Tag Archives: En Banc

En Banc Court Hears First Amendment Challenge to Campaign Finance Restriction

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

The Sixth Circuit and OSHA’s Upcoming December 6th Deadline.

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

Initial En Banc Petitions, Procedural Possibilities, and the OSHA Vaccine Mandate.

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

The Sixth Circuit and the OSHA Vaccine Mandate

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

Sixth Circuit Vacates Right-to-Literacy Ruling

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

En Banc Watch: Fight Over Substantive Due Process Sees Court Refuse to Rehear Flint Water Case

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

Sixth Circuit To Rehear Legislative Prayer Case En Banc

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

En Banc Watch

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

Sixth Circuit Vacates Decision Sustaining 2Am Challenge To Gun Ban For Previously Involuntarily Committed, Will Rehear En Banc

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

“Tying” Products Via Discount Only “Unlawful” When Second Product Sells Below Cost

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

En Banc Court Overturns Prior ERISA Decision

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

En Banc Granted In ERISA Disgorgement Case

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

A Split Sixth Circuit Reverses A $1,225,000.00 Jury Award In A Trade-Dress Case

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

En Banc Petition in Crack/Cocaine Appeal

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

An Empirical Look At The Sixth Circuit’s Acceptance (and Rejection) Of Amicus Briefs

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

Ethics and Professionalism In the Sixth Circuit

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

En Banc Briefing Complete, Oral Argument Approaches in Michigan Affirmative Action Appeal

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

Challenge to Health Care Statute May Be On Fast Track To Supreme Court

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

Sixth Circuit To Hear Michigan Affirmative Action Case En Banc

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