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.

The Sixth Circuit heard oral argument in the case on April 7, 2022, and just five days later the Court issued a decision staying the District Court’s injunction.  Chief Judge Sutton wrote the opinion for the Court, which Judge Moore and Judge Cole joined.  Judge Sutton also took the unusual step of writing a concurring opinion in addition to his majority opinion addressing the issue of nationwide injunctions.

The Court’s majority opinion tackled both justiciability and the merits of the States’ challenge.  On both fronts, the Court thought the feds were likely to succeed in their appeal of the District Court’s injunction.  On constitutional standing, the Court deemed the States’ asserted injuries too speculative.  The Court noted the Guidance does not directly injure the States.  Indeed, the Court thought the Guidance could possibly decrease burdens on the States.  The States also had a causation problem.  The Court reasoned most of the fall in immigration enforcement is attributable to prosecutorial discretion at the front end when immigration agents and law enforcement decide whom to arrest and whom not to — not the back end when detention and removal decisions are made.  The States also argued that Massachusetts v. EPA, 549 U.S 497 (2007) relaxed the Constitution’s standing requirements for States — to no avail.  While the Court acknowledged that the States had “more theories of injury available to them” under Massachusetts v. EPA, that did not “allow them to bypass proof of injury in particular or Article III in general.”

The Court also doubted the reviewability of the Department’s Guidance under the APA.  It was not clear that the Guidance constituted an action “by which rights or obligations have been determined, or from which legal consequences will flow.”  An important clue in that regard was the conditional language of the Guidance, which preserves much official discretion.

The States’ challenge fared no better on the merits.  The Court shot down each statutory basis the States cited in support of their claims.  The States argued that while federal law “requires” the Department “to arrest and remove certain aliens,” the Guidance lets immigration officers do so only after they “determine that arrest or removal is justified by a set of extra-statutory factors.”   But the Court thought it unlikely that such mandatory language displaced the Department’s longstanding discretion in enforcing “the many moving parts of the nation’s immigration laws.”  The States’ arguments based on arbitrary-or-capricious review and notice-and-comment largely met the same fate.  At day’s end, whether because of justiciability or merits defects, the Court concluded the Department was entitled to a stay.

Especially interesting was Chief Judge Sutton’s separate concurrence on the issue of nationwide injunctions.  Judge Sutton added his voice to a growing chorus of detractors who have expressed concern over such injunctions in recent years.  According to Judge Sutton, nationwide injunctions “seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case.” In the process, Judge Sutton reasons, they encroach on the rules governing class actions, and they create practical problems by incentivizing forum shopping and short-circuiting judicial decisionmaking.  Agree or disagree with him, Judge Sutton’s concurrence is well worth a read.  It is a helpful primer that canvasses the leading critiques of this peculiar remedy while making its own unique contribution to the debate.

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.

Long story short, the new Health Secretary (appointed by the new Governor) decided not to petition for rehearing en banc or petition for a writ of certiorari.  That’s when Attorney General Cameron tried to intervene, which the new Health Secretary did not oppose, and tender a petition for re-hearing en banc within the 14-day deadline.  Cameron never got to file the brief.  The panel, over another dissent by Judge Bush, denied Cameron’s motion to intervene and dismissed his petition for re-hearing en banc.  Last week, the Supreme Court disagreed and held that the Sixth Circuit should have allowed Cameron to intervene, handing the relatively new Kentucky Solicitor General’s Office a win in its debut Supreme Court argument.

What happens next procedurally is a little unclear, and substantively, things are even murkier.  The Supreme Court’s mandate will issue twenty-five days after its decision.  That means the mandate will issue on March 28, 2022.  But will Cameron have to file another motion to intervene?  Or will he automatically be added as a party?  Will he have to file another petition for rehearing en banc (if he so desires)?  Or will the Sixth Circuit simply file the brief he tendered almost two years ago?  No Sixth Circuit rules speak directly to these mundane procedural questions, but it’s safe to assume the Sixth Circuit will answer them in due time.

A more important procedural question is:  which judge will replace Judge Merritt on the panel?  (We still miss Judge Merritt).  And here’s where procedure and substance begin to blend.  It’s not hard to imagine that a different judge will have a different view of the merits, which occurs in the perennially fraught context of abortion jurisprudence.  If that happens, the new panel might agree to reconsider the old panel’s decision before the Sixth Circuit even gets a chance to take the case en banc.

