Reviewing Judge Amul Thapar and Other Sixth Circuit Judges on Supreme Court Shortlist

The Sixth Circuit Court of Appeals features as many as three “short-listers” to replace the retiring Justice Anthony Kennedy on the US Supreme Court: Judges Raymond Kethledge and Joan Larsen of Michigan, and Judge Amul Thapar of Kentucky. All three reportedly interviewed with President Trump last week, and all three are young and prominent enough to be considered for future vacancies that might develop.

The Yale Journal on Regulation’s blog has published an in-depth series of posts focused on the administrative-law jurisprudence of the perceived front-runners. And new Squire Patton Boggs litigation partner Ben Beaton wrote the analysis of Judge Thapar. (Ben and Judge Thapar recently published an article in the Michigan Law Review on textualism in response to a book by Judge Richard Posner on legal pragmatism.)

Ben’s big-picture takeaway:

It’s quite clear what Judge Thapar would uniquely add to the Roberts Court: practical trial-court experience, a compelling immigrant success story, and representation of non-Ivy schools and Rust Belt states. He would also build on the textualist approach embraced by Justices Thomas and Gorsuch—one that in recent years has had important and fresh implications for administrative practice. If every new Justice makes a new Court, this one would add a perspective on textualism in the trenches with (in my view) rather clear effects on the Court’s deference case law in particular: less invocation of multilayered deference doctrines, greater attention to the soundness of agency reasoning and interpretation, and—above all—a persistent focus on the statutory text Congress enacted.

Regardless of who gets this Supreme Court nod, lawyers interested in the Supreme Court and Sixth Circuit should check out the full analysis of Judge Thapar’s approach (and the features on Judges Kethledge—in two parts—and Larsen too).  For additional background, see our prior posts on these judges: here, here, and here.

Sixth Circuit Rules on Turbulent Air-Line Merger

In an opinion colored by aviation-themed puns, Judge Thapar, writing for the Sixth Circuit in Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, ordered airlines and pilot unions to arbitrate their long-running dispute. A few years ago, two luxury airlines merged, leading to a spate of litigation. Most recently, the airlines attempted to integrate the pilots under one collective bargaining agreement.  Around the same time, the union proposed substantive changes to the CBA.  In the dispute that reached the Sixth Circuit, the airlines and the union disagreed over the order in which to tackle these problems, with the airlines seeking to first integrate the two groups of pilots, and with the union seeking to immediately resolve dispute over rates of pay and work rules.  The district court entered a preliminary injunction ordering the airline to bargain in good faith over the union’s demands.

Admonishing the parties as “frequent fliers” in the circuit, the Sixth Circuit vacated the district court’s injunction and sent the dispute to arbitration. Airlines and their unions must resolve disputes over CBAs pursuant to the procedures set forth by the Railway Labor Act.  The Act, in turn, provides separate tracks for major and minor disputes.  The Sixth Circuit ruled that it could not resolve the instant dispute because the dispute is a “minor” one, which must be arbitrated before a party asks for judicial review.

The court explained that, compared with major disputes, a minor dispute does not involve the acquisition of new rights, but rather the assertion of rights that have already vested. More specifically, a minor dispute involves the interpretation of the existing CBA.  The Sixth Circuit held that a specific provision within the existing agreement relating to the order of the negotiations, and therefore, the existing agreement “control[ed] the controversy.” And it concluded that the airlines’ position that the parties did not have to bargain over the union’s proposed changes until a fully merged agreement was reached parties “arguably justified.”  The court did refuse, however, to grant the airlines’ requested advisory opinion, and made no findings on the merits of the disagreement.

Sixth Circuit Affirms Preliminary Injunction Against the University of Cincinnati

University policies on responding to sexual assault claims have been hotly debated around the country.  The Sixth Circuit recently weighed in on the constitutional dimension of this issue.  Last month, in John Doe v. University of Cincinnati, et al., the Sixth Circuit found a strong likelihood that an accused student’s constitutional due process rights were violated when he was not able to confront his accuser during university misconduct proceedings.  On appeal, the University and individual members of the University’s Administrative Review Committee (ARC) argued that the district court erred in issuing a preliminary injunction to enjoin it from suspending the plaintiff-accused John Doe.  The Sixth Circuit found that the plaintiff had met his burden in proving that his due process rights were likely violated and upheld the preliminary injunction.

