The Court of Appeals doesn’t know all the information about a case unless the parties teach it (even if everyone else in the case does).

When a panel of the Sixth Circuit denied rehearing in a criminal case last month, Judge Moore issued a separate opinion, joined by Judge White, that highlights an important point for appellate advocacy. That is, regardless of how common some knowledge may be to the litigants at the trial level, the judges on appeal know only what the parties teach them about it.

What prompted Judge Moore’s somewhat unusual opinion was a petition for panel rehearing in a direct criminal appeal. In its merits decision before the rehearing petition, the panel held that the district court had erred in calculating the defendant-appellant’s advisory sentencing guidelines range; but it also held that the error was harmless because the district judge had stated explicitly during the sentencing hearing that he “would have imposed the same sentence under § 3553(a)” even “[i]f the guideline[s] calculation is determined to have been wrong.” In seeking panel rehearing, the defendant-appellant brought to the court’s attention “that the district court’s statement is part of its standard sentencing colloquy, even in cases where the parties do not object to the Sentencing Guidelines calculation.” United States v. Montgomery, 969 F.3d 582 (6th Cir. 2020) (opinion of Moore, J.). That point might have made a difference; Judge Moore failed to see “why we should give any weight to boiler-plate language designed to thwart a deserved resentencing.” Id. at 582. Unfortunately for the defendant-appellant, however, because the she “failed to raise this argument in her initial briefing and has brought it to our attention only on petition for panel rehearing, … her argument came too late and is inappropriate for our consideration at this stage.” Id. Panel rehearing was denied.

All of this brought to my mind the reality that in most cases, there’s a significant amount of relevant knowledge that almost everyone involved at the trial level knows—and that the appellate judges do not, unless the parties teach them. Continue Reading

Sixth Circuit Defers to Real-World Umpires in Dismissal of Kentucky Derby Case

This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar.

The Kentucky Derby is known as the fastest two minutes in sports. But—in federal court at least—the 2019 contest galloped on until last week.

Last Friday (8 days before this year’s oddly timed 146th Derby), the Sixth Circuit provided apparent closure to the 2019 race’s controversial result by affirming the district court’s dismissal of a suit challenging a horse’s disqualification. The court (Bush, J. op.; Batchelder, Larsen, JJ. joining) made clear its desire to avoid second-guessing sports officials, notwithstanding the Supreme Court’s oft-used metaphor of “calling balls and strikes.”

“[W]e are not game officials in the literal sense, and we are ill-equipped to determine the outcome of sporting contests,” the Sixth Circuit expounded.

It is the second referee-related case to reach the circuit from sports-mad Kentucky in the past year alone.

The present case pitted Gary and Mary West, owners of the Kentucky-bred Maximum Security, against a state agency charged with overseeing horseracing. In 2019, Maximum Security had pulled off an apparent Derby win, only to be denied victory subsequently for allegedly impeding the progress of a fellow horse, which in turn impeded that of two others. It was the first time in the 145 years of the Kentucky Derby that the first horse to cross the finish line had been disqualified for misconduct during the race.

The Wests sued in federal court, contending that, per Kentucky law, the officials’ decision should be subject to judicial review. Furthermore, the Wests argued that the disqualification—which had been issued without a formal hearing or opportunity to appeal—violated their Fourteenth Amendment right to procedural due process.

The Sixth Circuit held, however, that the Wests had not shown deprivation of “life, liberty, or property.” No constitutionally protected liberty interest, the court elaborated, could be derived from a state agency’s purported failure to follow its own rules. Moreover, the court held, a property interest could not be conjured from a particular method of officiating sport contests. Maximum Security’s trophy win had thus not been taken from the Wests; it had never been theirs to begin with. Although the court acknowledged that a prevailing custom within a sport could hypothetically form the basis of a property interest, it pointed out that the Wests “knew about and agreed to be governed by” the Kentucky rules, which approximated those of other racing jurisdictions.

The Sixth Circuit found the Wests’ arguments about state law to be similarly unpersuasive. Per Kentucky law, racing officials’ decisions are not appealable, but a “final order[] of an agency” can be subject to judicial review. The Wests contended that the penalty on Maximum Security constituted such a “final order.” The Sixth Circuit answered, however, that such a classification would be at odds with both Kentucky’s definition of “final order”—which refers to an administrative hearing as well as the involvement of an agency head—and state-court precedent.

Ultimately, the Sixth Circuit saddled onto a theme of institutional competence. On-the-ground umpires, the court reasoned, are better prepared to call fouls than courthouse judges, given the former’s “rigorous training and experience” in its domain.

