About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit. When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from … Continue Reading
Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other. Chief Judge Sutton’s opinion rejected the argument that the … Continue Reading
The latest statistics on unpublished opinions show an important trend between the circuits. Across all circuits, 86% of written opinions are unpublished. That means they are not precedential, so they do not create circuit law. And most of those unpublished opinions, 69% of them in 2022, were also unsigned. The Sixth Circuit mirrors the general … Continue Reading
In Knight v. Metro. Gov’t of Nashville and Davidson County (No. 21-6179), the Sixth Circuit decided a longstanding question about the standard that applies to conditions imposed by a legislature on those applying for building permits. The issue is common enough: a city wants more sidewalks to improve safety, health, and traffic. So the city … Continue Reading
The Sixth Circuit has been slowly moving up the rankings for the time it takes to decide an appeal. A decade ago, the Sixth and Ninth Circuits took the longest time to each a decision. But while the Ninth Circuit remains slow (at 13.2 months), the latest statistics Sixth Circuit is now the third-fastest circuit, … Continue Reading
In Fox v. Saginaw County (No. 22-1265/1272), the Sixth Circuit rejected a class action where multiple defendants have identical policies, but the named plaintiff was only injured by one defendant. Until recently, Michigan law permitted counties to obtain complete ownership of a property during a tax foreclosure, even if the value of the property far … Continue Reading
President Biden has nominated Judge Stephanie Dawkins Davis, of the Eastern District of Michigan, to the Sixth Circuit. She litigated products liability and commercial cases for five years at Dickinson Wright in Detroit, and then joined the US Attorney’s office for newly two decades. As an AUSA, she received a 2015 “Champion of Justice” award … Continue Reading
With OSHA’s decision to withdraw its ETS in the face of a hostile Supreme Court, and the Court’s 5-4 decision to uphold the CMS mandate, it’s worth taking a closer look at the Sixth Circuit’s decision to stay the contractor mandate. Briefing in the Sixth Circuit on the contractor mandate should be finished around March … Continue Reading
The Supreme Court’s recent per curiam opinion on OSHA’s vaccine-or-test mandate for businesses takes a practical approach to agency power, though the dissent would rather the Court have taken a more practical approach to the pandemic. The majority opinion holds that while OSHA has power to regulate dangers in the workplace, it cannot use the … Continue Reading
Judge Gilbert S. Merritt Jr. passed away yesterday, on his 86th birthday. Judge Merritt leaves behind three children, three grandchildren, and a life well-lived in public service. Judge Merritt was born in Nashville, Tennessee on January 17, 1936. Aside from receiving a B.A. in 1957 from Yale and an L.L.M. from Harvard in 1962, Judge … Continue Reading
The decision we’ve all been waiting for finally arrived today. In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate. For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine … Continue Reading
After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10. U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly … Continue Reading
Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases. (You can listen to the arguments live here.) For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of … Continue Reading
In this post, we take a look at the options facing the U.S. Supreme Court as it considers the challengers’ various emergency applications for a stay, several of which were filed just hours after the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS this past Friday evening (December 17). At this point, it … Continue Reading
Before we dive in the panel’s opinions on the stay motion, we should mention that in the Supreme Court proceedings Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS mandate. That is the same day that the Supreme Court gave the challengers in the … Continue Reading
As you probably know by now, the Sixth Circuit vacated the stay of OSHA’s vaccine mandate on Friday evening, allowing OSHA to move enforce its regulation, with an substantial, careful opinion by Judge Stranch (who was joined by Judge Gibbons) finding that OSHA has the statutory authority to issue and enforce the emergency temporary standard. … Continue Reading
We’ve previously discussed the procedural arguments for and against taking the case en banc that Judge Moore and Chief Judge Sutton (briefly) debated in their respective concurrence and dissent. As we noted in our earlier post, the Court split evenly on the en-banc issue, keeping these cases with the current three-judge panel. This post reviews … Continue Reading
The Sixth Circuit has denied en banc review in the OSHA vaccine mandate cases. The vote was a close one, with eight judges voting in favor of initial hearing en banc. But that’s not enough under the circuit’s rules, which require a majority of the 16 active judges to vote for en banc treatment. As … Continue Reading
Over the next week, we expect a flood of amicus briefs opposing and supporting OSHA’s Emergency Temporary Standard. There are already ten such briefs on the main docket, with many more listed amici yet to file, and many more preparing to appear. We expect that many amicus parties will want to weigh in on OSHA’s … Continue Reading
Employers across the United States are wondering whether they need to comply with OSHA’s original, rapidly-approaching December 6th and January 4th deadlines. And while no-one yet knows with 100% certainty, probably including the judges themselves, a few things seem clear from the Sixth Circuit’s approach in this consolidated appeal. The Circuit has not ordered parties … Continue Reading
At 2:28 a.m. this morning, OSHA filed an (overlength) emergency motion to dissolve the Fifth Circuit’s stay of OSHA’s vaccine mandate, taking three distinct positions. OSHA principally argues, as expected, that it is likely to succeed on the merits because, OSHA reasonably concluded that the standard is necessary to address a grave danger, the Fifth … Continue Reading
It’s been only three days since the Sixth Circuit won the JPML lottery to consolidate and adjudicate every appeal nationwide challenging OSHA’s vaccine mandate. Yet there have already been interesting developments. Many petitioners in the original Sixth Circuit cases have now moved for initial en banc review—which would bypass panel review entirely and send the … Continue Reading
Sometimes federal courts of appeals get to play the lottery. The prize is not millions of dollars, but the chance to adjudicate every challenge to a particular federal agency action filed in federal circuit court. The Sixth Circuit won that lottery yesterday afternoon. At issue is OSHA’s highly controversial vaccine mandate. On November 5, 2021, OSHA promulgated … Continue Reading
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 … Continue Reading
