The Learned Sixth: “Another Giant Tortoise”

And now for something completely different.

If you’re traveling for the Fourth of July, consider a law-related podcast for the road: Malcolm Gladwell’s two-part treatment of the LSAT. Puzzle Rush and The Tortoise and the Hare kick off season 4 of Revisionist History. A decidedly non-lawyer friend recommended these episodes, which contain some great nuggets for aspiring and veteran lawyers alike.

The (Learned) Sixth Circuit hook? One of Gladwell’s protagonists is Judge Jeff Sutton, described in the podcast by Justice Scalia as one of his best clerks. And described by Gladwell as a “Giant Tortoise.” Happy listening, and happy Fourth!

June Wrap-Up: Opioid non-disclosure and Obamacare non-discrimination

The Sixth Circuit wrapped up June with two weeks of oral arguments, some of which we’ll feature later this week. And the Circuit got a pat on the back from the Supreme Court, which affirmed its decision striking down a Tennessee liquor law under the “dormant” Commerce Clause. (Stay tuned for more on the Circuit’s October Term 2018 performance, as well.)

For the month overall, the court heard 48 oral arguments, published 28 opinions, and issued 54 unpublished opinions. Here’s June in review:

Opioid data: Public or protected? An Ohio opioid MDL has attracted national media attention for its handling of lawsuits against drug manufacturers, distributors, and pharmacies by 1,300 cities, counties, tribes, and other public entities. For use in the litigation, the plaintiffs obtained years of data from the DEA’s “ARCOS” database. But—the plaintiffs being public outfits subject to state open-records laws—media companies sought the underlying data regarding buyers, doses, and much more. The district court initially had allowed this information to be filed under seal. When challenged, it agreed with the DEA that good cause existed to protect the confidential business and law-enforcement information in all present or future public records requests.

In HD Media v. DEA, the Washington Post and a West Virginia newspaper publisher (whose paper won a Pulitzer for its opioid reporting) prevailed in a divided interlocutory decision under the collateral-order doctrine. Judge Clay’s opinion, joined by Judge Griffin, held that the district court had abused its discretion in categorically denying public records requests for pharmaceutical companies’ sales data. “[S]pecific transactional data,” the court held, “has proved extremely effective and consequential in calling attention to the horrors of the opioid crisis.” On remand, the district court may consider whether “particular pieces of ARCOS data that relate to specific ongoing investigations should not be disclosed,” but may not enter a “blanket, wholesale ban.”

Judge Guy issued a separate concurrence and partial dissent. Noting the newspapers declined to file a FOIA suit directly against DEA, Judge Guy would have enforced the protective order that allowed plaintiffs access to DEA’s data—for litigation, but not for further disclosure.

Executive functioning — In Dennis v. Warden, a unanimous panel (Sutton writing; Rogers and Readler joining) held that a President’s commutation of a sentence “does not create a new executive judgment that fully replaces the judicial judgment.”

The question arose when President Obama commuted Quincy Dennis’ life sentence for various drug offenses to 30 years. Dennis filed a habeas petition arguing that he should have faced only 20 years. But the district court held that it had no authority to question the commuted sentence because it constituted an executive judgment. The Sixth Circuit, considering Dennis’ pro se appeal, disagreed: rendering a judgment is a judicial function, while carrying it into effect is an executive function. Thus the President’s commutation of the sentence had no effect on the court’s jurisdiction to hear Dennis’ appeal. Yet after all that, the panel denied the habeas petition on the merits.

Obamacare non-discrimination – Doe wanted to pick up his HIV meds at his local out-of-network pharmacy. But his insurance plan required him to receive the high-cost drugs through the mail or at a specialty pharmacy. He sued BlueCross BlueShield of Tennessee for discriminating against him on the basis of disability. In Doe v. BlueCross BlueShield of Tennessee, a unanimous panel (Sutton again writing; Guy and Nalbandian joining) determined that the Affordable Care Act’s incorporation of § 504’s non-discrimination provision under the Rehabilitation Act does not prohibit disparate-impact discrimination. It bars discrimination “solely by reason of her or his disability,” and therefore does not cover actions taken for nondiscriminatory reasons, no matter how disparate their impact.