“Perhaps only a racehorse itself could tell us whether it was fouled during a race,” the court wrote. “But horses can’t speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts—the stewards, not the appointed members of the Commission or judges—to determine when a foul occurs in a horse race.”

Despite its defeat in court, not all is lost for Maximum Security and its owners. The bay colt has won three races this year, most recently the Pacific Classic on August 22. (Those victories have netted the Wests some $10.4 million in earnings.)

Sixth Circuit re-affirms substantive due process claims may go forward in Flint water cases. Then they settle.

In another of the many strands of the Flint water cases, a Sixth Circuit panel (Moore, White, JJ., Sutton, J. concurring) on August 5 reaffirmed its May 2020 decision in Waid vs. Snynder that plaintiffs plausibly alleged the City of Flint and City and State officials (including former Governor Rick Snyder) violated plaintiffs’ substantive due process rights to bodily integrity by causing, sustaining, and covering up the poisoning of an entire community with lead- and legionella-contaminated water, and that such officials are not entitled to qualified immunity.  Waid was primarily based on Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019), which together set forth that to make out a substantive due process claim for bodily integrity, plaintiffs must demonstrate that government officials’ actions “shock the conscience”—i.e., they “knew of facts from which they could infer a substantial risk of serious harm, that they did infer it, and that they acted with indifference toward the individual’s rights.”  In Guertin, in an opinion by Judge Griffin, the court held seven of the twelve named defendants had plausibly engaged in such “conscience shocking” behavior (two of the dismissed defendants were members of Governor Snyder’s cabinet), and in Waid, in an opinion by Judge Moore, plaintiffs plausibly alleged such conduct for all but one defendant (including Governor Snyder).

The August 5 opinion is unremarkable for its holding—defendants conceded the dispute was “functionally identical” to Waid and controlled the outcome.  Judge Moore’s majority opinion therefore disposed of the appeal “in short order.”  In just four paragraphs—two (and the longest) of which were procedural history—drawing from Waid, the court held plaintiffs plausibly allege substantive due process violations against, among others, former Governor Snyder, and that the case should be remanded to the district court for a determination of whether former State Treasurer Andy Dillon should be dismissed from the litigation.

The majority opinion’s subsequent four pages, by contrast, were a lively rebuttal of the “concurrence’s criticisms of Waid,” which the majority contextualized from the outset as “a stand it takes today after no judge of this court requested a poll for en banc rehearing of that case.” Continue Reading

Sixth Circuit Urges Broader Understanding of “Education” Under Title IX

This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.

The American humorist and writer Mark Twain once counseled: “Never let schooling interfere with your education.”

The implications of this witticism recently confronted the Sixth Circuit in a case about whether an “education” could be had outside of formal schooling.

That case, Doe v. University of Kentucky, is the latest discharge from a steady stream of Title IX cases in the Sixth Circuit. In an opinion issued last Wednesday, the appellate court reversed the district court’s grant of summary judgement and remanded the case for further proceedings.

The plaintiff in the case sued the University of Kentucky for a Title IX violation after alleging that she was raped by a university student there. The question for the court was whether the plaintiff could have been, per Title IX, “denied the benefits of … an education program or activity” at the University of Kentucky. 20 U.S.C. § 1681(a).

The plaintiff herself was not a student at the University of Kentucky. (At the time, she was enrolled at the affiliated Bluegrass Community and Technical College.) But the plaintiff lived in university housing, ate from the university’s meal plan, participated in university extracurriculars, and intended to transfer to the university with credits from the community college.

The district court (E.D. Ky.) granted summary judgment to the university in 2019, reasoning that the plaintiff could not make a Davis-style claim against it since she had not enrolled in courses there. (A Davis claim, as outlined by the U.S. Supreme Court, may be made when a university has been “deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.”)

The Sixth Circuit, however, countered that Title IX calls for a less “rigid” approach than that of the district court. The appellate court described Doe’s multifaceted relationship with the university. Although not a student, she interfaced with the university in financial, health, and technology matters. Perhaps most importantly, she resided in a university dorm, which the university itself touts as providing residents with opportunities “to learn.”

Based on “the sum of all these relationships to the University of Kentucky,” according to the Sixth Circuit, the plaintiff may have been “denied the benefit of an education program or activity,” albeit one based outside the classroom.

Whether or not the specific facts of this case are likely to reappear, the court’s ruling may reflect a turn toward a more holistic approach in interpreting Title IX requirements. In this respect, the court rooted its decision in the precedent of an earlier Sixth Circuit case, Horner v. Kentucky High School Athletic Association (1994). “Congress has made clear its intent to extend the scope of Title IX’s equal opportunity obligations to the furthest reaches of an institution’s programs,” the Horner court declared.

The Learned Sixth: New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.

An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.

That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).

Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).

Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.

“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.”

