American Bar Association
Media Alerts
Media Alerts - 6th Circuit
Decrease font size
Increase font size
June 22, 2017
  Sixth Circuit: defendant can withdraw guilty plea for any reason if court defers plea acceptance
Headline: Sixth Circuit holds that defendant can withdraw guilty plea for any reason if court defers plea acceptance.

Case: United States v. Andrews

Area of law: Criminal procedure, criminal law

Issue presented: Has a district court accepted a defendant's guilty plea for purposes of Federal Rule of Criminal Procedure 11(d) when it defers acceptance of the plea until after it reviews the presentence report?

Brief summary: Andrews entered a plea agreement, which included a recommended sentence, for various drug-related offenses. At the change-of-plea hearing, the district court held that it would wait to accept the plea and impose the recommended sentence until after it received the presentence report. Before this happened, Andrews moved to withdraw his guilty plea under FRCP 11(d)(1), which allows a defendant to do so for any reason before the district court accepts the plea. The district court denied his withdrawal motion, stating that it had already accepted Andrews's guilty plea at the hearing. On appeal, Andrews argued that the district court had not officially accepted his plea at the hearing. On two issues of first impression, the Sixth Circuit first held that de novo is the proper standard to review whether a district court accepted a defendant's guilty plea. The Sixth Circuit then held that a district court's explicit decision to defer acceptance of a defendant's guilty plea means that the plea has not been accepted for purposes of FRCP 11(d). But the Court declined to establish specific steps that a district court must take in order to accept a defendant's guilty plea.

Extended summary: After being charged with various drug-related crimes, Andrews ultimately agreed to plead guilty in exchange for a reduced sentence. The district court held a change-of-plea hearing, during which it followed the proper procedure under Federal Rule of Criminal Procedure 11(b) for determining that Andrews's plea was knowing, voluntary, and intelligent. At the end of the hearing, the district court stated that it would typically "go ahead and accept the plea and make a finding of guilty" at that point; however, since Andrews's plea agreement included a recommended sentence, the district court wanted to review the presentence report first. Once the district court had the results of the report, it would schedule a second hearing. Before the district court held this second hearing, Andrews filed a motion to withdraw his plea. He argued that he was permitted to do so under Rule 11(d)(1), which allows a defendant to withdraw his guilty plea for any reason if he does so before the court accepts his plea. The district court denied Andrews's motion, finding that it had accepted his guilty plea at the hearing. And after a court accepts a defendant's guilty plea, he can only withdraw it if he proves a fair and just reason for doing so under Rule 11(d)(2)(B). The district court held that Andrews failed to demonstrate a fair and just reason why his plea should be withdrawn, and it ultimately imposed the terms of the plea agreement.

Andrews appealed, claiming that the district court never actually accepted his guilty plea during the hearing and that he therefore should have been able to withdraw his plea for any reason under Rule 11(d)(1).

The Sixth Circuit first addressed which standard of review it should use to decide whether the district court had accepted Andrews's guilty plea. Since the issue was one of first impression in the Sixth Circuit, the Court surveyed the opinions of other circuit courts and found that at least three (the Eighth, Fifth, and D.C. Circuits) use the de novo standard of review for this issue. Additionally, the Court reasoned that this issue presents no factual disputes, and the only question is whether the district court's words and actions during the hearing fit the definition of acceptance as used in Rule 11(d). Therefore, the Sixth Circuit held that the issue whether a guilty plea was accepted by a district court is a question of law subject to de novo review.

The Sixth Circuit then analyzed under what circumstances a district court has accepted a defendant's guilty plea, which was also an issue of first impression in this circuit. Rule 11(b) provides an enumerated list of topics that a district court must discuss with the defendant before it may accept his guilty plea. However, there are no rules that specifically state what a court must do to officially accept the plea. The Sixth Circuit found that there was a consensus among other circuits that a district court's adherence to Rule 11(b) creates a presumption that the court accepted the defendant's guilty plea. But this presumption is rebutted when the district court explicitly decides to defer its acceptance of the plea. Following the other circuits' reasoning, the Sixth Circuit ultimately held that a district court's explicit deferral of acceptance means that a defendant's guilty plea has not been accepted under Rule 11(d). However, the Court declined to establish any specific steps that a district court must take to officially accept a guilty plea.

In Andrews's case, the district court had properly covered all the information required by Rule 11(b), creating a presumption of acceptance. But the district court's statements that it would have to hold a second hearing after it had received the presentence report meant that an additional step must occur before the district court would accept Andrews's guilty plea and impose the recommended sentence. The Sixth Circuit found that this constituted an explicit deferral of acceptance, meaning that the district court had not accepted Andrews's plea for Rule 11(d) purposes at the hearing. And since the district court had not accepted Andrews's guilty plea at the hearing, he had the right to withdraw his plea for any reason when he filed his withdrawal motion. The Sixth Circuit therefore remanded the case back to the district court and declined to rule on the other collateral issues Andrews had raised.

Panel: Circuit Judges Martha Craig Daughtrey, Karen Nelson Moore, and Julia Smith Gibbons.

Date of issued opinion: May 23, 2017.

Docket number: 16-3130

Decided: Reversed and remanded.

Counsel: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Author of opinion: Circuit Judge Julia Smith Gibbons.

Case alert author: Andrea Muroto Bilabaye, Western Michigan University Cooley Law School.

Case alert circuit supervisor: Professor Mark Cooney.

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/17a0109p-06.pdf

Edited: 06/27/2017 at 11:23 AM by Mark Cooney

    Posted By: Mark Cooney @ 06/22/2017 03:07 PM     6th Circuit     Comments (0)  

March 20, 2017
  Sixth Circuit: nondisclosure of State's payment to key witness violates due process
Headline: Prosecution's nondisclosure of witness's payment for testimony violates defendant's due-process rights under Brady v. Maryland.

Case: Thomas v. Westbrooks

Area of law: Criminal procedure, constitutional law, due process.

Issue presented: Whether the state violated the defendant's right to due process under Brady v. Maryland when the prosecutor suppressed evidence that the key witness had received payment for her testimony.

Brief summary: The state's key witness in Thomas's murder trial received $750 for her testimony. The prosecution failed to disclose this evidence during trial and failed to correct on the record the witness's false testimony that she did not receive any payment. Thomas argued that this violated his due-process rights under Brady, which prohibits the state from suppressing material evidence that is favorable to the defendant. The Sixth Circuit found that the evidence of the witness's payment was material under the circumstances. It reasoned that a large payment made in direct connection to the case in which the witness is testifying presents a pecuniary bias that is likely to weigh heavily on a juror's assessment of the witness's credibility. The Court also emphasized that the focus with a Brady claim is not on whether the other evidence at trial was sufficient to convict the defendant, but whether suppression of this evidence made the defendant's trial fundamentally unfair.

Extended summary: In 1997, Thomas shot and robbed an armored-truck driver. A federal court convicted Thomas of interfering with interstate commerce and other firearm-related crimes, sentencing him to life in prison. After the truck driver died of his injuries, the State of Tennessee charged him with felony murder. A jury convicted him and sentenced him to death.

The key witness at both trials was Angela Jackson, who was Thomas's girlfriend at the time of the crime. Before the murder trial began, the FBI paid Jackson $750 as a reward for her testimony. Her receipt of this payment was noted in the files that federal authorities gave state prosecutors to use in their case.

The state prosecutor did not inform Thomas of this payment. On the contrary, the prosecutor continuously emphasized during the murder trial that Jackson was testifying because she believed it was the "'the right thing to do.'" The prosecutor also failed to correct Jackson on the record when she twice perjured herself by testifying that she didn't receive any money in exchange for her testimony.

On appeal, Thomas claimed that the state's nondisclosure of Jackson's payments violated his due-process rights established in the U.S. Supreme Court case Brady v. Maryland. Brady held that a prosecutor's suppression of evidence violates a defendant's due-process rights if (1) the evidence is favorable to the defendant, (2) the evidence is either intentionally or accidentally suppressed by the state, and (3) the suppression results in prejudice to the defendant. The state conceded that the first two Brady elements were met, leaving only the question of prejudice.

Under the Brady test, prejudice results when the suppressed evidence is material, even if that evidence is only relevant for impeachment purposes. Evidence is material when, considering all relevant evidence, the suppressed evidence deprived the defendant of a fair trial with a trustworthy verdict. A defendant's burden for meeting this standard is between a mere possibility and a preponderance of the evidence that disclosure of the suppressed evidence would have resulted in an acquittal.

The Sixth Circuit held that evidence of Jackson's payment was material under the circumstances. The Court reasoned that this case was factually similar to a previous Sixth Circuit case, Robinson v. Mills, where the prosecution's key witness had previously received $70 for being a confidential informant - all, however, for cases that had nothing to do with the defendant's. Nonetheless, the Court held that the prosecution's failure to disclose these facts warranted relief under Brady because it revealed a potential bias relevant to the witness's credibility and truthfulness. Applying Robinson, the Sixth Circuit found that the $750 payment to witness Angela Jackson for testifying against Thomas was certainly material if the $70 payment in Robinson for past informant services was material.

The state argued that there was sufficient evidence to convict Thomas without Jackson's testimony, making anything related to her testimony, like the fact that she received payment, immaterial. But the Court reiterated that a Brady claim is meant to protect a defendant's right to a fair trial; therefore, the focus is not on whether the defendant could have been convicted if the suppressed evidence had been presented, but whether the suppression of the evidence made the defendant's trial fundamentally unfair. Furthermore, the Court rejected the state's factual argument that Jackson's testimony did not weigh heavily on the jury's decision to convict Thomas. Jackson provided credible testimony on key aspects of the prosecution's case, such as placing Thomas at the crime scene and linking him to the driver of the getaway car used after the robbery.

The state also argued that the defense had been able to effectively impeach Jackson on her inconsistent statements and her own past bad acts, and therefore evidence of her payment was immaterial. The Court, however, stressed the difference between impeachment based on pecuniary bias and impeachment based on other grounds. The Court found that jurors are more likely to distrust witnesses whose testimony is linked to a financial gain.

Since the Court found that Thomas was entitled to relief on his Brady claim, the Court found it unnecessary to determine whether the prosecutor engaged in prosecutorial misconduct for failing to correct Jackson's perjurious testimony that she never received a payment in exchange for her participation.

Panel: Circuit Judges Gilbert S. Merritt, Eugene E. Siler, Jr., and Bernice B. Donald.

Date of issued opinion: February 24, 2017

Docket number: 15-5399

Decided: Reversed and remanded.

Counsel: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON & STRAWN LLP, New York, New York, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Mark A. Fulks, BAKER DONELSON BEARMAN CALDWELL & BERKOWTIZ, P.C., Johnson City, Tennessee, for Amicus Curiae.

Author of opinion: Circuit Judge Gilbert S. Merritt.

Case alert author: Andrea Randall, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/17a0045p-06.pdf

Edited: 03/23/2017 at 12:42 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/20/2017 11:52 AM     6th Circuit     Comments (0)  

October 25, 2016
  Sixth Circuit strikes down canons limiting judicial campaign speech
Case: Winter v. Wolnitzek

Area of law: First Amendment, judicial campaign speech, ethics

Issue presented: Can a state lawfully bar a judicial candidate or judge from endorsing or openly affiliating with a political candidate or party, contributing to political organizations, committing to case rulings, or making misleading or false statements?

Brief summary: In Kentucky, an appointed judge sought to be "re-elected." During her campaign, she promised to work with the legislature to ensure stiff penalties for drug dealers. Similarly, two aspiring judges wanted to hold fund raisers, receive political endorsements, and give speeches in support of their political party. They also wanted to hold leadership positions in their political party. The Kentucky Commissioner notified all three that their actions violated ethics canons. The three candidates challenged the canons on free-speech grounds.

The Sixth Circuit held that clauses restricting campaigning, speeches, false statements, misleading statements, and case "commits" were unconstitutional. But the contributions clause, the endorsements clause, and the leadership clause were narrowly tailored to protect Kentucky's compelling interests and, therefore, were constitutional.