Moving more directly into substance, there’s also the question of how changes in the legal landscape affect any reconsideration of the case’s merits.  A lot has happened in the Supreme Court’s and the Sixth Circuit’s caselaw since the original Cameron panel issued its decision on the merits.  Since that time, the Supreme Court decided June Medical, invalidating an abortion law.  Chief Justice Roberts cast the deciding vote against the law in that case, while arguably creating a more-difficult standard for abortion plaintiffs going forward.  The Sixth Circuit, sitting en banc, then decided Preterm-Cleveland v. McCloud, where it upheld an Ohio abortion law and conclusively decided that Chief Justice Roberts’s June Medical concurrence controlled the analysis.  A few months later, the Sixth Circuit issued another en banc decision upholding an abortion law – this one from Tennessee.  And a few months after that, the Sixth Circuit announced it would rehear a case en banc about another Tennessee abortion law.  The en banc court recently stayed an injunction that the district court had granted against the law’s enforcement in that case.  Meanwhile, the country awaits a decision in Dobbs v. Jackson Women’s Health Org., which could be the case in which the Supreme Court overturns Roe v. Wade.  Given that last prospect, perhaps the most likely outcome for now is that Cameron is held pending Dobbs.  In any event, whatever Cameron’s ultimate fate, the Supreme Court’s decision last week means the case lives to see another day.

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.

Judge McFarland, sitting in the Southern District of Ohio, had the first bite at the apple.  In his thorough opinion, Judge McFarland provided a helpful explanation of how the bifurcated Lusardi process typically works. First, conditional certification “takes place at the beginning of discovery” and, in this stage, “plaintiffs need only make a modest factual showing that they are similarly situated to the proposed class of employees.” This standard is “fairly lenient and usually results in conditional certification of a representative class.”  Once a conditional class is certified, plaintiffs “may send opt-in notices to current and former employees who potentially satisfy the definition of the collective.”  In the second stage, after discovery concludes, courts examine the conditional class more closely and employ stricter standards beyond “simple allegations and affidavits to demonstrate similarity.”

Defendants asked Judge McFarland to join the Fifth Circuit in abandoning Lusardi. In Swales v. KLLM Transport Services, L.L.C. 985 F.3d 430 (5th Cir. 2021), Judge Willet applied a thoroughly textualist reading of the FLSA, noting that “‘certification,’ much less ‘conditional certification,’ appears nowhere in FLSA.”  According to Judge Willet, the FLSA commands district courts to (1) only allow “similarly situated” individuals to opt-in to collective litigations and (2) not signal approval on the merits in facilitating collective litigation.  In Judge Willet’s view, Lusardi flouts the plain text of the FLSA in modifying those two conditions.  Moreover, Judge Willet reasons, “similarly situated” is a rigorous standard.  Judge Willet faults Lusardi for construing “similarly situated” as a lenient standard at the conditional certification stage.

Judge McFarland declined Defendants request to abandon Lusardi.  As Judge McFarland noted, the Sixth Circuit, “it is true, does not appear to have expressly adopted Lusardi, although the Circuit has acknowledged that district courts use the bifurcated certification framework.” And, Judge McFarland continued, “the circuit has recognized that the evidentiary standard at the conditional stage is fairly lenient.” (quotation marks omitted). Because “this district routinely appl[ies] the two-step process in FLSA cases[,]” Judge McFarland concluded his hands were tied.  “[A]bsent contrary direction from the Sixth Circuit,” Judge McFarland agreed to “follow the two-step process.”

Critically, however, because “Defendants’ challenge of two-step certification raise[d] issues that merit[ed] the Sixth Circuit’s attention,”  Judge McFarland certified the case for “immediate review under 28 U.S.C. 1292(b).”  1292(b) grants appellate courts discretion to hear an order certified for interlocutory appeal by the district court if three elements are met: “(1) the order involves a controlling question of law; (2) an immediate appeal may materially advance the ultimate conclusion of the litigation; and (3) a substantial difference of opinion exists regarding the correctness of the decision.”

In granting the interlocutory appeal, a Sixth Circuit motions panel (consisting of Chief Judge Sutton, Judge Griffin, and Judge Nalbandian) agreed with Judge McFarland “that the statutory factors support review of these issues,” and cited Judge McFarland’s analysis of Lusardi and Swales.  In so doing, the Sixth Circuit followed a familiar pattern of accepting interlocutory review of a decision that the district court certified as worthy of the Sixth Circuit’s immediate attention under 1292(b) (See here and here for posts where we have explored this practice in further depth).

The Sixth Circuit’s local rules do not say whether the judges on the motions panel will also serve on the merits panel.  But, in our experience, that is not the Sixth Circuit’s typical practice.  Generally, a merits panel consists of a different group of randomly selected judges.  In any event, whoever ultimately serves on the merits panel, it’s fair to say that Lusardi’s viability in the Sixth Circuit is in limbo pending a decision on the merits.

If the merits panel finds Judge Willet’s opinion persuasive, then plaintiffs will have to satisfy a higher standard in establishing a collective and obtaining discovery under the FLSA.  And regardless of what the Sixth Circuit decides, there seems significant potential here for a successful cert petition down the road.  As always, we will update you on any developments.

