Yesterday evening, the Sixth Circuit issued a blockbuster decision in consolidated cases addressing the constitutionality of Tennessee’s and Kentucky’s laws limiting minors experiencing gender dysphoria from certain sex-transition treatments. Chief Judge Sutton wrote the majority opinion, which Judge Thapar joined. Judge White dissented. The majority and dissenting opinions cumulatively span over 70 pages.
An Update on the Censorship Cases Pending at SCOTUS
Earlier this week, we blogged about the social media censorship cases that have been working their way through various courts of appeals, including the Sixth Circuit, and how one of those cases – the Fifth Circuit case – has now landed on the Supreme Court’s emergency docket. As a reminder, the Sixth Circuit held that the plaintiffs in its case did not have standing to sue because, in the Panel’s judgment, the plaintiffs did not adequately allege that they suffered an injury fairly traceable to the government. The Fifth Circuit case had more of a record developed in it and, based on that record, the Fifth Circuit held not only that the plaintiffs in its case had standing to sue at least some officials but also that those officials likely violated the plaintiffs’ First Amendment rights.
Sixth Circuit’s Denial of Rehearing En Banc Spawns Concurring and Dissenting Opinions
Yesterday, the Sixth Circuit issued a set of engrossing opinions accompanying its order denying the petition for rehearing en banc in United States v. Carpenter, No. 22-1198 (6th Cir. Sep. 18, 2023). The order is noteworthy for, among other reasons, solidifying a circuit split on the interpretation of the last, restrictive clause in section 403(b) of the First Step Act. Although the Court did not rehear the case en banc, a majority of active judges weighed in on the interpretive issue by joining one of the three opinions the order generated. Also notable was the fact that one of those opinions was the first ever authored by the Sixth Circuit’s newest member: Judge Bloomekatz.
Daylight Between Sixth and Fifth Circuits in Social Media Censorship Cases
The Sixth Circuit opened a rift with the Fifth Circuit last Thursday in Changizi v. HHS, No. 22-3573 (6th Cir. Sep. 14, 2023). Judge Bush wrote the opinion for the Court, which Judge Boggs and Judge White joined. The decision affirmed the dismissal of a complaint alleging that the Biden Administration had violated the First Amendment by coercing Twitter (these days known as “X”) into temporarily or permanently banning certain Twitter users from the social-media platform. The plaintiffs claimed they were censored because they allegedly posted misinformation about COVID-19.
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.
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.
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.
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.
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).
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.