Extended summary: A first-term appointed judge, who was asking voters to "re-elect" her, and two aspiring judges, who wanted their party affiliations known, challenged Kentucky's judicial canons. The canons bar partisan campaigning, partisan endorsements, partisan political contributions, making commitments on cases, and making false or misleading statements.

The appointed judge was advertising her "re-election" campaign, through which she was committing to ensuring that drug dealer received stiff penalties. In a letter from her state's Commissioner, however, she was told that seeking re-election was misleading because she had been initially appointed to her judgeship, not elected. The Commissioner also said that her drug-sentencing commitments were impermissible because her stiff-penalties comment addressed an issue that was likely to come before her in her court.

The two aspiring judges wanted to hold fundraisers, receive endorsements, give speeches to support their political parties, and hold leadership positions within their political parties. Citing bans on these actions in the Kentucky canons, the Commissioner also sent the aspiring judges reprimand letters.

The three candidates sued, arguing that the Kentucky canons violated of their free-speech rights. Because each issue involved free speech, the Sixth Circuit applied a strict-scrutiny analysis.

The Sixth Circuit held that the campaigning clause, which bars political affiliation, and the commits clause, which bans comments on issues likely to come before a court, were both vague, making them unconstitutionally overbroad. And the court found that the speeches clause, which the court believed did both too much and too little to bar judges from making political speeches, was facially invalid.

On the other hand, the contributions clause that bars judges and judicial candidates from seeking election contributions was upheld by the Sixth Circuit because it takes a narrow approach to resolve the state's compelling interest in preventing judicial races as being seen as part of partisan politics and maintaining impartiality. Likewise, the endorsements clause was upheld because it narrowly addresses the state's compelling interest to keep judges from trading political favors, which could lead to the appearance of quid-pro-quo politics.

The leadership clause that prohibits a judge from acting as a political leader was also upheld because a judge or a judicial candidate does not have the fundamental right to lead campaign-donation solicitations, which allows the judge or judicial candidate to assume a powerbroker roll.

The false-statements clause that prohibits a judge from knowingly or recklessly making false statements during a campaign was upheld because the state's compelling interest in preserving public confidence was narrowly met by this canon. Yet the Sixth Circuit did not believe that the appointed judge violated this clause because a common dictionary meaning of "re-elect" supported her word choice.

As for the misleading-statements clause, the Sixth Circuit determined that only a ban on conscious, intentional falsehoods could satisfy strict scrutiny.

Panel: COLE, Chief Judge; SUTTON and COOK, Circuit Judges.

Date of issued opinion: August 24, 2016

Docket numbers: 15-5836/5839/5841

Decided: August 24, 2016

Decision: Affirmed in part, reversed in part, and vacated in part with a remand to the district court for further consideration in part.

Counsel: Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC,
Covington, Kentucky, for Appellants/Cross-Appellees. Mark R. Overstreet, STITES &
HARBISON, PLLC, Frankfort, Kentucky, for Appellants/Cross-Appellees as to all claims except
those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview
Hills, Kentucky, for Appellees/Cross-Appellants. ON BRIEF: Jeffrey C. Mando, ADAMS,
STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants/Cross-
Appellees. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany
A. Breetz, STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellants/Cross-
Appellees as to all claims except those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview Hills, Kentucky, Jack S. Gatlin, GATLIN VOELKER, PLLC,
Ft. Mitchell, Kentucky, for Appellees/Cross-Appellants.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0206p-06.pdf

    Posted By: Mark Cooney @ 10/25/2016 04:48 PM     6th Circuit     Comments (0)  

October 24, 2016
  Sixth Circuit strikes down Memphis's "Beale Street Sweep" policy
Case: Cole v. City of Memphis

Area of law: Constitutional law, fundamental rights, strict scrutiny, intermediate scrutiny, and intrastate travel.

Issue presented: Can a city implement a policy to clear streets after 3 a.m., even when there is no threat to public safety and regardless of why citizens are there?

Brief summary: Cole, an off-duty police officer, was arrested sometime after 3:30 a.m. on Beale Street in Memphis, Tennessee, under a standing police policy to sweep Beale Street of all "after hours" pedestrians regardless of whether there was any threat to public safety. Although all charges were eventually dropped, Cole sued because the police had violated his fundamental right to travel within the state. At trial, the City failed to show a connection between sweeping Beale Street and public safety. On appeal, the Sixth Circuit affirmed, holding that there was no connection between public safety and the arbitrary early-morning sweeps of Beale Street on weekends.

Extended summary: The Beale Street area of Memphis, Tennessee, is a popular entertainment district made up of restaurants, bars, clubs, and other venues. This area is a pedestrian-only zone: no vehicles are permitted on the street, so most traffic is on foot. Under state and local ordinances, pedestrians may carry and drink alcohol on the street and sidewalks when the street is closed to traffic.

Officer Cole, who was not on duty, was on Beale Street and left a dance club at around 3:30 a.m. Based on witness testimony, Cole was drunk and behaving erratically. Fellow Memphis police officers arrested and charged Cole with disorderly conduct, resisting arrest, and vandalism based on a standing policy: the "Beale Street Sweep." Under this policy, Memphis police were to order all "after hours" pedestrians off Beale Street - or arrest them - even if there were no circumstances posing a threat to public safety.

All charges against Cole were later dropped, but not before they caused Cole to lose his second job and be demoted through reassignment from the organized-crime unit to traffic patrol.

Cole and another plaintiff sued in the district court and formed a class action for those who were also arrested under this policy. In their complaint, they alleged that the "Beale Street Sweep" incited violence because the Memphis police became highly aggressive, agitated, and confrontational towards lawful pedestrians. The City admitted to having had this policy in place, but it claimed that it had abandoned the policy some time before Cole was arrested.

The jury found that the "Beale Street Sweep" was the cause for Cole's arrest because the conditions on Beale Street did not pose an imminent threat to public safety when Cole was arrested. Cole was awarded $35,000 in compensatory damages. The district court also granted Cole's motion for injunctive relief: the City of Memphis was enjoined from "engaging in the Beale Street Sweep."

On appeal, the City of Memphis argued that the district court erred when it found that the "Beale Street Sweep" infringed on a fundamental right: intrastate travel. Thus, the City argued, the district court had improperly applied strict scrutiny.

The Sixth Circuit reaffirmed its precedent recognizing that, in general, intrastate travel is a fundamental right. It explained that intrastate travel is so deeply rooted in the nation's history and traditions that it is an implicit liberty. Thus, local travel through public places continues to be a fundamental right, warranting heightened scrutiny. Nevertheless, the Sixth Circuit concluded that intermediate scrutiny, and not strict scrutiny, was the more appropriate standard in this case given the Beale Street Sweep's limited two-block scope and limited two-hour timing on weekends and after special events.

Under intermediate scrutiny, the Sixth Circuit required the City of Memphis to show that the Beale Street Sweep was a narrowly tailored practice to meet the City's significant objectives. The City identified public safety as its significant objective. The Sixth Circuit agreed that public safety is a significant - in fact, a compelling - objective.

Yet the City's argument failed because it couldn't show that the Beale Street Sweep was connected to its stated goal of ensuring public safety. The Sixth Circuit observed that in the district court, the jury found that the sweep occurred without regard to whether there was an imminent or immediate threat to public safety. Instead, the sweep was set at an arbitrary time and had no connection to then-existing conditions on Beale Street. Without the required connection to public safety, the City's policy failed under intermediate scrutiny.

Panel: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

Date of issued opinion: October 17, 2016

Docket numbers: October 17, 2016

Decided: October 17, 2016

Decision: Affirmed the district-court judgment.

Counsel: ARGUED: J. Michael Fletcher, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees. ON BRIEF: J. Michael Fletcher, Zayid A. Saleem, Barbaralette G. Davis, CITY OF MEMPHIS, Memphis, Tennessee, for Appellant. Robert L. J. Spence, Jr., Bryan M. Meredith, E. Lee
Whitwell, THE SPENCE LAW FIRM, Memphis, Tennessee, for Appellees.

Author of opinion: GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 16 - 19), delivered a separate opinion concurring in part and dissenting in part.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: www.opn.ca6.uscourts.gov/opinions.pdf/16a0258p-06.pdf

Edited: 10/24/2016 at 02:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/24/2016 02:05 PM     6th Circuit     Comments (0)  

  Sixth Circuit says states, not FCC, control scope of telecommunications services offered by municipality-owned utilities
Case: Tennessee v. FCC

Area of law: Telecommunications and internet services

Issue presented: Is an FCC preemption order valid when it allows a municipality-owned utility to expand telecommunications services beyond what state law permits?

Brief summary: Both Tennessee and North Carolina enacted laws permitting municipality-owned utilities to offer telecommunications services, including internet, to customers within their respective service areas. Two municipally owned utilities petitioned the Federal Communications Commission (FCC) for preemptions allowing them to offer internet services outside their service area. After the FCC granted preemptions, Tennessee and North Carolina sought judicial review of the FCC's orders. The Sixth Circuit reversed both FCC orders, holding that the FCC does not have the authority to stop states from limiting the expansion of services offered by its municipalities. Only the municipality's state has that authority.

Extended summary: Tennessee enacted a law in 1999 that permitted municipality-owned power plants (utilities) to also offer telecommunication services - cable, video, and internet services - to customers within their service areas. This law's geographic limitation, however, bars a municipality from offering telecommunication services outside its service area to surrounding areas.

Chattanooga, Tennessee, operates a power provider, the Electric Power Board (EPB), which offers high-speed broadband internet service to 170,000 residential and commercial customers in Tennessee and Georgia.

Likewise, North Carolina enacted a law in 1971 that permits its municipalities, or their utilities, to provide broadband internet services. And North Carolina also prohibits municipalities from offering these internet services to anyone beyond their municipal boundaries too. The City of Wilson, North Carolina, constructed a fiber-optic internet-backbone network connecting all City-owned facilities. City residents, businesses, as well as educational and medical facilities sought access to this network, and the City responded by expanding its network for these customers by giving them access for fees. The City's services included phone, internet, and cable, and its customers are paying less for these services when compared to the competition.

EPB and the City of Wilson sought preemptions from the FCC; they wanted to offer their services to customers outside their respective service areas. The FCC granted both petitions for preemption. In the FCC's order, the FCC required Tennessee and North Carolina to give their municipalities a choice in undertaking these discretionary actions.

Tennessee petitioned the Sixth Circuit to review the FCC's decision, and North Carolina filed a similar petition in the Fourth Circuit. The cases were consolidated in the Sixth Circuit.

After a thorough analysis of the Telecommunications Act of 1996, the Sixth Circuit reversed the FCC order. The Sixth Circuit reasoned that federal law cannot limit a state's ability "to trump a municipality's exercise of discretion [that is] otherwise permitted by FCC regulations . . . [and federal law] cannot be read to authorize such preemption." As such, the FCC did not have the authority to permit the service-area expansion being sought by EPB and the City of Wilson. The Sixth Circuit concluded that only Tennessee and North Carolina held the authority to expand services within an area.

Panel: ROGERS and WHITE, Circuit Judges; HOOD, District Judge. (The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.)

Date of issued opinion: August 10, 2016

Docket numbers: 15-3291/3555

Decided: August 10, 2016

Decision: FCC order reversed.

