En Banc Watch

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En banc watch: “Death [or at least en banc denial] by distorted originalism”

Like a Sergio Leone scene, the Sixth Circuit issued an explosive en banc denial of CIC Services LLC v. Internal Revenue Service (a case we covered back in June). As he did at the panel stage, Judge Clay defended the application of the Anti-Injunction Act, which here bars CIC Services from challenging the IRS’s categorization … Continue Reading

En Banc Watch – New Decisions on Probable Cause and Sentencing Commission Authority

Good Faith and Probable Cause: In another en banc decision, Judge John Rogers and eleven others held in United States v. Christian,that probable cause existed for Grand Rapids law enforcement to search the house of Tyrone Christian. As the affidavit detailed Christian’s four previous felony drug convictions, two previous drug busts at his house, and … Continue Reading

Late May Wrap-up: Another First Opinion, Another En Banc, Another Cert Grant

Note — This post (plus many others) arrives thanks to the hard work of Sixth Circuit Appellate Blog intern extraordinaire Barrett Block, a rising 3L at UK Law.  Murphy’s (first) Law — Jurisdiction is often the first topic encountered by law students; fittingly, Judge Eric Murphy confronted it in his first published opinion as a Sixth … Continue Reading

En Banc Watch: Fight Over Substantive Due Process Sees Court Refuse to Rehear Flint Water Case

The Sixth Circuit denied Flint, Michigan’s petition for en banc review of a panel decision allowing citizens exposed to contaminated water to sue city and state officials. The order drew two concurrences, one dissent, and plenty of skepticism about the plaintiffs’ case—which is nevertheless allowed to proceed in the district court. The plaintiffs’ theory is … Continue Reading

Sixth Circuit To Rehear Legislative Prayer Case En Banc

Last week, the Sixth Circuit granted en banc review in Bormuth v. County of Jackson, where a split panel had held that a district court had erred in rejecting the plaintiff’s argument that the prayer preceding a Michigan county’s Board of Commissioners’ monthly meeting violated the First Amendment by coercing residents to support and participate in the … Continue Reading

Fourth Circuit Joins Sixth Circuit In Applying Strict Scrutiny To Gun Restriction

We’ve previously reported on the Tyler case, in which the Sixth Circuit became the first circuit to apply strict scrutiny to a firearms restriction (and to hold it unconstitutional as applied to the plaintiff).  Tyler was then vacated for rehearing en banc, and has already been argued before the Sixth Circuit en banc. With the Sixth Circuit … Continue Reading

Sixth Circuit Grants En Banc Review

On Friday, the Sixth Circuit voted to rehear Detroit Free Press, Inc. v. USDOJ (Free Press II) en banc. As we have noted here and here, the Sixth Circuit has been reluctant recently to grant en banc review. As with any grant of en banc review, the previous judgments of the court are vacated and the case is … Continue Reading

En Banc Watch

The Sixth Circuit sat en banc yesterday to hear oral argument in Tyler v. Hillsdale County Sheriff’s Dep’t regarding whether or not a federal provision prohibiting the possession of a firearm by a person who has been confined to a mental institution violates the Second Amendment under Heller.  The original panel had sustained the plaintiff’s Second … Continue Reading

En Banc Update: NLRB Tribal Dispute

We have been following a pair of Sixth Circuit cases concerning the NLRB’s jurisdiction over tribal casinos.  In the first case, NLRB v. Little River Band of Ottawa Indians Tribal Government, a split panel determined that the NLRB could block a Michigan tribe’s restrictions on organized labor in its casinos.  In the second case, Soaring … Continue Reading

NLRB-Tribe Dispute Heading for En Banc Review?

