Pump Your Brakes: Sixth Circuit Warns District Courts to Make “Rigorous” Rule 23 Analysis

The Sixth Circuit yesterday in a per curiam opinion (paneled by Judges Boggs, Thapar, and Readler) accepted interlocutory appeal of and vacated a class certification order from the Eastern District of Michigan.  The case is In re: Ford Motor Company, Case No. 22-0109 (6th Cir.). The Court’s opinion served to remind district courts that they must conduct a “rigorous analysis” to determine whether “not one or two, but all four Rule 23(a) prerequisites are met.”  Op. at 2.  It is worth noting that on interlocutory appeal, the circuit court typically either denies review or accepts the case for briefing on the merits.  In this case, however, the Sixth Circuit accepted review and summarily vacated to allow the district court to correct its error, without further briefing. 

The putative class action was brought by Ford F-150 drivers, alleging that Ford installed defective step-bore brake master cylinders into the trucks, causing the brake performance to suffer.  The district court certified five statewide issue classes under Rule 23(c)(4), for resolution of three issues: “(1) whether the trucks’ brake systems were defective; (2) whether Ford possessed pre-sale knowledge of the defect; and (3) whether concealed information about the defect would be material to a reasonable buyer.”  Id. at 3. 

The Court held that the district court’s commonality analysis–one of the four Rule 23 factors (numerosity, commonality, typicality, and adequacy)—was “insufficiently rigorous” and overlooked certain of Ford’s arguments.  To satisfy commonality, the Court explained, there must be a “common question” that would resolve a central issue “in one stroke.”  Id. at 4.  Ford, however, challenged commonality as to the three issues certified for class resolution, claiming that certain factual issues prevented “one stroke” resolution.  Ford claimed that the brake manufacturer had made many changes to the brakes during the class period, that Ford lacked knowledge of the defect, and that the design changes may have impacted materiality of the defect.  Id. at 5–6.  The district court erred, according to the Sixth Circuit, because it did not “detail its reasons for rejecting Ford’s arguments,” failed to “grapple with” and left “unaddressed” certain facts, and resolved commonality with a “surface-level approach.”  Id

Finally, the court cautioned that the Rule 23 analysis cannot be based on mere allegations—“the district court must evaluate whether each of the Rule 23(a) factors is actually satisfied, not merely that the factors are properly alleged.”  Id. at 6.  Doing so is a “crucial part of avoiding procedural unfairness to which class actions are uniquely susceptible.”  Id. at 7.  In other words, when it comes to class certification, district courts should pump their brakes and yield to the stringent Rule 23 standard. 

Sixth Circuit Reverses Grants of Preliminary Injunctions in Gender Dysphoria Cases

Yesterday evening, the Sixth Circuit issued a blockbuster decision in consolidated cases addressing the constitutionality of Tennessee’s and Kentucky’s laws limiting minors experiencing gender dysphoria from certain sex-transition treatments. Chief Judge Sutton wrote the majority opinion, which Judge Thapar joined. Judge White dissented. The majority and dissenting opinions cumulatively span over 70 pages.

Individuals who have gender dysphoria experience a “lack of alignment between their biological sex and perceived gender.” Majority Op. at 4. The Tennessee and Kentucky laws are concerned with the types of medical procedures that healthcare providers might prescribe minors suffering from gender dysphoria. Under both States’ laws, medical providers are generally banned from performing sex-transition surgeries for such minors. Medical providers likewise cannot administer puberty-blocking hormones for such minors.

This decision is not the first that this Panel has issued in these cases. After the District Court in the Tennessee case issued a preliminary injunction against enforcement of the Tennessee law, Tennessee appealed and the Panel — the same one that issued yesterday’s decision — stayed the injunction pending appeal. See L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408 (6th Cir. 2023). Although the District Court in the Kentucky case likewise issued a preliminary injunction against enforcement of the Kentucky law, the District Court issued a stay of its decision and the Panel declined to lift it. See Doe 1 v. Thornbury, 75 F.4th 655, 656–57 (6th Cir. 2023) (per curiam). Like she did yesterday, Judge White dissented from both of the stay decisions. The stay decisions provided a window into the Sixth Circuit’s thinking on the constitutional issues and strongly suggested that the Court was gearing up to reverse both preliminary injunctions (which the Court did yesterday). But yesterday’s opinions expanded the Court’s analysis from the stay stage by about 50 pages and, naturally, covered a lot more ground than those earlier decisions.

