So, in large measure, it’s a question of perspective.  Has the Sixth Circuit been reversed a fair amount lately? Yes.  But what does that tell us, given that in many cases it was siding with the views of several of its sister circuits? Probably not a whole lot.  Given the small number of cases involved, and the fact that the Sixth Circuit had a reversal rate of just 42% from 2004-2007, perhaps this is more of a statistical fluke than anything.  Or it could stem from a disproportionate amount of habeas cases that have been accepted by the Supreme Court. Interestingly, a great many of the Sixth Circuit decisions granting habeas relief, both those accepted and not accepted in the Supreme Court, originate in Michigan.  As the ABA Journal article picks up on, Michigan prosecutors are complaining to the Supreme Court about the increased scrutiny.

As we reported last year, the Fourth Circuit previously had held that Liberty University could not bring its constitutional challenge on the ground that its lawsuit constituted “a pre-enforcement action seeking to restrain the assessment of a tax,” and thus “the Anti-Injunction Act strips us of jurisdiction.”  See Opinion, Liberty University, Inc. v. Geithner (Fourth Circuit, Case No. 10-2347) (PDF).  The U.S. Supreme Court rejected such an argument back on June 28, 2012 when it upheld the constitutionality of the individual mandate requiring individuals to purchase health insurance as a valid exercise of Congress’s taxing power.  See Opinion, National Federation of Independent Business v. Sebelius (Sup. Ct. Case No. 11-393) (PDF).  The Supreme Court’s conclusion relating to the Anti-Injunction Act was the same conclusion reached by the Sixth Circuit back in June 2011 when it became the first Circuit Court in the country to uphold the health care statute’s constitutionality.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). 

Notably, the Obama Administration did not challenge Liberty University’s effort to bring the case back to the Fourth Circuit because it recognized that the issues raised by the school had not been addressed by the Supreme Court in its June 28 ruling.  And so begins another round of briefing on the constitutionality of the health care statute, and (potentially) another Supreme Court showdown.  It would not be surprising to see related lawsuits in the Sixth Circuit.  Stay tuned.

Medicare allows for two types of dialysis-related reimbursements.  Method I is reimbursement by Medicare to reimburse dialysis facilities for the cost of home dialysis equipment.  Method II is applied to companies that provided equipment and supplies (but not services) directly to home dialysis patients.  Eventually, Method II reimbursements became more lucrative than Method I reimbursements.

To take advantage of the two reimbursement types, Renal Care Group, Inc. created a wholly-owned subsidiary to supply the Method II services only.  The corporate structures involved the same individuals and the subsidiary’s moneys were swept into the parent every night.  Renal Care had sought legal advice and the attorney had sought clarification from a federal official with the Health Care Financing Administration on the legality of establishing such a relationship, and Renal Care followed the resulting recommendations. 

Despite these efforts at keeping the subsidiary distinct, the district court granted summary judgment to the United States, concluding that the subsidiary was a mere alter ego of the parent.  On appeal, the Sixth Circuit noted that the basis for concluding that the two entities were alter egos relied heavily on the fact that the subsidiary was created solely to take advantage of the Method II reimbursements.  The Sixth Circuit rejected such an approach, stating that “[w]hy a business ought to be punished solely for seeking to maximize profits escapes us.”  The Court noted that because Renal Care followed the advice of counsel in navigating the unclear regulations and observed the corporate formalities, there was no genuine issue of material fact as to whether Renal Care acted knowingly or with reckless disregard of the falsity of its Medicare reimbursements.

In determining whether the disparate treatment of different categories of voters violated the equal protection clause, the Sixth Circuit applied the Anderson-Burdick balancing test which requires a “court considering a challenge to a state election law [to] weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs’ rights.”  Plaintiffs presented evidence that estimated that approximately 100,000 Ohio voters would have chosen to vote during the three day period before Election Day and that these voters were disproportionately women, older, and of lower income and education attainment.  Because the Sixth Circuit agreed with the district court that Plaintiffs’ right to vote was burdened, the Court next looked to the State’s justification for eliminating in-person early voting for non-military voters during the three days before Election Day.  In support of the law, the State argued that local election boards were too busy during this three day period to accommodate non-military early voters and that “the unique challenges faced by military service members and their families justify maintaining in-person early voting for them but not for other Ohio voters.”

While the Sixth Circuit recognized that elections place significant burdens on boards of elections, it noted that the state failed to show that the 2012 election would be more onerous than other elections that were administered without eliminating in-person early voting for non-military Ohioans in the three days prior to the election.  Further, there was evidence that increased early in-person voting actually alleviates the burdens on boards of elections by spreading out the demand for voting over more days and thereby reducing lines and wait times at polling places.  There was also no evidence presented that early voting would cause significant financial hardship.  As such, the Court found that the State failed to show that its regulatory interest was sufficiently weighty to justify the burdens imposed on Ohio’s non-military voters.  With respect to the State’s second justification, while the Court recognized the desirability of providing ample opportunity for military voters to cast their ballots, it found “no corresponding satisfactory reason to prevent non-military voters from casting their ballots as well.”  Accordingly, the Sixth Circuit determined that the grant of a preliminary injunction was appropriate and affirmed the district court’s decision. 

On Election Day, the results for the election between President Obama and Governor Romney are likely to be close, which magnifies the importance of this decision, particularly in a critical swing state.  Brace yourself – there could be more election cases before all of the votes are counted!