Early in her career, Thomas reports, Allen sensed that women should be treated more akin to men. As a law student, she was embarrassed when male classmates stood aside in chivalrous gestures of “ladies first.” She also resented gender-based obstacles in the job market. In an interview, one law firm partner pointed to snowfall outside in explaining that he could never send a woman out in such conditions.

Through her practice, Allen sought to level the treatment of the sexes—at least in the law. She represented women’s suffrage groups in helping expand the franchise. She was also the lawyer for a group of “conductorettes” laid off from their railway when male colleagues returned home from World War I. (The women won a non-binding opinion from the National War Labor Board, which was promptly ignored.)

Once in the judiciary, Judge Allen seemingly aspired to demonstrate that a female judge could equal her male counterparts. Upon her election to the Cuyahoga County Common Pleas Court, she resisted attempts to change her case docket on account of sex. She declined to be assigned only family disputes, and eventually oversaw four murder trials—one of which led her to impose the death penalty.

On the Ohio Supreme Court, Allen continued to win over male colleagues. In one anecdote, she told her fellow justices fidgeting about in the conference room, “while I don’t smoke, myself, I shall be delighted if any of you will do so whenever he wishes.”

Those techniques met their greatest test on the Sixth Circuit, where Judge Allen found herself excluded from lunch outings at the University Club in Cincinnati, denied eye contact during conferences, and sharply criticized in the drafting process. Judge Allen quietly pressed on, working to earn her colleagues’ esteem and identifying with them. When asked how she made time for housework, she answered: “I don’t cook, or sew, or shop, for the simple reason that I haven’t the time or energy for these things any more than the men judges have.”

Per Thomas, the judge’s technique eventually made headway—for herself at least. Sixth Circuit colleague and future Supreme Court Justice Potter Stewart came to her for tutorials on patent law. (The Court of Appeals for the Federal Circuit had yet to be created, leaving the Sixth Circuit with a bounty of patent cases from Midwestern manufacturers.)

In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.

Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.

Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.

 

Title IX’s shifting landscape

The Sixth Circuit has issued a steady stream of Title IX cases in recent months.  Of particular note are Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), which deepened a circuit split regarding institutional liability for “deliberate indifference” under Title IX, and Doe v. Oberlin College, 963 F.3d 580 (6th Cir. 2020), which addressed a male student’s claim that his institution discriminated against him during a disciplinary proceeding because of his sex.  Taken together, these two cases highlight the increasing tension that institutions face when trying to balance the rights of victims and of the accused under Title IX. Continue Reading

Sixth Circuit Says No Shortcuts to Standing in Tennessee Antitrust Case

Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.

The Sixth Circuit declined last Thursday to relax standing requirements for cases involving healthcare providers. The decision in Bearden v. Ballad Health, authored by Judge Amul Thapar for a panel that included Judges Gibbons and Griffin, affirmed the dismissal by district court Judge Curtis Collier (E.D. Tenn.) for lack of standing.

The case centered on the merger of two healthcare companies in Tennessee. Plaintiffs alleged that leaders of the combined entity, Ballad Health, also had ties to another nearby healthcare organization, MEAC. This constellation of healthcare companies, plaintiffs argued, constituted an “interlocking directorate” in violation of the federal Clayton Antitrust Act.

Plaintiffs acknowledged that their theory of “injury in fact” could represent an “aberration” from the usual standing doctrine. Nonetheless, they contended, the case merited particular laxity for three reasons: first, that the Clayton Act is fundamentally prophylactic; second, that healthcare is especially vital; and third, that Ballad Health itself had admitted in an agreement with the State of Tennessee that “irreparable harm” would result from a breach of that agreement.

The district judge was not persuaded, and neither was the Sixth Circuit. Continue Reading

Sixth Circuit panel dismisses motion to enforce writ of mandamus

Several months ago this blog reported on Judge Kethledge’s opinion for the court that granted a writ of mandamus sought by retail pharmacy chain defendants in “Track One” of the opioid MDL. In that decision the Sixth Circuit directed the district court to strike the plaintiff counties’ amendments to their complaints (which contravened Rule 16(b) of the Federal Rules of Civil Procedure). Granting that relief rendered the petition moot as to the two other grounds on which the pharmacies had sought relief, as the court observed. The Sixth Circuit issued its opinion and judgment on April 15, and the next day, the district court entered an order striking the amendments at issue.

Two and a half months later, the pharmacy defendants filed a “Motion to Enforce Writ of Mandamus” under the Sixth Circuit case number for the mandamus petition. This filing advised the court of appeals that, on remand, the district court had created a new “Track Three bellweather trial” and had permitted amendments to the complaints on the new track. The motion argued that this action violated the Federal Rules of Civil Procedure and the party-presentation principle of constitutional jurisprudence. It asked the Sixth Circuit “to enforce its writ of mandamus by striking the district court’s ‘Track 3’ orders” and to reassign the MDL to a new judge.