With that bit of procedural history out of the way, it’s time to discuss what the opinions said. As I’ve been hinting, they said a lot. In a nutshell, the challengers levelled several constitutional arguments against the laws and in support of the preliminary injunctions entered in the cases. The Majority rejected each argument and concluded that the challengers had not shown they were likely to prevail on the merits. To be a little more specific, the plaintiffs’ constitutional arguments fell into two broad categories: (1) those based on the Fourteenth Amendment’s Due Process Clause, and (2) those based on the Fourteenth Amendment’s Equal Protection Clause. Long story short, the Majority found neither category of argument availing; the Dissent reached the opposite conclusion for both categories.

In so doing, the Panel navigated familiar doctrinal rubrics: among others, whether the asserted rights are “deeply rooted in this Nation’s history and tradition,” and whether Tennessee’s and Kentucky’s laws are premised on “protected classifications.” Both the Majority and Dissent marshalled a large amount of caselaw in support of their respective opinions, drawing analogies and distinctions in the common-law-like manner that often characterizes constitutional reasoning.

In a short blog post (and this one must be short), I cannot do justice to the many intricate points addressed in the opinions, but I’ll flag one overarching theme that I believe animates much of the reasoning (and, ultimately, disagreement) between the Majority and the Dissent. I am referring to the opinions’ differing conceptions of the proper role of the federal courts in our constitutional democracy where power is separated not just horizontally (between the different branches of government) but also vertically (between the federal and state governments).

Over and over, the Majority stresses the limited role the federal courts must play in addressing a contentious social issue that also implicates an area of “medical and scientific uncertainty.” Majority Op. at 14 (quoting Gonzales v. Carhart, 550 U.S. 124, 163 (2007)). For the Majority, “that is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.” Majority Op. at 40. What sounds like judicial modesty to the Majority sounds like judicial abdication to the Dissent — at least where, in the Dissent’s view, “a fundamental right or freedom from discrimination is involved,” which the Dissent believed was the case here. Dissent Op. at 73. “‘The very purpose of’ our constitutional system, the Dissent reasoned, ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.'” Id. (quoting W. Va. St. Bd. of Ed. v. Barnette, 319 U.S. 524, 538 (1943)).

Of course, where to draw the line between fundamental rights that should be free from the “vicissitudes of political controversy” and policy choices that should be left to “accountable elected officials” is one of those perennial questions in constitutional law to which no answer yields complete agreement. Even in the absence of such unanimity, however, we can take heart in knowing that the debates over such questions are continuously enriched by thoughtful opinions like the ones issued in these cases.

An Update on the Censorship Cases Pending at SCOTUS

Earlier this week, we blogged about the social media censorship cases that have been working their way through various courts of appeals, including the Sixth Circuit, and how one of those cases – the Fifth Circuit case – has now landed on the Supreme Court’s emergency docket.  As a reminder, the Sixth Circuit held that the plaintiffs in its case did not have standing to sue because, in the Panel’s judgment, the plaintiffs did not adequately allege that they suffered an injury fairly traceable to the government.  The Fifth Circuit case had more of a record developed in it and, based on that record, the Fifth Circuit held not only that the plaintiffs in its case had standing to sue at least some officials but also that those officials likely violated the plaintiffs’ First Amendment rights.  

Last Thursday – the same day that the Sixth Circuit issued its decision – U.S. Solicitor General Elizabeth B. Prelogar filed an emergency brief asking the Supreme Court to stay the injunction that the district court had granted in the Fifth Circuit case.  The plaintiffs have now filed their response in opposition to the DOJ’s application for stay of injunction.  Various amici have chimed in too, including, perhaps unexpectedly, a repeat player at the Sixth Circuit:  Benjamin M. Flowers on behalf of the State of Ohio.  In the rest of this post, we provide a high-level discussion of the arguments contained in the briefs.  

All parties agree that a stay is only appropriate where (1) there is a reasonable probability that the Supreme Court will grant certiorari, (2) there is a fair prospect the Court will reverse, and (3) there is a likelihood that irreparable harm will result from the denial of a stay.  On the first stay element, General Prelogar argues that certiorari is likely because the Fifth Circuit’s state action theory is novel, disruptive, and in conflict with precedents from the D.C. and Ninth Circuits.  The plaintiffs skip over this element and proceed directly to the others.

On the second stay element, General Prelogar makes three primary arguments.  First, she asserts that the Fifth Circuit’s standing analysis “flouts bedrock principles of Article III . . . .”  Here, General Prelogar argues that the individual plaintiffs did not establish redressability and, most interesting for Sixth Circuit watchers, traceability.  On traceability, General Prelogar homes in on the same issue that preoccupied Judges Bush, Boggs, and White — that “respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions.”  She further faults the Fifth Circuit for finding that the state plaintiffs had standing based on a right to hear their constituents.  According to General Prelogar, the right-to-hear theory is meritless and novel.  Additionally, General Prelogar argues that the Fifth Circuit’s state action analysis was too permissive, that no first amendment violation occurred, and that the injunction ordered by the district court, even as modified by the Fifth Circuit, was too broad. 

