Evolution of the Sixth Circuit Approach to §1292(b) Petitions for Interlocutory Appeals

In our previous post, we discussed the difficulties of succeeding with a Section 1292(b) petition in both the district court in the circuit court.  We also noted that while the Sixth Circuit’s rate of acceptance of orders already certified by district courts has been higher than average for federal circuit courts.  We then reviewed decision from the past few years, and found that the Sixth Circuit has recently been accepting for appeal about 90% of orders certified under §1292(b).  This post describes why we think this is happening.

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A Sea Change for 1292(b) Interlocutory Appeals in the Sixth Circuit

It’s been almost a decade since this blog discussed the likelihood that the Sixth Circuit would accept a discretionary appeal under 18 U.S.C. §1292(b).   That the section that gives a district court the discretion to certify an order for appeal if the issue involves an important question of law for which there is substantial ground for difference of opinion and where its resolution will efficiently advance the litigation.  The appellate court also has discretion whether to accept review of the certified order.  Section 1292(b) appeals are especially helpful in complex cases to correct early errors on questions of law that, if left until after final judgment, might otherwise require the parties to re-do years of expensive litigation.

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The Pandemic Didn’t Slow Down the Sixth Circuit

We keep up on statistics important to our clients, such as the time it takes to decide appeals, and we were especially interested to see how the pandemic had affected the Sixth Circuit.  Our gut feeling was that things might have slowed down a little in more complicated cases, but that the circuit had generally kept on top of things overall.  So we were not surprised to learn from the Judiciary’s latest statistics that the average time to decide cases from the notice of appeal until the decision, across all the circuits, had slowed by almost a month to 9.7 months.  Many circuits, including the Sixth, have specifically worked for years to streamline the appellate process, shaving the average time to decide an appeal from 11.7 months in 2010 to 7.7 months in 2017, so this backsliding is a little disheartening.

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Decision about a zoning dispute yields insights for both Federal Courts and appellate practice

The Sixth Circuit’s recent decision in Benalcazar v. Genoa Township, — F.3d — (6th Cir. June 10, 2021), provides a nugget in the law of Federal Courts regarding consent decrees. It’s also interesting from an appellate-practice perspective.

The case concerned a zoning dispute. Landowners in an Ohio township sought to rezone their rural acreage for development. The township agreed, but individual residents of the township did not. They utilized state law to pass a referendum that prevented the rezoning. Then landowners responded by suing the township in federal court, alleging that they were being deprived of their rights under the Due Process and Equal Protection Clauses. When the township and the landowners agreed to settle the federal case through a consent decree, the district court permitted the individual residents to intervene. They did, and moved to dismiss the suit. The district court granted their motion only in part and then approved the consent decree, and the residents appealed.

On appeal, the principal question presented was whether a legitimate federal court dispute existed, since that’s a necessary predicate for a consent decree. And how should the court go about answering that question? Continue Reading

Sixth Circuit Joins Four Other Circuits in Restricting Plaintiffs’ Standing to Bring Claims under the Fair and Accurate Credit Transactions Act (“FACTA”)

More than a decade ago, Congress attempted to address a novel threat that was then only in its nascent stages: identity theft.  The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) provided consumers with several tools to protect their identity, including the ability to request free annual credit reports from the three major credit reporting agencies and to place fraud alerts on their credit files if they suspected they had been the victims of identity theft.  The Act also prohibited businesses from printing more than the last five digits of a customer’s credit card number (or the expiration date) on a receipt.  Anyone who has used a credit card over the past decade has undoubtedly seen Congress’s handiwork in the truncated account number (“***********12345”) that appears on most credit card receipts—preventing would-be fraudsters from stealing credit card numbers from discarded or misplaced receipts.

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In appreciation of a chief judge’s quiet leadership

The office of chief judge for any federal court is tricky. It involves a great deal of extra administrative work as well as the expectation—from the title, at least—that one is somehow “in charge” of the court. Yet the chief judge’s vote has no more weight than that of his or her colleagues, and because one assumes the role through seniority, not election, a chief judge lacks even the ability to rely on any kind of perceived mandate. The institution that the chief judge is supposed to lead, moreover, includes lots of colleagues with lifetime appointments!

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Practical Pointers for Certifying Questions to State Courts

Prior posts have discussed the comparative rarity of certified questions of state law in the Sixth Circuit (here and here).  This post gives practical pointers to improve your odds of success with certified questions both in the Sixth Circuit and in the state courts.

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Invited Error, Erie, and Pleading Standards – What to Make of Smith v. General Motors?

The Sixth Circuit handed down a recent decision, Smith v. General Motors, that, on its face, could be construed as having a wide-reaching impact on the pleading standard for certain product-liability and fraud claims.  But the panel was careful to disclose the larger, admittedly “odd” context of the case, making it difficult to discern just how far Smith’s holding might reach.

Smith involved allegedly defective dashboards in certain GM vehicles.  Plaintiffs alleged that these GM dashboards were prone to cracking and that, in theory, such cracking could “lead to an airbag malfunction or shrapnel spray during a crash,” though no plaintiff claimed to have actually been injured by the alleged defect.  (Slip Op. at 3–4.)

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Sixth Circuit concludes that the Kentucky Billboard Act violates the First Amendment.

The Kentucky Billboard Act requires a permit for billboards that advertise off-site activities—but no permit is required for on-site billboard advertising. Lion’s Den, an “adult superstore” that sought to advertise to interstate drivers with a billboard on a neighbor’s property, challenged the law as a violation of its rights under the First and Fourteenth Amendments. The district court agreed with Lion’s Den and enjoined enforcement of the Act. Recently, the Sixth Circuit affirmed.

Judge Sutton’s opinion for the court proceeded from the proposition that government regulation of speech based on its content is constitutional only if the regulation satisfies strict scrutiny. The on-site/off-site distinction is content-based: to know which rules apply to a billboard, one has to know the message on the billboard. Continue Reading