Trends in the Sixth Circuit – A Substantial Increase In Written Decisions

Recently we discussed academic criticism claiming that circuit courts may respond to increased caseload pressure by spending less time per case or lengthening the appeals process.  We found evidence suggesting that this is not occurring at the Sixth Circuit.  One interesting side note that our analysis showed is that the percentage of written decisions has increased significantly over the past decade.  We have calculated that the percentage of total appeals that end in a written decision has increased to 31% in 2018 from 25% in 2004.

Note that appeals ending without a written decision do not indicate an unwritten judicial decision because the judiciary’s statistics include cases that end with settlements and other voluntary dismissals.  We know that the Sixth Circuit’s excellent mediation program resolves around 400 appeals each year—which are resolutions agreed to by all parties that do not result in a written decision.  Given those numbers, the 20% increase in written opinions since the mid-2000s, and our own experience, we suspect that many more litigants are now receiving a reasoned, written decision when their appeal is decided.

This is a very welcome development.  Some appellate courts give one-line (or even one-word) decisions in appeals that may be critically important to the parties.  Litigants (and their lawyers!) may tend to chafe at the impression—whether or not it reflects the reality of the court’s internal decision-making process—that their appeal and arguments were rejected without actual consideration.  And written opinions have obvious benefits for the development and transparency of caselaw in our common-law system.

“The Learned Sixth” – Sixth Circuit Judges Busy Speaking and Writing

When welcoming his (many) new colleagues, Judge Sutton has sometimes mentioned his court’s long-lost nickname: “The Learned Sixth.” Many of its earliest judges—Taft, Day, Lurton, Howell Jackson—served as diplomats or law school deans, cooled their heels at the Sixth Circuit, and proceeded to the Supreme Court.

Is the Sixth Circuit recovering its name and reputation? Several current judges have appeared on shortlists of potential Supreme Court nominees. And as for the court’s scholarly output, the judges are keeping busy in the meantime with a steady stream of important writings and speeches.

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Reversal Rates and Caseload Pressure in the Sixth Circuit

As appellate attorneys, one of the most frequent questions we are asked is the chances of reversal.  The likelihood of obtaining a reversal on appeal is always a very individual question—it requires a close look at the facts of the case and the legal questions raised by the appeal, and a host of other factors.  One of those factors we look at is the overall reversal rate, which varies between 12% and 16% for civil cases in the Sixth Circuit.  As we’ve previously discussed, some would argue the number of pending cases is another factor.  The idea is that as the number of cases each judge faces goes up, either the reversal rate will go down because judges spend less time per case and will default to just affirming the trial court or judges will simply take more time to decide each appeal.

For this post, we decided to look at the relationship between reversal rates, various metrics of caseload pressure, and the overall time to a decision.  We ran data from the Sixth Circuit to see if there was a correlation between any of those variables for the years 2004 through 2017.  Here are the results (along with the coefficient of correlation for those of you mathematically inclined):

Potential Relationship Is there a correlation? Correlation Coefficient
reversal rates and caseload pressure weak or no correlation 0.14 to 0.29
reversal rates and the time to decision a moderate negative correlation -0.43
caseload pressure and the time to decision a moderate negative correlation -0.35 to -0.83

These are the conclusions we can draw from this quick analysis:

  • The Sixth Circuit does not respond to caseload pressure by taking the easy road of affirming more often.
  • As caseload pressure increases, the Sixth Circuit responds by issuing decisions more quickly–presumably to keep up with the work.
  • As the Sixth Circuit decides cases faster, it may also result in the court reversing cases more often.

Though these conclusions are necessarily tentative, they represent good news for litigants.  They imply that the increase caseload pressure that the Sixth Circuit has felt over the years has probably not affect the judges’ decisions on the merits, but it has prompted the court to find ways to decide cases more expeditiously.

Reviewing Judge Amul Thapar and Other Sixth Circuit Judges on Supreme Court Shortlist

The Sixth Circuit Court of Appeals features as many as three “short-listers” to replace the retiring Justice Anthony Kennedy on the US Supreme Court: Judges Raymond Kethledge and Joan Larsen of Michigan, and Judge Amul Thapar of Kentucky. All three reportedly interviewed with President Trump last week, and all three are young and prominent enough to be considered for future vacancies that might develop.

The Yale Journal on Regulation’s blog has published an in-depth series of posts focused on the administrative-law jurisprudence of the perceived front-runners. And new Squire Patton Boggs litigation partner Ben Beaton wrote the analysis of Judge Thapar. (Ben and Judge Thapar recently published an article in the Michigan Law Review on textualism in response to a book by Judge Richard Posner on legal pragmatism.)

Ben’s big-picture takeaway:

It’s quite clear what Judge Thapar would uniquely add to the Roberts Court: practical trial-court experience, a compelling immigrant success story, and representation of non-Ivy schools and Rust Belt states. He would also build on the textualist approach embraced by Justices Thomas and Gorsuch—one that in recent years has had important and fresh implications for administrative practice. If every new Justice makes a new Court, this one would add a perspective on textualism in the trenches with (in my view) rather clear effects on the Court’s deference case law in particular: less invocation of multilayered deference doctrines, greater attention to the soundness of agency reasoning and interpretation, and—above all—a persistent focus on the statutory text Congress enacted.