John Doe was cited for violating the University’s policies against sex offenses, harassment, and discrimination after a complaint was filed against him for sexual assault. When the University received such a complaint, its policy was to hold a hearing with an ARC panel to hear the allegations, review the evidence, and question participating witnesses.  While witnesses including the person who filed the complaint could appear, ARC policies did not require the complainant to be present.  In this case, the ARC panel heard a summary of both side’s accounts of the night in question and summaries of statements of witnesses who were told of the assault by the complainant.  The complainant did not appear.  She submitted a closing statement which was not notarized.  After hearing the evidence, the panel recommended that the University suspend John Doe, which it did.

Seeking to enjoin his suspension in the district court, John Doe argued that the proceedings violated his Sixth Amendment right to confront witnesses against him.  Although it recognized that a University has no duty to “transform its classrooms into courtrooms,” the Sixth Circuit found that the proceedings likely did not comport with due process. The court determined that accused students have a due process right to cross-examine adverse witnesses when case poses a “credibility contest” without other corroborating evidence.  Concluding those circumstances were present here, the court deemed it “disturbing” that the complaint was resolved without seeing or hearing from the accuser. Although it did not require a direct confrontation of the accuser by the accused, the court did require least some “circumscribed” form of cross-examination to evaluate an alleged victim’s credibility.

The Court urged that its holding was to be narrowly applied. Going forward, the court’s articulated standard of due process likely applies where the accused student is facing a serious allegation and punishment, where the accused student has had no opportunity to cross-examine the accuser, and where the finding of responsibility exclusively relied on a credibility determination.  Left unresolved is how much and what kind of corroborating evidence is needed to alleviate the cross-examination requirement, given that many such cases turn largely on conflicting accounts by the parties.  It also remains to be seen whether the court continues to permit “circumscribed” cross-examination:  the panel in this case noted that the standard derives from an unpublished decision that John Doe did not challenge.

Who is Justice Joan Larsen?

In May 2017, Justice Joan Larsen was nominated to the Sixth Circuit seat being vacated by Judge David McKeague. Both of Michigan’s democratic senators returned blue slips supporting her appointment in August. The Senate Judiciary Committee favorably reported Justice Larsen’s nomination to the full Senate earlier this month, and yesterday Senator Mitch McConnell filed in the Senate a cloture motion to end debate and move for a vote on her nomination. Thus, in the very near future, Justice Larsen may be the next judge to join the Sixth Circuit Court of Appeals, so it’s worth taking a look at her credentials.

Since 2015, Justice Larsen has served as a justice on Michigan’s Supreme Court. At the time she submitted her responses to the Questionnaire for Judicial Nominees, Justice Larsen estimated that the Michigan Supreme Court had resolved by dispositive order or opinion 90 civil cases and 360 criminal cases. In addition, Justice Larsen has been working since 2003 for the University of Michigan Law School as a lecturer and adjunct professor, where her teachings have focused on constitutional law and criminal procedure.

Justice Larsen’s legal career began, after she graduated first in her class from Northwestern University School of Law in 1993, she then clerked for Judge David Sentelle on the D.C. Circuit followed by a clerkship with Justice Antonin Scalia on the Supreme Court. After completing her clerkships, she worked for two years at a large law firm in Washington D.C., where 100% of her practice was before the federal courts. From 2002–03, she worked as Deputy Assistant Attorney General in the Office of Legal Counsel, providing “legal advice to the White House, other components of the Justice Department, and various federal agencies.” Over the years, Justice Larsen has taught as a visiting professor at the University of Iowa College of Law and Northwestern University School of Law. Intermittently throughout 1994–2003, Justice Larsen has been a member of the Federalist Society. But she’s not all business, as she’s currently a member of the Ann Arbor Figure Skating Club and a U.S. Figure Skating organization.