Planned Parenthood challenged the statute as unconstitutionally vague, violative of a woman’s right to bodily integrity under the Fourteenth Amendment, unduly burdensome to a woman’s Fourteenth Amendment right to choose abortion, and unduly burdensome to a woman’s right to health and life under the Fourteenth Amendment.  The Sixth Circuit accepted the case following the district court’s grant of summary judgment in favor of the State on the first three challenges and the designation of that judgment as appealable under Rule 54(b).

On appeal, the Sixth Court readily rejected Planned Parenthood’s vagueness challenge in light of the Ohio Supreme Court’s clarification of the law at the Sixth Circuit’s request.  The Court likewise uniformly rejected the “bodily integrity” challenge, citing the United States Supreme Court’s elimination of a physical intrusion analysis in the context of abortion regulation review. 

In disposing of the third and final issue, the Court splintered.  Although Judge Moore had authored the majority opinion on the other issues, Judge McKeague authored the majority opinion on the question of whether the statute unduly burdens a woman’s right to choose abortion.  With Judge Rogers concurring, Judge McKeague held that the availability of the more common, surgical abortion procedure (known as a “D & E abortion”) through 63 days of gestation, and its lower cost, negated the claim that the statute unduly burdened a woman’s right to choose.  Specifically, the Court held that, while a woman’s right to an abortion cannot be unduly burdened, there is no similar protection for her preference about the type of abortion available.

Dissenting from the rest of the Court on the final issue, Judge Moore found that the statute unduly burdens a woman’s right to choose abortion by making it less available than the surgical option and requiring multiple doctor’s visits.  At bottom, Judge Moore concluded that the additional burdens placed on medical abortion would leave many women with only one option – a surgical abortion – which many women would find objectionable on various grounds.

On July 6, 2012, President Obama signed into law the Moving Ahead for Progress in the 21st Century Act.  This new transportation funding law amended the definition of “manufacturers of tobacco products” to include retailers who make roll-your-own machines available to customers.  As the Sixth Circuit observed, the new Act achieved “the same result” as Ruling 2010-4, thus mooting the underlying controversy with regard to roll-your-own tobacco removed after its enactment.  As Judge McKeague wrote, “[b]ecause there is now no question as to the proper interpretation of § 5702(d) as amended, it appears there is no longer any live controversy between the parties with respect to tobacco removed after the amendment’s enactment.”

The Sixth Circuit also held that the district court’s injunction had to be vacated in its entirety because the district court’s exercise of jurisdiction was barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a) (the “AIA”).  The AIA provides that, except for certain narrow exceptions, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”  26 U.S.C. § 7421(a).  The Sixth Circuit determined that the plaintiffs’ claims fell within the purview of the AIA because the purpose of Ruling 2010-4, and the permitting requirements that go with it, “is to clarify the taxation status of retailers who offer high-speed rolling machines to customers so that the Bureau can enforce the excise tax.  It follows that the Companies’ complaint is directed at the assessment and collection of taxes, and comes within the ambit of the AIA.”  The Sixth Circuit ultimately held that “because no exception to the AIA applies, the district court should have dismissed this case for lack of jurisdiction.”

47 U.S.C. § 332(c)(7)(B)(iii) requires a township to support its denial of a request to place wireless facilities with “substantial evidence contained in a written record.”  As the Court pointed out, its precedents had not previously addressed the question of “what must the substantial evidence in the record show in order to avoid a violation of [the statute]?”  The Sixth Circuit applied the substantial evidence standard as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  The Board faced objections to the application based on a section of the local zoning ordinance requiring facilities to be “located and designed to be harmonious with the surrounding areas.”  The Sixth Circuit found that the evidence supporting this concern was “hardly substantial.”  The Court found that the Board’s evidence was merely unsubstantiated allegations.  The Township also argued that a shorter tower would have been sufficient.  However, the Township failed to demonstrate with substantial evidence that the shorter tower would have allowed other cell carriers to use the tower (something required by zoning ordinance). 

The Court also considered whether the Township’s denial violated 47 U.S.C. § 332(c)(7)(B)(i)(II), which states that the regulation of cell tower construction “shall not prohibit or have the effect of prohibiting the provision of personal wireless service.”  The Court began its analysis by finding that the denial of a single application could constitute a violation of the statute.  The Court adopted the Ninth Circuit’s two part test to determine if there was a violation.  This test requires courts to consider whether there is a significant gap in coverage and the feasibility of alternative sites.  The Sixth Circuit found that a significant gap can be based only on a gap in the individual carrier’s service, regardless of whether other carriers currently provide service in that area.  When evaluating the feasibility of alternative sites, the Sixth Circuit adopted a standard requiring the carrier to show that its proposed site “is the least intrusive on the values that the denial sought to serve.”  T-Mobile was able to satisfy the requirements of this two-part test.  Therefore, the Sixth Circuit found that the Township had violated the statute.

The Sixth Circuit, in an opinion by Judge Cole, analyzed the issue under federal due process (rather than the long arm statute) and it became a determination of specific, rather than general, jurisdiction.  While the Court found that the defendants had engaged in some activity with Kentucky by accepting applications from Kentucky residents and processing them, the Court declined to consider whether such conduct constituted “purposeful availment” in order to satisfy due process because it found that the activities were not substantially connected to the cause of action.  In other words, if a handful of Kentucky residents accessed the defendant’s website to engage in online banking, these individuals were not likely to be confused based on the alleged trademark infringement.  Therefore, the Court was able to resolve the personal jurisdiction question without the necessity of exploring perhaps the more difficult question of purposeful availment.  But this case may certainly influence future cases within the Circuit that implicate similar internet-based claims for personal jurisdiction.