Check out this post from our sister blog on an important employment decision:
Sixth Circuit Practice Institute – Oct. 29, Cincinnati
On October 29 in Cincinnati, the Federal Bar Association is hosting the Sixth Circuit Practice Institute. The Institute is planned in coordination with the Sixth Circuit and features a terrific line-up. Chief Judge Jeffrey Sutton, eight other Sixth Circuit judges, and several District Court judges will speak. This special single-day CLE will provide a unique opportunity to discuss practice issues in the Sixth Circuit and hear directly from the bench during a year when the judicial conference is judges-only.
A detailed brochure and agenda is here.
You can register here.
The program also includes a luncheon and cocktail reception. The keynote luncheon address will be given by Commissioner Kalpana Kotagal, who serves on the U.S. Equal Employment Opportunity Commission.
Panel topics include:
- How a Judge Decides a Case
- Artificial Intelligence in Advocacy and Judging
- Eyes on the Supreme Court
- Criminal Justice Act Training & Introduction to the Clerk’s Office
- Dialogue between Circuit and District Judges
- Judges’ Views on Effective Advocacy
- Behind the Scenes at the Staff Attorney’s Office
This is a fantastic way to get to know the Circuit! We’re looking forward to it.
The Second Amendment Permits The Disarming of “Dangerous” Felons
Each year, more than 8,000 people are convicted for unlawful possession of a firearm under 18 U.S.C. § 922(g). About 90% of those cases arose from gun possession by a felon. Firearm prosecutions are reportedly “the third most common federal offense.” Such prosecutions are even more common in some districts, including the Middle District of Tennessee where over 42% of cases involve § 922(g). Section 922(g) is the law that prohibits felons, and certain other groups, from possessing firearms. The Sixth Circuit has now taken a big step in defining the constitutionality of the law, holding that a person only loses his Second Amendment rights under § 922(g) by committing a crime that involves danger to others or the community.
As our readers know, Bruen held that government regulation of conduct that “the Second Amendment’s plain text covers” must be “consistent with this Nation’s historical tradition of firearm regulation.” That methodological approach to Second Amendment cases represented an express rejection of the courts of appeals’—including the Sixth Circuit’s—consensus “two-step test,” where courts would often balance the government’s prosecutorial interest against the defendant’s individual-liberty interest. Put (over)simply, the Supreme Court replaced interest balancing with historical inquiry.
Sixth Circuit Explores the General Law of Wrongdoership
The “maxim that wrongdoers may not profit from their wrongs” is having a big week at the Sixth Circuit. In two cases—one about ERISA, the other about restitution—sons betrayed their mothers for financial gain. The facts in these cases are devastating, though the legal issues are fascinating nonetheless. In short, the murderer lost, but the fraudster won.
ERISA cases, let’s face it, are not known for intrigue. Standard Insurance Co. v. Guy is the outlier. Guy was the beneficiary of his mother’s employment benefits. Guy murdered his parents and had the audacity to try to cash in on their ERISA benefits. Tennessee has a “slayer statute” that ensures “a killer cannot profit from the killer’s wrong.” ERISA, however, casts a broad preemptive net, superseding “any and all State laws … relate[d] to any employee benefit plan.” The Sixth Circuit declined to decide whether ERISA preempts Tennessee’s slayer statute—following the path of the Supreme Court in Egelhoff v. Egelhoff.
In Rare Summer Opinion, Supreme Court Follows Sixth Circuit’s Lead
In Department of Education v. Louisiana, the Supreme Court issued a rare August opinion to maintain two preliminary injunctions that block the Department of Education’s new rule. That rule expands Title IX to prevent sexual-orientation and gender-identity discrimination. State coalitions brought challenges; district courts in Louisiana and Kentucky enjoined the rule during the litigation; the Fifth and Sixth Circuits denied the government’s requests to stay the injunctions, nor would the Supreme Court intercede for the government.
All the Justices agreed that aspects of the rule warranted interim relief, most centrally the “provision that newly defines sex discrimination” to include sexual-orientation and gender-identity discrimination. But because the district courts enjoined the entirety of the rule, the scope of relief proved divisive. A narrow majority agreed to leave the broad injunctions in place, while four Justices in dissent argued to sever the suspect aspects of the rule and allow the remainder of the rule to take effect. With emphasis on the “emergency posture,” the majority explained that the government had not carried its burden “on its severability argument.”
Divided Sixth Circuit Panels Find Tennessee Gender Laws Constitutional
A Tennessee law prevents changing one’s designation of sex on his or her birth certificate, even if that person has changed gender identity on other official documents as in life. In Gore v. Lee, the Sixth Circuit affirmed this law’s constitutionality. This decision is best understood in tandem with another gender-rights case from Tennessee: L.W. v. Skrmetti. Last year in L.W., the court upheld Tennessee’s limitation on minors’ ability to obtain sex-transition intervention. The same divided panel decided both cases—with Chief Judge Sutton writing, Judge Thapar joining, and Judge White dissenting.