The plaintiffs respond that the district court made extensive factual findings supporting standing that the federal government never contests.  And the plaintiffs attempt to rebut General Prelogar’s traceability argument by countering that the injurious activity is still occurring and that the federal officials caused the censorship.  The state plaintiffs specifically argue that the Fifth Circuit was correct to find that the state plaintiffs had a “right to listen” to their constituents as evidenced by several cases they cited.  The plaintiffs also argue that the 5th Circuit’s state-actor analysis is correct and again reiterate that the government does not challenge the factual record.  Even if the government had challenged those factual findings, the plaintiffs argue, the findings would easily survive the permissive “clearly erroneous” standard of appellate review.  On the scope of the injunction, the plaintiffs assert that the government presents no alternate injunction that can achieve the relief they desire because the present injunctive relief is appropriately limited.

Moving to the third stay element, General Prelogar argues that the federal government and the public would be irreparably harmed without a stay.  She illustrates her point by highlighting hypotheticals of government actions that she believes could expose the government to contempt under the Fifth Circuit’s modified injunction.  Plaintiffs counter that the injunction does nothing more than what the First Amendment already requires and that abiding by constitutional strictures is not a cognizable harm.  Meanwhile, plaintiffs argue that allowing the censorship of millions “impoverishes the national conversation.”  In response to General Prelogar’s hypotheticals, the plaintiffs assert that a “handful of hypotheticals does not outweigh the documented history of ‘millions’ of actual free-speech violations.” In any case, plaintiffs contend that the hypotheticals are overblown because none of them are examples of actual coercion of censorship. 

As for Ohio’s amicus brief, it begins by quoting the warnings of former U.S. Attorney Generals Edward Levi and Robert Jackson (later Justice Jackson) against the unequal application of the law and the abuse of discretionary government power.  General Flowers then pivots to one of the canonical lines of First Amendment jurisprudence:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by words or act their faith therein.”  Ohio Amicus Br. at 6 (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J., writing for the Court)).  General Flowers argues that the government veered from that guiding principle in an uneven and politically biased manner.  And therefore, even if “the government ultimately shows that its conduct stopped short of violating the First Amendment (it will not), or that the respondents lacked standing to sue (it will not),” the public interest is in allowing this injunction to stand, and General Prelogar’s application should fail.  As of the time of this writing, the Supreme Court has yet to issue a decision, but the Court’s administrative stay ends tomorrow around midnight, so we’ll be on the lookout for some type of decision soon. 

Sixth Circuit’s Denial of Rehearing En Banc Spawns Concurring and Dissenting Opinions

Yesterday, the Sixth Circuit issued a set of engrossing opinions accompanying its order denying the petition for rehearing en banc in United States v. Carpenter, No. 22-1198 (6th Cir. Sep. 18, 2023).  The order is noteworthy for, among other reasons, solidifying a circuit split on the interpretation of the last, restrictive clause in section 403(b) of the First Step Act.  Although the Court did not rehear the case en banc, a majority of active judges weighed in on the interpretive issue by joining one of the three opinions the order generated.  Also notable was the fact that one of those opinions was the first ever authored by the Sixth Circuit’s newest member:  Judge Bloomekatz. 

Before diving into the opinions, let’s set the stage.  The central issue in Carpenter has percolated in the federal courts of appeals for a while.  The First Step Act reduced mandatory-minimum sentences for certain federal crimes subject to some caveats.  One of those caveats is contained in Section 403(b) of the Act, which provides:  “This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”  (Emphasis added).  The issue in Carpenter and similar cases turns on the meaning of that italicized phrase.  

Like the defendants in other cases, Carpenter had previously been sentenced to a mandatory-minimum sentence for a firearms offense but the sentence was later vacated, and, before his resentencing, the First Step Act went into effect.  The question thus arose:  given the vacatur of Carpenter’s prior sentence, and notwithstanding the “historical fact” of that sentence, should Carpenter receive the benefit of the Act’s reduction of the otherwise applicable mandatory minimum?  Following binding precedent from United States v. Jackson, 995 F.3d 522 (6th Cir. 2021), the Carpenter Panel answered, “no.”  See United States v. Carpenter, 2023 WL 3200321, at *2 (6th Cir. 2023).  

Yesterday’s order meant that Carpenter failed to persuade enough of the Court to revisit Jackson by rehearing Carpenter en banc.  The order nonetheless generated three separate writings, and a majority of active judges signed onto at least one of the opinions.  Below, I briefly summarize each opinion.  