Counsel: Joshua S. Turner, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291. John F. Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner in 15-3555. Matthew J. Dunne, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. ON BRIEF: Joshua S. Turner, Megan L. Brown, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291. John F. Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner in 15-3555. Matthew J. Dunne, Richard K. Welch, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. James Bradford Ramsay, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Washington, D.C., for Intervenor National Association of Regulatory Utility Commissioners. James Baller, Sean A. Stokes, Ashley Stelfox, BALLER HERBST STOKES & LIDE, PC, Washington, D.C., James P. Cauley III, Gabriel Du Sablon, CAULEY PRIDGEN, P.A., Wilson, North Carolina, for Intervenor City of Wilson. Frederick L. Hitchcock, Willa B. Kalaidjian, CHAMBLISS, BAHNER & STOPHEL, P.C., Chattanooga, Tennessee, for Intervenor Electric Power Board of Chattanooga. William J. Kirsch, Arlington, Virginia, Andrew L. Brasher, OFFICE OF THE ALABAMA ATTORNEY GENERAL, Montgomery, Alabama, Conor B. Dugan, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, Richard A. Samp, WASHINGTON LEGAL FOUNDATION, Washington, D.C., David Parkhurst, NATIONAL GOVERNORS ASSOCIATION, Washington, D.C., Bartlett Cleland, Jonathan Hauenschild, AMERICAN LEGISLATIVE EXCHANGE COUNCIL, Arlington, Virginia, Ashley Stelfox, BALLER HERBST STOKES & LIDE, PC, Washington, D.C., Mark C. Del Bianco, LAW OFFICE OF MARK C. DEL BIANCO, Kensington, Maryland, Andrew Jay Schwartzman, Eric G. Null, INSTITUTE FOR PUBLIC REPRESENTATION, Washington, D.C., Lani L. Williams, LOCAL GOVERNMENT LAWYER'S ROUNDTABLE, INC., Oconomowoc, Wisconsin, Kimberly Hibbard, NORTH CAROLINA LEAGUE OF MUNICIPALITIES, Raleigh, North Carolina, Markham C. Erickson, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici Curiae.

Author of opinion: ROGERS, J., delivered the opinion of the court in which HOOD, D.J., joined, and WHITE, J., joined in part. WHITE, J., delivered a separate opinion concurring in part and dissenting in part.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: www.opn.ca6.uscourts.gov/opinions.pdf/16a0189p-06.pdf

    Posted By: Mark Cooney @ 10/24/2016 11:59 AM     6th Circuit     Comments (0)  

October 10, 2016
  Sixth Circuit: WebWatcher software may violate Wiretap Act and unlawfully invade privacy
Case: Luis v. Zang

Area of law: Wiretap acts and privacy law

Issue presented: Does a software manufacturer violate privacy rights or federal/Ohio wiretap laws, which ban the monitoring and contemporaneous interception of communications, when the manufacturer's surreptitiously installed software transmits a home computer's electronic communications to the manufacturer's servers, where it is stored until the software user retrieves the communications later?

Brief summary: Joseph Zang, concerned about his wife's online chatroom participation, installed WebWatcher on his wife's computer without her knowledge or consent. He used this software to monitor her correspondences with a man she'd never met but contacted daily. He then used the WebWatcher contact records as leverage to secure more favorable divorce terms a year later. Javier Luis, who had regularly corresponded with Zang's wife through chatrooms, sued Zang and WebWatcher's manufacturer, Awareness Technologies, after learning of the disclosure of his private, personal communications with Zang's wife. Luis alleged that Awareness and Zang, through the use of WebWatcher, violated his privacy rights and also wiretap laws when WebWatcher intercepted his computer's electronic communications meant for Zang's wife and sent them to Awareness's servers for Zang to retrieve and read later.

The Sixth Circuit held that Luis had properly pleaded his claims - federal Wiretap Act violations, Ohio Wiretap Act violations, and Ohio common-law violations including privacy violations - against Awareness Technologies, and that the trial court's dismissal of the case was improper.

Extended summary: During Catherine Zang's marriage to Joseph Zang, she participated in an online chatroom where she "met" Javier Luis. They developed a platonic relationship and contacted each other at least daily, but they never met in person. Concerned with his wife's online relationship with Luis, Zang purchased and installed Webwatcher on Catherine's computer without her knowledge or consent. Webwatcher, manufactured by Awareness Technologies, intercepts electronic communications, such as emails or instant messages, and in near real time forwards them to Awareness's servers for storage and later retrieval. After collecting his wife's communications with Javier for months, Zang used them as leverage to get better divorce terms from his wife.

Luis sued Zang, Awareness, and others after learning of this. Luis settled with all but Awareness. In his complaint against Awareness, Luis alleged that Awareness knew or should have known that purchasers of its software, WebWatcher, would use it for illegal purposes. Thus, he asserted that Awareness violated his privacy as well as the federal Wiretap Act, the Ohio Wiretap Act, and Ohio common law.

During the case, a magistrate judge was directed to prepare a Report and Recommendation evaluating Awareness's arguments that it had not intercepted Catherine's communications and that it could not be held liable simply for manufacturing software that a purchaser used to violate federal and state laws. The district court adopted the Report and Recommendations and dismissed the claims against Awareness.

The Sixth Circuit reversed, holding that Luis had properly pleaded his claims against Awareness. The Sixth Circuit found that WebWatcher does intercept communications, as defined under the federal Wiretap Act, and acquires communications in a manner that is contemporaneous with their transmissions. Consequently, the allegations could support an eventual finding that Awareness violated the federal Wiretap Act. And the Sixth Circuit found that Luis sufficiently pleaded and argued that Awareness manufactured and sold wiretapping equipment in violation of federal law. Luis could establish that there was an intentional interception of wire, oral, or electronic communications by WebWatcher and Awareness. As such, Luis could potentially show that Awareness violated the Ohio Wiretap Act and Ohio common law. Last, Luis had properly pleaded that the WebWatcher software invaded his privacy when Zang installed it on his wife's computer and used the software's output to monitor his personal, private communications with Catherine.

Thus, the Sixth Circuit held that the trial court's dismissal of all claims was erroneous, and it remanded the case to the district court for reconsideration. The Sixth Circuit added, however, that no conclusions should be drawn on the ultimate outcome of this case, noting that Awareness might still prevail on a motion for summary judgment or at trial.

Panel: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

Date of issued opinion: August 16, 2016

Docket numbers: 14-3601

Decided: August 16, 2016

Decision: The judgment of the district court is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

Counsel: Clayton L. Wiggins, VANDERBILT APPELLATE LITIGATION CLINIC,
Nashville, Tennessee, for Appellant. Bernard W. Wharton, MCCASLIN, IMBUS &
MCCASLIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Clayton L. Wiggins, Alistair E.
Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for
Appellant. Bernard W. Wharton, MCCASLIN, IMBUS & MCCASLIN, Cincinnati, Ohio, for
Appellee. Javier Luis, Tampa, Florida, pro se.

Author of opinion: GILMAN, J., delivered the opinion of the court in which MERRITT, J., joined. BATCHELDER, J. (pp. 33 - 37), delivered a separate dissenting opinion.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0196p-06.pdf

    Posted By: Mark Cooney @ 10/10/2016 10:30 AM     6th Circuit     Comments (0)  

August 3, 2016
  Sixth Circuit: Google wins $19.2 trillion case -- internet search providers protected under the CDA
Case: O'Kroley v. Fastcase

Area of law: Internet law; Communications Decency Act

Issue: Can an internet search company be held liable for how it presents its search results when its practices caused a user to see his name tied to a child-indecency case that he was never involved in?

Brief summary: O'Kroley looked himself up on Google.com and found results seeming to tie him to a child-indecency case that he had no connection with. The objectionable information came from a third-party case-listing service: Fastcase, Inc. O'Kroley sued Fastcase and the search-engine giant Google for libel and invasion of privacy. The district court rejected O'Kroley's claims as a matter of law, holding that Google could not be held liable for how it displays search results. The Sixth Circuit affirmed, reasoning that the Communications Decency Act immunizes internet search-engine companies like Google from suits that try to treat them as publishers of third-party content.

Extended summary: Colin O'Kroley looked himself up on Google.com. The Google search-results page showed O'Kroley's name in a case caption just below a Texas Advance Sheet entry, published by Fastcase Inc., for an indecency-with-a-child case. O'Kroley had never been involved in a child-indecency case, yet anyone who viewed the Google results without clicking on the link would have seen the O'Kroley v. Pringle case listed immediately after a reference to indecency with a child.

Claiming he'd suffered severe mental anguish, O'Kroley sued for $19.2 trillion based on a number of legal theories, including libel and invasion of privacy. The district court held, as a matter of law, that the Communications Decency Act applied here. Under the Act, internet search providers like Google are immunized from claims that seek to treat them as publishers of third-party content.

O'Kroley, representing himself, appealed. The Sixth Circuit affirmed, holding that the district court was correct and that the Communications Decency Act applied. The Sixth Circuit reasoned that because Google's internet search engine gives multiple users access to computer servers, it did not publish or speak these allegedly defamatory statements on its website. Google could not be held liable for merely providing server access and reproducing a third party's allegedly defamatory text. As an internet search provider, Google was immune.

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0172p-06.pdf

Panel: SUTTON and COOK, Circuit Judges; HOOD, District Judge. (The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.)

Date of issued opinion: July 22, 2016

Docket number: 15-6336

Decided: July 22, 2016


Counsel: ON BRIEF: Eric P. Schroeder, Jacquelyn N. Schell, BRYAN CAVE LLP, Atlanta, Georgia, Rob S. Harvey, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville, Tennessee, Brian M. Willen, Jason B. Mollick, WILSON SONSINI GOODRICH & ROSATI, P.C., New York, New York, for Appellee Google. Scot M. Graydon, OFFICE OF THE TEXAS ATTORNEY GENERAL, Austin, Texas, for Texas Court Appellees. Colin O'Kroley, Bon Aqua, Tennessee, pro se.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Edited: 08/03/2016 at 12:13 PM by Mark Cooney

    Posted By: Mark Cooney @ 08/03/2016 11:58 AM     6th Circuit     Comments (0)  

August 1, 2016
  Sixth Circuit overrules itself, denies Detroit Free Press's FOIA request for police officers' booking photos
Case: Detroit Free Press v. United States

Area of law: Freedom of Information Act

Issue: Are newspapers entitled to criminal defendants' booking photos under the Freedom of Information Act?

Brief summary: In 1996, the Sixth Circuit held that the Detroit Free Press was entitled to copies of a criminal defendant's booking photos under the Freedom of Information Act (FOIA), citing the lack of a privacy interest in the photos. Recently, the Free Press sought booking photos of four Michigan police officers who were arrested on bribery and drug-conspiracy charges. The U.S. Marshal Service denied the Free Press's request. The district court ordered disclosure. The Sixth Circuit reversed, overruling its 1996 decision and holding that a criminal defendant does have a privacy interest in his or her booking photos.

Extended summary: Relying on the Sixth Circuit's 1996 holding (Free Press I) that newspapers are entitled to copies of a criminal defendant's booking photos, the Detroit Free Press made a FOIA request to the U.S. Marshal Service seeking booking photos of four Michigan police officers accused of bribery and drug conspiracy.

Because of the Free Press I decision, the Marshal Service had a bifurcated policy for handling FOIA requests for booking photos. It honored requests coming from within the Sixth Circuit but denied requests coming from outside the Sixth Circuit. This continued until the Tenth and Eleventh Circuits disagreed with Free Press I. Those circuits held that booking-photo requests could be denied. So based on the Tenth and Eleventh Circuit decisions, the Marshal Service began denying all FOIA requests for booking photos, including the Free Press's request. The Free Press sued to compel the Marshal Service to release the officers' booking photos.

The district court granted summary judgment in the Free Press's favor. On appeal, the Sixth Circuit, sitting en banc, reversed, holding that individuals "enjoy a non-trivial privacy interest in their booking photos." Therefore, the Court "overrule[d] Free Press I."

The Sixth Circuit noted that under FOIA, the government must operate under the general philosophy that it will make full disclosure of its records. As such, federal agencies must make their records promptly available to any person who asks for them as long as no exemption applies. But an agency may withhold or redact information based on nine statutory exemptions. Here, the Sixth Circuit believed that an exemption did apply: exemption 7(C), which protects against disclosures of information "compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Under exemption 7(C), the Court reasoned, booking photos were information that had been compiled for law enforcement, and disclosure of these photos could reasonably result in an unwarranted invasion of personal privacy. The Court observed that once released, booking photos would likely be widely circulated on the internet, "hampering the depicted individual's professional and personal prospects." Given the privacy interests at stake, the U.S. Marshal Service could lawfully deny the Free Press's request for booking photos.