En Banc Watch – New Decisions on Probable Cause and Sentencing Commission Authority

Good Faith and Probable Cause: In another en banc decision, Judge John Rogers and eleven others held in United States v. Christian,that probable cause existed for Grand Rapids law enforcement to search the house of Tyrone Christian. As the affidavit detailed Christian’s four previous felony drug convictions, two previous drug busts at his house, and a confidential informant’s tip that Christian was selling again, the question of probable cause was “really not even close” for the full court’s majority.

But Judge Amul Thapar—joined by Judges Nalbandian, Murphy and Readler—concurred. “[A]t the very least, the officers executed that search in good faith.” The concurrence took aim at the Sixth Circuit precedent of United States v. Laughton, which restricts “good-faith arguments . . . to the language of the affidavit.” This is too restrictive: because the Fourth Amendment protects people from police misconduct, the good-faith inquiry should also focus on police misconduct, considering “all of the circumstances,” not just the four corners of the affidavit. Thus, Judge Thapar argued overruling Laughton would better align the Sixth Circuit with Supreme Court precedent.

Judge Ronald Gilman, joined by five others, dissented. As the affidavit relied on an otherwise unrelated drug-possession arrest near Christian’s house, the majority’s approach “significantly lower[ed] the burden for the government to show probable cause in areas where drugs are prevalent.”

Sentencing Guidelines commentary: With the full force of an en banc, per curiam opinion, the Sixth Circuit held in United States v. Havis, that the commentary to the Sentencing Commission Guidelines is off-limits for establishing independent forms of criminal liability.

The Commission is tasked with issuing the Guidelines, which impose some limits on a sentencing court’s discretion. Judges can deviate, but not by much. Unlike the Guidelines themselves, however, commentary to the Guidelines never passes through congressional review or notice and comment. The commentary lacks any independent legal force. In other words, it is not the law.

One feature of the Guidelines is that they provide for sentencing enhancements based on criminal history.  In this case, a sentencing judge used the commentary to the Guidelines to increase the defendant’s sentencing level based on an attempt crime–over doubling the defendant’s sentence.

The text of the Guidelines themselves, however, says nothing about attempt crimes.  With no term in the Guidelines to bear the Commission’s construction, the en banc Sixth Circuit held that the Commission lacked the power to add an offense and was entitled to no deference for this use of the commentary. Were it otherwise, said the Court, “the institutional constraints that make the Guidelines constitutional in the first place—congressional review and notice and comment— would lose their meaning.”

Late May Wrap-up: Another First Opinion, Another En Banc, Another Cert Grant

Note — This post (plus many others) arrives thanks to the hard work of Sixth Circuit Appellate Blog intern extraordinaire Barrett Block, a rising 3L at UK Law. 

Murphy’s (first) Law — Jurisdiction is often the first topic encountered by law students; fittingly, Judge Eric Murphy confronted it in his first published opinion as a Sixth Circuit judge–In re Capital Contracting Company. Judges Sutton and Moore joined to make the decision unanimous.

“Explaining that ‘jurisdiction’ ‘is a word of many, too many, meanings,’” the court determined that a party appealing from a bankruptcy court judgment must satisfy Article III standing requirements. It’s not sufficient for “’concerned bystanders’” to vindicate ‘value interests.’” Instead, a party must demonstrate a specific, concrete, and real injury stemming from the invasion of a legally protected interest. Here, because the debtor’s failure to list an asset on a trustee’s final report would not have provided the creditor-appellant with “one more cent,” the court affirmed the district court’s dismissal.