First up was Judge Kethledge’s opinion, joined by Chief Judge Sutton, Judge Thapar and Judge Bush.  It bears noting that Judge Kethledge wrote the decision at the panel stage too, where he was joined by Judge Guy and Judge Stranch.  (This Panel, by the way, was the same Panel that, a few years ago, ruled on the constitutionality of the government’s acquisition of Carpenter’s cell-site records during its investigation into his offense.  That decision teed up the issue for SCOTUS, which later issued a decision in the case.  See Carpenter v. United States, 138 S. Ct. 2206 (2018).  Yes, recent law grads, that is the same Carpenter decision you read in your constitutional criminal procedure class.) 

In his decision for the Panel in this appeal, Judge Kethledge largely just explained that Jackson was on all fours with the issue here and thus governed the Panel’s decision.  Judge Kethledge did note his view, however, that Carpenter’s mandatory 105-year sentence made 18 U.S.C. 3553(a)’s separate requirement — that the court “impose a sentence sufficient, but not greater than necessary, to comply with” the purposes of sentencing — ”ring hollow.”  Carpenter, 2023 WL 3200321, at *2.  

Unlike his decision for the Panel, which simply applied Jackson, Judge Kethledge’s opinion concurring in the denial of rehearing en banc fully defended the Court’s decision in Jackson–a decision that one of the judges who joined Judge Kethledge’s concurral, Judge Bush, wrote.  In so doing, Judge Kethledge relied heavily on an en-banc dissent written by then-Judge Barrett in United States v. Uriate, 975 F.3d 569, 606-09 (7th Cir. 2020), which, according to Judge Kethledge, “nobody has come close to dismantling.”  Op. at 3 (Kethledge, J. concurring).  Judge Kethledge reasoned that section 403(b) “refers not merely to a ‘sentence’ but to the imposition of one; and the statute’s use of the verb ‘imposed[,] plainly enough, puts the section’s ‘focus on the historical fact’ of the sentence’s imposition.”  Id. at 3-4 (emphasis and alternation original) (quoting Uriate, 975 F.3d at 607).  For Judge Kethledge, that reading was supported by section 403(b)’s use of the present-perfect tense, which he thought was intended to signify an “act, state, or condition that is now complete.” Id. at 4 (quotation omitted).  Judge Kethledge found further support for his interpretation in section 403(b)’s use of the indefinite article “a” in describing “a” sentence that “has or ‘has not been imposed[.]”  Id. (alteration original) (quotation omitted).  

Judge Kethledge rejected the contrary view that a defendant has not been sentenced under section 403(b) if the defendant’s prior sentence has subsequently been vacated.  To Judge Kethledge, that understanding of section 403 incorrectly applies “technical legal effect to a figure of speech” calling for ordinary meaning.  See id. at 5.  

Judge Kethledge also explained why a contrary interpretation “would produce nonsense and incoherence alike.” Id. at 6. It would be nonsensical, Judge Kethledge reasoned, if “a defendant who had been in prison for 20 years pursuant to a later-vacated sentence” was “somehow a defendant on whom a sentence has not been imposed as of” the First Step Act’s effective date.” Id. at 6 (quotation omitted). And it would be incoherent if a district court had to “recognize the fact of the defendant’s prior sentence for purposes of determining his guidelines range … but at the same time pretend that sentence never happened for purposes of determining the defendant’s mandatory minimum.” Id.

Although Judge Kethledge stood by the Jackson decision, he made clear once again his discomfort with the outcome dictated by applying that decision to this case. “Carpenter’s sentence was extreme by any measure,” stated Judge Kethledge. Id. And Judge Kethledge seemed to lay much of the blame for that result on the mandatory-minimum scheme Congress had devised. See id. That scheme meant “the judiciary was largely denied any role in determining” Carpenter’s sentence. Id. Carpenter’s case thus illustrated to Judge Kethledge the importance of the separation of powers. Had the power to determine Carpenter’s sentence not been consolidated in just the executive and legislative branches, “the sentence here would never have been imposed.” Id.

In his dissenting opinion, Judge Griffin explained why he thought the interpretive approach taken in Jackson and Judge Kethledge’s concurring opinion was incorrect.  He was joined by Judge Moore (who dissented in Jackson) and Judge Stranch (who evidently has misgivings about Jackson but nonetheless felt bound by the decision at the panel stage). 

Judge Griffin framed the issue as whether “a sentence” under section 403(b) “encompass[es] a prior, invalid sentence,” or, instead, requires “an existing, valid one?”  Id. at 7 (emphasis original). Judge Griffin believes the latter is true.  Judge Griffin supported his reading with the familiar canon positing that, when courts interpret statutory language using common-law terms, courts “presume that Congress employs their common-law meaning.”  Id. at 8.  Under the common law, Judge Griffin explained, a vacated sentence is “ab initio” – meaning, it’s “as if it had never happened.”  Id.  In Judge Griffin’s view, that common-law understanding of a vacated sentence “fits like a glove” within the statutory framework here, and so it should have applied.  Id.  

