Rachel Bloomekatz Nominated to the Sixth Circuit

Today, President Biden nominated Columbus, Ohio appellate litigator Rachel Bloomekatz to the Sixth Circuit as part of his eighteenth round of judicial nominees, which would fill the seat vacated by Judge R. Guy Cole Jr.  Judge Cole announced in December his intention to take senior status. 

Rachel Bloomekatz is currently a solo practitioner at Bloomekatz Law, LLC, a law firm that she founded in 2019 in Columbus, Ohio.  She specializes in public interest work and has represented nonprofit organizations including Everytown for Gun Safety, the Public Health Law Center, the American Heart Association, and the Ohio Conference of the NAACP.   She also served as state counsel for Biden’s 2020 campaign in Ohio.  Prior to opening her own firm, Bloomekatz was a principal at Gupta Wessler PLLC and an associate at Jones Day, LLC.   She also clerked for Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court, served as an Assistant Attorney General in Boston, Massachusetts, and clerked for Justice Stephen Breyer on the United States Supreme Court.  She received her J.D. from UCLA School of Law and her A.B., magna cum laude, from Harvard University. 

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Corpus Linguistics in the Sixth Circuit and Beyond

Corpus linguistics has been in the news lately, which gives us a chance to discuss this interesting tool of statutory interpretation and, in the process, revisit some Sixth Circuit views about it.

What is corpus linguistics?  We will let Circuit Judge Amul Thapar explain:

[Corpus linguistics] draws on the common knowledge of the lay person by showing us the ordinary uses of words in our common language. How does it work? Corpus linguistics allows lawyers to use a searchable database to find specific examples of how a word was used at any given time. . . These databases, available mostly online, contain millions of examples of everyday word usage (taken from spoken words, works of fiction, magazines, newspapers, and academic works). . . Lawyers can search these databases for the ordinary meaning of statutory language . . . The corresponding search results will yield a broader and more empirically-based understanding of the ordinary meaning of a word or phrase by giving us different situations in which the word or phrase was used across a wide variety of common usages. . . In short, corpus linguistics is a powerful tool for discerning how the public would have understood a statute’s text at the time it was enacted.

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Sixth Circuit Dissolves Nationwide Injunction of Immigration Guidance

The Sixth Circuit issued a very interesting decision three days ago in Arizona v. Biden (22-3272).  The origins of the dispute go back to last fall when the Secretary of Homeland Security issued “Guidelines for the Enforcement of Civil Immigration Law.”  The Guidance notes the Department lacks the resources to apprehend and remove the roughly 11 million removable noncitizens in the country.  As for removal of noncitizens who are already in state custody, the Guidance prioritizes the removal of those individuals who threaten national security, public safety, and border security.  Eleven days before the Guidance took effect, three States — Ohio, Arizona, and Montana — filed suit against the United States, the Department of Homeland Security, and various officials (collectively, “the Department”).  In the States’ view, the Guidance impermissibly deprioritized the removal of noncitizens who fall into other categories that Congress still wants removed, including noncitizens who commit drug crimes and crimes of moral turpitude.  The States requested a preliminary injunction to prevent the Department from implementing the Guidance.  The States claimed the Guidance violates the Administrative Procedure Act because it is contrary to law, arbitrary or capricious, and should have been subject to notice and comment.  After the District Court granted the States a “nationwide preliminary injunction,” the Department sought emergency relief in the Sixth Circuit.

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Supreme Court Lets Kentucky AG Intervene in Cameron v. EMW.  Now What?

Nearly two years ago, a panel of the Sixth Circuit declined to let the Kentucky Attorney General intervene in a Sixth Circuit case to defend a Kentucky law.  About a week ago, the Supreme Court reversed and remanded.  This post considers likely next steps.

