The Sixth Circuit has issued a steady stream of Title IX cases in recent months. Of particular note are Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), which deepened a circuit split regarding institutional liability for “deliberate indifference” under Title IX, and Doe v. Oberlin College, 963 F.3d 580 (6th Cir. 2020), which addressed a male student’s claim that his institution discriminated against him during a disciplinary proceeding because of his sex. Taken together, these two cases highlight the increasing tension that institutions face when trying to balance the rights of victims and of the accused under Title IX. Continue Reading
Sixth Circuit Says No Shortcuts to Standing in Tennessee Antitrust Case
Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.
The Sixth Circuit declined last Thursday to relax standing requirements for cases involving healthcare providers. The decision in Bearden v. Ballad Health, authored by Judge Amul Thapar for a panel that included Judges Gibbons and Griffin, affirmed the dismissal by district court Judge Curtis Collier (E.D. Tenn.) for lack of standing.
The case centered on the merger of two healthcare companies in Tennessee. Plaintiffs alleged that leaders of the combined entity, Ballad Health, also had ties to another nearby healthcare organization, MEAC. This constellation of healthcare companies, plaintiffs argued, constituted an “interlocking directorate” in violation of the federal Clayton Antitrust Act.
Plaintiffs acknowledged that their theory of “injury in fact” could represent an “aberration” from the usual standing doctrine. Nonetheless, they contended, the case merited particular laxity for three reasons: first, that the Clayton Act is fundamentally prophylactic; second, that healthcare is especially vital; and third, that Ballad Health itself had admitted in an agreement with the State of Tennessee that “irreparable harm” would result from a breach of that agreement.
The district judge was not persuaded, and neither was the Sixth Circuit. Continue Reading
Sixth Circuit panel dismisses motion to enforce writ of mandamus
Several months ago this blog reported on Judge Kethledge’s opinion for the court that granted a writ of mandamus sought by retail pharmacy chain defendants in “Track One” of the opioid MDL. In that decision the Sixth Circuit directed the district court to strike the plaintiff counties’ amendments to their complaints (which contravened Rule 16(b) of the Federal Rules of Civil Procedure). Granting that relief rendered the petition moot as to the two other grounds on which the pharmacies had sought relief, as the court observed. The Sixth Circuit issued its opinion and judgment on April 15, and the next day, the district court entered an order striking the amendments at issue.
Two and a half months later, the pharmacy defendants filed a “Motion to Enforce Writ of Mandamus” under the Sixth Circuit case number for the mandamus petition. This filing advised the court of appeals that, on remand, the district court had created a new “Track Three bellweather trial” and had permitted amendments to the complaints on the new track. The motion argued that this action violated the Federal Rules of Civil Procedure and the party-presentation principle of constitutional jurisprudence. It asked the Sixth Circuit “to enforce its writ of mandamus by striking the district court’s ‘Track 3’ orders” and to reassign the MDL to a new judge.
Last week the same panel that issued the writ of mandamus (Siler, Griffin, Kethledge) dismissed the motion. Because the decision was by order and unpublished, it’s not accessible via the court’s opinions page, but it’s easy and worthwhile to reproduce in full:
Defendant CVS Pharmacy, Inc. and nine other national retail pharmacies (“Retail Pharmacies”) filed a putative “motion to enforce” this court’s writ of mandamus, issued on April 15, 2020. See In re Nat’l Prescription Opiate Litig., 956 F.3d 838 (6th Cir. 2020). Our rules do not provide for this kind of filing. Nor do they provide for any kind of motion practice to police the actions of federal district courts. See La Buy v. Howes Leather Co., 352 U.S. 249, 257 (1957). Nor have the Retail Pharmacies identified a clear basis for our jurisdiction over their interlocutory motion.
Sixth Circuit declines to stay injunction in Michigan ballot-access case
Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.
Election and pandemic—2020’s strange bedfellows—continue to keep judicial chambers busy.
Another virus-adjacent development occurred on July 2 when the Sixth Circuit declined to stay a court-ordered injunction. That injunction, issued by Judge Matthew Leitman (EDMI), had suspended Michigan’s signature requirement for ballot initiatives. Without a stay from the Sixth Circuit, the ball is now in Governor Whitmer’s court to formulate a less burdensome pathway onto the November ballot.
Sixth Circuit Holds Its TCPA Decision Not Impacted by Supreme Court’s Opinion in PDR Network
Recently a Sixth Circuit panel unanimously agreed in a published opinion that the 2019 Supreme Court decision, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., does not impact the resolution of a circuit case reviving an unsolicited advertisement claim under the Telephone Consumer Protection Act (“TCPA”).