We recently reported on a decision governing the NLRB’s jurisdiction over tribal casinos, NLRB v. Little River Band of Ottawa Indians Tribal Government.  Shortly after that split decision, another panel of the Sixth Circuit handed down a decision that addressed similar issues yesterday, Soaring Eagle Casino and Resort v. NLRB .  Apparently, both panels were … Continue Reading

No En Banc Sitting In June

The Sixth Circuit historically hears en banc cases at two sittings each year, in June and December.  However, the Court has not scheduled any en banc hearings for this summer, consistent with our prior observations, which can be viewed here and here, that the Court is generally cutting back on the number of en banc cases it takes.  … Continue Reading

Sixth Circuit Vacates Decision Sustaining 2Am Challenge To Gun Ban For Previously Involuntarily Committed, Will Rehear En Banc

The Sixth Circuit has voted to rehear en banc its recent decision in Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, in which it became the first court of appeals to sustain a Second Amendment challenge to a federal firearms regulation since Heller was decided.  The parties have been directed to file supplemental briefs. Our analysis of … Continue Reading

En Banc Sixth Circuit: No ADA Violation In Telecommuting Suit

On Friday, the Sixth Circuit issued a significant decision on telecommuting accommodations for disabled employees.  In EEOC v. Ford Motor Co., a divided en banc court affirmed summary judgment for Ford on claims brought under the Americans with Disabilities Act by the Equal Employment Opportunity Commission.  At issue in the case was a telecommuting request … Continue Reading


Major news coming out of the Sixth Circuit today.  In a landmark (but divided) ruling, the Sixth Circuit has upheld same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee.  See Opinion (6th Cir. Case Nos. 14-1341; 3057; 3464; 5291; 5297; 5818).  As we previously have covered, district courts in each of these four states had ruled … Continue Reading

Sixth Circuit Election Decision Creating Buzz And Keeping Lawyers Working Around The Clock (Which is Ticking)

In a decision generating interest both the locally and nationally a three-judge panel of the Sixth Circuit upheld a preliminary injunction which reinstates Ohio’s early in-person (EIP) voting period of 35 days (from 28 days) and allows county officials to adopt additional EIP hours. In doing so, the panel upheld the district court’s analysis that … Continue Reading

Sixth Circuit Grants En Banc Review in Habeas Case Involving Constitutional Right to Self-Representation

En banc review is rare in the Sixth Circuit, but this week the Court granted a petition for en banc rehearing filed by Michigan’s Attorney General in a habeas appeal involving the constitutional right to self-representation.  See Hill v. Curtin, Case No. 12-2528 (6th Cir.) (PDF). In 2007, a Michigan jury convicted Thomas Hill of … Continue Reading

En Banc Court Sends Back Michigan Case on Emergency Cuts

Earlier this year, we previewed a Sixth Circuit en banc case regarding emergency measures taken in the City of Pontiac, Michigan to reduce and eliminate health care benefits of retired City employees.  Sua sponte raising state law issues, the prior panel told the district court to consider whether the City manager’s actions complied with Michigan … Continue Reading

En Banc Granted In ERISA Disgorgement Case

On Friday, the Sixth Circuit granted en banc review of Rochow v. Life Insurance Company of North America, 737 F.3d 415 (6th Cir. 2013), a controversial decision holding that a ERISA plaintiff that already recovered his benefit under Section 502(a)(1)(B) could also recover for unjust enrichment under Section 502(a)(3).  The benefit in this case was … Continue Reading

En Banc Sixth Circuit To Hear Michigan City Benefits Case in March

Legal fallout from a Michigan financial crisis will soon be before the en banc Sixth Circuit. Responding to the City of Pontiac’s deficits, Pontiac’s emergency manager modified collective bargaining agreements in 2011 to reduce retirement benefits for Pontiac’s retired employees. A Michigan statute granting him those emergency powers was later rejected by referendum. Retired employees … Continue Reading

A Split Sixth Circuit Reverses A $1,225,000.00 Jury Award In A Trade-Dress Case

Earlier today, in a 2-1 decision, the Sixth Circuit reversed a $1,225,000.00 jury award in a trade-dress case involving a relatively obscure and expensive industrial product: grease pumps used in automated lubrication systems (“ALS”) for commercial trucks.  See Groeneveld Transport Efficiency, Inc. v. Lubecore International, Inc., Case Nos. 12-3545/3576 (6th Cir.) (PDF).  The competing products … Continue Reading

The Ultimate Guide to En Banc Practice in the Sixth Circuit: What You Need to Know

Nearly two years ago, Amy Hocevar and I posted a video on our blog discussing the “ins and outs” of seeking en banc review of panel decisions in the Sixth Circuit and highlighting the various pitfalls to avoid.  Our presentation was very well-received, as witnessed by the frequent phone calls and emails seeking advice on … Continue Reading