New year comings and goings

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 SPB’s work.  But we couldn’t be happier for him, and all of WDKY, as he surely will make a very fine judge.  We’re also pleased to announce that Keith Bradley, an appellate and regulatory specialist based in Denver, will serve as co-chair and help continue to grow our national practice.  You can read about Keith’s deep experience in appellate and administrative law and his impressive background here and here.

All our best wishes for 2021.  Stay tuned as we cover the latest developments out of the Sixth Circuit during these unusual times.

Assessing the amount in controversy when seeking to vacate an arbitral award

Yesterday’s published decision in Hale v. Morgan Stanley Smith Barney LLC established the law of the circuit on a nifty issue of subject matter jurisdiction in the context of arbitration. Where a plaintiff from one state has initiated arbitration against a defendant from another state, seeking millions, but has then received an arbitral award of zero, does a federal court have diversity jurisdiction to entertain the plaintiff’s motion under 9 U.S.C. § 10(a) to vacate the arbitral award? Yes, it does. In an opinion by Judge Donald for a panel that also included Chief Judge Cole and Judge Readler, the Sixth Circuit revisited its last published opinion germane to the issue (decided over 25 years ago!) and explained that its conclusion “was not that the amount of the arbitrator’s award should be considered when calculating the amount in controversy in this context, but that in making such determinations, it is necessary to look to the amount alleged to be in controversy in the complaint.”

Is Title IX’s deliberate-indifference standard a question of law for the court to decide? Yes—at least “in an appropriate case,” says the en banc Sixth Circuit.

Continuing an active year for Title IX precedent, the Sixth Circuit issued an en banc decision in Foster v. University of Michigan, which adds further contour to the Circuit’s Title IX “deliberate indifference” jurisprudence. It also implicitly raises—but does not necessarily answer—important questions regarding the appropriate standard of review for such claims.

In Foster, a divided panel (Judges Clay, Moore, and Sutton, with the latter dissenting) had reversed the district court’s grant of summary judgment for the University of Michigan, holding that the plaintiff had established a genuine dispute of material fact regarding whether the school was deliberately indifferent to the sexual harassment she suffered from a fellow student (the respondent). The original panel majority and dissenting opinions agreed that the plaintiff was subjected to sexual harassment and that the school had notice of that harassment. So, as is often the case, the only remaining question was whether the school’s response was “clearly unreasonable in light of the known circumstances” such that it amounted to “deliberate indifference” under Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). The panel originally concluded that questions of fact remained regarding whether Michigan’s response to the respondent’s harassment was actionable under Title IX, including, among others, whether Michigan had conceded that its response was inadequate yet failed to take any additional measures and whether the university adhered too long to its “no contact order” remedy in the face of mounting evidence that the respondent was likely to violate that order. 952 F.3d 765, 784–88 (6th Cir. 2020).  Judge Sutton dissented, and would have held that Michigan’s response was appropriate “proportionate escalation.” The dissenting opinion at the panel stage worried that the majority was “dilut[ing] deliberate indifference into mere reasonableness.” Id. at 791–95.

The Sixth Circuit took the case en banc and affirmed the district court’s judgment, holding, as a matter of law, that Michigan did not show deliberate indifference.  The en banc majority (Sutton, J.), echoing the Supreme Court in Davis, explained that the deliberate-indifference standard presents a “high bar” to imposing Title IX liability on a university and that, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not [deliberately indifferent] as a matter of law.”  (Slip Op. at 7, 14–15.)  Plaintiff’s case, according the en banc majority, was such a case. Continue Reading

Sixth Circuit stays injunction in challenge to Kentucky public health measures that did not exempt religious schools from general prohibition on in-person instruction.

This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021. 

Like most states, Kentucky is experiencing a surge in COVID-19 cases. Governor Andy Beshear has responded by implementing a number of public health measures aimed at quelling the spread of the virus. Among these was executive order 2020-969, which prohibited in-person instruction at all public and private schools in the Commonwealth. The order was quickly challenged by Danville Christian Academy, a Christian private school located near Lexington. The school, joined by Kentucky’s Attorney General, argued that enforcing the order against religious institutions violated the Free Exercise Clause of the First Amendment.

A district court in Frankfort, Kentucky granted a motion for preliminary injunction, restraining the Governor from enforcing the order against any private, religious school that otherwise adhered to Kentucky’s public health measures. The Governor (represented by his own counsel and adverse to the state’s Attorney General) immediately appealed to the Sixth Circuit, which on Sunday stayed the injunction via order.

