Sixth Circuit Holds Due Process Guarantees Right To Access Literacy

A Sixth Circuit panel held last week, in Gary B. v. Whitmer, that the Fourteenth Amendment’s Due Process Clause guarantees a “right to access to literacy.” As a result, students in some of Detroit’s worst-performing public schools may pursue their claim for improved educational offerings—at least absent further appellate review.

The district court dismissed the students’ due process claim because “a basic minimum education is not a fundamental right.” The Sixth Circuit panel majority (Clay (op.), Stranch, JJ.) disagreed. Its 61-page opinion relied on the ubiquity of public education at the time of Fourteenth Amendment’s ratification, the historical overlap between racial discrimination and education policy, and the necessity of literacy to political participation.

The dissent (Murphy, J.) objected to the court’s encroachment on state policymaking prerogative. The 23-page response emphasized the Supreme Court’s rejection of similar right-to-education claims in the equal protection and due process caselaw, as well as the inherent tension between the negative restrictions of the due process clause and the positive claims of the plaintifs’ complaint.

Unquestionably, both opinions are—to use Judge Murphy’s description of the majority—”eloquent.” But they are at loggerheads on questions fundamental to the notion of due process.

  • Is the right to literacy “implicit in the concept of ordered liberty,” or “a mere proxy for a right to education, which has long been rejected as a fundamental right”?
  • Is a “compulsory attendance” policy applied to a failing school a type of “arbitrary detention” prohibited going “back to Magna Carta,” or a duty students can choose to satisfy in a number of venues (charter, private, “cyber,” and home schools, for example).
  • Is a “fundamental right” under the substantive aspect of the Due Process Clause one whose “evolution” courts “trac[e] … through or even beyond the history of our country” (citing Obergefell), or one measured at the time of the clause’s ratification or incorporation?
  • Did Supreme Court precedents denying prior constitutional assertions of educational rights (San Antonio v. Rodriguez, Plyler v. Doe, Papasan v. Allain) reserve or foreclose the question of a right to access to literacy?
  • How if at all did the Michigan Supreme Court’s rejection of a similar claim under its state constitution’s specific free-public-education clause affect the application of the U.S. Constitution’s generic due-process provision?
  • And can the Due Process Clause’s negative restriction of state “depriv[ation]” of “life, liberty, or property” support a positive right to a “subsidy” to “compel a minimum level of public services” (in the dissent’s view)?

The decision represents a huge victory for friend-of-the-blog Carter Phillips and, more importantly, the Detroit student plaintiffs. Yet this will not be the courts’ last word on the matter. The decision suggests little about the showing plaintiffs must make (or relief they could justify) on remand. And before plaintiffs may focus on those questions, they may have to fend off en banc or cert petitions that at least some judges or justices could find compelling.

Cert Watch: Supreme Court to review split Sixth Circuit FTCA decision on election-of-remedies

The Supreme Court recently granted certiorari in Brownback v. King, agreeing to review a split decision from the Sixth Circuit (then styled King v. US) involving the contours of the Federal Tort Claim Act’s judgment bar.  The Court’s decision should help resolve confusion regarding whether plaintiffs should add FTCA claims to their Bivens actions.

28 U.S.C. § 2676 provides that a judgment on an FTCA claim “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”

The Supreme Court recently interpreted the FTCA’s judgment bar: “once a plaintiff receives a judgment (favorable or not) in an FTCA suit, he generally cannot proceed with a suit against an individual employee based on the same underlying facts.”  Simmons v. Himmelreich, 136 S. Ct. 1843, 1847 (2016).  So Simmons would seem to suggest that an FTCA judgement, whether in the government’s favor or not, would bar a related claim against the individual employees.

But are all “judgments” created equal for FTCA judgment-bar purposes?  A Sixth Circuit panel (Clay opinion, Boggs join) didn’t think so.  In King, it held that judgments dismissing FTCA claims for lack of subject-matter jurisdiction don’t count as “judgments” for purposes of the FTCA’s judgment bar.  To reach that holding, the King court adopted a broad view of what qualifies as a dismissal for lack of subject-matter jurisdiction.

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Always. Check. Jurisdiction.

At the end of last month, the Sixth Circuit decided that two cases involving complex, multiparty litigation did not belong in federal court.