Cert Watch: Bankruptcy Finality –The Supreme Court granted a petition for certiorari to review the Sixth Circuit’s dismissal of a bankruptcy appeal in Ritzen Group Inc. v. Jackson Masonry LLC (Thapar writing; Sutton & McKeague joining). Doing so promises to resolve a split among the circuits regarding whether an order denying relief from the automatic stay, after a Chapter 11 filing, is appealable. Courts disagree on whether an order denying relief from stay is “final.” The Sixth Circuit (and several others) follow a “blanket rule” that such orders are always appealable.

Tax-shelter guidance: unchallengeable — In CIC Services LLC v. Internal Revenue Service, Judge Clay, joined by Judge Suhrheinrich, held that the Anti-Injunction Act bars CIC Services from challenging IRS guidance that categorizes some in-house insurance companies as tax shelters, which must be disclosed.

Judge Nalbandian dissented, emphasizing the practical realities of the case. Without the opportunity to contest the guidance, a company unsure of its internal unit’s tax-shelter status can choose to report and ruin its reputation, or else risk coughing up $50,000 for each unreported transaction with that internal unit. In other words, a choice between “risk[ing] financial ruin and criminal prosecution.”

En banc watch –A short, unanimous, per curiam, en banc decision in United States v. Williams held that the en banc Sixth Circuit had already held in United States v. Burris that Ohio Revised Code §§ 2903.11 and 2923.02 (felonious assault) no longer qualified as a violent felony predicate under the Supreme Court’s (firstJohnson decision.

The most (only?) noteworthy aspect of the full court’s decision was the solo concurrence it drew from Judge John Rogers—regarding the stare decisis effect of separate opinions in prior en banc rulings. That’s a mouthful, and a topic only a fed-courts purist could love. According to the concurrence, the per curiam improperly characterized the court’s Burris precedent as having overturned binding precedent. But that portion of Burris, he explained, was mere dicta–and a patchwork of dicta at that. Yet it all came out in the wash for Judge Rogers: because the court was sitting en banc, it was free to directly overturn (once and for all) the law of the circuit.

En Banc Watch: Fight Over Substantive Due Process Sees Court Refuse to Rehear Flint Water Case

The Sixth Circuit denied Flint, Michigan’s petition for en banc review of a panel decision allowing citizens exposed to contaminated water to sue city and state officials. The order drew two concurrences, one dissent, and plenty of skepticism about the plaintiffs’ case—which is nevertheless allowed to proceed in the district court.

The plaintiffs’ theory is that city and state officials either ham-fistedly or intentionally (the distinction is important) poisoned Flint’s water supply—in violation of the Due Process Clause of the Fourteenth Amendment. In January, a partially divided Sixth Circuit panel (Griffin, White; McKeague dissenting in part) held the case—Guertin v. Michigan—could go forward, despite the officials’ assertion of qualified immunity.

The full court voted against rehearing en banc, sending the case down in accordance with the panel opinion. But not before three separate opinions offered full-throated arguments about the difficulty plaintiffs will have proving their case, the perils of “substantive” due process claims, and the wisdom of the appellate court’s intervention at this stage of the proceedings.

Judge Gibbons, joined by Judge Stranch, concurred. Evaluating a constitutional violation so early in the case, they contended, outstripped the court’s mandate. “Our job is, and only is, to determine whether any possible allegation plausibly states a claim under which relief can be granted. To decide any other issue would be judicial overreach . . . an advisory opinion.”

Judge Sutton, joined by Judge Bush, also concurred—though more skeptically. “Carefully tailored and prompt discovery should answer whether the intentional and reckless poisoning allegations hold up.” But the concurrence ticked through no fewer than five reasons for caution. The law does “not lightly allow citizens to tap private pockets or the public treasury” by suing publicly selected officials. This is especially true for claims of substantive due process, which lies at “the outer edges of judicial competence.”

The shock-the-conscience test for violations of bodily integrity exists “to restrain judges, not empower them; to remove claims from the constitutional arena, not to expand nebulous notions of substantive due process.” As one might expect from a foremost advocate of state constitutional law, Judge Sutton also noted the plaintiffs’ pursuit of parallel relief in state court under the state due process clause—a path that might avoid some of the federalism and separation-of-powers hazards concerning many at the Sixth Circuit.