The Sixth Circuit Case
Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., concerns a 2016 fax received by Fulton, a dental practice, that sought verification or update of the practice’s contact information for use in a medical provider database. Continue Reading
Sixth Circuit stays district court order that had lifted Michigan gym lockdown
Note — This post (and many more) arrives thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.
Michigan gym owners will have longer to wait before they can reopen.
Last Wednesday, the Sixth Circuit granted Michigan Governor Gretchen Whitmer an emergency stay from a district court injunction authorizing Michigan gyms to resume business.
The decision comes as coronavirus cases appear to be on the rise in several states, with Texas recently announcing a pause in its reopening. Business owners, who have faced months of little to no revenue, have turned to the courts to challenge state orders prohibiting their activity.
In Michigan, gyms have been shut down since a March 16 executive order. While some facilities in the northern part of the state have been allowed to reopen, most gyms must remain closed until July 4 at the earliest. Plaintiffs—a collection of twenty-two Michigan gyms and an affiliated trade association—filed suit on May 22.
They found quick relief in the form of a preliminary injunction issued by Judge Paul Maloney of the Western District. On June 19, the district court held that Gov. Whitmer had not provided sufficient support for why some indoor businesses—like hair salons and bars—could reopen, while gyms could not. This ran afoul of the Fourteenth Amendment’s Equal Protection Clause, the court contended, since it treated similarly situated businesses differently without a rational basis. The governor “answered with a blanket ‘trust us’ statement that is insufficient,” Judge Maloney wrote, inviting Plaintiffs to open their doors on June 26.
The Sixth Circuit has now withdrawn that invitation. Continue Reading
Sixth Circuit Vacates Right-to-Literacy Ruling
Last month, we explained that the settlement between the plaintiffs and Michigan’s Governor Whitmer in Gary B. v. Whitmer might end up ultimately vacating the Sixth Circuit’s pathbreaking right-to-literacy ruling in that case. The parties informed the Court of the settlement and the plaintiffs promised to file a motion to dismiss. But some defendants had already petitioned for rehearing en banc and other amicus parties (including ten state Attorneys-General and a homeschooling association) also asked for the decision to be taken en banc and overruled. Those briefs presented a dozen different attacks on the decision.
Interestingly, the Sixth Circuit did not grant any of those requests but instead granted en banc review on its own sua sponte. Under Circuit Rule 35(b), granting en banc review automatically vacates the prior panel’s decision. The plaintiffs then moved to dismiss because the settlement had mooted the dispute, and, yesterday, the en banc court dismissed the case as moot. By acting sua sponte to take case en banc, and then dismissing the case as moot, the Circuit did not endorse any of the theories pushed by the defendants or amici. And the decision itself was neatly vacated without the need for even a Munsingwear analysis.
The Detroit Free Press reports that the parties have taken this turn of events with equanimity. The plaintiffs, after all, still have their settlement, and even a vacated decision might be helpful somewhere down the line. And, except for the items Governor Whitman agreed to in the settlement, the defendants do not have any legal repercussions or awkward precedent.
Coronavirus Update: PPP Guarantees Loans for Sexually-Oriented Small Businesses
The effects of the coronavirus pandemic continue to play out in unexpected ways, as this blog has covered on several occasions. Now the Sixth Circuit has ruled on loan guarantees under the Paycheck Protection Program for sexually-oriented businesses. Can the Small Business Administration, consistent with long-standing agency policy, prohibit sexually-oriented small businesses from eligibility for paycheck loans guaranteed by the federal government under the PPP? The Sixth Circuit and Eastern District of Michigan have both said “no.”
The SBA Deems Sexually-Oriented Businesses “Ineligible” for PPP Participation
The PPP—part of Congress’s effort under the March 2020 CARES Act “to mitigate the economic devastation caused by the COVID-19 pandemic”—authorizes the SBA to guarantee billions in private loans to small businesses. Loans made by SBA-participating banks to small businesses to satisfy payroll obligations (among other things) are eligible for forgiveness. The SBA, rather than the small business, pays the lender the amount of the loan, plus interest.
The SBA has “extraordinarily broad powers” to aid, counsel, assist, and protect the interests of small business, including guaranteeing loans made by private lenders to small businesses. As part of those broad powers, since at least January 1996 the SBA has deemed “ineligible” certain sexually-oriented businesses from participating in SBA lending programs. That prohibition continues today.
Shortly after enactment of the CARES Act, the SBA adopted a set of rules to implement the PPP loan guarantees. Those rules incorporated SBA’s prohibition of sexually-oriented businesses from participating in SBA lending programs. A consortium of adult entertainment and novelty stores filed an emergency motion for preliminary injunction, imploring the district court to prohibit the SBA from denying PPP loans based on the “sexual nature” of their businesses.