Dissent: The dissent, authored by Judge Boggs, argued that in the 20 years since Free Press I was decided, neither the Supreme Court nor Congress chose to correct the Sixth Circuit's 1996 reading of FOIA. As such, the Sixth Circuit's interpretation was still valid. And the dissent feared that the majority's decision would obscure government's most coercive functions: the powers to detain and accuse a suspected criminal. It noted that police "mug shots" give the public insight into police conduct and practices, noting that the photos can even help the public discover cases of police misconduct. And the dissent believed that, at the cost of open government, the privacy offered by the majority's holding is minimal and illusory.

Link to the case: http://www.opn.ca6.uscourts.go...s.pdf/16a0164p-06.pdf

Panel: COLE, Chief Judge; GUY, BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.

Date of issued opinion: July 14, 2016

Docket number: 14-1670

Decided: July 14, 2016

Counsel: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., for Appellee. ON BRIEF: Steve Frank, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Robert M. Loeb, Thomas M. Bondy, ORRICK, HERRINGTON & SUTCLIFFE LLP, Washington, D.C., Paul R. McAdoo, AARON & SANDERS PLLC, Nashville, Tennessee, Brian P. Goldman, Cynthia B. Stein, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, California, Herschel P. Fink, DETROIT FREE PRESS, INC., Detroit, Michigan, for Appellee. Daniel J. Klau, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, Hartford, Connecticut, David Marburger, MARBURGER LAW LLC, Cleveland, Ohio, for Amici Curiae.
Author of opinion: COOK, J., delivered the opinion of the court in which COLE, C.J., and GUY, GIBBONS, ROGERS, SUTTON, McKEAGUE, KETHLEDGE, and WHITE, JJ., joined. COLE, C.J. (pp. 10 - 11), delivered a separate concurring opinion. BOGGS, J. (pp. 12 - 23), delivered a separate dissenting opinion in which BATCHELDER, MOORE, CLAY, GRIFFIN, STRANCH, and DONALD, JJ., joined.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Edited: 08/01/2016 at 11:14 AM by Mark Cooney

    Posted By: Mark Cooney @ 08/01/2016 11:07 AM     6th Circuit     Comments (0)  

July 27, 2016
  Sixth Circuit: song no longer controlled by author's son after siblings successfully terminate copyright assignment
Headline: Song "I'll Fly Away" no longer controlled by author's son after son's siblings successfully terminate copyright assignment in his favor.

Case: Brumley v. Albert R. Brumley & Sons, Inc.

Area of law: intellectual property, Copyright Act, contract law

Issue presented: Can descendants terminate a songwriter's copyright assignment to his son, so that royalties will be shared among all the songwriter's descendants, when the song was first assigned under the former Copyright Act but was later assigned again (to the same son) under the current Copyright Act?

Brief summary: A songwriter assigned his copyrights to his son. After he died, his widow signed a bill of sale purporting to re-memorialize the earlier assignment to the son. Because the song was a long-time religious favorite that was also covered by famous performers, the son's siblings tried to terminate the assignment so that all the children could share royalties. The Sixth Circuit held that the siblings complied with the current Copyright Act and thus effectively terminated the songwriter's earlier assignment to the son. The court reasoned that a majority of the songwriter's descendants had exercised their termination rights under the current Copyright Act's provision allowing one assignment termination. Thus, all six of the songwriter's children (or their spouses or children) will now share equally in the royalties.

Extended summary: Late in the 1920s, Albert Brumley composed "I'll Fly Away" while working in cotton fields in Oklahoma. He sold this song to a publishing firm that he later bought. Once acquired, he and his wife, Goldie, ran this publishing firm until they sold the firm and the firm's music catalog to two of their sons, Robert and William, in the mid-1970s. After the firm's sale and Albert's death, Goldie gave Robert and William a bill of sale that re-assigned and retransferred Albert's works, copyrights, and rights to future copyright renewals for one dollar and other consideration.

Twenty years after Goldie's death, the Brumley siblings fought over the royalties for "I'll Fly Away," which had recently been covered by Johnny Cash and Alison Kraus. In 2008, four Brumley siblings sent a termination notice to Robert intending to cut off his exclusive rights to royalties. The siblings wanted to share the royalties equally. The four siblings recorded their termination notice with the U.S. Copyright Office shortly after serving Robert with his notice.

When Robert challenged the assignment termination, the district court held that Albert had never exercised his termination rights, so they survived him and were transferred to his wife and his descendants. The district court concluded that upon Albert's death, Albert's widow owned a one-half interest in Albert's works, and their children shared the other half interest. Further, the district court concluded that during her ownership, Goldie lacked the power to terminate by herself. A majority of the interest-holders must authorize a transfer; Goldie was not a controlling majority, so her attempted assignment was ineffective.

The Sixth Circuit affirmed, holding that upon Goldie's death, each Brumley child, their spouse, or their child, then controlled a one-sixth share of Albert's interests in his work. The court reasoned that because four of the six children agreed to terminate Robert's exclusive interests in 2008, their termination was valid under the current Copyright Act. As such, Robert Brumley was no longer the sole assignee of his father's song "I'll Fly Away." Instead, all six of Albert Brumley's children - or their spouses or children - will share the royalties equally.

Panel: SILER, SUTTON, and STRANCH, Circuit Judges.

Date of issued opinion: May 16, 2016

Docket number: 15-5429

Decided: May 16, 2016

Decision: Affirmed.

Counsel: ARGUED: Barry I. Slotnick, LOEB & LOEB LLP, New York, New York, for Appellants. Larry L. Crain, CRAIN, SCHUETTE & ASSOCIATES, LLC., Brentwood, Tennessee, for Appellees. ON BRIEF: Barry I. Slotnick, Jonathan N. Strauss, Brittany Schaffer, LOEB & LOEB LLP, New York, New York, for Appellants. Larry L. Crain, CRAIN, SCHUETTE & ASSOCIATES, LLC., Brentwood, Tennessee, for Appellees.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0118p-06.pdf

    Posted By: Mark Cooney @ 07/27/2016 02:40 PM     6th Circuit     Comments (0)  

July 5, 2016
  Sixth Circuit rejects new arguments raised in hate-crime defendants' second appeal
Headline: Sixth Circuit rejects new arguments first raised in hate-crime defendants' second appeal

Case: United States v. Mullet

Area of law: appellate procedure; criminal law - hate crimes, conspiracy, and obstructing justice

Issue presented: In a second appeal, can criminal defendants raise new grounds for appeal that were not raised during their first appeal?

Brief summary: In the district court, sixteen Ohio-Amish community members were found guilty of numerous criminal counts including hate crimes, concealing evidence, and lying to the F.B.I., all related to shaming incidents within their community. In their first appeal, the Sixth Circuit reversed their hate-crime convictions due to faulty jury instructions. The defendants later filed a second appeal raising issues that they could have raised in the first appeal but didn't. Noting that this aspect of appellate procedure is well settled, the Sixth Circuit rejected the second appeal, finding that the arguments raised in the second appeal were late and, therefore, had been waived.

Extended summary: A jury returned guilty verdicts against 16 Ohio Amish involved in shaming incidents within their community, resulting in convictions for hate crimes, concealing evidence, and obstructing justice by lying to the F.B.I. The defendants appealed their convictions, and the court reversed their hate-crimes convictions due to jury instructions that were inconsistent with an intervening Supreme Court decision. On remand, these charges were not retried, so the district court resentenced based on the remaining convictions.

The defendants then filed a second appeal of their criminal convictions. The Sixth Circuit rejected the appeal because they could have raised these issues in their first appeal but failed to. The court observed that in "criminal case after criminal case, we have declined to allow a criminal defendant who fails to challenge part of a conviction in an earlier appeal to raise it in a later appeal." The court noted that this "forfeiture" rule is well settled and prevents everlasting litigation. The rule also encourages compliance with court rules that foster efficiency.

The Sixth Circuit declined to consider the forfeited arguments based on plain-error grounds. It also refused to disturb the district court's new sentences, which were within (or below) the relevant guidelines, finding that the district court exercised its discretion and "made reasonable choices in balancing the relevant factors and setting the sentences."

Panel: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge. (The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of Ohio, sitting by designation.)

Date of issued opinion: May 4, 2016

Docket number(s): 15-3212/ 3231/ 3232/ 3237/ 3246/ 3247/ 3249/ 3250/ 3267/ 3268/ 3269/ 3270/ 3273/ 3275/ 3277

Decided: May 4, 2016

Decision: Judgment affirmed.

Counsel: ARGUED: Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE & ASSOCIATES, Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., THOMPSON HINE LLP, Cleveland, Ohio, for Appellant in 15-3237. Christine Ku, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Wendi L. Overmyer, Edward G. Bryan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, Nevin E. Johnson, Hudson, Ohio, for Appellants in 15-3212, et al. Joseph P. Morse, JOSEPH P. MORSE & ASSOCIATES, Cleveland, Ohio, for Appellant in 15-3232. Mark R. Butscha, Jr., John R. Mitchell, Matthew D. Ridings, Holly H. Little, THOMPSON HINE LLP, Cleveland, Ohio, Joseph B. Rose III, THE ROSE LAW FIRM, Cleveland, Ohio, for Appellant in 15-3237. Damian A. Billak, Canfield, Ohio, for Appellant in 15-3231. Robert E. Duffrin, WHALEN DUFFRIN LLC, Boardman, Ohio, for Appellant in 15-3246. Nathan A. Ray, Akron, Ohio, for Appellant in 15-3247. James S. Gentile, Youngstown, Ohio, for Appellant in 15-3267. Samuel G. Amendolara, AMENDOLARA & RAFIDI, LLC, Boardman, Ohio, for Appellant in 15-3268. J. Dean Carro, BAKER, DUBLIKAR, BECK, WILEY, & MATTHEWS, North Canton, Ohio, for Appellant in 15-3269. Joseph A. Dubyak, Cleveland, Ohio, for Appellant in 15-3270. David C. Jack, Wadsworth, Ohio, for Appellant in 15-3273. Bridget M. Brennan, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, Diana K. Flynn, Thomas E. Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to opinion: http://www.opn.ca6.uscourts.go...ns.pdf/16a0105p-06.pdf

Edited: 07/06/2016 at 10:24 AM by Mark Cooney

    Posted By: Mark Cooney @ 07/05/2016 03:42 PM     6th Circuit     Comments (0)  

June 5, 2016
  Sixth Circuit: No further reduction of amended-guideline sentence based on nonassistance factors
Headline: Sixth Circuit denies further reduction of amended-sentencing-guideline minimums based on nonassistance factors.

Case: USA v. Kimberly Taylor

Area of law: Criminal law; Sentence reductions; Assistance and Non-assistance Factors

Issue presented: May a district court further reduce a sentence to include a downward variance in amended sentences?

Brief summary: A meth-maker was eligible for a sentence reduction based on the new drug-offense levels established by the amended Sentencing Guidelines, and the district court reduced her sentence 19% below her amended guidelines range to account for the substantial-assistance departure she received as part of her original below-guidelines sentence. Because the meth-maker's original sentence also included a downward variance, she asked for a further reduction. The government agreed to the reduction, but the district court still denied the request, stating, "U.S.S.G. § 1B1.10(b)(2) restricts a district court's discretion to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance." The Meth-maker appealed, but the Sixth Circuit affirmed based on § 1B1.10(b)(2)'s historical application and the decisions of other circuits.

Extended summary: A meth-maker was sentenced to 72 months' imprisonment after pleading guilty to "(1) conspiracy to manufacture 5 grams or more of methamphetamine, and (2) aiding and abetting in maintaining a place for the purpose of manufacturing methamphetamine." Her guideline range was 108 to 135 months, based on her total offense level and criminal history. The government moved for a sentence as low as 87 months, or 19% below the bottom of the guidelines range, based on her substantial assistance. She also separately moved for a downward variance. The district court granted both motions and imposed the 72-month sentence, but did not specify to what extent the reduction was attributable to each one. The final sentence reflected a 33% reduction from the bottom of the guideline range.