Although it’s likely that Justice Larsen will fill an existing vacancy on the court, according to the United States Courts’ website, it is anticipated that Judge Alice Batchelder will be taking senior status, leaving another vacancy for the President and Senate to fill.

Split Panel of the Sixth Circuit Holds that Written Policy Trumps Company’s Actual Practices

In Stein v. hhgregg, a split panel of the Sixth Circuit held that a written policy would trump the company’s actual practices. hhGregg employs retail sales employees that are paid under a “draw-on-commission policy.” Under that policy, sales employees are paid on the basis of commissions only. If after dividing the employee’s weekly commission by the number of hours worked, the quotient fails to equate to the federal hourly minimum wage, the employee is paid a draw from his or her future earnings equaling the difference. Employees are expected to repay the draws based on future commissions earned. At the time the plaintiffs filed their amended complaint, hhGregg’s written policy stated that “[u]pon termination of employment, the [employee] will immediately pay the Company any unpaid Deficit amounts.”

The plaintiffs, one former and one current hhGregg employee, brought a collective action on behalf of themselves and other similarly situated current and former employees, alleging violations of the Fair Labor Standards Act (“FLSA”) and state law. In one of the claims, the plaintiffs alleged that hhGregg’s written policy requiring repayment upon termination violated the FLSA. The district court dismissed all of the federal claims under Fed. R. Civ. P. 12(b)(6) and declined to exercise supplemental jurisdiction over the state law claims.

On appeal, the majority reversed. Regarding the post-termination liability claim, the majority recognized that at oral argument defense counsel represented that the “defendants have not collected and will not in the future collect any debts from any employee upon termination, and that this language is no longer in the policy.” The majority, however, stated that it was “focus[ing]” on the written policy rather than its implementation, because employees could reasonably believe that they remain liable to hhGregg for the unearned draws.

Judge Sutton dissented in part, stating that he would have affirmed the dismissal of the post-termination liability claim. In doing so, he implicitly recognized the potential impact that an oral argument can have on an appeal, honing in on defense counsel’s declarations made during the argument.

Flint Water Crisis Litigation Flows On

While the headlines from the Flint water crisis have all but subsided, two consolidated putative class actions arising from the crisis gained new life over the summer as a result of the Sixth Circuit’s ruling in Boler v. Earley. The Boler decision examined whether two groups of plaintiffs’ constitutional claims were preempted by the federal Safe Drinking Water Act (SDWA).  On behalf of Flint residents and water users, Plaintiffs alleged race and wealth- based discrimination, state-created danger, racially-motivated conspiracy, due process violations, and various contract, tort, and equitable claims arising out of the crisis.  Overruling the district court, the Sixth Circuit concluded that preemption did not apply and allowed the Section 1983 and 1985 claims to go forward against various Michigan government entities.

The Sixth Circuit found that the SDWA did not meet the three elements necessary to find preemption of claims premised on constitutional violations. First, there was no clear legislative intent by Congress to preclude Section 1983 claims under the act. Second, the remedial scheme under the SDWA was not so broad to fully redress the harms allegedly suffered by the plaintiffs. Lastly, in comparing the rights protected by Sections 1983 and 1985 against those by the SDWA, the court found that a violation of the former would not necessarily be synonymous with a violation of the latter.

The court did not, of course, reach the merits of plaintiffs’, which were remanded back to the district court for further proceedings.  The litigation is starting up again this month in the Eastern District of Michigan following the recent denial of the defendants’ en banc petition. Though it allowed most plaintiffs’ claims to go forward, the Sixth Circuit dismissed some of the claims against the State of Michigan, Governor Snyder, and two Michigan government departments. The Eleventh Amendment, according to the court, provided these defendants with sovereign immunity, which protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court.

This is not the Sixth Circuit’s first encounter with the fallout from the Flint water crisis.  As we previously covered, in ­­­­­­Mason v. Lockwood, Andrews & Neuman, the appellate court remanded a putative class action of Flint residents and property owners back to state court for lack of federal jurisdiction.  The plaintiffs sought Supreme Court review, which was denied in June.  We will continue to track the ongoing litigation produced by the Flint water controversy.