Boal v. DePuy Orthopaedics, Inc. involved twelve consolidated suits brought by foreign plaintiffs and ultimately dismissed by the district court on the basis of the forum non conveniens doctrine.  The plaintiffs, all citizens of either Spain or the United Kingdom, sued six corporate defendants, all based in the United States except one, which was incorporated in the United Kingdom and did most of its business there.

Although the suits were initially filed in 2012—in the Northern District of Ohio as part of an MDL involving faulty hip-replacement devices—the basis for the district court’s diversity jurisdiction was never called into question until the appeal.  Judge Murphy, writing for the unanimous panel, explained: “Before argument, we asked the parties whether the district court had diversity jurisdiction. The plaintiffs have since called this jurisdictional issue a ‘technicality,’ noting that ‘[t]his was the first time the issue of subject matter jurisdiction’ had been raised.” However, the court was quick to point out that “‘[m]uch more than legal niceties are at stake’ when courts exceed their jurisdiction.”  Indeed, “[i]n any case, large or small, the exercise of the ‘judicial Power’ by a court that has not been granted it ‘offends fundamental principles of separation of powers.’”

Through a series of hypotheticals reminiscent of 1L Civil Procedure, the court explained the intricacies of 28 U.S.C. § 1332, demonstrating why “complete” diversity was lacking on the facts of the case.  Furthermore, allowing the parties to amend their complaint would be inappropriate because the statement of jurisdiction was not merely defective-but-obvious; it was substantively lacking.

Accordingly, the court vacated the district court’s forum non conveniens ruling and remanded for further proceedings.  “For some 200 years it has been the rule that—no matter the time and resources spent—an appellate court must wipe out everything that has occurred if the lower court lacked jurisdiction.”  Nearly eight years after litigation began, the court said the outcome of this appeal should “serve as yet another reminder that it ‘behooves parties to be meticulous in jurisdictional matters.’”

The second jurisdictional decision from the same day, Nessel v. AmeriGas Partners, L.P., involved a lawsuit filed by Michigan’s Attorney General in state court against the state’s largest residential propane provider, alleging numerous violations of the Michigan Consumer Protection Act.  After Defendant AmeriGas had attempted to remove the case to federal court under the Class Action Fairness Act of 2005, the district court found that the suit “did not qualify as a ‘class action’ . . . for purposes of CAFA removability” and remanded the case back to Michigan state court.

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“Twisted” Path to New Trial for Dr. Paulus

A 2018 Sixth Circuit panel upheld a jury verdict convicting Dr. Richard Paulus of submitting fraudulent medical claims. That same panel, with 2020 hindsight(!), reversed that conviction. It held that the trial court’s order unconstitutionally blocked exculpatory evidence.

Jury Verdict Set Aside

The “twisted” history of the verdict began when a jury deadlocked twice and needed an Allen charge in order to convict Dr. Paulus of billing angiograms that were unnecessary.  The trial court rejected the jury’s verdict and set aside the conviction: a doctor’s decision about the degree of blockage of an artery was a matter of subjective medical opinion that “could be neither be false nor fraudulent.”  The government disagreed and appealed.  (Double jeopardy does not prevent appeal of a judgment of acquittal after verdict.)

Verdict Reinstated

In the first appeal, the panel (McKeague, Batchelder, Griffin) recognized the difficulty of distinguishing a fraudulent medical opinion from mere expert disagreement.  Relying on the U.S. v. Persaud, however, the panel reaffirmed that fraud occurs when a doctor deliberately inflates artery blockage in order to bill for unnecessary procedures.  The panel emphasized that “it is up to the jury – not the court – to decide whether the government’s proof is worthy of belief.”  Deferring to the jury, the panel reversed, reinstated the conviction, and remanded the case for sentencing.

Claim of Brady Violation

Before sentencing, Dr. Paulus learned that his hospital had audited his angiograms long before trial. More important: the government knew about the audit but did not disclose it.  That audit revealed a 7% rate of misdiagnosis whereas government experts testified during trial to a nearly 50% error rate.  Dr. Paulus moved for a new trial, claiming that the government withheld exculpatory evidence in violation of Brady v. Maryland. Continue Reading

Ben Beaton on the Learned Sixth

Are you a Sixth Circuit (or SCOTUS) aficionado who has been working from home? Maybe all of the social distancing that you’ve appropriately been practicing has you itching to engage in discussion with fellow court watchers? If that description sounds on target for you, let me suggest season 4, episode 17 of the SCOTUS101 podcast—the most recent episode at the moment. The pod features an extended interview with our own Ben Beaton, beginning with discussion of this very blog and ending with Ben trying his hand at some pretty intense Sixth Circuit trivia. There’s plenty of good stuff in between, too, from Judge Thapar and Justice Ginsburg to Kentucky basketball and bourbon. Enjoy.