Regardless of who gets this Supreme Court nod, lawyers interested in the Supreme Court and Sixth Circuit should check out the full analysis of Judge Thapar’s approach (and the features on Judges Kethledge—in two parts—and Larsen too).  For additional background, see our prior posts on these judges: here, here, and here.

Sixth Circuit Rules on Turbulent Air-Line Merger

In an opinion colored by aviation-themed puns, Judge Thapar, writing for the Sixth Circuit in Flight Options, LLC v. Int’l Bhd. of Teamsters, Local 1108, ordered airlines and pilot unions to arbitrate their long-running dispute. A few years ago, two luxury airlines merged, leading to a spate of litigation. Most recently, the airlines attempted to integrate the pilots under one collective bargaining agreement.  Around the same time, the union proposed substantive changes to the CBA.  In the dispute that reached the Sixth Circuit, the airlines and the union disagreed over the order in which to tackle these problems, with the airlines seeking to first integrate the two groups of pilots, and with the union seeking to immediately resolve dispute over rates of pay and work rules.  The district court entered a preliminary injunction ordering the airline to bargain in good faith over the union’s demands.

Admonishing the parties as “frequent fliers” in the circuit, the Sixth Circuit vacated the district court’s injunction and sent the dispute to arbitration. Airlines and their unions must resolve disputes over CBAs pursuant to the procedures set forth by the Railway Labor Act.  The Act, in turn, provides separate tracks for major and minor disputes.  The Sixth Circuit ruled that it could not resolve the instant dispute because the dispute is a “minor” one, which must be arbitrated before a party asks for judicial review.

The court explained that, compared with major disputes, a minor dispute does not involve the acquisition of new rights, but rather the assertion of rights that have already vested. More specifically, a minor dispute involves the interpretation of the existing CBA.  The Sixth Circuit held that a specific provision within the existing agreement relating to the order of the negotiations, and therefore, the existing agreement “control[ed] the controversy.” And it concluded that the airlines’ position that the parties did not have to bargain over the union’s proposed changes until a fully merged agreement was reached parties “arguably justified.”  The court did refuse, however, to grant the airlines’ requested advisory opinion, and made no findings on the merits of the disagreement.

Sixth Circuit Affirms Preliminary Injunction Against the University of Cincinnati

University policies on responding to sexual assault claims have been hotly debated around the country.  The Sixth Circuit recently weighed in on the constitutional dimension of this issue.  Last month, in John Doe v. University of Cincinnati, et al., the Sixth Circuit found a strong likelihood that an accused student’s constitutional due process rights were violated when he was not able to confront his accuser during university misconduct proceedings.  On appeal, the University and individual members of the University’s Administrative Review Committee (ARC) argued that the district court erred in issuing a preliminary injunction to enjoin it from suspending the plaintiff-accused John Doe.  The Sixth Circuit found that the plaintiff had met his burden in proving that his due process rights were likely violated and upheld the preliminary injunction.

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Who is Justice Joan Larsen?

In May 2017, Justice Joan Larsen was nominated to the Sixth Circuit seat being vacated by Judge David McKeague. Both of Michigan’s democratic senators returned blue slips supporting her appointment in August. The Senate Judiciary Committee favorably reported Justice Larsen’s nomination to the full Senate earlier this month, and yesterday Senator Mitch McConnell filed in the Senate a cloture motion to end debate and move for a vote on her nomination. Thus, in the very near future, Justice Larsen may be the next judge to join the Sixth Circuit Court of Appeals, so it’s worth taking a look at her credentials.

Since 2015, Justice Larsen has served as a justice on Michigan’s Supreme Court. At the time she submitted her responses to the Questionnaire for Judicial Nominees, Justice Larsen estimated that the Michigan Supreme Court had resolved by dispositive order or opinion 90 civil cases and 360 criminal cases. In addition, Justice Larsen has been working since 2003 for the University of Michigan Law School as a lecturer and adjunct professor, where her teachings have focused on constitutional law and criminal procedure.

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Split Panel of the Sixth Circuit Holds that Written Policy Trumps Company’s Actual Practices

In Stein v. hhgregg, a split panel of the Sixth Circuit held that a written policy would trump the company’s actual practices. hhGregg employs retail sales employees that are paid under a “draw-on-commission policy.” Under that policy, sales employees are paid on the basis of commissions only. If after dividing the employee’s weekly commission by the number of hours worked, the quotient fails to equate to the federal hourly minimum wage, the employee is paid a draw from his or her future earnings equaling the difference. Employees are expected to repay the draws based on future commissions earned. At the time the plaintiffs filed their amended complaint, hhGregg’s written policy stated that “[u]pon termination of employment, the [employee] will immediately pay the Company any unpaid Deficit amounts.”

