Nov. 3, 2010).pdf.

It looks like the Sixth Circuit may become the first federal Circuit Court to review a constitutional challenge to the new health care law.

Last Thursday, Judge George Steeh of the U.S. District Court for the Eastern District of Michigan upheld the constitutionality of the mandate requiring individuals to purchase health insurance, which is a central pillar of the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, signed into law by President Obama on March 23, 2010.  See Thomas More Law Center, et al. v. Obama (E.D. Mich., Case No. 10-CV-11156) (PDF).  Judge Steeh ruled that the federal government did not exceed its authority under the Commerce Clause (Article I, Section 8, Clause 3) by imposing the individual mandate. 

(For a detailed discussion of the Supreme Court’s modern Commerce Clause jurisprudence, see my article in the Case Western Reserve School of Law, 47 Case W. Res. L. Rev. 553, cited by the Fourth Circuit in Hoffman v. Hunt, 126 F.3d 575, 583 (4th Cir. 1997)).

As reported by The Washington Post, the challenge to the new health care statute was brought by the Thomas More Law Center, a public interest law firm in Michigan, along with four other individuals who "objected to being compelled to choose between buying health coverage that they do not want or paying a tax penalty that, they argued, would go into the nation’s general fund and could end up paying for abortions."

The National Journal highlights how Judge Steeh’s decision is the first ruling on the merits addressing the constitutionality of the insurance coverage mandate under the new health care statute.  Other legal challenges to the constitutionality of the insurance mandate remain pending in Virginia and Florida.  Some legal commentators believe that opponents of the new health care law have a better chance of prevailing in these two other major suits than in the Sixth Circuit, but that is yet to be seen.

The Thomas More Law Center plans to appeal Judge Steeh’s decision, thus setting the stage for the Sixth Circuit to be the first Circuit to weigh in on the new health care law.  And ultimately, the Supremes may decide to weigh in on this important case as well.

We’ll, of course, be following the Sixth Circuit appeal closely and reporting on developments here.

We posted earlier about some interesting language in a disbarment case, noting in passing that the Sixth Circuit – unlike most courts -- appears to treat its disbarments as confidential.  The circuits have a surprising amount of variation in the formality in their approach to disciplinary proceedings.  Some (like the First, Second, Third, Fourth, Sixth, Tenth, Eleventh, and Federal Circuits) have standing disciplinary committees/panels or relatively complex procedural rules. Others (like the Fifth and Seventh Circuits) add very little to the Fed. R. App. Proc. 46, while one (the Eighth Circuit) does not have any written procedures at all outside of Rule 46.

The circuits also vary in their view of the confidentiality of disbarment proceedings.  Most circuits state in their local rules or procedures that the clerk will notify the state authorities or the ABA’s national data bank.  Like the Supreme Court, the Second Circuit posts a list of its disbarred attorneys in its regular list of decisions and orders, but does not send its disbarment list to the ABA.  From my quick survey, and informal calls to clerks and the ABA’s data bank, it looks like the Sixth Circuit may be the only circuit that treats disbarments as wholly confidential.  It apparently does not send its list to the state bars or the national data bank.

Though piecemeal disbarment (i.e., each federal court conducts its own disbarment proceedings) is certainly inefficient, there is probably little utility to regularize discipline procedures between the circuits so long as it continues.  But though information about disbarments in the circuit courts may not be very useful to the lawyer-using public (compared with those from state and federal district courts), it would be exceedingly easy for circuits to report their disbarments to a clearinghouse like the ABA.  

If anyone has any information or clarifications about any circuits, please add them in the comments.  I’ve included a list of the disciplinary procedures for each circuit after the jump.

Continue Reading

The Sixth Circuit yesterday joined a majority of Circuit Courts in interpreting the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. on the issue of time spent by employees in putting on and removing uniforms and equipment at work.  See Franklin v. Kellogg Co. (6th Cir., Case No. 09-5880, Aug. 31, 2010) (PDF).  The Franklin opinion provides much needed clarity for federal labor law in this Circuit.

The Sixth Circuit joined the Third, Fifth, Eleventh, and Federal Circuits in determining the proper burden of proof that applies under 29 U.S.C. § 203(o) for measuring overtime hours of employees.  The Sixth Circuit also followed the Fourth and Eleventh Circuits in interpreting the meaning of § 203(o).