Years later, an amendment to the Sentencing Guidelines became effective, retroactively lowering the sentencing guidelines for drug offenses. The meth-maker once again moved for a sentence reduction. As amended, her new guideline range was 87 to 108 months. Because her original sentence was already 33% below the applicable guidelines range at the time of sentencing, she sought a sentence as low as 58 months, 33% below the amended guidelines range. The district court ruled that 19% of the original reduction was attributable to the meth-maker's substantial assistance and thus reduced her new sentence to 70 months, a 19% reduction from the bottom of her amended guideline range.

Two months later, the meth-maker and the government filed a joint motion for reconsideration arguing that she is "eligible for a 33-percent reduction below the amended guidelines range, i.e., for a term as low as 58 months' imprisonment." The district court denied the joint motion, concluding that because U.S.S.G. § 1B1.10(b)(2)(B) "is limited to departures awarded 'pursuant to' substantial assistance motions, and because variances and non-cooperation departures are not awarded 'pursuant to' such motions, courts lack authority under § 3582(c)(2) to grant the relief requested by the present motion." The meth-maker appealed, arguing that the district court erred when it held that it "could not reduce her sentence below her amended guideline range to account for the downward variance she received at her original sentencing."

Under § 3582(c)(2), a defendant may receive a reduced sentence when: (1) the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission"; and (2) such reduction is "consistent with applicable policy statements issued by the Sentencing Commission." The Sixth Circuit noted that the relevant policy statement -- § 1B1.10 of the Sentencing Guidelines -- limits a district court's ability to sentence a defendant below the minimum of her amended guideline to the extent of a defendant's substantial assistance.

The Sixth Circuit noted that the caselaw on this issue in other circuits supports reading § 1B1.10 as limiting the scope of below-guidelines reductions to substantial assistance. For instance, the Second Circuit has held that "the provisions of § 1B1.10 . . . require a resentencing court to apply the amended Guidelines range that would have been applicable to a defendant, without applying any departures other than one . . . based on a defendant's substantial assistance." The First, Eighth, Tenth, and Eleventh Circuits have likewise issued published or unpublished opinions supporting the limitations on below-minimum sentences based on the amended Sentencing Guidelines. Therefore, the Sixth Circuit found that the district court properly determined that it lacked authority to reduce the meth-maker's sentence further below her amended guideline range to account for a non-assistance downward variance.

Dissent: The dissent, authored by Judge Merritt, argued that the percentages used in the original sentencing were not scientific, but rather "just a guess or speculation," and should not limit the court's discretion to issue an amended sentence based on current factors. In this case, both the government and the meth-maker had already agreed that the sentence should not be limited to a 19% reduction. Rather, they agreed to a 33% reduction, and there was "no indication that district judge would not agree that this would be a more just sentence." He opined that the court should be allowed to use their discretion in resentencing.

Panel: Circuit Judges Gilbert S. Merritt, Julie S. Gibbons, and David McKeague.

Date of issued opinion: March 7, 2016

Docket number: 15-5930

Decided: Affirmed

Counsel: ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Caryn L. Hebets, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Author of opinion: Circuit Judge Julie S. Gibbons.

Author of dissenting opinion: Circuit Judge Gilbert S. Merritt.

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0057p-06.pdf

    Posted By: Mark Cooney @ 06/05/2016 07:52 AM     6th Circuit     Comments (0)  

May 4, 2016
  Sixth Circuit -- New guidelines didn't justify sentence reduction for career offender
Headline: Sentence reduction due to new guidelines is not appropriate when another relevant guideline supports original sentence.

Case: USA v. Smith -- Sixth Circuit

Area of law: Criminal Law; Sentencing; Changes in Sentencing Guidelines; Conflicting Guidelines

Issue presented: May a prisoner's sentence be reduced based on new sentencing guidelines for one offense if multiple offenses apply and another applicable guideline supports the original sentence?

Brief summary: A prisoner appealed the district court's denial of his motion to reduce his 360-month sentence under 18 U.S.C. § 3582(c)(2), which allows for a sentence reduction when the prisoner's sentencing range has been lowered by a future amendment. An amendment to the drug-trafficking sentencing guidelines reduced his offense to a range lower than the original 360 months to life, prompting him to move for sentence reduction. But § 3582(c)(2) does not permit a sentence reduction when the operation of another applicable guideline prevents the lower sentence. In the prisoner's case, even if the reduced, amended sentencing guidelines for drug-trafficking had applied at the time of his sentencing, his status as a career offender would have triggered a range of 360 months to life. Thus, the prisoner did not qualify for a reduction.

Extended summary: A prisoner was convicted for participating in a drug conspiracy and maintaining a drug house. Although his presentencing report noted that he qualified as a career offender, the district court sentenced him based on the sentencing guidelines for drug-trafficking offenses. At the prisoner's sentencing, the drug-trafficking provision produced a higher offense level than did the career-offender provision: a guidelines range of 360 months to life. The district court sentenced him to 360 months of imprisonment.

The prisoner moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and an amendment to the drug-trafficking sentencing guidelines, which lowered the base-offense level for drug-related crimes. But § 3582(c)(2) does not permit a sentence reduction when the operation of another guideline applicable to the same prisoner prevents the lower sentence. The district court denied his motion, and he appealed.

The Sixth Circuit affirmed, concluding that the district court correctly denied the prisoner's motion because the amendment did not in effect lower all the guideline ranges applicable to his case. Section 3582(c)(2) permits a district court to reduce a defendant's sentence if the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" and if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." In this prisoner's case, even if the reduced sentencing guidelines had been amended before his sentencing, he still would have been subject to a guidelines range of 360 months to life as a career offender. Because the career-offender offense level "shall apply" when it is greater than the otherwise applicable offense level, the prisoner was not eligible for a sentence reduction under § 3582(c)(2).

Panel: Circuit Judges Alice M. Batchelder, and John M. Rogers; District Judge James L. Graham.

Date of issued opinion: February 25, 2016

Docket number: 15-5853

Decided: Affirmed.

Counsel: ON BRIEF: Elizabeth Rogers, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. Eric W. Prisoner, Forrest City, Arkansas, pro se.

Author of opinion: PER CURIAM

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0050p-06.pdf

    Posted By: Mark Cooney @ 05/04/2016 01:42 PM     6th Circuit     Comments (0)  

April 19, 2016
  Sixth Circuit: Inmate may skip administrative remedies if agency strays from its own procedures.
Headline: Sixth Circuit holds that an inmate may file civil-rights suit without exhausting administrative remedies when agency strays from its own procedures.

Case: Troche v. Crabtree

Area of law: Civil Rights, Administrative Law, Prison Litigation Reform Act

Issue: Must an inmate exhaust all steps in the administrative grievance process before suing if the agency fails to respond at each step?

Brief summary: An inmate appealed the district court's dismissal of his § 1983 civil suit against a corrections officer. The district court had found that the inmate failed to exhaust his administrative remedies, as required by Ohio law, before filing suit. The Sixth Circuit disagreed and reversed, concluding that the agency's failure to respond during grievance proceedings excused the inmate's supposed failure to exhaust administrative remedies.

Extended summary: An inmate alleged that he was severely beaten, without provocation, by a corrections offer. The inmate further alleged that after he was treated for his injuries, he was placed in isolation and deprived of food for two weeks.

In Ohio, prisoners must follow a three-step grievance procedure to complain about alleged misconduct. First, within 14 days, inmates must file an informal complaint to the staff member's direct supervisor or the responsible department. If the inmate gets no written response within a reasonable time, the inmate should contact an institutional inspector in writing or in person. If the inmate gets no response in four days, "the informal complaint step is automatically waived." Second, if the inmate has gotten no response or is dissatisfied with the response, he or she may file a notification of grievance within 14 days. The inspector must respond in writing within 14 days or get an extension. Third, if the inmate is dissatisfied with the outcome, he or she may appeal to the office of the chief inspector within 14 days.

Here, the inmate argued that on the same day as the assault, he submitted an informal complaint to the corrections officer's supervisor, which initiated the first step of the grievance process. The inmate never got a response. Thus, he moved to the second step and submitted a notification-of-grievance form to the inspector of institutional services. The inmate again got no response, so he sent, via internal prison mail, correspondence to prison personnel asking about the status of his grievance. After receiving no response for the third time, he filed a § 1983 civil suit alleging violations of his Eighth and Fourteenth Amendment rights.

The corrections officer moved for summary judgment, arguing that the inmate failed to satisfy the Prison Litigation Reform Act's requirement that he exhaust his available administrative remedies before suing in federal court. The officer supported his motion with declarations from the inspector stating that the inmate had not filed proper informal complaints or grievance forms, but rather improperly submitted two complaints to the wrong department and not to the officer's immediate supervisor. Further, the inspector claimed to have no record of receiving a request from the inmate asking for a status update. Finally, the inspector claimed to have investigated the incident and determined that the inmate's complaints were without merit.

The magistrate judge recommended that the district court grant the officer's motion for summary judgment, finding that the inmate failed to file an appeal under step three of the administrative process and thus had failed to exhaust his administrative remedies. The district court adopted the recommendation and granted summary judgment. The Sixth Circuit reversed.

To comply with the Act's exhaustion requirement, an inmate must "tak[e] advantage of each step the prison holds out for resolving the claim internally" and follow "the 'critical procedural rules' of the prison's grievance procedure to permit prison officials to review and, if necessary, correct the grievance 'on the merits.'" Here, both the Sixth Circuit and district court agreed that the inmate's declaration was sufficient to create a factual dispute on whether he satisfied the first two steps of the grievance procedure. But the Sixth Circuit disagreed with the district court's determination that he was required to file an appeal with the office of the chief inspector.

The Sixth Circuit noted that under the Ohio Administrative Code, "an inmate is statutorily authorized to proceed to step two of Ohio's grievance procedure if he does not receive a response to his informal complaint within a 'reasonable time.' However, such authorization is not granted to inmates who fail to receive a response to a notification of grievance form at step two of the grievance procedure." Although step two requires officials to "provide a written response to the grievance within fourteen calendar days of receipt," it does not authorize the inmate to proceed to step three if he does not receive a response. Because step one instructs inmates to proceed to step two after a "reasonable time," but step two does not, the inmate had no authority to move to step three, and in fact had nothing to appeal.

Since the inmate did not receive a response to his appeal, he did not have the required paperwork to file an appeal. Thus, absent language allowing the inmate to proceed, the court could not find that he was required to file a step-three appeal to exhaust his administrative remedies before filing his § 1983 suit. The Sixth Circuit added that "[w]hen pro se inmates are required to follow agency procedures to the letter in order to preserve their federal claims, we see no reason to exempt the agency from similar compliance with its own rules."

Panel: Circuit Judges Bernice B. Donald, Alice A. Batchelder, and Gilbert S. Merritt Jr.

Date of issued opinion: February 25, 2016

Docket number: 15-3258

Decided: Reversed and Remanded.

Counsel: ON BRIEF: Neal Shah, Steven T. McDevitt, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Caitlyn A. Nestleroth, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Author of opinion: Circuit Judge Bernice B. Donald.

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0049p-06.pdf

    Posted By: Mark Cooney @ 04/19/2016 01:12 PM     6th Circuit     Comments (0)  

March 21, 2016
  Sixth Circuit: Probation order may allow search without reasonable suspicion
Case: U.S. v. Tessier

Area of law: Fourth Amendment; Probation

Issue: May a probationer whose probation order contains a search condition be subjected to a search in the absence of reasonable suspicion?

Brief summary: A probationer who'd pleaded guilty to a federal child-pornography charge appealed the district court's denial of his motion to suppress evidence of child pornography. The evidence was found during a warrantless search of his residence, which police conducted without reasonable suspicion. Addressing a question "left open" by the Supreme Court's Knights decision, the Sixth Circuit affirmed, noting that the probationer had signed off on broad consensual language in his probation order: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time."