Judge Griffin relied on grammar, too.  According to Judge Griffin, the “historical fact” approach only made grammatical sense if one replaced the word “has” in section 403(b) with “had.”  Id. at 9.  Judge Griffin further noted that every other circuit that has considered the meaning of “a sentence” in the statute has come out differently than Jackson and Carpenter.  Indeed, as Judge Griffin pointed out, even the federal government agreed that “Jackson was wrongly decided and supports Carpenter’s petition.”  (One has to wonder, though, whether that confession carried less weight with the concurring judges considering that the DOJ confessed error in Terry v. United States 141 S. Ct. 1858 (2021) — another First Step Act case — but the Supreme Court nonetheless affirmed the judgment there in a 9-0 decision.)  

Judge Griffin wrapped up his opinion on a premonitory note: how the Court interprets the statute, he warned, would “continue to matter for years to come,” including for drug offenses sentenced under section 401(c) of the Act, which uses language identical to the language used in section 403(b).  

In her first-ever-authored opinion, Judge Bloomekatz dissented, too, but she wrote to “emphasize a predicate point.”  Op. at 12 (Bloomekatz, J., dissenting).  In so doing, Judge Bloomekatz was joined by Judges Moore, Clay, Griffin, Stranch, and Mathis.  According to Judge Bloomekatz, “this case ha[d] all the hallmarks of one that warrant[ed] the full court’s consideration.”  Id.  Among them was her view that Jackson’s holding clashes with the Sixth Circuit’s “own prior precedent” and “departs from every other circuit to have considered the issue.”  Id. Judge Bloomekatz also explained why she thinks the issue in the case is exceptionally important, highlighting “[t]he real human costs that this esoteric legal issue presents.”  Id. at 13. She reasoned that, after Jackson, “defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.”  Id. at 13.  Carpenter’s situation is a case in point.  “His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits.”  Id. (emphasis original). For those reasons (among others), Judge Bloomekatz thought this was “a textbook example of the rare case that deserves the full court’s attention.” Id. at 14.

Precisely because of the disparities that Judge Bloomekatz underscored in her opinion, the Supreme Court will almost certainly have the final word on this issue. That’s not to say the Supreme Court will agree with the dissenters.  Indeed, we already know that at least one justice disagrees with them.  But it seems very unlikely that the Supreme Court will tolerate a circuit split that produces such disparate outcomes across jurisdictions.  Fundamental fairness demands that if Carpenter should be denied the benefit of the First Step Act’s mandatory-sentence repeals, the same should be true of defendants similarly situated to him.  And conversely, if the law requires that others similarly situated to Carpenter receive the benefit of those repeals, the same should be true for Carpenter. Here’s to hoping the Supreme Court settles this debate sooner rather than later.

Daylight Between Sixth and Fifth Circuits in Social Media Censorship Cases

The Sixth Circuit opened a rift with the Fifth Circuit last Thursday in Changizi v. HHS, No. 22-3573 (6th Cir. Sep. 14, 2023). Judge Bush wrote the opinion for the Court, which Judge Boggs and Judge White joined. The decision affirmed the dismissal of a complaint alleging that the Biden Administration had violated the First Amendment by coercing Twitter (these days known as “X”) into temporarily or permanently banning certain Twitter users from the social-media platform. The plaintiffs claimed they were censored because they allegedly posted misinformation about COVID-19.

In holding that the plaintiffs lacked Article III standing, it might be more accurate to say that the Sixth Circuit reinforced the Fifth Circuit’s outlier status among the circuit courts that have issued decisions in similar cases so far. It was, after all, the Fifth Circuit that arguably bucked a trend set by the Ninth and Second Circuits when the Fifth Circuit held that the Biden Administration had likely coerced various social-media platforms into censoring certain social-media content. Compare Missouri v. Biden, No. 23-30445 (5th Cir. Sep. 8, 2023) with NRA v. Vullo, No. 21-636 (2d Cir. Sep. 22, 2022) and Kennedy v. Warren, No. 22-35457 (9th Cir. May 4, 2023). In any event, the Sixth Circuit’s decision likely does not count as a true “split” from the Fifth Circuit’s decision because of the cases’ different postures: the Fifth Circuit affirmed a preliminary injunction (with some modification) that the district court entered after a substantial amount of evidence had been developed through preliminary discovery. The Sixth Circuit, meanwhile, affirmed the dismissal of a complaint based solely on the allegations in the complaint.