In staying the injunction, the panel (Moore, Rogers, White, JJ.) focused on the plaintiffs’ likelihood of success on the merits of the constitutional challenge. The Free Exercise Clause, as applied to the states through the Fourteenth Amendment, provides that the states shall make no law prohibiting the free exercise of religion. Laws that discriminate against religious practices are subject to strict scrutiny and usually invalidated. By contrast, neutral laws of general applicability that incidentally burden religious practices are usually valid. The court concluded that the executive order in question fell into the latter category. The court reasoned that Governor Beshear’s order “applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest.”

The court distinguished the present order from orders that were successfully challenged in recent Supreme Court and Sixth Circuit precedent. Continue Reading

Tennessee election officials’ motion to stay injunction “too little, too late,” so first-time voters may continue to vote by mail.

This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021. 

Last week, in Memphis A. Philip Randolph Institute v. Hargett, the Sixth Circuit considered the application of the factors for a stay pending appeal of a district court’s injunction regarding the mechanics of the election in Tennessee, issuing a published decision that is the court’s latest contribution to the burgeoning case law about voting rights, COVID-19, and the role of the federal courts.

In Tennessee, as in many other states, the convergence of the COVID-19 pandemic and the 2020 presidential election is expected to result in a steep increase in absentee voting. In May of this year, one Tennessee voter and several voter outreach organizations brought suit against state elections officials to challenge the state’s statutory scheme governing absentee voting. The plaintiffs specifically sought a preliminary injunction to enjoin the enforcement of a law that prevents some first-time voters from voting absentee. A district court in Nashville granted that injunction early in September, holding that the restriction violated the constitutional rights of first-time voters.

Election officials did not appeal the injunction until October 5th, nearly a month after it was granted. Last week a panel of the Sixth Circuit (Moore, Gibbons, Readler, JJ.) denied the defendants’ motion to stay the injunction, relying principally on the non-merits factors for a stay, meaning that the absentee voting restriction will not be enforced against the approximately 128,000 first-time voters in Tennessee this election. Continue Reading

In staying injunction, the Sixth Circuit effectively upholds Ohio’s limitation of ballot drop boxes to one per county.

Ohioans have four ways to cast a ballot in this (currently underway) Presidential election: (1) vote in person on election day, (2) vote in person at some point in the four weeks leading up to election day, (3) mail in an absentee ballot; or (4) drop off an absentee ballot at a drop box.  Given the ongoing COVID-19 pandemic in Ohio and across the U.S., Ohio voters are reasonably anxious about casting their vote in-person—options one and two—as detailed in the A. Philip Randolph Institute of Ohio, et al. v. LaRose district court proceedings (Polster, J., coincidentally).  Election officials anticipate a record 2.4 million Ohioans will request absentee ballots for the November 3, 2020 election.  Ohio voters may accordingly be equally anxious about the U.S. Postal Service’s ability to handle such unprecedented volume of election mail (option three)—a looming challenge that Ohio Secretary of State Frank LaRose acknowledged in the district court he is but “cautiously optimistic” the Postal Service will be able to meet.  Consequently, the fourth option—dropping off an absentee ballot at a drop box—has emerged as the preferred method of voting for “a large number of Ohio voters.”  (Polster, J.)

Shortly before absentee voting was set to begin in Ohio, Secretary LaRose issued Directive 2020-16 which, among other things, limits drop box locations to one per county.  To be sure, the Secretary of State has overall control of elections in Ohio, and possesses the statutory authority to issue election directives.  But, ordinarily, the 88 bipartisan county boards of elections determine the location of absentee ballot drop boxes, consistent with their statutory authority to “control the local aspects of elections,” and duty to “fix and provide the places for registration and for holding primaries and elections,” as noted by Judge White in her dissenting opinion in the Sixth Circuit’s Friday evening decision on the matter.  “This makes sense,” she explains, as “county populations, geographic dimensions, and infrastructure vary considerably throughout the state.”  (highlighting Cuyahoga County’ 850,000 voters to Noble County’s fewer than 10,000.)

