Opioid Update: Judge Kethledge Reclaims Solitude—and Civil Procedure

Perhaps the most notable Sixth Circuit opinion of April—and almost certainly the most quotable—was Judge Kethledge’s opinion granting mandamus and reversing leave to amend in the opioid MDL.

For a unanimous panel (Siler & Griffin, JJ.), the opinion followed the Circuit’s stay of Judge Polster’s discovery order back in February. That order would’ve required pharmacies “to produce data for nearly every opioid prescription that they have filled anywhere in the United States for the past 13 years.”

The mandamus grant, however, reached back one step further, faulting the court for granting the county plaintiffs’ leave to amend their complaint to add dispensing claims against pharmacies, 19 months after the deadline for amendments and 10 months after the close of discovery. Under FRCP 16(b), the court held, “[n]ot a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”

The opinion is a treat to read, and we’ll let it speak for itself below. But beforehand, permit us to commend another eloquent and fascinating effort from Judge Kethledge, albeit further afield from the normal Sixth Circuit fare: this Tedx Talk at the University of Michigan, Reclaim Solitude. The subject is of course very on brand for the judiciary’s foremost advocate of solitude. (Check amazon.com and your local socially distant bookstore for Lead Yourself First.)

Three quick teasers for the speech: you learn Judge Kethledge’s first and second semester undergraduate GPAs at UofM (which would be quite good, if you add them together!); the parents among us hear compelling arguments against youngsters’ smartphones, a/k/a the Devil’s Hand Grenades; and you’ll glimpse the view from the Lake Huron hamlet where Kethledge opinions often are drafted—the most recent of which we’ll return to now.

In the opioid mandamus opinion, Judge Kethledge makes clear, plainly and repeatedly, that “the rule of law applies in multidistrict litigation … just as it does in any individual case.” As promised, we’ll let the opinion speak for itself, in solitude:

  • “An MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.”
  • “Neither the Counties nor the district court have even attempted to show that the Counties demonstrated diligence as required by Rule 16(b). Quite the contrary: as the district court recognized then, and as the Counties concede now, the Counties did not bring their dispensing claims earlier because they expressly chose not to bring them.”
  • “Not a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”
  • “The district judge in this case is notably conscientious and capable, and we fully recognize the complexity of his task in managing the MDL here. But the law governs an MDL court’s decisions just as it does a court’s decisions in any other case.”
  • “Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements in the Pharmacies’ cases in favor of enhancing the efficiency of the MDL as a whole. True, § 1407 provides for the transfer of certain actions to MDL courts to “promote the just and efficient conduct of such actions”; and true, Civil Rule 1 says that the Rules should be construed “to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither § 1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.”
  • “An MDL court must find efficiencies within the Civil Rules, rather than in violation of them.”

Coronavirus Update: Sixth Circuit Judicial Conference Rescheduled for June 2021

Those seeking a return to normalcy will be heartened to hear that the Sixth Circuit Judicial Conference, canceled due to the pandemic, has been rescheduled.

Those seeking a cautious reopening will be heartened to hear that the Conference will be held in June…June 2021.

From Chief Judge Cole:

The Sixth Circuit Judicial Conference has been rescheduled to take place June 16 – June 18, 2021, at the Hilton Downtown Cleveland Hotel in Cleveland, Ohio.

We expect to have conference-related information, including conference registration, available to participants in February 2021.

Stay tuned for more reopening updates as–we sure hope–more green leaves begin to appear after the flood.

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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