Tag Archives: Circuit Split

Circuit Split: University Harassment Claim Requires Further Student-on-Student Harassment

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

Sixth Circuit’s Plain-Meaning Approach to Foreign Arbitration Discovery

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

Sixth Circuit: Foster Parents Can Enforce Right to Foster Care Payments Under Federal Law

A unanimous panel of the Sixth Circuit held today in D.O., et al. v. Glisson that the Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983.  The CWA provides for federal foster care and adoption assistance to eligible states.  To be eligible, a state … Continue Reading

Flint Water Controversy Provides Civil Procedure Lesson Under CAFA Exception

In Mason v. Lockwood, Andrews & Neuman, a split panel of the Sixth Circuit affirmed a district court’s decision to remand a class action to state court under the “local controversy” exception to the Class Action Fairness Act.  CAFA requires a court to “decline” jurisdiction over a class action that otherwise qualifies for federal court … Continue Reading

Sixth Circuit Widens Circuit Split By Holding Government-Contractor Immunity Not Jurisdictional

Earlier this week in Adkisson et al. v. Jacobs Eng’g Grp., Inc., the Sixth Circuit joined the Fifth Circuit [link] in holding that government-contractor immunity is not jurisdictional like sovereign immunity. The Sixth Circuit was interpreting Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), which held that government contractors are immune from suit … Continue Reading

Sixth Circuit Holds Ban On Gun Possession After Commitment To Mental Institution Violates Second Amendment

In Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, a case sure to draw attention nationwide, the Sixth Circuit held today that “’a prohibition on the possession of firearms by a person “who has been committed to a mental institution,’ . . . violates the Second Amendment.” The court held that the the plaintiff, who “[t]wenty-eight years … Continue Reading

SCOTUS To Decide Whether Order Denying Plan Confirmation Is “Final,” Appealable

The Supreme Court granted cert last Friday in the case of Bullard v. Hyde Park Savings Bank, in which the First Circuit held that an order denying confirmation of a reorganization plan is not a “final judgment” and therefore not appealable.  The First Circuit’s decision agreed with five other circuits, including the Sixth Circuit, and … Continue Reading

SCOTUS to Decide Who Can Receive a Felon’s Firearms, Resolve Circuit Split

On Monday, the Supreme Court granted certiorari in Henderson v. United States, a case that the Eleventh Circuit decided earlier this year. Although the case comes from Florida, its outcome will impact the Sixth Circuit as well. The issue in the case centers around whether the rule that “seized property, other than contraband, should be … Continue Reading

Check Your Arbitration Clause: Sixth Circuit Draws Distinction Between “Arising Under” and “Related to”

Siding with the Fifth, Ninth and Second (unpublished) Circuits in a longstanding circuit split, the Sixth Circuit in United States ex rel. Paige v. BAE Sys. Tech. recently distinguished between disputes “arising under” and “related to” a contract for arbitration purposes.  The Sixth Circuit held that an arbitration clause mandating arbitration of “any dispute arising from this Agreement” … Continue Reading

Sixth Circuit May Spur Supreme Court to Decide Whether Clean Air Act Preempts State Law Nuisance Claims

The Supreme Court has held in Am. Elec. Power Co., Inc. v. Connecticut that the CAA preempts tort claims under federal common law and in International Paper Co. v. Ouellette  that the Clean Water Act does not preempt state common law claims under the law of the state that is the source of the alleged pollution.  … Continue Reading

Sixth Circuit Continues with Minority of Circuits in Applying De Novo Standard of Review to Application of Judicial Estoppel

          The Sixth Circuit in Javery v. Lucent Technologies Inc. has declined to address the continuing viability of the de novo standard for judicial estoppel.  While the Javery Court recognized that the Supreme Court characterizes judicial estoppel as an equitable remedy invoked by the court at its discretion and that the majority of federal courts review for abuse … Continue Reading

More on the Sixth Circuit and Circuit Splits

We have recently reported on the Sixth Circuit’s recent record in circuit splits.  Considering circuit splits raises an interesting question: If the circuit courts have not acknowledged a circuit split, how much attention should the Supreme Court pay to district courts’ perceptions when deciding whether to grant cert?  The district court is presumably neutral on … Continue Reading