The dissent, penned by Judge Kethledge and joined by four more, took a “crowbar” to the complaint. Specifically its reliance on qualified immunity, substantive due process, and the “bodily integrity” theory of liability. “Just as crowbars are not made out of tin, substantive due process’s easy malleability makes it a notably poor instrument for prying away an officer’s qualified immunity.” The majority’s denial of immunity was “barely colorable” according to Kethledge and four of the court’s newest judges (Thapar, Larsen, Nalbandian, and Murphy; Readler recused).

The “right to bodily integrity,” the dissent continued, is too “shapeless” and “unknowable” for a reasonable official to know “that his conduct would violate” it. And no constitutional violation can follow from a complaint sounding in negligence. (“Defendants violated Plaintiffs’ rights to bodily integrity” by failing “to protect Plaintiffs from a foreseeable risk of harm.”) Otherwise, Judge Kethledge surmised, a putative right to be free of unwanted substances would be violated “every time that virtually any of us takes a breath.” But for now, at least, the plaintiffs likely will have a chance to prove a constitutional violation in the district court.

Last Week at the 6th Circuit: Substantive unreasonableness, maiden voyages, and railroaded state law

No arguments at the court last week, but we received 13 published opinions and 9 unpublished opinions. Plus, as we’ll discuss later this week, one white-hot denial from en banc review that produced four separate opinions. Here’s what you may have missed:

A substantively unreasonable sentence – A divided Sixth Circuit panel vacated the sentence of Davian Warren as substantively unreasonable(!) in United States v. Warren. That doesn’t happen every day. Though Warren, the government, and the Guidelines all agreed that a 51-to-63-month sentence was appropriate, the district court imposed the statutory maximum of 120 months’ imprisonment, relying heavily on Warren’s extensive criminal history.

Chief Judge Guy Cole, joined by Judge Bernice Donald, reasoned in this unpublished opinion that the sentencing guidelines already considered Warren’s criminal history. Effectively double-counting that factor could not “justify such a stark departure from the guidelines. Judge Batchelder dissented, emphasizing Warren’s “stunning eleven felony convictions over nine years,” making the upward departure “necessary to protect the public.”

A not substantively unreasonable sentence – As Warren shows, a sentence can be unreasonably long. But, if a sentence is at the bottom of the proposed Sentencing Guidelines range, it is (presumptively) not unreasonable. As brand-new Judge Chad Readler wrote in United States v. Muchow, only if the district court acted in an “arbitrary manner, considered impermissible factors, or assigned unreasonable weight to a permissible factor” can a sentence be considered unreasonable. Otherwise, a sentence within the Guidelines (such as this child-porn sentence of 21+ years for a single count) is presumptively reasonable. This concise affirmance, joined by Chief Judge Cole and Judge Stranch, serves as Judge Readler’s introduction to the F.3d—his first published opinion.

And who doesn’t love a good railroad case? City councils and subsidiaritans, that’s who.

In 1966, the city of Sebree, Kentucky enacted an ordinance requiring CSX’s predecessor to obtain approval before undertaking maintenance or construction that would change the grade of the city’s railroad crossings. On Tuesday, however, a unanimous panel in CSX Transportation v. Sebree held the ordinance was void and preempted by federal law.

Because the ordinance would force CSX “to utilize a maintenance method that is no longer safe”—removing rather than replacing fouled ballast from underneath the tracks—Judges Cole, Batchelder, and Donald held the law was void as against public policy. The federal Termination Act, moreover, grants the Surface Transportation Board exclusive jurisdiction over the construction and operation of railroads. Because the scope of the Termination Act’s preemption provision broadly applies to any state law “managing or governing rail transportation,” the ordinance fell for this second reason as well.

Sixth Circuit Vacates Convictions Due to “Flagrant Misconduct” by Prosecutor

On Wednesday, the Sixth Circuit vacated the convictions of two defendants charged with possession with intent to distribute methamphetamine.  Although there was sufficient evidence to support their convictions, the Court held—on plain error review—that certain “remarks made by the prosecutor rose to the level of flagrant misconduct and deprived [defendants] of a fair trial.”

