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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The latest statistics on unpublished opinions show an important trend between the circuits.  Across all circuits, 86% of written opinions are unpublished.  That means they are not precedential, so they do not create circuit law.  And most of those unpublished opinions, 69% of them in 2022, were also unsigned.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

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
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