District Court Enjoins Directive 2020-16

Given the “unprecedented juxtaposition of the worst pandemic in a century coupled with reasonable concern and anxiety over the ability of the U.S. Postal Service to handle what will undoubtedly be the largest number of absentee voters in Ohio’s history,” (Polster, J.), a collection of non-partisan civil rights organizations and individual voters challenged Directive 2020-16 as an unconstitutional infringement on Ohioans’ right to vote.  Continue Reading

Sixth Circuit Practice Tip: You Can’t Renew a Motion for Judgment as a Matter of Law Never Made in the First Place.

The bar exam, so the saying goes, is like fording a river that is a mile wide but only an inch deep.  Cliché though it may be, the analogy serves as a useful reminder that the exam tests candidates largely on settled, black-letter law rather than novel questions typical of law school exams.  Most readers, I assume, will have had at least one experience preparing for and taking the bar exam, and most, I further assume, will have at least one line of questioning forever burned into their brains, regardless of utility to later practice.  For me, that line of questioning is civil procedure, and more specifically, judgment as a matter of law (“JMOL”).  Lest I be tempted to believe I latched onto this rule because I’m a litigator, the reality is I remember the rule because it’s so simple: if you fail to move for JMOL before the case is submitted to the jury, you can’t make a renewed JMOL motion after a verdict has been rendered.  Simple.  Settled.  And an inch-deep.

I was therefore surprised to learn that the Sixth Circuit had never expressly decided the question—i.e., whether a party can make a renewed motion for JMOL under FRCP 50(b) if it has not made a pre-verdict JMOL motion under FRCP 50(a).  In Hanover American Insurance Co. v. Tattooed Millionaire Entertainment, the Sixth Circuit linked arms with its sister circuits and held, unequivocally (and to the great relief of bar review courses everywhere), “no.”

Unusual Procedural Posture

Tattooed Millionaire arises from insurance fraud for ostensible arson, burglary, and vandalism of the historic House of Blues music studio in Memphis, Tennessee.  Continue Reading

Opioid Update: Sixth Circuit reverses order certifying a negotiation class

The opioid MDL continues to generate significant decisions in the law of civil procedure. Arguably the most significant arrived last week in a much-anticipated ruling, when a divided panel issued a published opinion reversing the district court’s certification of a “negotiation class” in the case. Judge Clay wrote the majority opinion, joined by Judge McKeague, with Judge Moore dissenting.

As this blog twice previewed last year, at issue in this appeal was the validity of an order certifying a class for the purpose of negotiating settlement. The theory was to facilitate settlement by fixing the size of the group with which defendants could negotiate. To accomplish that goal, the order included in the class every city and county in the country, unless a prospective class member opted out within sixty days of the order. Class members would know in advance the percentage of any eventual settlement allocated to them, but necessarily would not know the settlement amount. Thereafter, if a supermajority of six categories of voting class members agreed to a proposed settlement, that agreement would bind the entire negotiating class and would then be presented to the court for approval under Rule 23(e) of the Federal Rules of Civil Procedure. No defendant was required to negotiate with the class, and the bellweather trials were to continue. This novel procedure was the brainchild of “Professor Francis E. McGovern, a special master appointed to aid the district court in the MDL, in collaboration with Professor William B. Rubenstein.” (Tragically, Professor McGovern, a national expert in ADR and mass tort litigation, passed away unexpectedly earlier this year.)

The overwhelming majority of putative class members did not opt out after the certification order, but that overwhelming majority included six cities that objected to the validity of the order. Those six cities, together with certain opioid-distributor and retail-pharmacy defendants, sought and received permission to take an interlocutory appeal of the order under Rule 23(f).

Judge Clay’s majority opinion concluded that “the negotiation class ordered by the district court simply is not authorized by the structure, framework, or language of Rule 23.” Continue Reading

The Court of Appeals doesn’t know all the information about a case unless the parties teach it (even if everyone else in the case does).

When a panel of the Sixth Circuit denied rehearing in a criminal case last month, Judge Moore issued a separate opinion, joined by Judge White, that highlights an important point for appellate advocacy. That is, regardless of how common some knowledge may be to the litigants at the trial level, the judges on appeal know only what the parties teach them about it.

