Academic focus on a pending Sixth Circuit appeal

The Sixth Circuit recently heard argument in L.W. v. Skrmetti, involving Tennessee’s law prohibiting healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors.  The district court facially enjoined enforcement of the law as applied to hormones and puberty blockers and applied the preliminary injunction statewide.  Tennessee appealed and sought an emergency stay of the district court’s order pending its appeal of the preliminary injunction. 

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Sua Sponte State Law Certification in Opioid MDL Appeal

The Sixth Circuit issued a notable decision two days ago in one of the higher-profile appeals pending before it. The Panel’s opinion was written by Judge Griffin and joined by Judge Batchelder and Judge Bloomekatz. In its decision, the Court took the uncommon step of sua sponte certifying a question of state law (here, Ohio law) to a state supreme supreme court (the Ohio Supreme Court). Why it did so reveals some key insights into how the Sixth Circuit thinks about state-law certification.

The appeal I’m referring to is Trumbull County, et al. v. Purdue Pharma L.P., et al. Nos. 22-3750/3751/3753/3841/3843/3844. It is an appeal from one of the many cases pending before Judge Polster in the Northern District of Ohio as part of the National Prescription Opiate Litigation. In this appeal, the defendant pharmaceutical chains are seeking to overturn a $650 million judgment entered against them on an Ohio absolute-public-nuisance claim asserted by two northeast-Ohio counties: Trumbull and Lake. Essentially, the counties assert that the pharmaceutical chains caused an absolute public nuisance under Ohio common law in “creat[ing], perpetuat[ing], and maintain[ing]” the opioid epidemic by illicitly filling prescriptions without adequate controls.

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Sixth Circuit Holds that Insanity Acquittee Bears Burden of Proof in Seeking Continued Release After Violating Release Conditions

Squire Patton Boggs Summer Associate Taylor Lonas summarizes a recent opinion from the United States Court of Appeals for the Sixth Circuit holding that an insanity acquittee bears the burden of proof for showing, after violating the terms of his release, that his continued release would not “create a substantial risk” to the public.  18 U.S.C. § 4243(g). 

By Squire Patton Boggs

After a defendant is found not guilty of a crime by reason of insanity, the court may commit the defendant to civil institutional care until the defendant’s mental health has improved.  18 U.S.C. § 4243(a). When the defendant is ready to be released back into the world, his release often includes conditions. These conditions might include a requirement to take certain medication or to not contact certain individuals. 

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Sixth Circuit Judges Still Write Lots Of Dissenting and Concurring Opinions, But Appear To Be Less Partisan

The Sixth Circuit has a longstanding reputation for having lots of dissents and concurrences.  We analyzed the last three years of opinions and found that the Sixth and D.C. Circuit have about twice the average number of dissents and concurrences opinions per case than other circuits.  Partisan and ideological differences account for some dissents, in addition to opinions that reframe or narrow the majority’s opinion to weaken its holding.  But as separate opinions have become more frequent, there appears to be less friction and more policy-focused and academic dialogue about the development of the law.  We’ve also seen a rise in concurrences that give guidance on the resolution of issues not reached by the majority, or necessary to the outcome, and other helpful discussions that may be best left out of precedential opinions. 

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New Standard For Notice In FLSA Collective Actions:  Clark v. A&L Homecare and Training Center

The Sixth Circuit has announced new standards for collective action lawsuits under the FLSA in Clark v. A&L Homecare and Training Center.  There are already many good summaries of this decision around the legal internet, so this recap will be short.  The question is how to determine whether other potential plaintiffs are “similarly situated” so that the district court should issue a formal notice to those potential plaintiffs about the claims.  Though this notice does not endorse the lawsuit, it has the inevitable effect of significantly bolstering both the number of plaintiffs and their bargaining position.  The majority opinion holds that the two-step “certification” approach that district courts have applied for 35 years (which began with Lusardi v. Xerox, 118 F.R.D. 35 (D.N.J. 1987)) is not grounded in the statute and does not incorporate the Supreme Court’s guidance on the subject.  It also rejects the Fifth Circuit’s new FLSA standard in Swales v. KLLM Transport Services, 985 F.3d 430 (5th Cir. 2021). 