View the extended summary of Franklin, after the jump. 

Continue Reading

In a ruling on a lawsuit that potentially threatened Ohio counties with an estimated $90 million in liability, the Sixth Circuit has determined that "[a]lthough there is no dispute as to the facts as the [Plaintiff-Appellants] present them, they had no property interest in their son's brain, thus, they cannot support the first element of a due process clause claim.  Their claim fails as a matter of law."  Albrecht v. Treon (6th Cir., Case No. 09-3703, Aug. 24, 2010) (PDF).

In the underlying dispute, which has been ongoing in federal and Ohio courts since 2006, a county coroner autopsied the Albrechts' deceased son, removing his brain for analysis.  The body was subsequently returned to the Albrechts, but the brain was destroyed in accordance with the coroner's usual practices.  The Albrechts were not informed of the brain's destruction, and when they reviewed the autopsy report and learned that the brain had been disposed, they brought a class action suit in the Southern District of Ohio under 42 U.S.C. § 1983, claiming a violation of the Due Process Clause of the Fourteenth Amendment and common law tort liability.  The district court certified to the Supreme Court of Ohio the question whether Ohio recognized a constitutionally protected property interest where a body part was removed for legitimate investigative purposes.  The Supreme Court of Ohio answered in the negative (PDF), stating that no such property interest existed where human remains were retained by the state for criminal investigative purposes.  On this basis, the district court held that the Albrechts had no property interest and granted the defendants judgment on the pleadings.

Writing for a unanimous panel that included Judge Griffin and Senior District Judge Hood of the Eastern District of Kentucky, Judge Guy affirmed the district court.  Unlike cases involving organ donation, where the Uniform Anatomical Gift Act (which was adopted by Ohio) expressly grants next of kin the right to dispose of a relative's remains, Ohio has no similar law governing autopsied remains.  The Court observed that state law governs which rights, if any, apply to "property," noting the Supreme Court of Ohio's ruling on the certified question put to it.  Because Ohio recognizes no property right of the kind asserted by the Albrechts, their Section 1983 due process claim failed as a matter of law.

The unusual nature of the case has garnered attention elsewhere in the legal blogosphere, and the Albrechts have stated their intention to appeal the Sixth Circuit's ruling to the U.S. Supreme Court.

As reported previously in this blog, the U.S. Court of Appeals for the Sixth Circuit recently struck as unconstitutional two Kentucky regulations governing judicial elections.  In Carey v. Wolnitzek (6th Cir., Case Nos. 08-6468 & 08-6538, July 13, 2010) (PDF) the Court struck a regulation prohibiting judicial candidates from identifying their political party affiliation and also a different regulation prohibiting such candidates from personally soliciting campaign funds.  Although the ruling was limited to Kentucky’s regulations, Ohio’s Attorney General had recognized at the time that an adverse ruling by the Court could have an impact on similar Ohio regulations, as well.

The fallout has already begun.  In response to Carey, on August 11, 2010, the Supreme Court of Ohio amended the state’s rules governing judicial elections to align Ohio law with the Sixth Circuit’s ruling.  The amendments may be downloaded in Microsoft Word format by clicking here.  By a 5-0 vote, the Supreme Court amended Rule 4.2 of the Ohio Code of Judicial Conduct to “remove a ban on judicial candidates identifying themselves in advertising as a member of or affiliated with a political party after the primary election.”  In the Supreme Court’s official comment to amended Rule 4.2, the justices urge judicial candidates to minimize references to party affiliation: “Although these affiliations and others may be communicated to the electorate, a judicial candidate should consider the effect that partisanship has on the principles of judicial independence, integrity, and impartiality.”  The comment was adopted by a 4-1 vote, with Justice Paul E. Pfeifer voting against adoption.