Extended summary: The probationer pleaded guilty to a federal child-pornography charge but reserved the right to challenge the denial of his motion to suppress evidence of child pornography, which was found during a search of his residence without reasonable suspicion. At the time of the search, the probationer was on probation for a felony conviction for sexual exploitation of a minor. The probationer's probation order contained the state's "standard" search condition: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." The probationer appealed the district court's denial of his motion to suppress the evidence, arguing that the search violated his Fourth Amendment rights due to the lack of reasonable suspicion under the totality of the circumstances. He relied on the Supreme Court's decision in United States v. Knights.

As the Sixth Circuit observed, Knights held that reasonable suspicion is sufficient to uphold a search of a probationer who is subject to a search condition. But Knights left open the issue of "the constitutionality of a suspicionless search" because, in that case, the search "was supported by reasonable suspicion." In this case, however, there was no reasonable suspicion. The officers, as part of a general sweep, searched all residences of known sex offenders in the county. When they entered the probationer's residence, they found a laptop computer containing pornographic material and seized it.

Despite the lack of reasonable suspicion, the Sixth Circuit upheld the search. The court reasoned that under the standard search condition that applies to all probationers in Tennessee, the probationer agreed to a warrantless search of his property and residence "by any . . . law enforcement officer, at any time." The probationer signed the search permit as a condition of his probation. Just above his signature, the language provided: "I have read or have had read to me, the conditions of my Probation. I fully understand them and agree to comply with them." He also signed a specialized-conditions form below other language that stated, "I understand that if I do not agree with any condition, I have a right to petition the Sentencing Court for a modification. Any release from these instructions will be provided to me in writing." The probationer did not petition for modification, and thus his consent to be searched was valid when the search was made.

Panel: Circuit Judges Eugene Siler, Julia Gibbons, and John Rogers.

Date of issued opinion: February 18, 2016

Docket number: 15-5284

Decided: Affirmed.

Counsel: ARGUED: R. David Baker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: R. David Baker, Andrew Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: Circuit Judge John Rogers.

Case alert author
: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0042p-06.pdf

Edited: 03/21/2016 at 11:20 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/21/2016 11:13 AM     6th Circuit     Comments (0)  

March 7, 2016
  Sixth Circuit -- Bad-faith Chapter 11 plan not rescued by "friendly" creditors' approval
Case: In re Village Green I -- Sixth Circuit

Area of law: Bankruptcy; Chapter 11 Reorganization

Issue presented: Can a Chapter 11 reorganization plan proposed in bad faith be confirmed based on votes of "friendly" creditors?

Brief summary: For a bankruptcy court to approve a reorganization plan under Chapter 11 of the Bankruptcy Code, the debtor must propose the plan in good faith, and at least one class of creditors whose interests are impaired by the plan must vote to accept it. Here, the only creditors who voted in favor of the bankruptcy debtor's plan were its own former lawyer and accountant, to whom the debtors owed less than $2,400, and whose interests were impaired only because they'd receive the unpaid balance over 60 days, rather than up front. The bankruptcy court approved the plan. The debtor's mortgagor appealed to the district court. The case bounced back and forth between the bankruptcy court and the district court, with the district court finding that this arrangement was merely a way to get around the Code's good-faith requirement. The bankruptcy court dismissed the case, and the debtor appealed. The Sixth Circuit affirmed.

Extended summary: The debtor, who owed a mortgagor $8.6 million for the purchase of an apartment building, filed for bankruptcy under Chapter 11 of the Bankruptcy Code. The bankruptcy court stayed any creditor action against the debtor and held up foreclosure proceedings. The building was the only asset in the bankruptcy. Apart from the mortgage, the debtor's only creditors were its former lawyer and accountant.

The debtor's proposed reorganization plan included paying down the mortgagor's claim relatively slowly, leaving a balance of $6.6 million after 10 years. If the mortgagor foreclosed, however, the balance would immediately drop to $3.2 million. The plan would also remove several protections found in the loan agreements, including the requirement that the debtor properly maintain the building and obtain adequate insurance for it. Finally, though the debtor would pay the minor claims of the accountant and lawyer in full, it would do so in two payments over 60 days.

That 60-day delay in paying the accountant and lawyer, the bankruptcy court held, meant that their minor claims were "impaired" under the plan. That qualification, in turn, meant that acceptance by the lawyer or accountant alone would satisfy the requirement that "at least one class of claims that is impaired under the plan has accepted the plan." The bankruptcy court thus confirmed the plan. The mortgagor appealed to the district court, which remanded the case to bankruptcy court on two occasions. Finally, the bankruptcy court dismissed the case and lifted the automatic stay.

The Sixth Circuit noted that two of the bankruptcy court's decisions were at issue. The first was whether the lawyer's and accountant's minor claims were "impaired" under the Bankruptcy Code. A claim is impaired under a plan if it alters "the legal, equitable, and contractual rights to which such claim or interest entitles the holder of such claim or interest." Here, the plan altered the minor claimants' rights because they were legally entitled to payment immediately rather than in two installments over 60 days. Although the alteration appeared trivial, the Sixth Circuit agreed that these claims technically did qualify as "impaired."

The Sixth Circuit then considered whether the debtor's plan was proposed in good faith. First, it found no reason for the 60-day payment plan on the minor claims given the debtor's monthly net income from apartment rentals. Second, it noted that the former lawyer and accountant were closely allied with the debtor. In fact, when the mortgagor sought to pay the minor claimants up front - by tendering each of them checks for full payment of their claims - they refused to accept payment. This compounded the appearance that the debtor was acting in bad faith by trying to circumvent the Code with the help of its former lawyer and accountant. Therefore, the Sixth Circuit held that the reorganization plan was not made in good faith, affirming the district court.

Panel: Circuit Judges Ralph B. Guy, Karen N. Moore, and Raymond M. Kethledge

Date of issued opinion: January 27, 2016

Docket number: 14-6521

Decided: Affirmed

Counsel: ARGUED: John L. Ryder, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, for Appellee. ON BRIEF: John L. Ryder, Michael F. Rafferty, HARRIS SHELTON HANOVER WALSH, P.L.L.C., Memphis, Tennessee, for Appellant. Daniel H. Slate, BUCHALTER NEMER, Los Angeles, California, Mark Warren Bailey, Jr., HUSCH BLACKWELL, LLP, Memphis, Tennessee, for Appellee.
Author of opinion: Circuit Judge, Raymond M. Kethledge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0018p-06.pdf

    Posted By: Mark Cooney @ 03/07/2016 03:16 PM     6th Circuit     Comments (0)  

March 1, 2016
  Sixth Circuit -- Eviction Notice Need Not Advise Tenant of Appeals Process
Case: Gardner v. Evans -- Sixth Circuit

Headline: Sixth Circuit holds that eviction notices need not contain language advising tenants of appeals process to be constitutional.

Area of law: Landlord-Tenant Law; Eviction; Constitutional Law

Issue presented: Are city inspectors immune from a suit alleging constitutionally unsound eviction notices when the notices did not tell tenants how to pursue a timely appeal?

Brief summary: Eight tenants received notices of eviction for alleged violations to the Lansing Housing and Premises Code. The notices were left at each home on a "red-tag," which did not include any information about the tenant's right to appeal the inspector's decision and obtain an administrative hearing. Unaware of this option, none of the tenants filed an appeal within the 20-day period. Thus, they all waived their right to an administrative review. The tenants sued, alleging that the lack of appeal-process information on the eviction notices was unconstitutional. The inspectors claimed qualified immunity, but the district court rejected their defense. The Sixth Circuit reversed, holding that there is no established requirement to notify tenants of the appeals process.

Extended summary: Eight tenants were evicted from their homes for alleged violations of the Lansing Housing and Premises Code. In each instance, after the inspector had gone through the home, he summarized his findings in an eviction "red-tag" notice form, which he gave to the tenant. Each red-tag form was filled out as specified by the Code, but none indicated that if an evicted tenant failed to appeal within 20 days after receiving the red-tag, the tenant waived the right to administrative review. Unaware of these appeal requirements, none of the tenants filed an appeal within the 20-day period. Thus, they inadvertently waived their right to an administrative review. The tenants sued, claiming that the lack of notice of the appeals process made their evictions unconstitutional. The inspectors claimed qualified immunity. The district court denied the inspectors' motion for summary judgment based on qualified immunity, and the inspectors appealed.

In determining whether the inspectors were entitled to qualified immunity, the Sixth Circuit considered two questions: First, did the inspectors violate a constitutional right? And second, were the contours of that right clearly established? The Sixth Circuit decided that it didn't need to decide the question of whether a constitutional right was violated because the tenants could not show a clearly established right. The court noted that while the requirement of who is to be given notice has been clearly established by previous caselaw, there is no clarity on the requirement for providing notice of the appeals process. The court noted that both the Supreme Court and other circuits have specifically found that no such requirement exists, finding that tenants have other ways to obtain this information, including the phone numbers found on the eviction notices and readily available public codes. The Sixth Circuit reasoned that based on the availability of this information, it was not unreasonable for the inspectors to believe that their actions were constitutional. Accordingly, the court reversed, holding that the inspectors enjoyed qualified immunity.

Panel: Circuit Judges, Alice M. Batchelder, and Richard A. Griffin; and District Judge, James G. Carr.

Date of issued opinion: February 4, 2016


Docket number: 15-1200

Decided: Reversed and Remanded.

Counsel: ARGUED: F. Joseph Abood, OFFICE OF THE CITY ATTORNEY, Lansing, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees. ON BRIEF: Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellants. J. Nicholas Bostic, Lansing, Michigan, for Appellees.

Author of opinion: ALICE M. BATCHELDER, Circuit Judge

Case alert author: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0023p-06.pdf

Edited: 03/07/2016 at 02:43 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/01/2016 02:36 PM     6th Circuit     Comments (0)  

January 28, 2016
  Citizens in Charge v. Husted -- Sixth Circuit
Case name: Citizens in Charge, Inc. v. Jon Husted

Headline: Secretary of State Maintains Qualified Immunity for Enforcing Law Despite Unconstitutionality

Area of law: Qualified Immunity; Enforcement

Issue presented: Does a Secretary of State's enforcement of a properly enacted and presumptively constitutional statute expose him to personal liability when the law is held to be unconstitutional?

Brief summary: Ohio, like many states, adopted an initiative process that permitted individuals or groups to propose new legislation and constitutional amendments to be placed on the ballot. But the law required that all signature gatherers be Ohio residents. A group of citizens challenged the residency requirement on First and Fourteenth Amendment grounds. The citizens also sought to enjoin enforcement of the new law and to hold Ohio's Secretary of State personally liable (for several thousand dollars) for enforcing it. The district court declared the law unconstitutional, enjoined enforcement of it, and denied the Secretary's qualified-immunity defense. The Secretary appealed, challenging the qualified-immunity ruling but not the injunction. The Sixth Circuit reversed, holding that the Secretary of State was entitled to qualified immunity because the Ohio Legislature made several changes to the statute's signature-gathering requirements since it was last addressed by the court and because the Secretary had no clearly established duty to decline enforcement of this properly enacted and presumptively constitutional statute.

Extended summary: The Ohio General Assembly enacted a provision in 2013 that said: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Ohio Rev. Code § 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three nonprofit organizations wrote to the Secretary of State, asking whether he planned to enforce the statute. The Secretary responded that although "a court may ultimately find this law unconstitutional, that determination is a decision for the judicial branch, not the Secretary of State. As a result, this office and county boards of election will implement this law like any other until such time as the legislature acts to make a statutory change or a court directs otherwise."

At that point, one of the nonprofit groups hired a firm to help gather signatures for an initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature gatherers. Then all three nonprofit organizations, along with one of their members, sued the Secretary of State in federal court. They sought a declaration that the petition-circulator residency requirement was unconstitutional, an injunction prohibiting its enforcement, and damages against the Secretary of State "as compensation for extra petition circulation charges." The Ohio Attorney General intervened to defend the law's constitutionality on behalf of the State, and the Secretary of State argued that qualified immunity protected him from the damages claim. The district court disagreed, granting the permanent injunction and denying the qualified-immunity motion. On appeal, the Secretary of State challenged the qualified-immunity ruling but not the injunction.