Progress on Sixth Circuit Vacancies

As we’ve previously noted, the Sixth Circuit currently has two vacancies, and will soon have a third, as Judge McKeague has already announced his plans to take senior status.

Judge Amul Thapar of the Eastern District of Kentucky has already been nominated to fill the vacancy created by Judge Martin’s retirement in 2013, and his April 26 confirmation hearing went smoothly.  Prior to serving on the district court, Judge Thapar had been the U.S. Attorney for the Eastern District of Kentucky.

According to the New York Times, the nominations of John K. Bush and Justice Joan L. Larsen to the Sixth Circuit will be announced today.

Justice Larsen was named to the Michigan Supreme Court in 2015.  Previously, she was a professor at the University of Michigan Law School, and prior to that, a deputy assistant attorney general in the DOJ Office of Legal Counsel.   She also has clerked for Judge Sentelle on the D.C. Circuit and then Justice Scalia on the Supreme Court.

John K. Bush is currently a litigation partner at Bingham Greenebaum Doll LLP in Louisville, Kentucky.  He practices in the areas of antitrust, securities, financial institutions, insurance, intellectual property, and products liability.  He is the President of the Louisville chapter of the Federalist Society and previously clerked for Judge J. Smith Henley on the Eighth Circuit.

According to “Above the Law,” Judge Allison Jones of the Kentucky Court of Appeals is also a potential candidate for nomination to the Sixth Circuit.  Judge Jones was appointed to her current seat in 2013.  Previously, she had been an administrative law judge in Kentucky (handling workers’ compensation claims), a staff attorney for the Western District of Kentucky, a law clerk to Judge John G. Heyburn II of the Western District of Kentucky, and a litigator at Stites & Harbison PLLC, the oldest law firm in Kentucky.

Managing A Corporation Located In Michigan Can Create Personal Jurisdiction

In MAG IAS Holdings, Inc. v. Schmuckle (No. 16-1550), the Sixth Circuit issued its first published decision interpreting the reach of specific jurisdiction under Walden v. Fiore, 134 S. Ct. 1115 (2014).  The panel held that Walden stands for the idea that “an out-of-state injury to a forum resident, standing alone, cannot constitute purposeful availment” and that just knowing that out-of-state actions will have effects within the jurisdiction is not enough.  In this case, a chief executive officer in Germany directed certain subsidiaries and their employees in Michigan, met with clients in Michigan, and essentially held himself out as responsible for those subsidiaries.  The panel held that these actions were sufficient to create specific jurisdiction because the plaintiffs’ claim was that Schmuckle had used his power over the Michigan subsidiaries to transfer work and money from Michigan to operations in Germany for his own benefit.  The opinion, written by Judge Gibbons, emphasizes the close connection between the defendant’s deliberate contacts with the forum and the claims alleged in the complaint.

MAG IAS Holdings will be a useful yardstick for parties trying to determine what kind of contacts created by the defendant will be important and how those contacts must relate to the substance of the case.  Note that the other Sixth Circuit case interpreting Walden is the unpublished Maxitrate Tratamento Termico E Controles v. Super Sys., Inc., 617 F. App’x 406 (6th Cir. 2015), which held that Walden conclusively rejected a broad reading of the “effects test” under Calder v. Jones, 465 U.S. 783 (1984).

Split Panel of the Sixth Circuit Holds that Cat’s Paw Theory Applies to FMLA Retaliation Claims

            Last week in Marshall v. Rawlings, a split panel of the Sixth Circuit held that the cat’s paw theory of liability applies to FMLA retaliation claims.  In Marshall, an employee was fired after using FMLA leave.  The employee sued for FMLA retaliation, ADA discrimination, FMLA interference, and intentional infliction of emotional distress.  The district court granted summary judgment to the employer, and the Sixth Circuit reversed the district court’s judgment as to the employee’s FMLA retaliation and ADA discrimination claims and affirmed the dismissal of the other two claims.

