Sixth Circuit Grants Mandamus in FirstEnergy Discovery Dispute

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases

An “an assortment of legal and regulatory actions” has spun off from the high-profile corruption prosecution and conviction of former Ohio House Speaker Larry Householder.  Back in 2016, the Ohio General Assembly passed legislation designed to bail out energy giant FirstEnergy from dire financial straits.  Speaker Householder accepted a hefty campaign bribe to see the legislation through—and the Sixth Circuit somewhat recently affirmed his conviction.

Those episodes triggered investigations into FirstEnergy by the SEC, Ohio Attorney General, and Ohio Public Utilities Commission.   Shareholders initiated securities class actions of their own.  FirstEnergy, meanwhile, took internal action:  Its “board hired Squire Patton Boggs LLP to investigate the allegations in the Householder complaint. And FirstEnergy hired [other counsel] to investigate the allegations and to advise the company about how to handle the subpoenas.”  The securities-fraud class called for those investigation reports in discovery.  The district court obliged the plaintiffs’ demand.

That discovery order gave rise to a mandamus petition and, important to all civil litigants, the Sixth Circuit’s reaffirmation of a robust attorney-client privilege.  FirstEnergy (backed by “over forty amici”) asserted that attorney-client privilege and work-product protection excludes internal investigation reports from disclosure.  A panel of the Sixth Circuit with Chief Judge Sutton, Judge Batchelder, and Judge Nalbandian agreed in a per curiam opinion.  Compelled discovery was not just wrong, the court explained, but also reflected legal “errors sufficiently exceptional to warrant mandamus relief.”

Attorney-client privilege ensures the confidentiality of communications pertaining to legal advice.  Upjohn (1981) is the leading precedent.  And “[a]s with Upjohn, FirstEnergy and its board hired lawyers to ‘secure legal advice’ through internal investigations”—enough to attach privilege.  (For instance, Squire provided “investigative findings, legal analyses, and assessments of potential criminal and civil liability.”)  The work-product doctrine, codified by Civil Rule 26(b), doubly protected the internal reports FirstEnergy had “prepared in anticipation of litigation.”  The court minded the “realities of litigation.”  And it dismissed as fiction hairsplitting between quote “business decisions” and legal advice—legal advice informing business decisions.

Legal error on its own, however, does not sustain the “drastic and extraordinary remedy” of mandamus.  A writ of mandamus issues not against the parties but against the lower court judge, ordering him to take action consistent with settled law (in this case, revoke the flawed discovery order).  Courts moderate that dramatic relief by insisting the remedy is a last resort, backed by a clear right, and overall appropriate.

The first requirement—no other adequate relief—poses a high hurdle.  But FirstEnergy cleared it:  First, appeal in the ordinary course after final judgment, and so after disclosure, is not relief at all with “no way to unring those disclosure bells.”  Beyond that, the district court spurned FirstEnergy’s try for interlocutory review (28 USC §1292(b)); defiance followed by contempt findings did not guarantee review because civil contempt is not immediately appealable; and the Mohawk decision forecloses collateral-order-doctrine review, expressly favoring mandamus in attorney-client-privilege cases.  Note that an interlocutory appeal attempt likely is a precondition for mandamus relief in this setting.  On the remaining factors, the “district court made substantial departures from bedrock privilege and work-product principles,” and those departures upset the “predictable and certain” standards “essential for FirstEnergy and future litigants facing perilous litigation consequences.”

The Sixth Circuit’s mandamus holding marks a notable recommitment to “the oldest of the privileges for confidential communications known to the common law.”  Work-product protections provide a necessary supplement.  This case demonstrates why.  Internal investigations are an essential pillar for companies like FirstEnergy to withstand a “tsunami of litigation” and regulatory action.  Thorough investigations require “full and frank” attorney-client communication, which requires trust and privacy.  The Sixth Circuit strongly signaled that businesses can be confident in confidentiality.

(As a post-script, the Sixth Circuit denied the shareholder plaintiff’s requests to clarify the mandamus order and for panel and en banc rehearing.)

Sixth Circuit Allows Immediate Appeal of Intervention Denial

By Madeline Brown on Posted in Case Updates, Uncategorized

The Sixth Circuit’s recent decision in Estate of Donovan L. Lewis v. City of Columbus sheds light on important issues relating to the collateral order doctrine and third parties’ rights to intervene. 