Writing for the panel, Judge John K. Bush identified nine improper and prejudicial remarks made by the prosecutor.  Three of those statements constituted improper vouching or bolstering of government witnesses (e.g., asserting a detective was “a fine young man” who “testified very well, he understood and remembered everything he did”).  An additional three statements constituted improper attacks on the credibility of defense witnesses (e.g., asserting a key defense witnesses was “a proven liar” who was “lying” from the stand).

The final three statements were perhaps the most interesting.  During a search of defendants’ home, police found “a shrine to a statue of Jesus Malverde,” who is apparently the patron saint of marijuana dealers.  The prosecutor repeatedly referenced this statue at trial, describing it as an “idol” worshipped by “drug traffickers” and asking whether defendant “prayed” to the idol for protection from police.  The prosecutor also asked the defendant whether he understood, as “a Catholic believer,” “that there is a Commandment that says thou shall not have any god before me.”  The prosecutor referenced the same drug “deity” and Commandment during closing argument.

These comments were plainly improper, Judge Bush explained, because they were “utterly irrelevant” to the question of guilt and appeared intended to arouse the passions and prejudices of the jury.  The Court could find “no nonprejudicial explanation” for the prosecutor’s references to the Ten Commandments.  And to the extent the prosecutor offered such statements to impeach defendant’s credibility, Federal Rule of Evidence 610 specifically prohibited such attacks.  (“Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.”)

Defense counsel had not objected to any of the improper remarks at trial, but the Court held they were sufficiently “flagrant” to constitute plain error.  Judge Kethledge and Judge White joined Judge Bush’s opinion.  In a separate concurrence, Judge White (joined by Judge Kethledge) explained that in her view, “the prosecutor’s questions and argument regarding [defendant’s] religious practices and beliefs necessitate reversal in and of themselves.”

Trial lawyers throughout the Sixth Circuit should be aware of this decision, which (as Judge Bush noted) illustrates the difference between a prosecutor striking “hard blows” and “foul ones.”  The case is United States v. Acosta, available here.

Squire Patton Boggs’ new appellate co-chairs

We are pleased to announce that Squire Patton Boggs’ appellate practice group has two new co-chairs:  Benjamin Beaton and Lauren Kuley.  Lauren and Ben have deep experience with winning big appeals and critical motions in courts around the country.  They follow Pierre Bergeron who, our readers know, is now a judge on the Ohio First District Court of Appeals.  You can read our official press release after the jump.  Thanks for reading the Sixth Circuit Appellate Blog – and please keep in touch!

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Last week at the Sixth Circuit: Suspended licenses, (Dis)honor Codes, and Re-redistricting

Showing no signs of a Kentucky Derby hangover (or any follow-on litigation, at least not yet), last week the court wrapped up arguments during the second half of its May sitting. Your quick recap:

A rational basis for suspended licenses – In a blow to con-law professors and indigent drivers, a divided panel held in Fowler v. Benson that Michigan may suspend drivers licenses for unpaid fines. The trial court had granted a class of low-income Michiganders an injunction barring the state from suspending licenses without providing an “ability to pay” hearing and alternative payment plans.

Judge Alice Batchelder’s opinion, joined by Judge Amul Thapar, rejected the notion that state law recognizes a property interest in an indigency hearing. The majority held that Michigan’s policy, by incentivizing payment, survives “rational-basis review” (a notoriously low hurdle) under the Due Process Clause.

Judge Bernice Donald, in full-throated dissent (“I dissent!”), distinguished the “protected property interest in the continued possession of a driver’s license” from the procedures offered to protect that interest. Her opinion also questioned the “likel[ihood] that Michigan will recover [its] costs”—asking how those too poor to pay could drive to work on a suspended license and earn the money they owed.