            According to the majority, the cat’s paw theory recognizes that a biased lower-level supervisor, who lacks decisionmaking power, may influence an ultimate decisionmaker, resulting in a discriminatory employment action.  Judge Moore, writing for the majority, said that the theory reflects that a decisionmaker may be “detached from day-to-day operations” and thus may “unthinkingly” accept the recommendations of his or her subordinates.  When the cat’s paw theory is applied, an employer cannot shield itself from liability though the willful blindness of its ultimate decisionmakers.  The court stated that when an ultimate decisionmaker takes an adverse employment action in-line with a biased lower-level supervisor’s recommendation, the employer may protect itself from liability by showing that the decisionmaker conducted his or her own independent investigation and determined that the adverse action was justified.

            Judge Sutton dissented in part, writing that he would have affirmed the district court’s judgment based on the application of the honest-belief rule.  Judge Sutton explained that the evidence showed that the two low-level supervisors involved in the decision process “honest[ly] belie[ved]” that the plaintiff had exhibited poor work performance and had made false allegations of harassment.  Thus, these supervisors’ recommendations to the decisionmakers were not motivated by a discriminatory animus.  Further, the two decisionmakers believed that the plaintiff had exhibited poor work performance and had made false harassment allegations. Thus, the decisionmakers demoted and fired the plaintiff for these reasons, which was all that was needed to overcome the plaintiff’s prima facie case.  Judge Sutton also pointed out that the ultimate decisionmaker “was the one who thought of firing” the plaintiff and did so only after meeting with her to discuss her harassment allegations.


Appellate Courts and Caseload Pressure

An interesting paper has been making the rounds discussing how appellate courts react to caseload pressure.  After September 11, 2001, the Second and Ninth Circuits had a large influx of immigration appeals that affect the other circuits, and the paper uses this as a “natural experiment.”   In his paper, Mr. Shay Lavie characterizes the Second Circuit as resistant to changing its procedures, and claims that this led to the circuit reversing fewer civil cases as a way of adjusting to increased time pressure.  He calls this a “disturbing” reaction to the increased caseload.  By contrast, he praises the Ninth Circuit for using procedural flexibility to deal with the extra cases by slightly decreasing the rate of dissents and slightly increasing the number of published opinions.  He urges appellate courts to follow the Ninth Circuit’s lead to experiment with more procedural changes.

Interestingly, an earlier article by Mr. Bert Huang analyzed the exact same data and found that both the Second and Ninth Circuits artificially decreased their reversal rates in civil cases in response to the extra cases.  He argues that they may have spent less effort on each case, resulting in fewer reversals, as a rational response to having less time.   Each article used different statistical techniques to predict what the expected reversal rates would have been without the influx of immigration cases—and then arrived at opposite conclusions.

I am skeptical about the analysis in both articles—certainly neither gives circuits a strong reason to revise their practices or procedures.  (Mr. Lavie, in particular, gives very little evidence that changes in procedure produced the results he highlights.)  In the Sixth Circuit, we have seen that the time it takes to decide appeals increases substantially as caseload increases, that it takes longer to reverse than to affirm, but we have not seen evidence of a connection between caseload and items like per curiam opinions that might indicate less effort spent deciding cases.

One additional reason to be wary of sweeping policy prescriptions based on changes in a single statistic over a handful of years is that there is so much variation year-to-year.  Below are the percentage of civil cases reversed for the Second, Sixth, and Ninth circuits from 1997 to 2016:


Looking at this data, my chief question would be what happened in the Second Circuit during 2005 to increase the reversal rate in civil cases from less than 3% to over 11%!  Whatever happened during 2005 would doubtless overwhelm any small effects caused by an increase in immigration appeals.  And measuring an “artificial” dip in reversal rates during 2003 and 2004 would also be difficult because the rates were already vanishingly low.  It is also interesting that the Sixth and Ninth Circuits appear to follow a very similar pattern for changes in reversal rates over time.

In a follow-up post next week, we’ll look at the connection between the Sixth Circuit’s caseload and its reversal rates.