Tag Archives: En Banc

Sixth Circuit Facing Difficult En Banc Questions

Recently, the Sixth Circuit has handed down decisions in two of the most high-profile cases currently pending in the federal appellate courts.  First, as we previously reported, the Sixth Circuit upheld the federal health care statute in the wake of a number of constitutional challenges.  Second, a few days later, the Sixth Circuit struck down … Continue Reading

Just As We Predicted Back in March, the Sixth Circuit Grants Rehearing En Banc in the Lewis Case Involving Discrimination Claims Under the ADA

Back in March, when we reported on the Sixth Circuit’s decision in Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF), we noted that Lewis was “one of those rare candidates for rehearing en banc.”  Our predictive powers proved accurate yesterday when the Sixth Circuit voted for a rehearing en banc in the Lewis … Continue Reading

Update on Abercrombie & Fitch Case On The Independence of Special Litigation Committees

  The Sixth Circuit has denied Abercrombie & Fitch’s petition for rehearing and en banc review of its decision in Booth Family Trust v. Jeffries (09-3443) that the voluntary recusal of a member of a special litigation committee served as an effective admission that he was not independent.  None of the active judges on the Court … Continue Reading

Supreme Court Agrees with Judge Sutton in Reversing Sixth Circuit Panel Decision Regarding Ohio Jury Instructions in Death Penalty Cases

Yesterday, the Supreme Court in a per curiam decision upheld Ohio’s jury instructions that require jurors first to reject the death penalty before considering a sentence of life imprisonment.  See Bobby v. Mitts, No. 10-1000.  In the order denying the petition for rehearing en banc before the Sixth Circuit, as previously reported here, Judge Sutton … Continue Reading

En Banc Watch: The Sixth Circuit Will Test The Boundaries Between Voluntary Confessions And Police Strategies To Evade Miranda

The Sixth Circuit recently accepted Dixon v. Houk for en banc review.  In that case, the police obtained a confession after five hours of interrogations without Miranda warnings, and then gave the Miranda warnings before obtaining a taped confession.  The panel opinion, written by Judge Merritt, held that Missouri v. Seibert, 542 U.S. 600 (2004), … Continue Reading

Sixth Circuit Declines to Adopt Rule Followed in at least 10 other circuits under the ADA

The Sixth Circuit yesterday declined to adopt the rule followed in a supermajority of Circuits for bringing a discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.  See Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF).  In at least ten other Circuits, a plaintiff … Continue Reading

Rare En Banc Hearing Granted in Organized Labor Grievance Appeal

On December 7, 2010, the Sixth Circuit granted a rare en banc hearing in Chapman v. United Auto Workers Local 1005 (6th Cir., Case No. 10-3616) (PDF), an appeal involving the administrative relief exhaustion requirement in labor grievances. En banc hearing was granted under Rule 35(a)(1) of the Federal Rules of Appellate Procedure, which permits … Continue Reading

Judge Sutton Explains Why En Banc Review Is So Rare

Judge Sutton voted to deny a petition for rehearing en banc in Mitts v Bagley (pdf) even though he disagreed with the panel’s decision that a jury instruction was unconstitutional.  His concurrence, which was joined by Judge Kethledge, states both his disagreement on the merits and his reasons why the case should not be reheard … Continue Reading


As reported previously, the Sixth Circuit in Wimbush v. Wyeth become the first circuit to weigh in on the scope of the Supreme Court’s recent decision on federal preemption (Wyeth v. Levine ), by holding that FDA approval does not preempt state law negligence claims.  Wyeth petitioned for rehearing en banc, but on October 14th the … Continue Reading

Will the Court Review Recent Daubert Decision En Banc?

Counsel for plaintiffs in the Tamraz v. Lincoln Electric Company (pdf) has filed a petition for en banc review of the Court’s recent reversal of his $20.5 million verdict.  In their petition, the plaintiffs claim that the majority (1) did not properly apply an abuse of discretion standard to the trial judge’s decision to admit the expert testimony at issue, … Continue Reading

En Banc Watch: Wyeth Asks for Rehearing En Banc on the Sixth Circuit’s Preemption Decision

As we reported earlier, Wyeth v. Wimbush was one of the first cases interpreting the Supreme Court’s decision in Wyeth v. Levine, and the first to extend Levine beyond failure to warn claims.  Wyeth has now filed an en banc petition (pdf) challenging that decision.   Wyeth argues that the claim that it was negligent during the … Continue Reading

Indirect Injury Not Enough to Support Subprime Mortgage Public Nuisance Claim

The Sixth Circuit has affirmed dismissal of a public nuisance case brought by the City of Cleveland against various companies that financed subprime mortgages in pdf-City of Cleveland v. Ameriquest Mortgage Securities, Case No. 09-3608 (July 27, 2010). Given the recent increase of lawsuits against entities who are farther removed from the plaintiff’s ultimate injury … Continue Reading

Supreme Court News from Last Day of OT 2009

The Supreme Court granted cert today in Thompson v. North American Stainless, LP, a case that the Sixth Circuit decided en banc last June.  As this post on Workplace Prof Blog explains, the case presents the question whether Title VII creates a cause of action for an employer’s retaliation against a person closely associated with an employee who … Continue Reading