The plaintiffs, one former and one current hhGregg employee, brought a collective action on behalf of themselves and other similarly situated current and former employees, alleging violations of the Fair Labor Standards Act (“FLSA”) and state law. In one of the claims, the plaintiffs alleged that hhGregg’s written policy requiring repayment upon termination violated the FLSA. The district court dismissed all of the federal claims under Fed. R. Civ. P. 12(b)(6) and declined to exercise supplemental jurisdiction over the state law claims.

On appeal, the majority reversed. Regarding the post-termination liability claim, the majority recognized that at oral argument defense counsel represented that the “defendants have not collected and will not in the future collect any debts from any employee upon termination, and that this language is no longer in the policy.” The majority, however, stated that it was “focus[ing]” on the written policy rather than its implementation, because employees could reasonably believe that they remain liable to hhGregg for the unearned draws.

Judge Sutton dissented in part, stating that he would have affirmed the dismissal of the post-termination liability claim. In doing so, he implicitly recognized the potential impact that an oral argument can have on an appeal, honing in on defense counsel’s declarations made during the argument.

Flint Water Crisis Litigation Flows On

While the headlines from the Flint water crisis have all but subsided, two consolidated putative class actions arising from the crisis gained new life over the summer as a result of the Sixth Circuit’s ruling in Boler v. Earley. The Boler decision examined whether two groups of plaintiffs’ constitutional claims were preempted by the federal Safe Drinking Water Act (SDWA).  On behalf of Flint residents and water users, Plaintiffs alleged race and wealth- based discrimination, state-created danger, racially-motivated conspiracy, due process violations, and various contract, tort, and equitable claims arising out of the crisis.  Overruling the district court, the Sixth Circuit concluded that preemption did not apply and allowed the Section 1983 and 1985 claims to go forward against various Michigan government entities.

The Sixth Circuit found that the SDWA did not meet the three elements necessary to find preemption of claims premised on constitutional violations. First, there was no clear legislative intent by Congress to preclude Section 1983 claims under the act. Second, the remedial scheme under the SDWA was not so broad to fully redress the harms allegedly suffered by the plaintiffs. Lastly, in comparing the rights protected by Sections 1983 and 1985 against those by the SDWA, the court found that a violation of the former would not necessarily be synonymous with a violation of the latter.

The court did not, of course, reach the merits of plaintiffs’, which were remanded back to the district court for further proceedings.  The litigation is starting up again this month in the Eastern District of Michigan following the recent denial of the defendants’ en banc petition. Though it allowed most plaintiffs’ claims to go forward, the Sixth Circuit dismissed some of the claims against the State of Michigan, Governor Snyder, and two Michigan government departments. The Eleventh Amendment, according to the court, provided these defendants with sovereign immunity, which protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court.

This is not the Sixth Circuit’s first encounter with the fallout from the Flint water crisis.  As we previously covered, in ­­­­­­Mason v. Lockwood, Andrews & Neuman, the appellate court remanded a putative class action of Flint residents and property owners back to state court for lack of federal jurisdiction.  The plaintiffs sought Supreme Court review, which was denied in June.  We will continue to track the ongoing litigation produced by the Flint water controversy.

Progress on Sixth Circuit Vacancies

As we’ve previously noted, the Sixth Circuit currently has two vacancies, and will soon have a third, as Judge McKeague has already announced his plans to take senior status.

Judge Amul Thapar of the Eastern District of Kentucky has already been nominated to fill the vacancy created by Judge Martin’s retirement in 2013, and his April 26 confirmation hearing went smoothly.  Prior to serving on the district court, Judge Thapar had been the U.S. Attorney for the Eastern District of Kentucky.

According to the New York Times, the nominations of John K. Bush and Justice Joan L. Larsen to the Sixth Circuit will be announced today.

Justice Larsen was named to the Michigan Supreme Court in 2015.  Previously, she was a professor at the University of Michigan Law School, and prior to that, a deputy assistant attorney general in the DOJ Office of Legal Counsel.   She also has clerked for Judge Sentelle on the D.C. Circuit and then Justice Scalia on the Supreme Court.

John K. Bush is currently a litigation partner at Bingham Greenebaum Doll LLP in Louisville, Kentucky.  He practices in the areas of antitrust, securities, financial institutions, insurance, intellectual property, and products liability.  He is the President of the Louisville chapter of the Federalist Society and previously clerked for Judge J. Smith Henley on the Eighth Circuit.

According to “Above the Law,” Judge Allison Jones of the Kentucky Court of Appeals is also a potential candidate for nomination to the Sixth Circuit.  Judge Jones was appointed to her current seat in 2013.  Previously, she had been an administrative law judge in Kentucky (handling workers’ compensation claims), a staff attorney for the Western District of Kentucky, a law clerk to Judge John G. Heyburn II of the Western District of Kentucky, and a litigator at Stites & Harbison PLLC, the oldest law firm in Kentucky.