The underlying merits of the case involve a Monell claim under Section 1983 that the Columbus police department maintains policies and customs of excessive force and racial discrimination.  Because those claims implicate policies in the department’s collective bargaining agreement, which the Fraternal Order of Police negotiated, the FOP sought intervention as of right.  It argued that the policy reforms suggested by the Plaintiff would undermine its statutory duties and contractual rights as the department’s “sole bargaining representative.”  The district court, however, denied the request to intervene, and the FOP immediately appealed to the Sixth Circuit.

Judge Davis’s opinion for a unanimous panel held that, while appellate jurisdiction typically extends only to “final decisions” under 28 U.S.C. § 1291, Cohen’s collateral order doctrine conferred jurisdiction here.  The FOP met all three criteria under the Cohen doctrine, which allows interlocutory appeals of orders that (1) conclusively resolve the issue, (2) involve an important question separate from the merits, and (3) are effectively unreviewable after final judgment.  The Court emphasized that the district court’s denial, though “without prejudice,” does not defeat finality.  The district court’s order functioned as “a complete denial permitting an interlocutory appeal, despite its express invitation for [the FOP] to renew its motion should the case progress to equitable remedies.”  The Court noted a Supreme Court case, Stringfellow v. Concerned Neighbors in Action, that suggests “orders denying intervention in any respect fall within the potential reach of the Cohen doctrine.”

That brought the Court to the FOP’s right to intervene.  Federal Rule of Civil Procedure 24(a) allows a party to intervene if it claims an interest relating to the action and is so situated that “disposing of the action may . . . impede” its ability to protect its interest, “unless existing parties adequately represent that interest.”  The Court held that the FOP satisfied all four elements for intervention as of right.  The FOP’s intervention motion was timely, and exclusion would impair its interests in the collectively bargained policies that the lawsuit challenges.  The FOP also had a substantial legal interest in defending the policies that it negotiated, especially since the city’s interests and litigation strategy are likely to diverge from the FOP’s, suggesting that the city does not adequately advance the FOP’s interests.  In confirming the FOP’s right to intervene, the Court emphasized that intervention rights are broad.

This decision underscores two points: First, orders denying intervention can be immediately appealed under the collateral order doctrine.  Second, the Sixth Circuit interprets the rules underlying the right to intervention liberally when litigation threatens contractual or statutory rights and obligations.  This decision shows that both the trial and appellate courthouse doors may be open to third parties with a live stake in the case.

How will the government shutdown affect cases in the Sixth Circuit? (with updates)

By Lauren Kuley and Trane Robinson on Posted in News and Analysis

Under the Constitution, the federal government runs on congressional appropriations.  But Congress has not passed funding beyond October 1, thus the government is “shut down.”  Federal courts generally and the Sixth Circuit particularly have proceeded apace without new funds.  But the federal judiciary’s coffers have run dry.  As of yesterday, October 20, the courts entered “Phase II” of the shutdown.  That means “federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.”  The Anti-Deficiency Act directs courts to continue to perform mission critical or “essential work.”

How will Phase II affect us Sixth Circuit practitioners?  The short answer is it largely will not.  The Sixth Circuit, for now, “will remain open for business as usual,” states the court’s official order, consistent with its “constitutional duty to hear and resolve cases, even in the event of a lapse in funding.”  Indeed, the court is sitting in Cincinnati this week for dozens of oral arguments, as scheduled, docketing new cases and issuing opinions.

The same goes for litigants:  “All filing deadlines” remain, according to the court’s notice.  Extensions are being handled, as usual, case-by-case.  Slow downs may be more likely in cases involving the federal government as a litigant.  Other court units, like the Law Library and Circuit Executive, are implementing furloughs.  Though essential staff continue to work, they will not be paid until Congress acts.  (The Government Employee Fair Treatment Act, 31 U.S.C. §1341(c), ensures they will be paid eventually.)  We thank these public servants for their selfless efforts. 

The Clerk of Court, Kelly L. Stephens, kindly provided us a quote, which we are pleased to pass along:

Pursuant to the Court’s general order, the Sixth Circuit Clerk’s Office remains operational during the lapse in appropriations in support of the Court’s constitutional duty to hear and resolve cases. Regular case processing, including opening new cases, is considered an excepted activity to the requirements of the Anti-Deficiency Act. 31 U.S. Code § 1341. Oral arguments scheduled to be heard will go forward unless the panel for a case directs otherwise, and all filing deadlines must be met.

