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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

We will miss Judge Merritt

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 High Court stays the OSHA mandate but upholds the CMS mandate

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

Analysis Of The Supreme Court’s Oral Argument Yesterday

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

The OSHA Mandate — Supreme Court Oral Argument Preview

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

The Sixth Circuit Deals Another Blow to the Contractor Mandate

As readers of this Blog know, the OSHA vaccine-or-test mandate has occupied much of the Sixth Circuit’s time the past few weeks.  That mandate is now before the Supreme Court, which hears oral argument on the OSHA and CMS mandates tomorrow.  In the meantime, a third pandemic-era mandate—the federal contractor mandate—made its own splash in … Continue Reading

Supreme Options for OSHA’s Vaccine-or-Test Mandate

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

ETS Developments in the Supreme Court — and more on the Sixth Circuit’s decision dissolving the stay

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

The Sixth Circuit Vacates The Stay Of OSHA’s Mandate, But OSHA Delays Implementation Until January

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

Chief Judge Sutton’s En Banc Dissent On The Merits Of OSHA’s Emergency Temporary Standard

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 and OSHA’s Upcoming December 6th Deadline.

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

OSHA files emergency motion to dissolve the Fifth Circuit’s stay

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

Initial En Banc Petitions, Procedural Possibilities, and the OSHA Vaccine Mandate.

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

President Biden Nominates Andre B. Mathis to the Sixth Circuit

Yesterday, President Biden nominated Memphis, Tennessee litigator Andre B. Mathis to the Sixth Circuit, filling the seat of Judge Bernice B. Donald, who announced in May that she will assume senior status upon the confirmation of her replacement. Mathis is currently a partner in the Memphis, Tennessee office of the law firm Butler Snow LLP, … Continue Reading

The Sixth Circuit and the OSHA Vaccine Mandate

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

Evolution of the Sixth Circuit Approach to §1292(b) Petitions for Interlocutory Appeals

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
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