The Supreme Court Grants Certiorari In Two Sixth Circuit Cases

Two of this week’s nine cert grants were for cases from the Sixth Circuit, both from petitions filed by the government.   In United States v. Castleman (12-1371), the court will review whether a conviction under a Tennessee misdemeanor statute qualifies as a crime of domestic violence under federal law.  In that case, the Sixth Circuit … Continue Reading

Circuit Splits Involving The Sixth Circuit in 2013

Circuit splits.  They play an important role in shaping the Supreme Court’s agenda.  There are a number of reasons why the Supreme Court focuses on Circuit splits, including because: (1) the Constitution favors uniformity, (2) the Supreme Court seeks to discourage forum shopping, and (3) the Supreme Court is motivated by the desire to ensure … Continue Reading

Sixth Circuit Splits from Federal Circuit on Whether Severance Payments are Subject to FICA Payroll Taxes

 The Sixth Circuit has split with the Federal Circuit in ruling that severance payments paid to employees pursuant to an involuntary reduction in force are not “wages” for FICA tax purposes.   United States v. Quality Stores, Inc., Case No. 10-1563 (Sept. 7, 2012) (PDF).   The Court first confirmed that neither the Federal Insurance Contributions Act (“FICA”) nor … Continue Reading

Courts Split in Award of Electronic Discovery Costs to Prevailing Party

Electronic discovery is one of the greatest expenses of modern litigation, encompassing a wide range of actions including electronic scanning, metadata extraction, electronic file conversion, optical character recognition scanning (OCR), using a third-party to collect network files; and costs for the conversion of paper documents into electronic files.  It should come as no surprise then that … Continue Reading

Court Parts Company with Sister Circuits on Presumptions at Pleading Stage of ERISA Suits

In a case echoing from the high-profile automobile bankruptcies of recent years, a panel of the Sixth Circuit recently considered Rule 12(b)(6) dismissal of a class action alleging breach of fiduciary duty under ERISA as to two retirement plans for certain General Motors employees.  In Pfeil v. State Street Bank & Tr. Co. (6th Cir., … Continue Reading

Overturning the Sixth Circuit, the Supreme Court Rules that Telephone Companies Must Provide Access to Their Competitors At Cost

In Talk America, Inc. v. Michigan Bell Telephone Co., the Supreme Court resolved a circuit split, holding that state utility commissions can require established telephone companies to provide smaller competitors access to their network at cost.  It overturns a Sixth Circuit decision (which disagreed with decisions from the Seventh, Eighth, and Ninth Circuits) that allowed … Continue Reading

Supreme Court takes up another Sixth Circuit case to resolve question of whether termination of parochial school teachers falls within exception to ADA

In what could be the end of the Sixth Circuit’s 0-15 “losing streak” before the United States Supreme Court (reported previously here), the Supreme Court recently granted certiorari in the case of EEOC, et al, v. Hosanna-Tabor Evangelical Lutheran Church and School.pdf to review the Sixth Circuit’s determination that the termination of a parochial school teacher was subject … Continue Reading

Supreme Court Sides With Sixth Circuit In Resolving Circuit Split Under The Fair Labor Standards Act

Earlier this week, the U.S. Supreme Court sided with the Sixth Circuit and resolved one of two Circuit splits involving interpretation of the Fair Labor Standards Act (“FLSA”), 52 Stat. 1060, 29 U.S.C. § 201 et seq., which sets forth rules governing minimum wages, maximum hours, and overtime pay.  The FLSA contains an anti-retaliation provision … Continue Reading

Creating A Split With the Second Circuit, The Sixth Circuit Approves Sick Leave Policies That May Reveal A Disability To A Supervisor

In Lee v. City of Columbus, the Sixth Circuit reversed a grant of summary judgment to a class of employees at the Columbus police department.  The police employees had challenged the city’s policy requiring employees returning from more than three days of sick leave, injury leave, or light duty to give their immediate supervisor a … Continue Reading

Sixth and Ninth Circuits Split on Whether Private Attorney Performing Services for Governmental Body Entitled to Qualified Immunity

In Delia v. City of Rialto, Case No. 09-55514 (Sept. 9, 2010) the Ninth Circuit examined whether a private attorney retained by the City to participate in internal affairs investigations, but who was not an employee of the City, was entitled to qualified immunity against Plaintiff’s § 1983 claims.  The attorney urged the Ninth Circuit to follow the … Continue Reading