Tag Archives: Supreme Court

The limits of Loper Bright and the long decline of Chevron

Given the continuing discussion about the Supreme Court’s decision to overrule Chevron in Loper Bright Enterprises v. Raimondo, we thought that a review of the decision (and its limits) is in order.  The Loper Bright decision The 6-3 decision written by Chief Justice Roberts launched a full-throated attack on deference to administrative agencies:  “Chevron gravely … Continue Reading

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 Ohio Supreme Court Updates its Writing Manual

Last week, the Ohio Supreme Court published a new and improved writing manual.  The Third Edition is “a comprehensive guide . . . designed to improve the readability of opinions issued by, and briefs filed in,” Ohio’s courts.  The unquestionable headline is that the new manual abandons the cumbersome triple-parallel-citation format of old in favor of citing … Continue Reading

While We Are Waiting On Chevron

The Supreme Court issued three opinions today, including an important decision on whether omissions in SEC filings are actionable, and a decision that the Takings Clause does not distinguish between legislative and administrative land-use permit conditions (and that relies on Judge Murphy’s recent Takings Clause decision). But no decision yet on the highly-anticipated blockbuster cases … Continue Reading

Justice Sotomayor References Rarely Used Procedure: Circuit Certification to U.S. Supreme Court

Four years ago, the Supreme Court declined a federal habeas petitioner’s request to review the Sixth Circuit’s decision in Avery v. United States, 770 F. App’x 741.  Justice Kavanaugh, the Sixth Circuit’s assigned circuit justice, attached a “statement” to the Supreme Court’s cert. denial to highlight a circuit split that Avery implicated and to note … Continue Reading

Sixth Circuit Judges Still Write Lots Of Dissenting and Concurring Opinions, But Appear To Be Less Partisan

The Sixth Circuit has a longstanding reputation for having lots of dissents and concurrences.  We analyzed the last three years of opinions and found that the Sixth and D.C. Circuit have about twice the average number of dissents and concurrences opinions per case than other circuits.  Partisan and ideological differences account for some dissents, in … Continue Reading

Sixth Circuit Opinion Reversed in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.

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

A Closer Look at the Sixth Circuit’s Decision on the Contractor Mandate

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 OSHA Mandate Decision and the Sixth Circuit

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 High Court stays the OSHA mandate but upholds the CMS mandate

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

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

Supreme Court Rejects Sixth and Eleventh Circuit’s “Discretionary Function” Immunity for TVA

In Thacker v. Tennessee Valley Authority, the Supreme Court held that sovereign immunity does not necessarily shield TVA’s “discretionary functions” from liability.  Justice Kagan’s unanimous opinion reversed the Eleventh Circuit, which had sided with longstanding Sixth Circuit precedent treating many TVA functions as immune from suit. Congress created the Tennessee Valley Authority, a government-owned corporation, … Continue Reading

Reviewing Judge Amul Thapar and Other Sixth Circuit Judges on Supreme Court Shortlist

The Sixth Circuit Court of Appeals features as many as three “short-listers” to replace the retiring Justice Anthony Kennedy on the US Supreme Court: Judges Raymond Kethledge and Joan Larsen of Michigan, and Judge Amul Thapar of Kentucky. All three reportedly interviewed with President Trump last week, and all three are young and prominent enough … 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

SCOTUS To Decide If Clean Water Rule Can Be Challenged Directly In U.S. Circuit Courts

In February of last year, we reported on the Sixth Circuit’s split-panel holding that it had jurisdiction to review challenges to the validity of the “Clean Water Rule” (which clarifies the term “waters of the United States” in the Clean Water Act). Last week, the Supreme Court granted certiorari in National Association of Manufacturers v. … 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

Supreme Court Affirmation Leaves More Questions than Answers

Two weeks ago, the jurisprudential ramifications of Justice Scalia’s passing were felt. The incomplete Court decided Hawkins v. Community Bank of Raymore, a case from the Eighth Circuit questioning whether a guarantor is an “applicant” as defined in the Equal Credit Opportunity Act. The Eighth Circuit decision in Hawkins, which held that a guarantor is … Continue Reading

BREAKING NEWS: U.S. Supreme Court Agrees To Review Sixth Circuit’s November 6 Decision Upholding Same-Sex Marriage Bans

The Sixth Circuit is in the national media spotlight this afternoon.  The U.S. Supreme Court has just agreed to review the Sixth Circuit’s landmark (but divided) ruling from November 6 that upheld same-sex marriage bans in Ohio, Michigan, Kentucky, and Tennessee.   See Opinion (6th Cir. Case Nos. 14-1341; 3057; 3464; 5291; 5297; 5818).  The stage is … 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

Sixth Circuit: Spraying Naked Pretrial Detainees In Front Of Bystanders May Violate 4th Amendment

A Sixth Circuit panel unanimously held last week in Williams v. City of Cleveland that pretrial detainees forced to “undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution” stated a viable claim under § 1983 and the Fourth Amendment.  Judge Griffin wrote the opinion in which Judges Siler … Continue Reading
LexBlog