Last week the same panel that issued the writ of mandamus (Siler, Griffin, Kethledge) dismissed the motion. Because the decision was by order and unpublished, it’s not accessible via the court’s opinions page, but it’s easy and worthwhile to reproduce in full:

Defendant CVS Pharmacy, Inc. and nine other national retail pharmacies (“Retail Pharmacies”) filed a putative “motion to enforce” this court’s writ of mandamus, issued on April 15, 2020. See In re Nat’l Prescription Opiate Litig., 956 F.3d 838 (6th Cir. 2020). Our rules do not provide for this kind of filing. Nor do they provide for any kind of motion practice to police the actions of federal district courts. See La Buy v. Howes Leather Co., 352 U.S. 249, 257 (1957). Nor have the Retail Pharmacies identified a clear basis for our jurisdiction over their interlocutory motion.

Sixth Circuit declines to stay injunction in Michigan ballot-access case

Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.

Election and pandemic—2020’s strange bedfellows—continue to keep judicial chambers busy.

Another virus-adjacent development occurred on July 2 when the Sixth Circuit declined to stay a court-ordered injunction. That injunction, issued by Judge Matthew Leitman (EDMI), had suspended Michigan’s signature requirement for ballot initiatives. Without a stay from the Sixth Circuit, the ball is now in Governor Whitmer’s court to formulate a less burdensome pathway onto the November ballot.

The case was brought by a group of activists, led by 25-year-old Amani Sawari’s eponymous Sawari Media, who support a criminal-justice ballot initiative. They failed to meet Michigan’s May 26 deadline to collect the minimum 347,047 signatures required for a referendum. Hence, they took state leaders to court, arguing that the signature threshold posed an undue burden to First Amendment associational rights in light of Michigan’s months-long stay-at-home order.

Judge Leitman agreed, enjoining Gov. Whitmer’s administration—namely her, Secretary  of  State Jocelyn Benson, and elections chief Jonathan Brater—from enforcing the signature requirement. The district court also rejected the state leaders’ proposed remedy of a 40-day extension. State leaders appealed for an emergency stay.

Now, the Sixth Circuit has answered that the injunction will stand–at least for now.

The legal dispute turns on the Supreme Court’s Anderson-Burdick framework for evaluating ballot-access laws under the First and Fourteenth Amendments. Certainly, the Court has reasoned, state law limits are needed to protect orderly elections from devolving into a polling-place free-for-all. Yet in Anderson v. Celebrezze (1983), the Court held that these limits had gone too far in the case of an early Ohio filing deadline for independent candidates seeking the U.S. presidency. Nine years later, in Burdick v. Takushi (1992), the Court upheld a Hawaii ban on write-in voting.

The Anderson-Burdick precedent distinguished between electoral laws that “severely” burden First Amendment rights and those whose burdens are more modest. A holding of the former triggers strict scrutiny, almost always leading courts to strike down the law. A holding of the latter, on the other hand, prompts a state-favored balancing test, in which the character and magnitude of First Amendment injuries are weighed against state regulatory interests.

Sawari Media succeeded in persuading the Sixth Circuit (at least at the emergency-stay stage) that obtaining nearly 350,000 signatures represents a “severe” burden in the context of government-mandated lockdowns. The organization achieved this outcome despite the Sixth Circuit’s tack in Thompson v. DeWine, a May 26 case where the court sided with Ohio’s governor in upholding signature requirements. (The Ohio plaintiffs then sought an emergency stay at the Supreme Court, which denied certiorari on June 25.)

The SawariMedia court distinguished the Thompson ruling, noting that Michigan imposed a firmer and longer-lasting lockdown, without Ohio-style exemptions for First Amendment activity.

More ink may yet be spilled on the case. Gov. Whitmer’s administration has requested en banc review of whether Anderson-Burdick ought to apply to signature requirements for ballot initiatives. The court’s July 2 decision gave no leaning as to how it might rule on that question, which remains pending.

Sixth Circuit Holds Its TCPA Decision Not Impacted by Supreme Court’s Opinion in PDR Network

Recently a Sixth Circuit panel unanimously agreed in a published opinion that the 2019 Supreme Court decision, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., does not impact the resolution of a circuit case reviving an unsolicited advertisement claim under the Telephone Consumer Protection Act (“TCPA”).

The Sixth Circuit Case

Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., concerns a 2016 fax received by Fulton, a dental practice, that sought verification or update of the practice’s contact information for use in a medical provider database.  Continue Reading

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