The Sixth Circuit explained that qualified immunity protects public officials from liability for money damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Public officials are eligible for qualified immunity if (1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not "clearly established" at the time of the alleged misconduct. Both inquiries, the court noted, are "objective," as they turn on what the law is today and whether it was clearly established at the time of the challenged action.

Looking to Supreme Court precedent, the Sixth Circuit pointed out that public officials should generally receive qualified immunity when enforcing properly enacted laws. Generally, "[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality - with the possible exception of a law so grossly and fragrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." In fact, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. The Sixth Circuit observed that it is not good practice to have public officials second-guess legislative decisions and that this particular election statute was not a "grossly and flagrantly unconstitutional" law.

The court also noted conflicting judicial opinions on the matter of residency requirements in the Tenth Circuit and the Eighth Circuit. The Sixth Circuit thus reasoned that since judges can reasonably disagree about the meaning of the Constitution, courts should not punish public officials for reasonably taking a position.

The citizens argued that the Sixth Circuit's decision in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) was sufficient to place the Secretary of State on notice of the unconstitutionality of the Ohio statute because that decision invalidated residency and registration requirements of the same statute. But the Ohio General Assembly had amended those provisions in response to the Nader decision and passed the new version of the law in 2013. Thus, the Nader decision did not give the Secretary notice of the new statute's constitutional shortcomings.

While the citizens cited other out-of-circuit cases that had struck down petition-circulator residency requirements, these cases engaged in fact-intensive analyses to determine that the specific residency requirements at issue were unconstitutional. So they also did not put the Secretary of State on notice that Ohio's revised law was clearly invalid, especially when the Eighth and Tenth Circuits had issued conflicting decisions on the same issue.

Ultimately, at the time the Secretary of State acted, no court had declared this residency requirement unconstitutional, and he acted reasonably in saying he would enforce it. When public officials implement validly enacted state laws that no court has invalidated, their conduct typically is considered reasonable. Because the Secretary of State acted in the face of a duly enacted, presumptively constitutional law and had no on-point decision declaring it unconstitutional, he did not violate clearly established law or otherwise act unreasonably. Therefore, the Sixth Circuit reversed the district court's decision and remanded the case so that summary judgment could be granted to the Secretary of State based on qualified immunity.

Panel: Chief Judge R. Guy Cole; Circuit Judge, Jeffrey Sutton; and District Judge Robert Bell.

Date of issued opinion: 1/19/2016

Docket number: 15-3447

Decided: Reversed and remanded.

Counsel: ARGUED: Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees. ON BRIEF: Ryan L. Richardson, Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees.

Author of opinion: Circuit Judge Jeffrey Sutton

Case alert author: Luciana Viramontes

Case Alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0013p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 04:25 PM     6th Circuit     Comments (0)  

  Burniac v. Wells Fargo Bank -- Sixth Circuit
Case name: Donald Burniac v. Wells Fargo Bank, N.A.

Headline: State-Court Injunctions May Not Withstand Removal.

Area of law: foreclosures; enjoinment; assignment of mortgage

Issue(s) presented: May a federal district court issue summary judgment after a state court has issued an injunction? Will an invalid assignment void foreclosure proceedings?

Brief summary: Due to unpaid monthly mortgage payments, a homeowner's home became subject to foreclosure. The homeowner sued Wells Fargo Bank in state court to prevent the foreclosure sale. His complaint alleged, in part, that the assignment of his mortgage from Washington Mutual Bank to Wells Fargo was invalid. The state court purportedly entered a default judgment against Wells Fargo and preliminarily enjoined the foreclosure sale. Wells Fargo removed the case to the federal district court, which later denied the homeowner's motion to remand and granted Wells Fargo's motion for summary judgment. The homeowner appealed, arguing that the district court committed procedural errors and misapplied state substantive law. The Sixth Circuit affirmed, finding no procedural errors or misapplication of state law.

Extended summary: A homeowner and his wife executed a mortgage to secure a loan from Washington Mutual Bank. Wells Fargo Bank acted as servicer of the mortgage and sent the homeowner his monthly mortgage statements. Washington Mutual eventually assigned ownership of homeowner's mortgage to Wells Fargo, although the homeowner disputed the validity of that assignment. After the assignment, the homeowner continued to receive his monthly mortgage statements from Wells Fargo. He sent his mortgage payments to Wells Fargo for several years, until he experienced hardship and stopped making payments. Wells Fargo began foreclosure proceedings on his property, and a foreclosure sale was scheduled.

To prevent the foreclosure sale, the homeowner sued Wells Fargo in state court. The homeowner's complaint asserted, among other claims, that the signatures on the assignment were forged by "robo-signers" or that the signers had no authority to execute the assignment. The next day, the homeowner sought a temporary restraining order, which the state court granted immediately. The state court also set a hearing on the homeowner's request for a preliminary injunction. The parties stipulated to adjourn the hearing, but Wells Fargo did not attend the rescheduled hearing. The state court issued a preliminary injunction in the homeowner's favor.

Later, the homeowner filed a "DEFAULT REQUEST, AFFIDAVIT, AND ENTRY" form asking the court clerk to enter a default against Wells Fargo for its "failure to plead or otherwise defend" the case. Beneath that text were two lines with "Date" and "Court Clerk" captions that were left blank. The state-court docket displayed no other entries concerning a default judgment. Wells Fargo removed the case to federal court on the same day that the homeowner requested the default judgment. No default was ever entered.

The homeowner moved in federal court to remand the case back to state court, but the district court concluded that subject-matter jurisdiction was proper based on diversity of citizenship and denied the motion. The district court later granted Wells Fargo's motion for summary judgment. The homeowner appealed, challenging: (1) procedural errors allegedly committed by the district court, and (2) the district court's substantive-law rulings on summary judgment.

The Sixth Circuit rejected the homeowner's procedural challenges because a default judgment was never entered against Wells Fargo, and the state court's preliminary injunction neither prevented the district court from issuing a summary-judgment order nor required remand of the case to the state court. The Sixth Circuit added that a final order on the merits extinguishes a preliminary injunction.

Likewise, the court held that the homeowner's challenges based on the district court's application of Michigan law failed because, even assuming that Wells Fargo violated Michigan law by way of an invalid assignment, the homeowner had not demonstrated that he was prejudiced by those violations. Specifically, the homeowner could not demonstrate that the alleged assignment irregularities (1) would subject him to double liability, (2) placed him in a worse position to keep his property, or (3) prejudiced him in any other way. Indeed, the purported assignment deficiencies did not cause the homeowner confusion about whom he should pay because, both before and after the assignment, the homeowner received his monthly mortgage statements from the same bank: Wells Fargo. Therefore, the Sixth Circuit affirmed the district court's decision.

Panel: Circuit Judges Richard Moore, Eric Clay, and Ronald Gilman.

Date of issued opinion: January 13, 2016

Docket number: 15-1230

Decided: Affirmed.

Counsel: ARGUED: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees.

Author of opinion: Ronald Lee Gilman, Circuit Judge

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0009p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:52 PM     6th Circuit     Comments (0)  

  Kelsey v. Pope -- Sixth Circuit
Case name: Norbert Kelsey v. Melissa Pope

Headline: Off-reservation Offenses Remain Under the Jurisdiction of Tribal Courts.

Area of law: Indian Civil Rights Act; Tribal law

Issue presented: Does a tribal reservation maintain criminal jurisdiction over its members if the offense occurs off the tribal reservation?

Brief summary: A tribal member of the Ottawa Indians (Band) was convicted in tribal court of misdemeanor sexual assault for inappropriately touching a tribal employee at the Band's Community Center. The Community Center is located on land owned by the Band but is not located within the tribal reservation. He appealed his sentence in tribal court, arguing that the tribal court lacked jurisdiction over his off-reservation conduct. When his sentence was affirmed, he filed a petition for habeas relief in United States District Court, arguing lack of jurisdiction and a violation of due-process protections under the Indian Civil Rights Act. The district court granted habeas relief, holding that the Band lacked criminal jurisdiction to try and punish the tribal member's off-reservation conduct, but the district court did not rule on his due-process challenge. The Band appealed, and the Sixth Circuit reversed and held that the Band has jurisdiction because it has the inherent sovereign authority to prosecute members when necessary to protect tribal self-government or control internal relations.

Extended summary: The Band is a federally recognized Indian tribe located in northwest Michigan's Manistee and Mason Counties. Under federal law, Indian tribes "shall retain inherent sovereign power," with "the inherent authority to establish their own form of government, including tribal justice systems." The Band has also implemented a Tribal Constitution. Within the constitution, the Tribal Court is vested with the authority "[t]o adjudicate all civil and criminal matters arising within the jurisdiction of the Tribe or to which the Tribe or an enrolled member of the Tribe is a party."

The Community Center, located just across the street from the reservation, is constructed on land purchased by the Band in fee simple in 1997 but is not within "Indian country" as defined by 18 U.S.C. § 1151. In 2005, the tribal member, then an elected member of the Band's nine-person Tribal Council, made inappropriate physical contact of a sexual nature with an employee of the Band's medical clinic during a meeting at the Community Center. The tribal member was later charged with misdemeanor sexual assault and harassment under its internal criminal laws. In 2008, the Tribal Court convicted the tribal member of sexual assault and sentenced him to six months in jail.

On appeal, the tribal member challenged the Tribal Court's jurisdiction, arguing that the Band lacked authority to exercise criminal jurisdiction over his specific conduct because it occurred outside the Band's Indian country. The Tribal Court of Appeals affirmed tribal criminal jurisdiction over his offense based on the Band's inherent sovereign authority to prosecute its members. It also found that a jurisdictional mandate in the Tribal Constitution required extending jurisdiction to his off-reservation conduct.

The tribal member filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Michigan, making two principal arguments: (1) the Band lacked inherent sovereign authority to assert criminal jurisdiction over his conduct because it occurred outside of the Band's Indian country, and (2) the Tribal Court of Appeals' decision violated his due-process rights under the Indian Civil Rights Act. The district court held that Indian tribes were implicitly divested of criminal jurisdiction over off-reservation member conduct. The Band appealed.

Both parties accepted that, as dependent sovereigns, Indian tribes exercise inherent sovereign authority. The Sixth Circuit therefore assessed the question of extra-territorial criminal jurisdiction by breaking this governing framework into three separate inquiries: (1) Do Indian tribes have inherent sovereign authority to exercise extra-territorial criminal jurisdiction? (2) If so, has that authority been expressly limited by Congress or treaty? (3) If not, have the tribes been implicitly divested of that authority by virtue of their domestic dependent status?

First, the Sixth Circuit observed that a tribe's sovereign authority to punish its members is "a power that this Court has called inherent." The court agreed with the Band's view that tribes have "inherent authority to prosecute tribal members for offenses substantially affecting [tribal] self-governance interests," even when those offenses take place outside Indian country. Furthermore, Indian tribes have the inherent sovereign authority to try and punish members on the basis of their tribal membership.

Second, the court concluded that there is no statute or treaty that expressly divests the Band of its inherent authority to try and punish its members for off-reservation conduct.

Third, while courts have repeatedly restricted tribal criminal jurisdiction over nontribal members, the Supreme Court has consistently affirmed that the "power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status."

Accordingly, the Sixth Circuit held that because prosecuting this tribal member's conduct was "necessary to protect tribal self-government or control internal relations," the Band retained authority to assert criminal jurisdiction over his off-reservation conduct. The Sixth Circuit thus reversed the district court's grant of habeas relief for lack of tribal jurisdiction.

Panel: Circuit Judges John M. Rogers and David W. McKeague, and District Judge Edmund A. Sargus, Jr.

Date of issued opinion: January 5, 2016

Docket number: 14-1537

Decided: Vacated and reversed.

