Congratulations are in order to the forty-something law clerks that swore in to the Sixth Circuit bar Wednesday. That was a prelude to the court’s en banc argument on campaign finance restrictions in National Republican Senatorial Committee v. FEC. The Committee challenges the constitutionality of part of the Federal Election Campaign Act that places limits … Continue Reading
Employers across the United States are wondering whether they need to comply with OSHA’s original, rapidly-approaching December 6th and January 4th deadlines. And while no-one yet knows with 100% certainty, probably including the judges themselves, a few things seem clear from the Sixth Circuit’s approach in this consolidated appeal. The Circuit has not ordered parties … Continue Reading
It’s been only three days since the Sixth Circuit won the JPML lottery to consolidate and adjudicate every appeal nationwide challenging OSHA’s vaccine mandate. Yet there have already been interesting developments. Many petitioners in the original Sixth Circuit cases have now moved for initial en banc review—which would bypass panel review entirely and send the … Continue Reading
Sometimes federal courts of appeals get to play the lottery. The prize is not millions of dollars, but the chance to adjudicate every challenge to a particular federal agency action filed in federal circuit court. The Sixth Circuit won that lottery yesterday afternoon. At issue is OSHA’s highly controversial vaccine mandate. On November 5, 2021, OSHA promulgated … Continue Reading
Last month, we explained that the settlement between the plaintiffs and Michigan’s Governor Whitmer in Gary B. v. Whitmer might end up ultimately vacating the Sixth Circuit’s pathbreaking right-to-literacy ruling in that case. The parties informed the Court of the settlement and the plaintiffs promised to file a motion to dismiss. But some defendants had … Continue Reading
The Sixth Circuit denied Flint, Michigan’s petition for en banc review of a panel decision allowing citizens exposed to contaminated water to sue city and state officials. The order drew two concurrences, one dissent, and plenty of skepticism about the plaintiffs’ case—which is nevertheless allowed to proceed in the district court. The plaintiffs’ theory is … Continue Reading
Last week, the Sixth Circuit granted en banc review in Bormuth v. County of Jackson, where a split panel had held that a district court had erred in rejecting the plaintiff’s argument that the prayer preceding a Michigan county’s Board of Commissioners’ monthly meeting violated the First Amendment by coercing residents to support and participate in the … Continue Reading
On Friday, the Sixth Circuit voted to rehear Detroit Free Press, Inc. v. USDOJ (Free Press II) en banc. As we have noted here and here, the Sixth Circuit has been reluctant recently to grant en banc review. As with any grant of en banc review, the previous judgments of the court are vacated and the case is … Continue Reading
The Sixth Circuit sat en banc yesterday to hear oral argument in Tyler v. Hillsdale County Sheriff’s Dep’t regarding whether or not a federal provision prohibiting the possession of a firearm by a person who has been confined to a mental institution violates the Second Amendment under Heller. The original panel had sustained the plaintiff’s Second … Continue Reading
The Sixth Circuit has voted to rehear en banc its recent decision in Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, in which it became the first court of appeals to sustain a Second Amendment challenge to a federal firearms regulation since Heller was decided. The parties have been directed to file supplemental briefs. Our analysis of … Continue Reading
In Collins Inkjet Corp. v. Eastman Kodak Co., the Sixth Circuit recently held that differential pricing—charging more for a product when the customer fails to buy a second “tied” product—constitutes unlawful tying only when the second product is effectively being sold for below-cost. In adopting this “discount attribution” standard, the court sided with the Ninth … Continue Reading
Yesterday, the Sixth Circuit issued its en banc decision in Rochow v. Life Insurance Company of North America, No. 12-2074. The original panel decision (which we previously discussed here) held that an ERISA plaintiff could recover under Section 502(a)(3), which allows for “appropriate equitable relief,” in addition to receiving his benefits under Section 502(a)(1)(B). The … Continue Reading
Yesterday, the Sixth Circuit held its traditional en banc setting in December. Two cases were on the docket, a habeas case and an employment case. The first case up, the habeas case Hill v. Curtin, involved the denial of a request by a criminal defendant to represent himself at trial. This sparked active questioning concerning the … Continue Reading
On Friday, the Sixth Circuit granted en banc review of Rochow v. Life Insurance Company of North America, 737 F.3d 415 (6th Cir. 2013), a controversial decision holding that a ERISA plaintiff that already recovered his benefit under Section 502(a)(1)(B) could also recover for unjust enrichment under Section 502(a)(3). The benefit in this case was … Continue Reading
Earlier today, in a 2-1 decision, the Sixth Circuit reversed a $1,225,000.00 jury award in a trade-dress case involving a relatively obscure and expensive industrial product: grease pumps used in automated lubrication systems (“ALS”) for commercial trucks. See Groeneveld Transport Efficiency, Inc. v. Lubecore International, Inc., Case Nos. 12-3545/3576 (6th Cir.) (PDF). The competing products … Continue Reading
The Sixth Circuit’s decision in United States v. Blewett that the new lower minimum thresholds for crack offenses applies retroactively to otherwise-final sentences under the Equal Protection Clause for incarcerated offenders has attracted lots of attention. As reported at the Sentencing Law & Policy blog, the government is seeking en banc review of the decision, … Continue Reading
Correcting an earlier post, there will an en banc sitting on Wednesday, June 13, 2013, when the Sixth Circuit will hear arguments in Jackson v. Segwick Claims Management Serv. The case asks if Michigan’s worker compensation laws provide the exclusive remedy for injured workers, or whether injured workers can sue under RICO for an alleged … Continue Reading
In Parker v. Matthews (No. 11-845), the Supreme Court reversed the Sixth Circuit’s grant of a habeas petition overturning two murder convictions in a death penalty case (recall that the Sixth Circuit just heard two death penalty cases en banc last week). The per curium opinion rejected the Sixth Circuit’s reliance on Kentucky’s use of … Continue Reading
We have previously reported on the Sixth Circuit’s affirmation of a class certification decision in In re Whirlpool Corporation Front-Loading Washing Products Liability Litigation, which involved washing machines that allegedly were susceptible to mold and mildew. We also reported on Whirlpool’s en banc petition, and the five amicus parties that supported the petition. The Court … Continue Reading
In addition to my active appellate practice, I have spent a substantial portion of my career focusing on the field of ethics and professionalism. Although these areas of law often intersect, I generally see little professional commentary on appellate ethics. Part of the reason, of course, is that appellate practice is very specialized, and there … Continue Reading
This post is the Sixth Circuit Appellate Blog’s latest update and analysis in a series that has been tracking developments in the ongoing, blockbuster appeal involving Michigan Proposal 2. Last summer, a divided panel of the Sixth Circuit struck down as unconstitutional Proposal 2, which prohibited Michigan’s public colleges and universities from granting “preferential treatment … Continue Reading
The challenge to the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, is making front page news today. That’s because the government has decided not to seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate. … Continue Reading
Over the last several months, we’ve covered a number of topics dealing with en banc practice in the Sixth Circuit, including Pierre Bergeron’s posts on the dwindling number of Sixth Circuit en banc cases (only two en banc decisions last year) and the lack of an en banc sitting this past June (a month when … Continue Reading
On September 9, 2011, the Sixth Circuit voted to rehear en banc the panel decision in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111) (PDF). With Judges Kethledge and McKeague having recused … Continue Reading
