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
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
An important development occurred yesterday evening in both the OSHA and CMS vaccine mandate cases pending before the Supreme Court. The Court took the very rare step of scheduling a special hearing for both sets of cases. The hearing will be held on Friday, January 7, 2022. In the OSHA mandate cases, the Court consolidated … 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
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
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
It’s been almost a decade since this blog discussed the likelihood that the Sixth Circuit would accept a discretionary appeal under 18 U.S.C. §1292(b). That the section that gives a district court the discretion to certify an order for appeal if the issue involves an important question of law for which there is substantial ground … Continue Reading
We keep up on statistics important to our clients, such as the time it takes to decide appeals, and we were especially interested to see how the pandemic had affected the Sixth Circuit. Our gut feeling was that things might have slowed down a little in more complicated cases, but that the circuit had generally … Continue Reading
The office of chief judge for any federal court is tricky. It involves a great deal of extra administrative work as well as the expectation—from the title, at least—that one is somehow “in charge” of the court. Yet the chief judge’s vote has no more weight than that of his or her colleagues, and because … Continue Reading
Prior posts have discussed the comparative rarity of certified questions of state law in the Sixth Circuit (here and here). This post gives practical pointers to improve your odds of success with certified questions both in the Sixth Circuit and in the state courts.… Continue Reading
The Sixth Circuit handed down a recent decision, Smith v. General Motors, that, on its face, could be construed as having a wide-reaching impact on the pleading standard for certain product-liability and fraud claims. But the panel was careful to disclose the larger, admittedly “odd” context of the case, making it difficult to discern just … Continue Reading
In our prior post, we noted that the Sixth Circuit seldom grants motions to certify questions of state law. And even though the circuit grants less than 20% of such motions, the questions still have to be accepted by the state supreme court. But the certification process is often a rough road. No recent case … Continue Reading
Nearly every state allows federal courts to certify questions of state law to obtain definitive answers from state supreme courts on unsettled issues of state law. The United States Supreme Court has explained that certifications “saves time, energy, and resources and helps build a cooperative judicial federalism.” All states, except North Carolina, have rules or … Continue Reading
The Sixth Circuit’s recent decision in Watkins v. Healy is an interesting read on its own: Ledura Watkins was released after 42 years in prison for a murder conviction that was overturned with the help of the WMU-Cooley Innocence Project. Watkins has now brought a 42 U.S.C. § 1983 civil rights suit against the alleged … Continue Reading
Happy New Year from everyone here at the Sixth Circuit Blog! We’re kicking off 2021 with some exciting news. Ben Beaton, my appellate practice co-chair who often graced these pages, was sworn in last month as a US District Judge for the Western District of Kentucky. We will miss Judge Beaton and his contributions to … Continue Reading