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.

The panel opinion focused its analysis on the States’ burden of showing irreparable harm.  The States claimed they would be irreparably harmed in three ways: (1) increased competition for funds from other grantees who were unable to compete for grants under the previous rule; (2) reputational injuries because they would not be able to provide the same level of service of care; and (3) being forced to place their imprimatur on abortion by making referrals to abortion providers.

The panel found that the first two alleged harms were speculative. There was no way to conclusively determine if the States would receive less money in the next round of funding. Moreover, it was unclear what impact, if any, the rule would have on the States’ quality of services.  Finally, the third alleged harm was “neither certain nor immediate.”  The panel declined to reach a conclusion on whether federal conscience statutes mitigated this harm.  Instead, the panel noted that, at the time of argument, “all state programs that apparently desire[d] Title X funds for this year . . . ha[d] already applied.”  Notably, the panel did not reach the States’ likelihood of success on the merits or rule out a future injunction.

Judge Larsen, concurring in the judgement, wrote separately to underscore that “the States have not shown that granting them temporary relief will cure their alleged harm.”  According to Judge Larsen, it was unclear whether competitors who had previously declined to apply for Title X grants before the rule would rescind their funding applications under the new rule if the rule was enjoined.  Without knowing who the States’ competitors were and how they would react to an injunction, there was no way to know whether an “injunction would cause the decrease in grant competition that the States desire.”

The panel’s decision follows on the heels of the en-banc court’s decision earlier this month to stay an injunction granted to abortion providers in Memphis Center for Reproductive Health.  Notably, Judges Bush and Larsen (who sat on the en banc court) did not join Judge Moore’s dissent from that decision, and thus presumably voted with the majority.

The divergent outcomes of the two decisions is a reminder that the judges of the Sixth Circuit approach each case on its own merits, regardless of whether it arises in the hot-button abortion context.

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.

Though he discusses each of the statutory factors under § 1292(b), practical issues predominated Judge Polster’s opinion, an analysis that is becoming increasingly common in the Sixth Circuit.  Judge Polster focused on the third statutory factor, which requires that the interlocutory appeal materially advance the litigation.  He held that even if the public nuisance claim were abrogated, the other claims would still proceed; that reversing the juror-misconduct issue will still require a new trial; and that plaintiffs’ claims could proceed regardless of the Controlled Substances Act.  All of this is to say that Judge Polster believed that an immediate appeal would only extend, and not shorten, the litigation (which defendants at times appeared to admit in their briefing).

Litigants hoping to secure an interlocutory appeal should keep these practical considerations, including those not expressly included in the § 1292(b) requirements, top of mind when briefing these issues.  Without a § 1292(b) certification from the district court, litigants cannot file an appeal with the court of appeals, and so effective briefing before the district court is imperative.

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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OSHA Announces Intent to Withdraw ETS

The saga of the OSHA ETS litigation has (nearly) come to an end.  Yesterday, the DOJ filed a motion in the Sixth Circuit to dismiss as moot all of the consolidated petitions challenging OSHA’s vaccine-or-test mandate.  The DOJ informed the Sixth Circuit that, “[a]fter evaluating the [Supreme] Court’s decision, OSHA decided to withdraw the Vaccination and Testing ETS as an enforceable emergency temporary standard.”  OSHA noted, however, that “it has left the proposed rule in place as part of a separate, ongoing rulemaking process that imposes no obligations and is not subject to challenge.”

OSHA’s decision to withdraw the ETS is not surprising.  As we noted in a previous post, although the Supreme Court technically only considered whether to temporarily stay the ETS, the reasoning of the Court’s decision effectively decided the merits.  A majority of the Court made clear that if OSHA were to have any chance at enforcing the ETS, Congress would need to clearly delegate OSHA that authority, and Congress had not done so in the OSH Act.  That legal flaw doomed the ETS absent congressional action.

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The Sixth Circuit Holds Argument on the Tax Mandate

Today, the Sixth Circuit will consider another governmental mandate–this one, a tax mandate–as it hears argument (by video) in a case that pits Ohio once more against the federal government.  The case is Ohio v. Yellen, No. 21-3787.  The panel consists of Judges Griffin, Donald, and Bush.  Argument is expected to start around 9:30.  You can find a link to a live audio stream of the argument here.

The origins of this case go back further than any of the vaccine-related mandates that have dominated headlines (including this Blog’s) for the past several weeks.  On March 11, 2021, President Biden signed into law the American Rescue Plan Act (“ARPA”).  Through ARPA, Congress committed to spending roughly $1.9 trillion to address the harms, including economic harms, that COVID-19 has caused.

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