But even accounting for the different postures, it’s fair to say that the decisions are in some tension with each other. The schism arises from the conflicting conclusions the courts reached on the question whether the plaintiffs had established that the purported censorship was fairly traceable to the Biden Administration. The Sixth Circuit held that the plaintiffs in its case had not established traceability; the Fifth Circuit came to the opposite conclusion for its plaintiffs. Not only that, but it was critical to the Sixth Circuit’s traceability analysis that Twitter independently adopted a policy “broadening its definition of censorable, harmful information … long before the Biden Administration” took any relevant state action. 6th Cir. Op. at 2,6. The Fifth Circuit, by contrast, seemed to think that fact was “irrelevant.” 5th Cir. Op. at 21. In the Fifth Circuit’s view, “[t]he dispositive question” was whether the plaintiffs’ alleged censorship could “also be traced to government-coerced enforcement of those policies.” Id. (emphasis original). The Fifth Circuit held it could be based on the evidence in its case. With jurisdiction no barrier to reaching the merits, the Fifth Circuit held it was likely that the Administration had violated the plaintiffs’ First Amendment rights.

To the extent there’s a wrinkle between the Sixth and Fifth Circuit’s treatment of traceability in these cases, the Supreme Court will soon be in a position to iron it out. On the same day last week that the Sixth Circuit issued its decision, the Administration filed an emergency application at the Supreme Court to stay the district court’s injunction in the Fifth Circuit case. Justice Alito granted an administrative stay until this coming Friday night. The plaintiffs have until Wednesday 4 p.m. to file their response to the application.

Academic focus on a pending Sixth Circuit appeal

The Sixth Circuit recently heard argument in L.W. v. Skrmetti, involving Tennessee’s law prohibiting healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors.  The district court facially enjoined enforcement of the law as applied to hormones and puberty blockers and applied the preliminary injunction statewide.  Tennessee appealed and sought an emergency stay of the district court’s order pending its appeal of the preliminary injunction. 

A partially divided Sixth Circuit panel issued an opinion granting a stay pending appeal, on the grounds that Tennessee was likely to prevail.  The panel noted, however, that its decision was preliminary and expedited the proceedings. Merits briefs have been filed and the same panel held a virtual oral argument earlier this month.  The argument was very active and can be heard here

The issue could be heading to the Supreme Court given similar laws in other states and challenges that have been working their way through other appellate courts.  Professor Marc Spindelman of Ohio State’s Moritz College of Law has published this article in the University of Pennsylvania Law Review Online that analyzes the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and its relevance to Skrmetti

Sua Sponte State Law Certification in Opioid MDL Appeal

The Sixth Circuit issued a notable decision two days ago in one of the higher-profile appeals pending before it. The Panel’s opinion was written by Judge Griffin and joined by Judge Batchelder and Judge Bloomekatz. In its decision, the Court took the uncommon step of sua sponte certifying a question of state law (here, Ohio law) to a state supreme supreme court (the Ohio Supreme Court). Why it did so reveals some key insights into how the Sixth Circuit thinks about state-law certification.

The appeal I’m referring to is Trumbull County, et al. v. Purdue Pharma L.P., et al. Nos. 22-3750/3751/3753/3841/3843/3844. It is an appeal from one of the many cases pending before Judge Polster in the Northern District of Ohio as part of the National Prescription Opiate Litigation. In this appeal, the defendant pharmaceutical chains are seeking to overturn a $650 million judgment entered against them on an Ohio absolute-public-nuisance claim asserted by two northeast-Ohio counties: Trumbull and Lake. Essentially, the counties assert that the pharmaceutical chains caused an absolute public nuisance under Ohio common law in “creat[ing], perpetuat[ing], and maintain[ing]” the opioid epidemic by illicitly filling prescriptions without adequate controls.

A — perhaps the — critical issue in the appeal is whether Ohio law allows such a public-nuisance claim. Who better to know the answer to that question than the Ohio Supreme Court, which, under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), speaks definitively on the meaning of Ohio law. But neither side in this appeal sought to certify that question to the Ohio Supreme Court. It was the Sixth Circuit itself that suggested certification might be the most appropriate path forward when it asked the parties to submit supplemental briefs on that issue. Consistent with not having sought certification themselves, both sides opposed certification in their supplemental briefs. The counties thought Ohio law was clear in their favor and that certification would add unnecessary expense and delay to the appellate process. Not surprisingly, the pharmaceutical chains thought exactly the same for their own position: Ohio law clearly favored them — not the counties — and so certification would unnecessarily delay things.