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Reversal Rates In The Sixth Circuit And Elsewhere

This post provides the latest statistics for a question we are frequently asked:  what is the chance of obtaining a reversal on appeal.  Private civil cases see the most reversals of any category at 13.4%, followed by appeals in bankruptcy and civil appeals involving the United States at 12.5%.  In other words, the circuit reverses about once for every seven or eight cases involving private plaintiffs. If you are appealing a criminal conviction, or otherwise in prison, your chances of winning anything are much lower. This year, the circuit reversed about 5% of criminal cases, which is unusually low–the circuit’s average is around 10%. Prisoners and habeas plaintiffs (who often labor under difficult standards of review) prevail in one-in-twelve to one-in-twenty appeals. 

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What Circuits Have The Most (and Least) Influence On The Sixth Circuit?

About a decade ago, this blog found that Sixth Circuit judges cited the Second, Seventh, and Ninth Circuits more often than any other circuit.  When we controlled for the number of opinions, we found that opinions from the First, Seventh, Tenth and D.C. Circuits were three times more likely to be cited than opinions from other circuits.  After our recent post showing that some circuits issue a far higher percentage of published opinions than others, we decided to take another look at what circuits are the most influential in Sixth Circuit opinions over the last three years.  The results were surprising.

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The Sixth Circuit Rejects En Banc Review Regarding Remuneration and Causation Under the False Claims Act

Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other.  Chief Judge Sutton’s opinion rejected the argument that the referral arrangement violated the False Claims Act, holding that the statute’s definition of “remuneration” requires “payments and other transfers of value” rather than just “any act that may be valuable to another.”  The opinion also rejected the claim on the basis that the Act requires “but-for” causation, rejecting the Government’s position and that of the Third Circuit, which held that a plaintiff does not need to prove that referrals “actually caused” someone to choose a particular healthcare provider, but that a “link” between the referrals and choice was sufficient.  See United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 98 (3d Cir. 2018).  Judge Mathis’ short concurrence noted that the court didn’t need to decide the “remuneration” issue because of its decision on causation.  

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The Three Circuits That Publish Far More Opinions Than Any Others—And How The Sixth Circuit Stacks Up

The latest statistics on unpublished opinions show an important trend between the circuits.  Across all circuits, 86% of written opinions are unpublished.  That means they are not precedential, so they do not create circuit law.  And most of those unpublished opinions, 69% of them in 2022, were also unsigned.  The Sixth Circuit mirrors the general trend.  In 2022, 89% of its opinions were unpublished, and 54% were both unsigned and unpublished. 

But three circuits, the First, Seventh, and Eighth, buck this trend by publishing a far higher percentage of their opinions.  The Seventh Circuit, with 16 judges, publishes more decisions than the combined Second (29 judges) and Third Circuits (24 judges).  The judges on the First, Seventh and Eighth Circuits publish about 30 decisions each year, while the rest of the circuits average about 10 decisions per year.  On a per judge basis, each of three circuits issue four times more precedential opinions than the Second and Third Circuits, and three times more than most other circuits (including the Sixth Circuit).  Three observations come to mind from this disparity between circuits. 

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Sixth Circuit Invalidates Application of Nashville’s Sidewalk Ordinance Under The Takings Clause

In Knight v. Metro. Gov’t of Nashville and Davidson County (No. 21-6179), the Sixth Circuit decided a longstanding question about the standard that applies to conditions imposed by a legislature on those applying for building permits.  The issue is common enough:  a city wants more sidewalks to improve safety, health, and traffic.  So the city requires landowners to add sidewalks to their properties as a condition of issuing building permits.  Nashville’s ordinance requires to grant an easement and build a sidewalk or to pay a fee to build sidewalks elsewhere in the city.  The question in Knight was whether this permit condition should be judged under the unconstitutional conditions test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) or the deferential balancing test used for zoning restrictions under Penn Central Trans. v. NYC, 438 U.S. 104 (1978).  State courts have long been divided on whether Nollan is limited to the discretionary decisions of zoning administrators, or whether it also applies to municipal legislation like Nashville’s rule.

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