Also by a 4-1 vote, with Justice Pfeifer again voting no, the Supreme Court amended Rule 4.4 of the Code of Judicial Conduct, which addresses solicitation of campaign contributions.  Amended Rule 4.4 continues to ban solicitation of campaign contributions, but the Supreme Court added two exceptions.  First, “[a] judicial candidate may make a general request for campaign contributions when speaking to an audience of twenty or more individuals,” and, second, “[a] judicial candidate may sign letters soliciting campaign contributions if the letters are for distribution by the judicial candidate’s campaign committee and the letters direct contributions to be sent to the campaign committee and not to the judicial candidate.”  In its official comment to Rule 4.4, adopted by the same 4-1 vote, the justices explained that “[t]hese limitations protect four vital interests: (1) avoiding the appearance of coercion or quid pro quo, especially when a judicial candidate engages in a one-on-one solicitation of a lawyer or party who appears before the court; (2) preserving both the appearance and reality of an impartial, independent, and noncorrupt judiciary; (3) ensuring the public’s right to due process and fairness; and (4) furthering the public trust and confidence in the impartiality of the judicial decision-maker. Rule 4.4(A) recognizes that some forms of solicitation are less coercive and less intrusive than others and permits a candidate to engage in solicitations that are less personal and directed at a wider audience.”

Chief Justice Eric Brown and Justice Judith Ann Lanzinger abstained from the votes amending Rules 4.2 and 4.4.

Carole Squire, a former judge on the Franklin County, Ohio Domestic Relations and Juvenile Court, has been the subject of many news stories regarding accusations of judicial misconduct and an appeal of election results.  She received a two-year disbarment from the Ohio Supreme Court, and the Sixth Circuit just affirmed a similar suspension.  Federal court disbarment actions are independent of state disbarment actions, but will usually follow the state decisions.  The Ability of an Attorney to Practice in Federal Courts after the Attorney has been Disbarred or Suspended by State Courts, 21 J. Legal Prof. 187, 188 (1996).  But her case presents an interesting (if perhaps accidental) wrinkle in federal disbarment procedure. 

Judge Martin’s opinion, In re Carole H Squire.pdf, curiously states that the district court “disbarred Squire from practicing in federal court.”   Because each federal court has its own admission and disbarment procedures, the Southern District of Ohio can usually only disbar a lawyer from that court, not another district court, the Sixth Circuit, or the Supreme Court.  See In re Cook, 551 F.3d 542, 544 (6th Cir. 2009) (affirming order of permanent disbarment from the Northern District of Ohio).  An order disbarring an attorney from all federal courts at once would be a quite a novelty -- and the lower court docket confirms that the district court only barred her from practicing in its own district. 

These piecemeal disbarment proceedings can lead to strange results.  For example, J. Harvey Crow was disbarred first from the U.S. Supreme Court, In re Disbarment of Crow, 359 U.S. 1007 (1959), then from the Northern District of Ohio, In re Disbarment of Crow, 181 F. Supp. 718, 719 (N.D. Ohio 1959).  The Sixth Circuit affirmed the district court’s disbarment, In re Crow, 283 F.2d 685 (6th Cir. 1960), but it is hard to determine whether the Sixth Circuit itself disbarred Mr. Crow. Though both the Supreme Court and the district courts make disbarment part of their regular public dockets, the Sixth Circuit (like some other federal courts of appeal) does not publish a list of disbarred lawyers and does not have a standing disciplinary committee.  

Perhaps Judge Martin is suggesting that if a lawyer has engaged in conduct warranting loss of the right to practice before one federal court, it is difficult to see why another federal court would reach a different result.

The Supreme Court granted cert today in Thompson v. North American Stainless, LP, a case that the Sixth Circuit decided en banc last June.  As this post on Workplace Prof Blog explains, the case presents the question whether Title VII creates a cause of action for an employer's retaliation against a person closely associated with an employee who has engaged in protected activity.  The en banc Sixth Circuit, divided 10-6, held that it does not.  Although that conclusion is uniform among the circuits to have considered the question (according to the Brief of the United States (PDF) recommending denial of cert), the petitioner was able to persuade the Supreme Court that review is warranted.

In other Supreme Court news, Justice Clarence Thomas has been named Circuit Justice for the Sixth Circuit, replacing the newly retired Justice John Paul Stevens.  May Justice Thomas be as good a friend to the Circuit as Justice Stevens!

Both orders referenced above are set forth in today's Order List (PDF).