The Panel, it turns out, thought Ohio law was not quite as clear as the parties did and certified the question to the Ohio Supreme Court. For litigants who could see themselves requesting or opposing certification down the road, the Panel’s reasoning is worth understanding. After all, there’s a bit of a thumb on the scale against certification. The Sixth Circuit has noted that “federal courts generally will not trouble [their] sister state courts every time an arguably unsettled question of state law comes across [their] desks.” State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015). The reason for that reluctance is in large part driven by a recognition that certification “entails more delay and expense than would an ordinary decision of the state question on the merits by the federal court.” Lehman Bros. v. Schein, 416 U.S. 386, 394 (1974) (Rehnquist, J., concurring). So when the Sixth Circuit certifies a question of state law sua sponte, against the will of the parties, that’s noteworthy.

Here, the Sixth Circuit thought certification made the most sense going forward for a few reasons. Whether Ohio law allows the counties’ public-nuisance claim turns on the meaning of two amendments to Ohio’s Product Liability Act. According to the pharmaceutical chains, those amendments abrogated the type of common-law public nuisance claim that the counties assert against the chains. The counties (and the District Court) disagree. In the counties’ view, the only public-nuisance claims that OPLA abrogated were ones that sought compensatory damages from product-liability-related harms. Thus, argue the counties, their claims are not preempted because they do not seek compensatory damages but rather equitable abatement, including both monetary and injunctive remedies.

The problem the Panel had in making an Erie prediction based on these arguments was not just that the Panel considered the issue novel and unsettled under Ohio law. The difficulty was that the parties’ arguments were all largely based on three Ohio Supreme Court decisions that predated the two statutory amendments at issue. In fact, the General Assembly had passed those amendments as a response to those decisions, and no subsequent Ohio Supreme Court decision has interpreted the meaning of those amendments. To make matters worse, “decisions by lower courts in Ohio are discordant on the amendments’ effects.” (Op. at 10.) The Panel was therefore not convinced that there was “a reasonably clear and principled course” to follow in lieu of certification. Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (internal quotation marks omitted). To decide the issue anyway was, in the Panel’s view, an invitation “to speculate on how the Supreme Court of Ohio would interpret the statute.” Planned Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 408 (6th Cir. 2008).

Although the Court did not mention it, one cannot help but wonder whether the Panel’s decision was partially motivated by the weighty public interest involved in these cases. It was likely not lost on the Panel that people around the country are watching the opioid MDL closely. For some, the litigation promises to deliver long-overdue justice to victims of one of the great social problems of our time. For others, the cases push the limits on the types and extent of relief that our judicial system is capable of providing. The issue in this appeal, specifically, goes to the heart of the counties’ claim, with hundreds of millions of dollars riding on the question to boot. Here, that context was combined with the understandable impulse of a federal court, in dealing with an unsettled question of state law, “to seek answers from the only judicial body capable of providing them.” Lindenberg v. Jackson Nat’l Life Ins. Co., 919 F.3d 992, 1003 (6th Cir. 2019) (Nalbandian, J., statement on the denial of rehearing en banc). It seems quite possible that it was a combination of that impulse and context that led the Court to consider this appeal a worthy occasion for sua sponte state law certification.

Sixth Circuit Holds that Insanity Acquittee Bears Burden of Proof in Seeking Continued Release After Violating Release Conditions

Squire Patton Boggs Summer Associate Taylor Lonas summarizes a recent opinion from the United States Court of Appeals for the Sixth Circuit holding that an insanity acquittee bears the burden of proof for showing, after violating the terms of his release, that his continued release would not “create a substantial risk” to the public.  18 U.S.C. § 4243(g). 

By Squire Patton Boggs

After a defendant is found not guilty of a crime by reason of insanity, the court may commit the defendant to civil institutional care until the defendant’s mental health has improved.  18 U.S.C. § 4243(a). When the defendant is ready to be released back into the world, his release often includes conditions. These conditions might include a requirement to take certain medication or to not contact certain individuals. 

If the defendant violates his conditions and the court holds a hearing to decide whether it should revoke the defendant’s release, a question arises:  who should bear the burden of proof to show that the defendant’s continued release would not “create a substantial risk” to the public—the defendant or the government? 18 U.S.C. § 4243(g). The Sixth Circuit recently answered that the defendant should bear the burden.  United States v. Williams, No. 22-5002, at *3 (6th Cir. Jun 12, 2023).   

Chief Judge Sutton’s opinion for the Court relied on the language, history, and structure of 18 U.S.C. § 4243(g)’s civil-commitment framework to reject Williams’ argument that the burden of proof should fall on the government. While the plain language of the statute does not expressly answer the question, the court noted that the default rule for affirmative defenses, the presumption of the Insanity Defense Reform Act, and the statute’s commitment procedure all have one thing in common—each places the burden of proof on the defendant.