The case began as a constitutional challenge to House Bill 454, which regulates an abortion procedure known as dilation and evacuation.  The Kentucky Legislature adopted HB 454 in April 2018, and a district court in Kentucky permanently enjoined the law’s enforcement the next year.  The State’s Health Secretary defended the law throughout the district court proceedings and continued to defend the law at the Sixth Circuit, which ultimately affirmed the district court in an opinion written by Judge Clay.  The late Judge Merritt joined Judge Clay’s opinion and Judge Bush dissented.  Meanwhile, the people of Kentucky elected Daniel Cameron, a Republican, to be their new Attorney General, and they elected Andrew Beshear (who Cameron replaced as AG), a Democrat, to be their new Governor.

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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 jurisprudence on certification of collective actions in the FLSA context.

Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) set out the ubiquitous two-step process for certifying collective actions under the FLSA:  a conditional certification stage and a final certification stage.  It is this standard that Defendants recently asked a motions panel of the Sixth Circuit to consider in deciding whether to grant interlocutory review of the District Court’s decision.

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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) the rule requires “that grantees provide referrals to abortion services when requested by the patient.”  The panel consisted of Judges Boggs, Bush, and Larsen.

Ohio and eleven other States had sued under the APA, claiming the rule was “arbitrary, capricious, and contrary to law[,]” and sought a preliminary injunction.  Judge Black of the Southern District of Ohio found that the States did not meet their burden of establishing entitlement to a preliminary injunction. The panel agreed.

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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 (3) whether the Controlled Substances Act imposes anti-diversion duties on corporate pharmacies.  Judge Polster’s opinion reasoned that he’d already addressed these issues, that the motion was untimely, and that an appeal would “unnecessarily extend the litigation because a final judgment is near.”  His principal concern was that an interlocutory appeal did not make sense when an appeal of the final judgment could be taken so soon.  The opinion also focuses on “redundancy” and “timing” issues.  Two of the issues had already been subject to a 28 U.S.C. § 1292(b) motion.  And the defendants argued that circumstances had changed based on discovery, but Judge Polster dismissed that by stating that discovery had ended years ago.

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Sixth Circuit Awards Attorney Fees to Multiple Qui Tam Relators

Last week, a panel of the Sixth Circuit unanimously greenlighted an award of attorney fees for multiple qui tam relators who had entered into a settlement agreement with the government and defendants under the False Claims Act.  Judge Moore authored the Court’s opinion.  She was joined by Judge Clay and Judge Gibbons.

The seven relators had alleged that Community Health Systems and its affiliated hospitals violated the Act in submitting fraudulent claims for medically unnecessary hospital admissions to Medicaid and Medicare.  The relators’ claims prompted a nationwide investigation by the government, which encouraged the relators “to work together on the cases and share any proceeds that might result.”  Heeding that advice, the relators engaged in a “collaborative effort” over multiple years that involved “bi-monthly calls with the Government.”  The government would later intervene in each of the cases, and, in exchange for a payment exceeding $97 million, the government and the seven relators agreed to dismiss with prejudice all their claims against Community Health.  After the settlement agreement was approved, the government awarded just one of the relators all of the relators’ share of the most valuable claims in the underlying litigation.  That relator had been the first to file a lawsuit involving such claims.  The remaining relators received their share of the award pursuant to the government-encouraged share agreement into which they had previously entered.

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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 from the Michigan Bar and worked on community initiatives such as the Advocates and Leaders for Police and Community Trust and the Detroit Youth Violence Prevention Initiative.  There’s a wonderful video of Judge Davis discussing her life and work available here, created around the time she received the Champion of Justice award.

Judge Davis was appointed to be a federal magistrate in 2016 and was elevated to the district court by President Trump in 2019.   Judge Davis seems to be a strong bipartisan pick, and we wish her well through the nomination process.

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 2, and the Eleventh Circuit has already scheduled oral argument in its own contractor-mandate case for April 4.  We believe that the circuits and the Supreme Court will likely reject that mandate on the merits.

The contractor mandate requires employees of federal contractors in “covered contracts” to become fully vaccinated against COVID-19, covering one-fifth of the U.S. workforce.  President Biden issued the mandate by executive order, claiming authority under the Federal Property and Administrative Services Act (FPASA).  Judge Bush’s opinion for the Sixth Circuit found that the states and contractors had standing to challenge the executive order and held that the mandate exceeded the Administration’s powers.

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