Panel Holds that Ohio Aggravated Burglary Statute Does Not Count as Predicate Violent Felony under ACCA. 

Co-authored by: Stephanie A. Darville & Shams H. Hirji

About two weeks ago, the Sixth Circuit issued an important decision in United States v. White, No. 21-3209.  Judge White wrote the unanimous opinion for the Court, which was joined by Judge Moore and Judge Bush.  The Court held that an Ohio aggravated-robbery statute, R.C. § 2911.01(A)(1), does not qualify as a violent felony under the Armed Career Criminal Act (commonly referred to as “ACCA”).  The Sixth Circuit reversed the District Court’s contrary decision. 

The case is notable for a few reasons.  The Court acknowledged that it was departing from a prior panel’s decision, which had held that R.C. § 2911.01(A)(1) did qualify as a violent felony under ACCA.  See United States v. Patterson, 853 F.3d 298 (6th Cir. 2017).  But the Court was not constrained by Patterson because of the Supreme Court’s recent decision in Borden v. United States, 141 S. Ct. 1817 (2021).  In Borden, a plurality of the Supreme Court held that ACCA’s elements clause “covers purposeful and knowing acts, but excludes reckless conduct.” Id. at 1826.  And in United States v. Butts, 40 F.4th 766 (6th Cir. 2022), the Sixth Circuit read Borden as requiring a purposeful or knowing mens rea for offenses deemed violent felony predicate offenses.  See id. at 770. 

Continue Reading

A Brief History and Status of (Cleaned Up) in the Sixth Circuit

Who was the first Sixth Circuit judge to use the (cleaned up) parenthetical in a judicial opinion? What is the current status of (cleaned up) in the Sixth Circuit? Which judges use it regularly, which judges never use it, and which judges use it sparingly? This post attempts to provide some answers to these questions.

First, some background on the parenthetical. (Cleaned up) was invented by Jack Metzler (@SCOTUSPlaces) to resolve a frequently-occurring problem in legal writing. Legal reasoning in our common-law tradition often proceeds by quoting authorities that themselves quote other authorities. But to adapt a quote to the legal document the present author is preparing, the author often needs to make changes to the immediate source of the quotation. For the same reason, the immediate source of the quotation might itself have made changes to the original source of the quotation. The standard citation rules of the profession — contained in the (much scorned) Bluebook — require many of these changes to be reflected in the quote itself and also in a cumbersome parenthetical following the quote. Doing so can seriously undermine the readability (and thus the comprehension) of the legal document that the author is drafting.

Continue Reading

December 6th Cincy/NKY FBA Event Featuring Ohio SG, Kentucky SG, and Appellate AUSA

Readers of this blog may be interested in an event that the Cincinnati/Northern Kentucky chapter of the Federal Bar Association is hosting on Tuesday, December 6th from 4:00 to 5:00 p.m. at the Taft Center in Cincinnati (425 Walnut St., 2nd floor of U.S. Bank building). The event will feature a panel consisting of Benjamin Flowers, Matthew Kuhn, and Alexis Zouhary. Ben is the Solicitor General of Ohio, Matt is the Solicitor General of Kentucky, and Alexis is an appellate Assistant United States Attorney in the Southern District of Ohio. The title of the event is, “Representing the Government on Appeal.” Naturally, much of the discussion will focus on Sixth Circuit appellate practice.

Those interested can register at this link. Registration is free for FBA members, judges, law clerks, and court staff. Registration is $15.00 for everyone else.

States’ Title X Challenge Returns to Sixth Circuit

Readers of this Blog may recall that, earlier this year, we covered the Sixth Circuit’s decision declining to enjoin (pending appeal) a 2021 Health and Human Services Rule that does two notable things: (1) the Rule eliminates the prior Administration’s requirement “that grantees create strict physical and financial separation between their Title X programs and any abortion services they may provide” and (2) the Rule requires “that grantees provide referrals to abortion services when requested by the patient.” The motions panel consisted of Judges Boggs, Bush, and Larsen.

Ohio and eleven other States sued under the APA, claiming the Rule was “arbitrary, capricious, and contrary to law,” and sought a preliminary injunction. Judge Black of the Southern District of Ohio found that the States had not met their burden of establishing their entitlement to a preliminary injunction. The motions panel agreed, holding that the States had not satisfactorily shown they would suffer irreparable harm.

Continue Reading

Watch Sixth Circuit Best Practices Webinar

This Wednesday, October 5th, at 1 p.m. EDT, the American Bar Association will be hosting a 1.5 hour webinar discussion of best practices for litigating in the Sixth Circuit. The webinar will feature two sitting Sixth Circuit judges, Chief Judge Jeffrey S. Sutton and Judge Jane B. Stranch. They will be joined by our own Lauren S. Kuley, who co-chairs Squire Patton Boggs’s Appellate & Supreme Court practice, and moderator Stephen J. van Stempvoort, who chairs Miller Johnson’s Appellate practice group.

The presentation will feature a wide-ranging discussion of Sixth Circuit and appellate practice, with topics including the Court’s local rules, the mediation program, motions practice, and recommendations for briefing and oral argument. It is part of the ABA’s “Riding the Circuits” series, which seeks to provide insight on each of the federal circuits.

A link to the webinar, which will be recorded, can be found here.