Let’s unpack both decisions, beginning with the recent birth certificates case. All the States record data about their newly born citizens. Although Tennessee does not condone changes to the sex assignment on a birth certificate (save for recording errors), the court surveyed other States that allow it on varying conditions. In this Circuit, for example, Kentucky requires surgery first, Ohio requires a medical declaration, and Michigan permits birth certificate amendment “based solely on applicants’ declaration of their current gender identity.”
The limits of Loper Bright and the long decline of Chevron
Given the continuing discussion about the Supreme Court’s decision to overrule Chevron in Loper Bright Enterprises v. Raimondo, we thought that a review of the decision (and its limits) is in order.
The Loper Bright decision
The 6-3 decision written by Chief Justice Roberts launched a full-throated attack on deference to administrative agencies: “Chevron gravely erred”; it “required judges to disregard their statutory duties”; it is “fundamentally misguided,” “impressionistic and malleable.” The Court concluded: “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
Starting with first principles, the Court explained that the judiciary interprets the law. That tradition persisted through the New Deal, the Court recounted, when decisions like Skidmore v. Swift & Co. permitted agency deference based only on the “power to persuade.” The Court framed Chevron v. NRDC as a departure from that tradition by sometimes insisting on deference to agency interpretations. When a statute is “silent or ambiguous,” Chevron required courts “to defer to the agency if it had offered ‘a permissible construction of the statute.’” The majority criticized that rule as unworkable, as shown by subsequent efforts to clarify the standard (like US v. Mead Corp’s “step-zero” analysis) that “only added to Chevron’s unworkability, transforming the original two-step into a dizzying breakdance.”
Supreme Court GVRs Two Sixth Circuit Cases And Other Highlights from the Order List
The Supreme Court’s recent spate of high-profile decisions gives Court watchers much to process. At this blog, we hope to explore many of those decisions as summer progresses. In the meantime, we note a couple details from the Court’s Order List this week following its “clean-up conference.”
I count 30 cases the Court granted, summarily vacated, and remanded to the courts of appeals (GVR’d). These were cases similar enough to Loper Bright, Rahimi, Erlinger v. United States, and other fresh decisions to merit a new look at the circuit level. Two Sixth Circuit cases were GVR’d, both with instruction to apply Erlinger—Justice Gorsuch’s opinion that the Fifth and Sixth Amendments and Apprendi require a jury to find a defendant’s past, separate offenses before imposing the Armed Career Criminal Act’s mandatory minimum sentences. In those two unpublished decisions, United States v. Thomas and United States v. Cogdill, the Sixth Circuit had affirmed the findings of ACCA-predicate offenses by a district court, not a jury. Critically, however, both the Chief Justice and Justice Kavanaugh (joined by Justice Alito) stressed that violations of the right Erlinger recognized “are subject to harmless error review.”
En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction
Congratulations are in order to the forty-something law clerks that swore in to the Sixth Circuit bar Wednesday. That was a prelude to the court’s en banc argument on campaign finance restrictions in National Republican Senatorial Committee v. FEC. The Committee challenges the constitutionality of part of the Federal Election Campaign Act that places limits on political parties’ “coordinated party expenditures.”
Notably, the en banc court is taking the first pass on the constitutional question. The Act includes a unique judicial review provision that requires the district court to “immediately … certify all questions of constitutionality of this Act” to the court of appeals to “hear the matter sitting en banc.” All 16 of the Sixth Circuit’s non-senior judges sat for the lively argument.
In limiting “coordinated party expenditures,” the Act caps the amount a party may spend on activities like political advertising for a candidate. Even if that spending limitation serves the legitimate objective of limiting corruption and its appearance, the Committee argued, the restriction violates the core First Amendment right to associate with the political candidate of one’s choosing under seminal precedents like Citizens United, McCutcheon, and the 2022 Cruz decision (all versus FEC).
Sixth Circuit Grants P.G. Sittenfeld Release from Prison Pending Appeal
Today, the Sixth Circuit took the relatively rare step of granting a criminal defendant’s release from prison before deciding the merits of his case. That followed last week’s oral argument in the high-profile criminal appeal of Alexander “P.G.” Sittenfeld, the former Cincinnati City Councilperson. Sittenfeld’s counsel closed his rebuttal argument by renewing his request for release from prison pending appeal, in advance of the Court issuing its opinion. The court granted that relief today (subject to conditions) in a per curiam order. This interim relief is a positive development for Sittenfeld, though the court was careful to “express no opinion on the ultimate outcome of Sittenfeld’s appeal.” The briefs and oral argument satisfied the panel that Sittenfeld at least met “the standard for release pending appeal.”
