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 … Continue Reading
The Supreme Court on Tuesday issued an opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., which reversed the Sixth Circuit’s October 2020 decision finding that DaVita Inc. plausibly asserted a claim against an Ohio hospital’s health plan for unlawfully discriminating against patients with end-stage renal disease by offering low reimbursement rates … Continue Reading
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, … Continue Reading
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 … Continue Reading
The Supreme Court’s recent per curiam opinion on OSHA’s vaccine-or-test mandate for businesses takes a practical approach to agency power, though the dissent would rather the Court have taken a more practical approach to the pandemic. The majority opinion holds that while OSHA has power to regulate dangers in the workplace, it cannot use the … Continue Reading
The decision we’ve all been waiting for finally arrived today. In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate. For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine … Continue Reading
After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10. U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly … Continue Reading
Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases. (You can listen to the arguments live here.) For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of … Continue Reading
An important development occurred yesterday evening in both the OSHA and CMS vaccine mandate cases pending before the Supreme Court. The Court took the very rare step of scheduling a special hearing for both sets of cases. The hearing will be held on Friday, January 7, 2022. In the OSHA mandate cases, the Court consolidated … Continue Reading
In this post, we take a look at the options facing the U.S. Supreme Court as it considers the challengers’ various emergency applications for a stay, several of which were filed just hours after the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS this past Friday evening (December 17). At this point, it … Continue Reading
Before we dive in the panel’s opinions on the stay motion, we should mention that in the Supreme Court proceedings Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS mandate. That is the same day that the Supreme Court gave the challengers in the … Continue Reading
Almost a year ago, the Sixth Circuit reheard en banc Preterm-Cleveland v. Himes, which involves a constitutional challenge to an Ohio law that bans abortion where the reason for the abortion is that the fetus has or may have Down syndrome. After the en banc oral argument, the Supreme Court decided June Medical Services LLC … Continue Reading
On Monday the Supreme Court addressed—or, perhaps more to the point, chose not to address—an issue close to the hearts of many in the midst of a pandemic: home delivery of fine wine and spirits. The Court declined to review the Sixth Circuit’s decision in Lebamoff v. Whitmer, which upheld the State of Michigan’s alcohol … Continue Reading
This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021. Like most states, Kentucky is experiencing a surge in COVID-19 cases. Governor Andy Beshear has responded by implementing a number of public health measures aimed … Continue Reading
The Sixth Circuit has issued a steady stream of Title IX cases in recent months. Of particular note are Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), which deepened a circuit split regarding institutional liability for “deliberate indifference” under Title IX, and Doe v. Oberlin College, 963 F.3d 580 … Continue Reading
The Supreme Court revisited the Chris Christie administration last week with a decision in Kelly v. United States that reversed the corruption convictions of two top gubernatorial aides. The charges stemmed from their role in the partial closing, and resulting traffic jam, of the George Washington Bridge. Sixth Circuit blogger Ben Glassman recently published his views … Continue Reading
This morning—in connection with the Supreme Court’s inaugural teleconference arguments—the Court announced it would review the Sixth Circuit’s decision in CIC Services v. IRS. That case covers the applicability of the Anti-Injunction Act to a challenge to IRS guidance. Certiorari is not altogether surprising, given the sharply contrasting views (and vivid language) the case elicited … Continue Reading
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 … Continue Reading
In a unanimous decision affirming the Sixth Circuit, the Supreme Court held that creditors have 14 days to appeal a bankruptcy court’s denial of relief from the automatic stay. In one of the term’s first decisions, Justice Ginsburg’s opinion in Ritzen Group, Inc. v. Jackson Masonry, LLC agreed with Judge Thapar’s conclusion that the denial … Continue Reading
The Sixth Circuit has weighed in on an issue that has divided the circuits: to state a claim under Title IX for “student-on-student sexual harassment,” must a victim actually experience further sexual harassment after the school learns of the prior harassment? Or is it enough that the victim is vulnerable to further harassment? In Kollaritsch … Continue Reading
During October Term 2018 (“OT2018”), the Supreme Court reversed less than two out of every three cases – its lowest reversal rate in three years. The Sixth Circuit fared particularly well (4 affirmances, 3 reversals), joining the Eleventh and D.C. Circuits as the only circuits to post a winning record. Notably, the Court did not … Continue Reading
In a big win for noncommercial outdoor speakers and a loss for LBJ enthusiasts, the Sixth Circuit issued a major First Amendment decision striking down Tennessee’s Billboard Regulation and Control Act. Judge Batchelder’s unanimous opinion (Donald and Cole joining) in Thomas v. Bright held that the law’s on/off-premises distinction represents an unconstitutional content-based abridgment of speech … Continue Reading
Parties may now seek discovery from district courts within the Sixth Circuit for use in foreign private arbitrations. In Abdul Latif Jameel Transportation Company v. FedEx, a unanimous panel held that the plain meaning of the phrase “foreign or international tribunal” included non-governmental tribunals. The decision addresses an important foreign-discovery provision that, according to some … Continue Reading
If you’ve got the money, I’ve got the time (for an infringement action) — Willie Nelson made an appearance at the Sixth Circuit last month—but alas, only in the briefs. The court heard argument in Philpot v. L.M. Communications, involving a radio station website’s unauthorized use of a photo of the Red-Headed Stranger. The district … Continue Reading
