While We Are Waiting On Chevron

The Supreme Court issued three opinions today, including an important decision on whether omissions in SEC filings are actionable, and a decision that the Takings Clause does not distinguish between legislative and administrative land-use permit conditions (and that relies on Judge Murphy’s recent Takings Clause decision). But no decision yet on the highly-anticipated blockbuster cases (here and here) that might overturn Chevron deference.

While we continue waiting for those decisions, we’ll point you to an interesting article by our colleague Keith Bradley. The article acknowledges that Chevron privileges the policies of government agencies over those of individual people and businesses that disagree with those policies. But then it argues that the doctrine also gives agencies flexibility to operate under the often-ambiguous laws passed by Congress, which may create positive outcomes for other individuals and businesses outside of litigation.

Justice Sotomayor References Rarely Used Procedure: Circuit Certification to U.S. Supreme Court

Four years ago, the Supreme Court declined a federal habeas petitioner’s request to review the Sixth Circuit’s decision in Avery v. United States, 770 F. App’x 741.  Justice Kavanaugh, the Sixth Circuit’s assigned circuit justice, attached a “statement” to the Supreme Court’s cert. denial to highlight a circuit split that Avery implicated and to note his interest in revisiting the issue “[i]n a future case.”  140 S. Ct. 1080, 1081 (2020).  The same issue returned to the Supreme Court this February, this time on an original habeas petition filed directly with the Court.  But the Court turned it away.  See Sup. Ct. R. 20.4(a).  Justice Sotomayor wrote her own “statement” to “join [Justice Kavanaugh]” in “his desire . . . to resolve th[e] split.”  In re Bowe, No. 22-7871 (U.S. Feb. 20, 2024).  Justice Sotomayor identified a three-fold practical impediment to Supreme Court review of the issue (which gets into the weeds of AEDPA, see 28 U.S.C. § 2244(b)(3)(E)), but concluded by offering solutions.

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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. 

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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.

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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.  

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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. 

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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.

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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. 

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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.

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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. 

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