The court rebuffed Williams’s argument that textual silence on the precise issue meant that Congress intended to flip the burden on the government.  In the court’s view, the import of silence often turns on “background presumptions” and “context,” neither of which favored Williams. 

Here, the background presumption was Congress’s “clear legislative judgment” that an insanity acquittee poses a danger.  And the relevant context is that the defendant bears the burden for the insanity defense at trial, and the defendant continues to bear the burden in seeking initial release, modifying conditions, etc.  All of that was consistent with the “long-established common-law rule” that individuals bear the burden on affirmative defenses.  That ancient rule, combined with the presumptions and context at play, unambiguously demonstrated that the defendant bore the burden for demonstrating that his continued release would not “create a substantial risk” to the public.  18 U.S.C. § 4243(g).”

Sixth Circuit Judges Still Write Lots Of Dissenting and Concurring Opinions, But Appear To Be Less Partisan

The Sixth Circuit has a longstanding reputation for having lots of dissents and concurrences.  We analyzed the last three years of opinions and found that the Sixth and D.C. Circuit have about twice the average number of dissents and concurrences opinions per case than other circuits.  Partisan and ideological differences account for some dissents, in addition to opinions that reframe or narrow the majority’s opinion to weaken its holding.  But as separate opinions have become more frequent, there appears to be less friction and more policy-focused and academic dialogue about the development of the law.  We’ve also seen a rise in concurrences that give guidance on the resolution of issues not reached by the majority, or necessary to the outcome, and other helpful discussions that may be best left out of precedential opinions. 

Indicative of this perceived decline in partisan dissents, despite an overall rise in numbers, is the political make-up of the dissenters.  The Sixth Circuit has long had more Republican-appointed judges, and when we looked at dissents in 2011, Democratic-appointed judges Moore and Clay dissented three or four times more often than Republican-appointed judges.  Our new analysis still places Judge Moore at the forefront of the dissenters, but Judge White is next, then Judge Clay, and then Judges Griffin and Thapar.  Judge Larsen writes the least dissents of anyone. And the overall differences in dissenting rates between Democrat- and Republican-appointed judges is not nearly as stark as in 2011, which is a good sign.  Panel composition will always be predictive, but we can hope it will not be quite so determinative as in the past. 

Looking at other circuits, the Second and Third Circuits had the least number of dissents per opinion, about a third as many as the Sixth and D.C. Circuits.  Funny enough, those two circuits, together with the Sixth Circuit, issue far more signed opinions than any other circuit—more than even the Ninth Circuit, though it has twice the number of judges.  As a result, Sixth Circuit judges issue both an unusually large number of signed opinions and an unusually large number of separate opinions while still being the third-fastest circuit to decide appeals.  Though we haven’t looked at the length of the opinions, the circuit may have a claim to have the fastest-writing federal judges. 

Finally, we should mention that no circuit judge dissents as often as Supreme Court judges.  The Supreme Court only manages to be unanimous about 30% of the time, which is far less unanimity than the published decisions of any circuit. 

New Standard For Notice In FLSA Collective Actions:  Clark v. A&L Homecare and Training Center

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). 

Judge Kethledge’s opinion demands more a rigorous analysis than the “modest showing” of similarity required by Lusardi.  It explains that “similarity” requires a “factbound” analysis that can only be made after notice and after other plaintiffs are subject to discovery.  To obtain notice, however, the court adopts the “strong likelihood” standard from preliminary injunctions, holding that “for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a ‘strong likelihood’ that those employees are similarly situated to the plaintiffs themselves.  That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance.”  Courts should also consider arbitration agreements when deciding whether to authorize notice.

In a concurrence, Judge Bush notes that the circuit’s new standard “may significantly lengthen” the notification process.  He then opines that equitable tolling should be available under FLSA actions to avoid “deplet[ing] remedies that Congress has duly provided.”  Judge Bush suggests that tolling “should be recognized by analogy to class actions.” 

Judge White gently chides the majority for overturning a framework “reflects years of dialogue among district and appellate courts.”  But she also says the new standard is “not unreasonable” and appreciates “the majority’s desire to clarify the notice standard.”  She agrees with Judge Bush that equitable tolling should be available “to would-be opt-in plaintiffs.”  The majority opinion does not mention equitable tolling, but the agreement on the issue between Judge Bush and Judge White is a strong hint to district courts.

In sum, FLSA plaintiffs will likely have a harder time persuading district courts to issue notice of the lawsuit to other potential plaintiffs.  Many of the common factual and legal battles, perhaps including discovery issues, will now be front-loaded so trial courts can decide if plaintiffs have met the “strong likelihood” standard.