District Court Enjoins the SBA PPP Implementing Rules
Applying the Chevron doctrine, the district court ruled the CARES Act unambiguously prohibits the SBA from excluding sexually-oriented businesses from the PPP. Under the familiar Chevron “two-step,” the court first asks whether “Congress has directly spoken to the precise question at issue.” If the statute is unambiguous, that is the end of the matter; the court applies the statute as written. “However, if the statute is ambiguous, then (and only then)” does the court proceed to step two of the Chevron analysis—deference to the agency’s reasonable statutory interpretation.
Emphasizing that Chevron step one is no toothless formality, the court explained that Congress has identified “only two criteria” for a business to be eligible for PPP loans: (1) the business must have fewer than 500 employees (2) during the “covered period” of the PPP. So long as a business has less than 500 employees during the covered period, Congress provided that “any business . . . shall be eligible to receive” a SBA-guaranteed loan. Congress’s use of “any” and “shall” in the PPP, according to the court, “requires the SBA to deem eligible for a PPP loan guarantee every business” that employed less than 500 people during the covered period. Thus, under the clear terms of the statute, the SBA could not exclude the sexually-oriented businesses from the PPP.
Sixth Circuit Denies SBA Emergency Stay Motion
Last Friday, a Sixth Circuit panel (Stranch, J., Donald, J.) agreed. The Court explained the term “any” carries an expansive meaning, makes no distinction or limitation, and thus implies “every member of the class or group.” That “broad interpretation” was also appropriate given “Congress’s intent to provide support to as many displaced American workers as possible.” Or as the district court put it, “Congress did not pick winners and losers in the PPP. Instead, through the PPP, Congress provided temporary paycheck support to all Americans employed by all small businesses that satisfied the two eligibility requirements—even businesses that may have been disfavored during normal times.” Because the district court’s ruling was reasonable, the Sixth Circuit denied the SBA’s emergency motion to stay the injunction order.
Judge Siler dissented, contending the PPP is indeed ambiguous. Picking up on an argument raised by SBA, the dissent contends the PPP says it is “to be administered ‘under the same terms, conditions, and processes’ as other [SBA] loans, which exclude private clubs and adult entertainment businesses from eligibility.” That additional language, the dissent and the SBA argue, creates ambiguity as to whether SBA’s longstanding policy to exclude sexually-oriented businesses from loan eligibility is permissible under the PPP.
On one key point, the Siler dissent—a concise effort drafted under unusual time pressure—says aloud what we’ve all thought at one time or another:
It is also a weekend and time is running short.
Sixth Circuit stays injunction in Ohio pandemic voting rights case
Today the Sixth Circuit issued a published order in Thompson v. DeWine, the First Amendment voting rights case that we blogged about on Friday. The per curiam order by a three-judge panel granted the Ohio Attorney General’s request for a stay pending appeal of the district court’s injunction (and denied as moot the state’s request for an administrative stay).
Focusing principally on the likelihood of success on the merits, the court weighed the burdens imposed by Ohio’s constitutional requirements for ballot initiatives against the state interests those requirements are meant to serve, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs’ rights (the Anderson-Burdick framework). The court concluded that Ohio’s requirements—including that a ballot initiative’s petitioners must sign in ink, not electronically—passed muster under that standard, notwithstanding the COVID-19 pandemic. It distinguished its unpublished order in Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376 (6th Cir. May 5, 2020), from earlier this month on the grounds that Ohio’s stay-at-home order specifically exempted First Amendment-protected activity and that Ohio was beginning to lift its stay-at-home order, several weeks before the deadline for submission of a ballot-initiative petition.
Several aspects of the decision are noteworthy, beyond the substance. Continue Reading
Covid E-Signature Voter Case on (Very) Fast Track from Ohio to En Banc Review?
Just two days after a federal district court’s preliminary injunction allowed use of e-signatures to satisfy some Ohio election requirements, the Ohio Attorney General has taken the unusual step of asking the en banc Sixth Circuit to overturn or stay the injunction. And the Sixth Circuit responded with equal if not greater alacrity, calling within hours for short-fuse opposition briefing.
Ohio groups advocating minimum-wage, voting-rights, and marijuana ballot initiatives for the fall election asked the Southern District of Ohio to allow electronic signatures to satisfy voting-law requirements. Public-health concerns surrounding coronavirus transmission, they argued, made traditional pen-and-paper signatures untenable. The Ohio Constitution, however, requires signatures in ink, and the state has raised concerns regarding fraud.