To the court’s credit, it appears shutdown Phase II will barely impact litigants and the general public.  More updates will follow on this Blog as they come.

Ten Years of En Banc Decisions:  a Breakdown by Panel Composition.

By Colter Paulson on Posted in Uncategorized

Our post a few weeks ago discussed the subject matters more likely to attract en banc review, and this post will talk about the effect of panel composition on en banc review.  The chief reason to worry about who is on your panel is because they will be deciding your case. The federal courts of appeals courts face unfortunate, but likely inevitable, correlations between case outcomes and political party affiliation.  But does the original political appointment of panel members also help predict what cases might trigger en banc review in the Sixth Circuit?

Of course it does.  Republican-appointed judges have been a majority on the Sixth Circuit for many years, so we looked to see if the en banc court accepts more appeals from panels with a majority of Democrat-appointed judges.  We found that even though about 70% of cases have panels with a majority of Republican-appointed judges, a nearly 70% of the cases taken by the en banc court have been from panels with a majority of Democrat-appointed judges.  Most of the en banc cases taken to overrule a decision from a Democratic panel involved a dissent by a Republican-appointed judge.  Dissents also played an important, though smaller, role in triggering en banc review from Republican-majority panels. 

Given the Republican majority, and the political nature of the cases the Circuit takes en banc, it should be no surprise that, with a handful of exceptions, the vast majority of en banc decision by the Sixth Circuit in the last ten years have a stark divide between Republican-appointed judges supporting the court’s decision and Democrat-appointed judges signed on to the dissent.  That said, five of the en banc dissents were truly bipartisan, and Judge Gibbons dissented eight times from her like-party colleagues.  In addition, the Circuit also accepted en banc review of decisions by some judges more than others.  Judge Moore stands out here, consistent with her position as the Circuit’s dissenter-in-chief.  She was on the original panel in nineteen cases, which is about half of the total cases the en banc court accepted over the last ten years.  The next most reversed judge, Judge Clay, was on the original panel in a quarter of the cases (nine), and Judge Stranch was next (six).  Also worth noting is Judge Readler’s distinction as being the only judge to file a solo dissent from an otherwise-unanimous en banc court—last year’s decision in NRSC v. FEC, which is now before the Supreme Court. 

Two en banc decisions in the last ten years were unanimous, both sentencing cases, United States v. Havis and Williams v. United States. By contrast, over 40% of the Supreme Court’s decisions were unanimous over the same time frame. That’s not to say the Sixth Circuit is more political than the Supreme Court. Most lawyers would agree the federal appellate courts (even the Ninth and Fifth circuits) are far less overtly-political than the Supreme Court in their day-to-day decisions.

School may prohibit “Let’s Go Brandon” sweatshirt, Sixth Circuit holds

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court, Uncategorized

“Let’s Go Brandon” was the message on the sweatshirts two siblings wore to middle school.  Everyone knows what that phrase means – including their teachers, so the school required the boys to change clothes.  That left their mother unhappy; she sued the school for silencing her kids.

This week, a divided Sixth Circuit panel sided with the school.  Judge Nalbandian had the majority opinion, which Judge Moore joined, and Judge Bush dissented.  This decision marks an important contribution to the student-speech cases, at a time when like cases continue to arise.

Beginning with Tinker—the famous case of students wearing armbands to protest the Vietnam War—the court explained that students’ at-school speech rights are not equal to their extracurricular rights.  For example, under Fraser, public schools can punish vulgarity to advance their pedagogical missions in ways that police officers in public cannot.  The court asked first whether “Let’s Go Brandon” qualifies as “vulgar” and, second, whether schools may silence vulgar political speech.

All agreed that students have no right to use or display the F-word at school, but “Let’s Go Brandon” is not itself vulgar.  Rather, the phrase is a euphemism standing in for a foul word.  The majority decided that “a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.”  The message, not the words, inform the inquiry – plus a dose of judicial “deference” to school administrators’ judgment.  The euphemism, then, was vulgar enough to restrict.

But was it too political to restrict?  After all, political discourse is the Free Speech Clause’s core concern.  No, the majority answered, because the “vulgarity trumps the political aspect of speech at school.”  And with that, the court concluded the school reasonably exercised its power to “categorically prohibit” vulgar speech.

Judge Bush disagreed: “The liberty to criticize the president is not a freedom that stops at the schoolhouse door.”  “Let’s Go Brandon,” Judge Bush reasoned, is non-vulgar, “purely political speech,” a “cheekily expressed criticism” of the then-sitting president.  Judge Bush characteristically reasoned from history, highlighting vignettes from the past such as President John Adams’ mocking nickname, “His Rotundity.”