Largely unmentioned, but hovering over these dueling Due Process opinions, is the Supreme Court’s decision decades ago—in San Antonio Independent School District v. Rodriguez (1973)—that wealth is not a suspect classification triggering strict scrutiny under the Equal Protection Clause.

Cat’s paw liability under Title IX – On Thursday, a Sixth Circuit panel heard oral argument in Bose v. Bea, a Title IX appeal arising from a Rhodes College student’s expulsion for an honor code violation

The student alleges she declined the sexual advances of a professor, who then retaliated by framing her for cheating on a quiz. The Rhodes College Honor Council expelled the student, and she sued for sex discrimination under Title IX.

On summary judgment, the district court held that respondeat superior and constructive notice could not link a professor’s discriminatory motive to the college’s adverse action. Judges Eugene Siler, Joan Larsen, and John Nalbandian will now decide whether and how the “cat’s paw theory” (and Tennessee’s judicial-privilege rule) apply to private disciplinary proceedings. This marks a return to Title IX for the court, which last year held in a closely watched decision that a right to cross-examination applies in university disciplinary hearings.

Who decides the district lines? The next partisan gerrymandering fight is on its way from the Southern District of Ohio to the Supreme Court. On May 3rd, a three-judge panel unanimously held that Ohio’s congressional district map is an unconstitutional partisan gerrymander. The court held that the map—which splits 23 counties and 73 cities—“sacrifices traditional redistricting principles in order to maximize pro-Republican partisan advantage.”

The panel, which included Circuit Judge Karen Nelson Moore and District Judges Black and Watson, ordered the Ohio General Assembly to draw a new map by June 14th. But Ohio Attorney General Dave Yost has filed a direct appeal (not a cert petition; Supreme Court review is mandatory) with the U.S. Supreme Court. Ohio’s request to stay the redistricting deadline is awaiting a response.

Earlier this term, the Supreme Court heard argument in related gerrymandering cases from North Carolina and Maryland. The Supreme Court should render a decision in these cases before July. Though just last year it managed to back away—twice—from Justice Frankfurter’s “political thicket,” by avoiding a substantive decision in two argued cases challenging Wisconsin and Maryland maps.

Before Justice Kavanaugh’s arrival, his former boss had written “[t]hat a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future.” Rather oracular, and totally vexing for those drawing map lines and practicing political law. Ohio and the plaintiffs soon should (might?) learn whether partisan-gerrymandering claims are justiciable. And if so—which is a very big “if”—how partisan is too partisan under the Constitution.

Trends in the Sixth Circuit – Time to a Decision

“How long will my appeal take?”  A question clients always ask and lawyers often resist (and which always depend heavily on the individual facts of the case).  But the data also shows that the average has continued to decline in the Sixth Circuit.  In 2011, the average Sixth Circuit appeal took 15.5 months from the notice of appeal to the final decision.  Under the leadership of Sixth Circuit Clerk Deborah Hunt and Chief Judges Batchelder and Cole, the Circuit made a concerted effort to reduce the time it takes to decide an appeal.  The circuit now decides the average case in just 7.4 months—less than half the time it took in 2011.  Here’s a chart showing the changes over time:

For many years, the circuit was tied with the Ninth Circuit as the slowest circuit to move cases along and render its decisions.  Every circuit has made changes to improve the speed of their decisions over the past ten years—the circuits have, on average, sped up decisions about three months.  But while the current laggard is the First Circuit, at 13.4 months, the Sixth Circuit at 7.4 months has dramatically improved its position and is now the third-fastest circuit.

This increase in speed is undoubtedly a positive development.  Individuals who seek relief or repose, businesses that depend on certainty, prisoners waiting to hear their fate or freedom—everyone benefits when the wheels of justice grind a little faster.  That’s especially so when (as our experience suggests is the case in the Sixth Circuit) courts manage to increase speed without sacrificing accuracy and while increasing transparency.  Statistics we discussed recently on this blog suggest that the circuit’s faster pace has not diminished the number of written decisions or rate of reversal.