Coronavirus Update: 6th Circuit Conference Postponed to 2021

Last night Chief Judge Cole announced a one-year delay in the Sixth Circuit Judicial Conference, which had been scheduled for June 2020. Rumor had it that our own Ben Glassman was to participate, so now fans of Ben and Simone Biles alike will all have to set their sights to 2021.

Full statement below. Stay safe, stay sane, everyone.

**Notice Regarding the 2020 Sixth Circuit Judicial Conference**

Thursday, March 26, 2020

In light of the ongoing national public health crisis, and in consultation with the Sixth Circuit Judicial Conference Planning Committee, I have decided to postpone the Sixth Circuit Judicial Conference from June 2020 to June 2021. While unfortunate, the health and safety of our attendees must remain our highest priority, and the duration of this outbreak is uncertain.

On behalf of the judges of the United States Courts in the Sixth Circuit, thank you for your continued patience as we work through unprecedented territory. We look forward to the program in 2021 and hope that your schedule permits your attendance. Updates about the 2021 Sixth Circuit Judicial Conference will be posted here as they become available.

With sincere wishes that you and your families will be safe and remain in good health,

R. Guy Cole, Jr.
Chief Judge

Telephonic oral arguments: tips for advocates

As federal courthouses limit their in-person operations because of COVID-19, telephonic oral arguments will become more common. Already the Second Circuit has announced that all of its oral arguments will proceed by teleconference until further notice. Similarly, the Seventh Circuit will hear oral argument by phone through April. For scheduled oral arguments in the D.C. Circuit, each panel will decide whether to proceed by phone, postpone the argument, or submit the case on the briefs. So it’s worth taking a moment to think through how to make the best of a telephonic oral argument.

I’ve argued in the neighborhood of half a dozen cases telephonically, for both appellants and appellees, and in my experience, telephonic oral arguments are certainly a different breed. (The Sixth Circuit used to schedule a telephonic oral argument calendar routinely, in the days when the court had a significant number of vacancies and a daunting backlog of cases.) Oralists and judges alike are deprived of the visual cues that can make argument so efficient and effective—body language and facial expressions that indicate confusion or disagreement or interest. Just asking and answering questions become more challenging.

These challenges make the strategy behind oral argument preparation all the more important.

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Sixth Circuit Issues ADA Work-from-Home Decision, Right Before We All Start Working from Home

As the world hunkers down and works from home during this COVID-19 crisis, a WFH accommodation decision from the Sixth Circuit feels timely. Though the decision predates social distancing and office closures, its relevance to the employer-employee relationship may outlast the coronavirus. In Tchankpa v. Ascena Retail Group, Inc., the Sixth Circuit affirmed the principle that employers may require medical documentation to support work-from-home accommodation requests before granting those requests under the Americans with Disabilities Act and that an employee must show an “objectively intolerable workplace” to prove he was constructively discharged.

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UPDATED Coronavirus Update: Potter Stewart Courthouse Closed 2 Weeks

Cincinnati’s federal courthouse–home to the Sixth Circuit–is closed for two weeks beginning today, as reported by the Cincinnati Enquirer.

Though the federal courts basically continue to function (to the consternation of my wife, given the number of recent filings made with kiddos underfoot here at the SPB Ky office), the Potter Stewart courthouse and many others will close to the public.

The drop box and of course ECF filings remain available. And the Sixth Circuit has made available a temporary email address for PDF electronic filings by non-prisoner pro se litigants:

Stay safe and stay home, everyone!

UPDATED Coronavirus Update: Fed Courts Status Page

The Administrative Office of the Courts now maintains a single page with links to courthouse and filing notices for all federal courts. You can find the page and its updates here. No new news from the Sixth Circuit since the March 16 notice we published last week.

Many thanks for the hard work of keeping our courts open go to AO Director and friend-of-the-blog James Duff (and his staff). The former biglaw partner, Supreme Court aide, impeachment counsel, and UK basketball walk-on has had one of the most interesting careers any lawyer could imagine. Jim’s experience should serve him well during these most unusual times.