It followed that the Tinker standard should apply, not Fraser’s vulgarity exception to that standard.  And Tinker requires the school to show disruption to limit speech, a condition absent from this case.  The majority and dissent squabbled over a doctrinal point of real-world import.  If Fraser’s vulgarity exception erases Tinker’s disruption requirement, then “who decides” what’s vulgar?  To the majority, deference to administrators is in order, provided they act in good-faith (i.e., viewpoint neutral); but in Judge Bush’s dissenting view, discretion tempts censorship, so political speech traditions require “exceptions to Tinker [to] be construed narrowly and applied cautiously.”

Bright-line principles elide difficult First Amendment cases like this.  And Judge Bush highlighted intra- and inter-circuit tension in the precedents.  These points raise the specter of en banc or Supreme Court review.  But for now, the panel-majority’s word is last: vulgarity turns on message, not the words that convey it, and school officials, not courts, decide what’s vulgar.  At Tri County Middle School in Howard City, Michigan, the meme phrase “Let’s Go Brandon” crosses the line.

Ten Years of En Banc Decisions in the Sixth Circuit

By Colter Paulson on Posted in En Banc Watch, News and Analysis

We have looked through the last ten years of en banc decisions in the interest of the perennial question of what makes the Sixth Circuit more likely to grant a petition for en banc review.  But first a word on how many cases the judges accept . After increasing to six en banc cases per year in prior decades, and occasional years with just one case, the Sixth Circuit has decided a steady stream of 3-4 cases per year.  Thirty-eight cases over the last decade.  So what kind of cases do they pick from over a thousand en banc petitions each year?  It may come as no surprise the the larges group, nearly a third (32%) of the en banc decisions, address unresolved issues in criminal cases—mostly in sentencing, which is an evergreen source of difficult legal questions.

Over a quarter of the decisions (26%) are habeas cases.  Many of them are death penalty cases, or other cases involving serious crimes, and they appear to have been taken to ensure the circuit does not push the boundaries the Supreme Court has placed on habeas relief under AEDPA.  Readers may remember that the Sixth Circuit had, for a short time, more cases reversed than any other circuit because the Supreme Court kept reversing grants of relief in habeas cases.  But the Sixth Circuit has largely (though maybe not entirely) stopped innovating in habeas cases, and so has been reversed much less often.  The crown for the most-reversed circuit has fallen back to the Ninth, though the Fifth is making a strong case for itself.

The Sixth Circuit also frequently accepts full-court review of constitutional cases against the Government, which comprised 29% of the en banc cases in the last ten years.  The circuit has focused its those decisions on the First Amendment (both free speech and the Establishment Clause), the Second Amendment, and abortion.  The circuit has also been consistently choosing cases that address current issues of great (and often current political) importance, such as the mask mandate, prayer and government, election law, and abortion restrictions.  Perhaps the best advice for getting en banc review in the civil context is to be litigating something a particularly contentious constitutional issue in the culture wars.

What about private civil litigation?  Not much luck there.  By our count, the Sixth Circuit has only granted review in five such cases in the last ten years, and most of those deal with interesting questions of statutory interpretation like ERISA, the ADA, and Title XI.  The circuit appears uninterested in cases just because they involve big-ticket or bet-the-company litigation—requiring parties to focus their en banc petitions on the importance of the issue itself and the existence of circuit conflicts instead.  In fact, the only one that qualifies as big-ticket litigation is the Circuit’s most recent en banc decision, Speerly v. General Motors, LLC, 143 F.4th 306 (6th Cir. June 27, 2025) (en banc), which vacated a multi-state class certification of over two-dozen state subclasses.  Like the other subjects of en banc cases, the advent of state-specific subclasses is an important development many circuits are wrestling with right now.

In a later post, we’ll talk about other ways the Circuit selects case for en banc review.

Sixth Circuit Practice Institute – Oct. 29, Cincinnati

By Lauren Kuley on Posted in Learned Sixth, News and Analysis

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

By Colter Paulson on Posted in Case Updates, Recent Cases, Supreme Court

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. 

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Sixth Circuit Explores the General Law of Wrongdoership

By Squire Patton Boggs on Posted in Case Updates, Learned Sixth, News and Analysis, Recent Cases

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.

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