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En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction

Congratulations are in order to the forty-something law clerks that swore in to the Sixth Circuit bar Wednesday.  That was a prelude to the court’s en banc argument on campaign finance restrictions in National Republican Senatorial Committee v. FEC.  The Committee challenges the constitutionality of part of the Federal Election Campaign Act that places limits … Continue Reading

Sixth Circuit Grants P.G. Sittenfeld Release from Prison Pending Appeal

Today, the Sixth Circuit took the relatively rare step of granting a criminal defendant’s release from prison before deciding the merits of his case.  That followed last week’s oral argument in the high-profile criminal appeal of Alexander “P.G.” Sittenfeld, the former Cincinnati City Councilperson.  Sittenfeld’s counsel closed his rebuttal argument by renewing his request for … Continue Reading

The Ohio Supreme Court Updates its Writing Manual

Last week, the Ohio Supreme Court published a new and improved writing manual.  The Third Edition is “a comprehensive guide . . . designed to improve the readability of opinions issued by, and briefs filed in,” Ohio’s courts.  The unquestionable headline is that the new manual abandons the cumbersome triple-parallel-citation format of old in favor of citing … Continue Reading

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 … Continue Reading

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.… Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

Sixth Circuit Judges Still Write Lots Of Dissenting and Concurring Opinions, But Appear To Be Less Partisan

The Sixth Circuit has a longstanding reputation for having lots of dissents and concurrences.  We analyzed the last three years of opinions and found that the Sixth and D.C. Circuit have about twice the average number of dissents and concurrences opinions per case than other circuits.  Partisan and ideological differences account for some dissents, in … Continue Reading

The Three Circuits That Publish Far More Opinions Than Any Others—And How The Sixth Circuit Stacks Up

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

Panel Holds that Ohio Aggravated Burglary Statute Does Not Count as Predicate Violent Felony under ACCA. 

Co-authored by: Stephanie A. Darville & Shams H. Hirji About two weeks ago, the Sixth Circuit issued an important decision in United States v. White, No. 21-3209.  Judge White wrote the unanimous opinion for the Court, which was joined by Judge Moore and Judge Bush.  The Court held that an Ohio aggravated-robbery statute, R.C. § 2911.01(A)(1), … Continue Reading

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates … Continue Reading

Potential Sea Change in Sixth Circuit’s Certification of FLSA Collective Actions

A Fair Labor Standards Act case is working its way through the Sixth Circuit and could have serious ramifications for FLSA plaintiffs in the Sixth Circuit.  In this post, we discuss the potential sea change that a decision in In re: A&L Home Care and Training Center, et al. could effect in the Sixth Circuit’s … Continue Reading

Sixth Circuit Declines to Enjoin HHS’s Title X Abortion Referral Rule

On February 8, the Sixth Circuit issued an unsigned order declining to enjoin (pending appeal) an HHS rule that does at least two notable things:  (1) the rule eliminates the prior Administration’s requirement “that grantees create strict physical and financial separation between their Title X programs and any abortion services they may provide” and (2) … Continue Reading

Opioid Update: Court denies pharmacies’ motion for certification of an interlocutory appeal

Earlier this week in the Opioid MDL, Judge Polster denied the defendant pharmacies’ motion for certification of an interlocutory appeal.  The defendants asked him to certify three issues for appeal:  (1) whether the Ohio Product Liability Act abrogated the public nuisance claim, (2) whether the Court properly handled a juror’s misconduct during the trial, and … Continue Reading

Judge Davis Nominated to the Sixth Circuit

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

A Closer Look at the Sixth Circuit’s Decision on the Contractor Mandate

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 OSHA Mandate Decision and the Sixth Circuit

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
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