Sixth Circuit Denies Government Emergency Relief in Air Force Vaccine Mandate Case

This past Friday afternoon, the Sixth Circuit dealt a blow to the Department of the Air Force’s efforts to overturn a District Court’s class-wide, preliminary injunction against the Department. Specifically, the Sixth Circuit denied the Department’s emergency motion to stay the District Court’s class-wide injunction. Judge Matthew W. McFarland, of the Southern District of Ohio, had ordered the Department to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members. The service members had alleged that the Department applied a general, discriminatory policy of denying their requests for religious exemptions from the Secretary of Defense’s vaccine mandate applicable to all members of the armed forces. The plaintiffs argued that the Department’s policy violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause.

Continue Reading

Welcome to the Sixth Circuit, Judge Mathis

On Thursday, September 8, 2022, the U.S. Senate confirmed Tennessee lawyer Andre Mathis to a seat on the Sixth Circuit. That seat opened up on November 18, 2021, when Judge Bernice Donald announced she was taking senior status.

Judge Mathis brings an impressive range of civil and criminal litigation experience with him to the bench. Judge Mathis’s confirmation is also notable for making him the first African American man to occupy a seat on the Court from Tennessee.

For more information about Judge Mathis, you can read our original write-up about his nomination. Or, for a more detailed portrait, you can review his Senate Judiciary Questionnaire.

The Sixth Circuit Appellate Blog celebrates Judge Mathis’s confirmation to the Court. We look forward to his many years of upcoming service on the bench. And we’ll continue to look forward to many more years of service from Judge Donald as a senior judge.

Welcome, Judge Mathis!

In Concurrence, Judge Thapar Cautions: Don’t Rely Too Much on Agency Guidance

Judge Thapar issued a short and sweet concurrence today that cautioned against overly relying on agency guidance that has not gone through notice and comment. The respondent in Huscoal, Inc. v. Director, __ F.4th __ (6th Cir. 2022), had filed a claim for survivor’s benefits under the Black Lung Benefits Act. She argued that her husband had died because of his coal-mining job at Huscoal, Inc. The Administrative Law Judge (ALJ) granted the respondent’s claim and the Benefits Review Board affirmed. The Sixth Circuit affirmed, too, in an opinion written by Judge Gilman and joined by Judge Griffin and Judge Thapar.

The sole issue at the Sixth Circuit was whether substantial evidence supported the ALJ’s conclusion that the respondent’s husband suffered from an illness that arose “at least in part” out of his coal-mine employment. The husband’s employer and the employer’s insurance carrier argued “no,” pointing to the husband’s 60-year smoking history. The employer and carrier also faulted the ALJ for, in their view, improperly relying on a doctor’s opinion based on (again in their view) inaccurate information.

Continue Reading

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates for outpatient kidney dialysis.  Specifically, the Sixth Circuit majority found that the health plan violated the Medicare Secondary Payer Act’s anti-discrimination provision—which prohibits a health plan from differentiating its benefits based on whether an individual has end-stage renal disease—by offering lower reimbursement rates for services offered by dialysis providers.   See DaVita, Inc. v. Marietta Mem’l Hosp. Emple. Health Ben. Plan, 978 F.3d 326 (6th Cir. 2020).  The Sixth Circuit, over Judge Murphy’s dissent, concluded that the anti-discrimination provision authorized “disparate-impact” liability, and that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease.  See id. at 349. 

Continue Reading

The Corpus Linguistics Bug: New Cases in the Sixth, Fourth Circuits.

In a previous post, we discussed corpus linguistics, an emerging tool in statutory and constitutional interpretation.  It appears that the corpus linguistics bug is spreading, both in this Circuit and to other circuits as well.  Two recent cases serve as a reminder that the Sixth Circuit is both a thought leader in analyzing and utilizing this new variant of legal analysis and is an increasingly powerful vector of transmission. 

Consider Fulkerson v. UNUM Life Ins. Co. of Am., a Sixth Circuit opinion handed down a week ago.  No. 21-3367, 2022 U.S. App. LEXIS 15363 (6th Cir. June 3, 2022).  In Fulkerson, a panel consisting of Chief Judge Sutton and Judges Siler and Readler weighed whether reckless driving was a “crime” pursuant to the crime exclusion of an insurance policy.  Id. at *4.  Judge Readler penned the opinion.   He concluded that reckless driving was a crime for the purposes of the insurance policy by looking to dictionaries and “the tapestry of state laws” regulating the conduct in question.  Id. at *5-8.  Following a belt and suspenders approach, Judge Readler also used corpus linguistics, “a helpful tool in assessing common usage” to support his conclusion that “[t]he contemporary common usage of the term ‘reckless driving’” “fits within the ordinary meaning of ‘crime.’”  Id. at *8.  As Judge Readler noted, “[a]lthough more commonly used in the constitutional and statutory interpretive settings, these resources seemingly have the same force in many contractual settings as well.  Id. at *9 (citing Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics, 94 Wash. L. Rev. 1337, 1341 (2019)).  Judge Readler then laid out the results of his analysis of the Corpus of Contemporary American English for the term “reckless driving” during the relevant time period.  Id. at *10-13.  “Tellingly, a vast majority recount instances in which some manner of prosecution occurred, where the individuals either were ‘charged,’ ‘convicted,’ and/or ‘sentenced for reckless driving” and others “explicitly refer[ed] to ‘reckless driving’ as a crime[.]”  Id.  

Continue Reading