The Sixth Circuit has announced new standards for collective action lawsuits under the FLSA in Clark v. A&L Homecare and Training Center. There are already many good summaries of this decision around the legal internet, so this recap will be short. The question is how to determine whether other potential plaintiffs are “similarly situated” so that the district court should issue a formal notice to those potential plaintiffs about the claims. Though this notice does not endorse the lawsuit, it has the inevitable effect of significantly bolstering both the number of plaintiffs and their bargaining position. The majority opinion holds that the two-step “certification” approach that district courts have applied for 35 years (which began with Lusardi v. Xerox, 118 F.R.D. 35 (D.N.J. 1987)) is not grounded in the statute and does not incorporate the Supreme Court’s guidance on the subject. It also rejects the Fifth Circuit’s new FLSA standard in Swales v. KLLM Transport Services, 985 F.3d 430 (5th Cir. 2021).
Reversal Rates In The Sixth Circuit And Elsewhere
This post provides the latest statistics for a question we are frequently asked: what is the chance of obtaining a reversal on appeal. Private civil cases see the most reversals of any category at 13.4%, followed by appeals in bankruptcy and civil appeals involving the United States at 12.5%. In other words, the circuit reverses about once for every seven or eight cases involving private plaintiffs. If you are appealing a criminal conviction, or otherwise in prison, your chances of winning anything are much lower. This year, the circuit reversed about 5% of criminal cases, which is unusually low–the circuit’s average is around 10%. Prisoners and habeas plaintiffs (who often labor under difficult standards of review) prevail in one-in-twelve to one-in-twenty appeals.
What Circuits Have The Most (and Least) Influence On The Sixth Circuit?
About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit. When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from other circuits. After our recent post showing that some circuits issue a far higher percentage of published opinions than others, we decided to take another look at what circuits are the most influential in Sixth Circuit opinions over the last three years. The results were surprising.
The Sixth Circuit Rejects En Banc Review Regarding Remuneration and Causation Under the False Claims Act
Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other. Chief Judge Sutton’s opinion rejected the argument that the referral arrangement violated the False Claims Act, holding that the statute’s definition of “remuneration” requires “payments and other transfers of value” rather than just “any act that may be valuable to another.” The opinion also rejected the claim on the basis that the Act requires “but-for” causation, rejecting the Government’s position and that of the Third Circuit, which held that a plaintiff does not need to prove that referrals “actually caused” someone to choose a particular healthcare provider, but that a “link” between the referrals and choice was sufficient. See United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 98 (3d Cir. 2018). Judge Mathis’ short concurrence noted that the court didn’t need to decide the “remuneration” issue because of its decision on causation.
The Three Circuits That Publish Far More Opinions Than Any Others—And How The Sixth Circuit Stacks Up
The latest statistics on unpublished opinions show an important trend between the circuits. Across all circuits, 86% of written opinions are unpublished. That means they are not precedential, so they do not create circuit law. And most of those unpublished opinions, 69% of them in 2022, were also unsigned. The Sixth Circuit mirrors the general trend. In 2022, 89% of its opinions were unpublished, and 54% were both unsigned and unpublished.
But three circuits, the First, Seventh, and Eighth, buck this trend by publishing a far higher percentage of their opinions. The Seventh Circuit, with 16 judges, publishes more decisions than the combined Second (29 judges) and Third Circuits (24 judges). The judges on the First, Seventh and Eighth Circuits publish about 30 decisions each year, while the rest of the circuits average about 10 decisions per year. On a per judge basis, each of three circuits issue four times more precedential opinions than the Second and Third Circuits, and three times more than most other circuits (including the Sixth Circuit). Three observations come to mind from this disparity between circuits.
Sixth Circuit Invalidates Application of Nashville’s Sidewalk Ordinance Under The Takings Clause
In Knight v. Metro. Gov’t of Nashville and Davidson County (No. 21-6179), the Sixth Circuit decided a longstanding question about the standard that applies to conditions imposed by a legislature on those applying for building permits. The issue is common enough: a city wants more sidewalks to improve safety, health, and traffic. So the city requires landowners to add sidewalks to their properties as a condition of issuing building permits. Nashville’s ordinance requires to grant an easement and build a sidewalk or to pay a fee to build sidewalks elsewhere in the city. The question in Knight was whether this permit condition should be judged under the unconstitutional conditions test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) or the deferential balancing test used for zoning restrictions under Penn Central Trans. v. NYC, 438 U.S. 104 (1978). State courts have long been divided on whether Nollan is limited to the discretionary decisions of zoning administrators, or whether it also applies to municipal legislation like Nashville’s rule.
Virtues of restraint in federal appellate brief writing
Nearly a decade ago, in an opinion by Judge Kethledge, the Sixth Circuit set forth “good reasons not to call an opponent’s argument ‘ridiculous.’” Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584 (6th Cir. 2013). These included “civility; the near-certainty that overstatement will only push the reader away …; and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusion.’” Id. at 585.
The advice merits repetition and elaboration. Too often appellate advocates succumb to the temptation (or just habit) of using extreme language, impugning the motives of their opponents, or mocking. In my view, not only does this style disserve the legal system, but it is also ineffective advocacy—for the reasons above and more.
How Long Does The Sixth Circuit Take To Resolve Appeals?
The Sixth Circuit has been slowly moving up the rankings for the time it takes to decide an appeal. A decade ago, the Sixth and Ninth Circuits took the longest time to each a decision. But while the Ninth Circuit remains slow (at 13.2 months), the latest statistics Sixth Circuit is now the third-fastest circuit, averaging 8.5 months between the notice of appeal and resolution. The only faster circuits are the Fourth Circuit at 7.9 months, and the Eighth Circuit, which decides cases in just 4.6 months.
The Sixth Circuits Rejects The “Juridical Link” Test For Class Actions
In Fox v. Saginaw County (No. 22-1265/1272), the Sixth Circuit rejected a class action where multiple defendants have identical policies, but the named plaintiff was only injured by one defendant. Until recently, Michigan law permitted counties to obtain complete ownership of a property during a tax foreclosure, even if the value of the property far exceeds the taxes owed. So enterprising attorneys filed a class action against twenty-seven Michigan counties under the auspices of the “juridical link” doctrine, but only presented one named plaintiff—who had only been injured by one county.
Sixth Circuit Limits Anti-Kickback Claims Brought Under False Claims Act
Our colleagues at the Global Investigations & Compliance Review Blog have written about an important decision the Sixth Circuit issued last week. In its opinion, the Court limited the scope of Anti-Kickback claims under the False Claims Act. You can read more about the decision here.