What prompted Judge Moore’s somewhat unusual opinion was a petition for panel rehearing in a direct criminal appeal. In its merits decision before the rehearing petition, the panel held that the district court had erred in calculating the defendant-appellant’s advisory sentencing guidelines range; but it also held that the error was harmless because the district judge had stated explicitly during the sentencing hearing that he “would have imposed the same sentence under § 3553(a)” even “[i]f the guideline[s] calculation is determined to have been wrong.” In seeking panel rehearing, the defendant-appellant brought to the court’s attention “that the district court’s statement is part of its standard sentencing colloquy, even in cases where the parties do not object to the Sentencing Guidelines calculation.” United States v. Montgomery, 969 F.3d 582 (6th Cir. 2020) (opinion of Moore, J.). That point might have made a difference; Judge Moore failed to see “why we should give any weight to boiler-plate language designed to thwart a deserved resentencing.” Id. at 582. Unfortunately for the defendant-appellant, however, because the she “failed to raise this argument in her initial briefing and has brought it to our attention only on petition for panel rehearing, … her argument came too late and is inappropriate for our consideration at this stage.” Id. Panel rehearing was denied.

All of this brought to my mind the reality that in most cases, there’s a significant amount of relevant knowledge that almost everyone involved at the trial level knows—and that the appellate judges do not, unless the parties teach them. Continue Reading

Sixth Circuit Defers to Real-World Umpires in Dismissal of Kentucky Derby Case

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.

The Kentucky Derby is known as the fastest two minutes in sports. But—in federal court at least—the 2019 contest galloped on until last week.

Last Friday (8 days before this year’s oddly timed 146th Derby), the Sixth Circuit provided apparent closure to the 2019 race’s controversial result by affirming the district court’s dismissal of a suit challenging a horse’s disqualification. The court (Bush, J. op.; Batchelder, Larsen, JJ. joining) made clear its desire to avoid second-guessing sports officials, notwithstanding the Supreme Court’s oft-used metaphor of “calling balls and strikes.”

“[W]e are not game officials in the literal sense, and we are ill-equipped to determine the outcome of sporting contests,” the Sixth Circuit expounded.

It is the second referee-related case to reach the circuit from sports-mad Kentucky in the past year alone.

The present case pitted Gary and Mary West, owners of the Kentucky-bred Maximum Security, against a state agency charged with overseeing horseracing. In 2019, Maximum Security had pulled off an apparent Derby win, only to be denied victory subsequently for allegedly impeding the progress of a fellow horse, which in turn impeded that of two others. It was the first time in the 145 years of the Kentucky Derby that the first horse to cross the finish line had been disqualified for misconduct during the race.

The Wests sued in federal court, contending that, per Kentucky law, the officials’ decision should be subject to judicial review. Furthermore, the Wests argued that the disqualification—which had been issued without a formal hearing or opportunity to appeal—violated their Fourteenth Amendment right to procedural due process.

The Sixth Circuit held, however, that the Wests had not shown deprivation of “life, liberty, or property.” No constitutionally protected liberty interest, the court elaborated, could be derived from a state agency’s purported failure to follow its own rules. Moreover, the court held, a property interest could not be conjured from a particular method of officiating sport contests. Maximum Security’s trophy win had thus not been taken from the Wests; it had never been theirs to begin with. Although the court acknowledged that a prevailing custom within a sport could hypothetically form the basis of a property interest, it pointed out that the Wests “knew about and agreed to be governed by” the Kentucky rules, which approximated those of other racing jurisdictions.

The Sixth Circuit found the Wests’ arguments about state law to be similarly unpersuasive. Per Kentucky law, racing officials’ decisions are not appealable, but a “final order[] of an agency” can be subject to judicial review. The Wests contended that the penalty on Maximum Security constituted such a “final order.” The Sixth Circuit answered, however, that such a classification would be at odds with both Kentucky’s definition of “final order”—which refers to an administrative hearing as well as the involvement of an agency head—and state-court precedent.

Ultimately, the Sixth Circuit saddled onto a theme of institutional competence. On-the-ground umpires, the court reasoned, are better prepared to call fouls than courthouse judges, given the former’s “rigorous training and experience” in its domain.

“Perhaps only a racehorse itself could tell us whether it was fouled during a race,” the court wrote. “But horses can’t speak, so the Commonwealth of Kentucky, similar to many other racing jurisdictions, has designated racing experts—the stewards, not the appointed members of the Commission or judges—to determine when a foul occurs in a horse race.”

Despite its defeat in court, not all is lost for Maximum Security and its owners. The bay colt has won three races this year, most recently the Pacific Classic on August 22. (Those victories have netted the Wests some $10.4 million in earnings.)

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