Counsel: ARGUED: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. ON BRIEF: Riyaz A. Kanji, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, Dan Himmelfarb, MAYER BROWN LLP, Washington, D.C., for Appellant. Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellee. Eugene R. Fidell, New Haven, Connecticut, John L. Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Ruthanne M. Deutsch, GEORGETOWN UNIVERSITY LAW CENTER APPELLATE LITIGATION PROGRAM, Washington, D.C., for Amici Curiae.

Author of opinion: Circuit Judge McKEAGUE

Case alert author: Luciana Viramontes

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0001p-06.pdf

    Posted By: Mark Cooney @ 01/28/2016 03:05 PM     6th Circuit     Comments (0)  

October 20, 2015
  Sixth Circuit stays EPA's new Clean Water Act regulations
State of Ohio v. U.S. Army Corps of Eng'rs -- Sixth Circuit

Headline: Sixth Circuit pulls the plug on EPA's new Clean Water Act regulations

Area of the Law: Clean Water Act jurisdiction; environmental protection

Issue Presented: Whether the Sixth Circuit should stay enforcement of the EPA's new Clean Water Rule and restore the status quo as it existed before the Rule went into effect.

Brief Summary: Various states sued to challenge the validity of the EPA's new Clean Water Rule, 80 Fed. Reg. 37,054. The states alleged that the rule's definitional changes negatively altered the existing federal-state balance on matters concerning the integrity of the nation's waters. The states also argued that the rule violated the law as defined by the Supreme Court and that the Rule's adoption violated the requirements of the Administration Procedures Act. The states sought to stay the execution of the Rule pending judicial review of their claims. Although the court did not confirm its jurisdictional authority, it ruled that it did have the authority to make orders that preserved the subject of the petition. The Court found that the states showed a substantial likelihood of success on the merits of their case. And because the Court recognized the burden that government bodies - both state and federal--and private parties would experience if the Rule went into effect, it granted the states' motion for a stay.

Extended Summary: Eighteen states sued the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to challenge the validity of the Clean Water Rule that went into effect on August 28, 2015. The Clean Water Rule clarifies the definition of protected waters, within the United States, as used in the Clean Water Act, 33 U.S.C. §1251. The states' multi-circuit cases were transferred and consolidated before the Sixth Circuit. The states argued that the new definitions change the Corps' and the EPA's regulatory jurisdiction and alter the federal-state balance on restoring and maintaining the integrity of the nation's waters. The states also argued that the Rule violates the law as defined by the Supreme Court and that the Rule's adoption violates the requirements of the Administration Procedures Act. The states moved to stay enforcement of the Clean Water Rule pending judicial review of their claim and to restore the status quo as it existed before the Rule went into effect.

The Court considered four factors in reaching its decision to grant the states' stay motion: (1) the likelihood that the party seeking the stay would prevail on the merits of the appeal; (2) the likelihood that the moving party would be irreparably harmed absent a stay; (3) the prospect that others would be harmed if the stay was granted; and (4) the public interest in granting the stay. The Court noted that these factors were not prerequisites to be met, but interrelated considerations to be balanced as long as the states, through sound legal principles, could show that the circumstances of their case justified the Court's using its discretion.

The Court found that there was a substantial possibility that the states would succeed on the merits because the states had a plausible argument that the Rule's new definition of navigable waters conflicts with the Supreme Court's opinion in Rapanos v. United States, 547 U.S. 715 (2006). Moreover, the Corps and the EPA lacked proof to rebut the states' argument that the Rule violates the Administrative Procedures Act because it was not a product of reasoned decision-making and because the Corps and EPA failed to include the Rule's details when it was published for comment.

Although the Sixth Circuit found that there was no compelling showing that any of the states would suffer irreparable harm, the court also determined that the integrity of the nation's waters would not suffer if the Rule was not immediately enforced. In balancing the harm, the Court instead focused on the Rule's redrawing of jurisdictional lines and the potential burden that governmental bodies - state, federal--and private parties might experience from uncertainty over the Rule's requirements.

Based on these findings, the Court held that it had discretion to rule on the states' stay motion to preserve the status quo pending further proceedings. It also held that regardless of the states' challenge to subject matter jurisdiction - a matter currently pending before the Court - the Court had the authority to make orders that preserved the subject of the petition.

Thus, the Court ruled that enforcement of Clean Water Rule was stayed until further order of the Court.

Dissent: The dissent, authored by Judge Keith, argued that the Court needed to first determine subject-matter jurisdiction before granting the stay. Because this threshold determination was still being decided, Judge Keith argued that enjoining implementation of the rule could only occur after the Court determined that they had jurisdiction to review the Rule.

Panel: Circuit Judges Damon J. Keith, David W. McKeague, and Richard A. Griffin

Date of Issued Opinion: October 9, 2015

Docket Number: Nos. 15-3799/3822/3853/3887

Decided: Petitioners' Motion for stay GRANTED.

Author of Opinion: Circuit Judge David W. McKeague

Author of Dissenting Opinion: Circuit Judge Damon J. Keith

Case Alert Author: Karen Wentz

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/15a0246p-06.pdf

    Posted By: Mark Cooney @ 10/20/2015 12:50 PM     6th Circuit     Comments (0)  

May 27, 2015
  Family Serv. Ass'n ex rel. Coil v. Wells Twp. - Sixth Circuit
Headline: Civil-rights claim by alleged victim of police abuse survives motion for summary judgment

Area of Law: Civil Rights Act § 1983; Qualified Immunity

Issue Presented: Is a police officer entitled to summary judgment based on qualified immunity in a civil-rights suit alleging that the officer unlawfully seized the plaintiff and was deliberately indifferent to the plaintiff's safety, resulting in the plaintiff's injury by a third party?

Brief Summary: The plaintiff was sitting by the side of the road when he was approached by a police officer who demanded his identification, which he declined to provide. The plaintiff was severely injured when he was struck by a car after being pepper sprayed, handcuffed, and left lying in the road by the officer. The plaintiff filed a civil-rights suit against the officer, and the officer moved for summary judgment, arguing that no reasonable jury could find that the officer violated the plaintiff's clearly established constitutional rights. The Sixth Circuit affirmed the district court's denial of the officer's motion, finding that reasonable inferences could be drawn from the facts to establish that the officer had no legitimate reason for seizing the plaintiff and that the officer acted with deliberate indifference to the plaintiff's safety in the course of the arrest.

Extended Summary: The plaintiff and his boyfriend were resting on a guardrail by the side of the road when a police officer approached them and asked for identification, which they refused to provide. The remaining facts of the encounter were disputed: the plaintiff claimed that he simply walked away from the encounter and was attacked by the officer, while the officer claimed that the plaintiff immediately became hostile and assaultive when the officer approached. But it was undisputed that the plaintiff wound up pepper-sprayed, handcuffed, and lying face-down in the roadway, where he was struck by a passing vehicle and seriously injured. The officer, who attempted to remove the plaintiff from the roadway at the last minute, was also struck by the vehicle.

The plaintiff's legal guardian filed a civil-rights suit against the officer and his employer, alleging that the officer seized the plaintiff without reasonable cause in violation of the Fourth Amendment and that the officer exhibited deliberate indifference to the plaintiff's safety in violation of the Fourteenth Amendment. The defendants moved for summary judgment based on qualified immunity, but the district court denied the motion, and the defendants filed an interlocutory appeal.

First, the plaintiff asked the court to dismiss the interlocutory appeal for want of jurisdiction because, according to the plaintiff, the appeal contested only the plaintiff's version of the facts. A purely factual dispute, without a legal component, would not be an appropriate basis for an interlocutory appeal. The court rejected this argument because the defendants' argument was that, even looking at the factual record in a light most favorable to the plaintiff, the officer had not violated the plaintiff's constitutional rights. This was a question of law and an appropriate basis for an interlocutory appeal.

Reaching the merits, the Sixth Circuit noted that qualified immunity would protect the officer from the suit unless the plaintiff could establish that the officer "violated his constitutional rights and that those rights were clearly established." The officer would be entitled to summary judgment only if he could establish that no reasonable jury could find that the officer seized the plaintiff without reasonable suspicion and that he acted with deliberate indifference to the plaintiff's safety.

Here, the court noted that police may not stop a citizen on the street without reasonable suspicion that the citizen is committing, or is about to commit, a crime. A reasonable jury could credit the plaintiff's version of the events surrounding his arrest and find that the officer had no reason to suspect that he had committed a crime. Simply walking away from an officer and refusing to provide identification are not crimes and do not establish reasonable suspicion. And while the officer claimed that the plaintiff struck him and attempted to flee, a reasonable jury could believe the opposite.

Moreover, once an individual has been taken into police custody, the police are liable for injuries inflicted by third parties if the police act with deliberate indifference to the individual's safety. Here, a reasonable jury could find that the officer acted with deliberate indifference when he left the plaintiff in the middle of the road for at least two minutes instead of moving him immediately after he was handcuffed. Also, the officer failed to activate his patrol car's regular or flashing lights to warn oncoming motorists of their presence. While the officer acted heroically in trying to pull the plaintiff from the roadway as the car approached, he still may have acted with deliberate indifference when he placed the plaintiff in that position to begin with.

Because material facts remained in dispute, the district court was correct to deny summary judgment. The judgment of the district court was affirmed.

Panel: Circuit Judges Alan E. Norris, Jeffrey S. Sutton, and Bernice B. Donald

Date of Issued Opinion: April 16, 2015

Docket Number: No. 14-4020

Decided: Affirmed

Counsel: Gregory A. Beck, BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, North
Canton, Ohio, for Appellant. Neal E. Shapero, Abby L. Botnick, SHAPERO ROLOFF CO.,
LPA, Cleveland, Ohio, for Appellee.

Author of Opinion: Circuit Judge Jeffrey S. Sutton

Case Alert Author: Greg Masters

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/15a0069p-06.pdf

    Posted By: Mark Cooney @ 05/27/2015 03:47 PM     6th Circuit     Comments (0)  

  Planet Aid v. City of St. Johns - Sixth Circuit
Headline: Ordinance banning outdoor charitable-donation bins struck down as an unconstitutional content-based regulation of protected speech

Area of Law: First Amendment

Issue Presented: Can a city ban outdoor, unattended charitable-donation bins as a public nuisance without running afoul of the First Amendment's protection of speech related to charitable solicitation?

Brief Summary: A nonprofit charitable organization challenged a city ordinance that banned outdoor, unattended charitable donation bins. The district court issued a preliminary injunction against enforcement of the ordinance, and the city appealed. The Sixth Circuit affirmed, finding that the charitable organization had demonstrated a strong likelihood of success on the merits of its claim because the ordinance was an improper content-based regulation of protected speech that failed the strict-scrutiny test. Even though the ordinance was viewpoint neutral - it applied to all charitable organizations - it was still content-based because it applied only to bins with an expressive message soliciting donations to charity. Applying strict scrutiny, the court found that even if the city had a compelling interest in preventing blight and promoting aesthetics, the ban on charitable-donation bins was not the least restrictive method available to promote those interests.

Extended Summary: A charitable organization placed unattended donation bins on private property with the consent of the property owners. The city sent the charity a letter directing it to remove the bins, stating that the bins were creating a nuisance because people were leaving boxes and refuse around the containers. When the charity refused to remove the bins, the city removed them. Later, the city passed an ordinance banning all unattended charitable-donation bins.

The city identified the purpose of the ordinance as protecting the health, safety, and welfare of the public by "preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties." The city also noted that "unattended donation boxes . . . may become an attractive nuisance for minors and/or criminal activity." Arguing against the injunction, the city analogized the bins to outdoor advertising signs, which could be regulated by content-neutral time, place, and manner restrictions.

The Sixth Circuit fist examined Supreme Court precedent establishing that charitable solicitation is a form of speech entitled to strong constitutional protection. Protected speech occurs when members of the public view the bins and perceive their message of charitable giving, regardless of the fact that the bins are not attended. But the court noted that this finding is the beginning, rather than the end, of the inquiry. "Government regulations of protected speech are subject to strict scrutiny only if they target the protected speech, that is, if they are content-based." On the other hand, content-neutral regulations of the time, place, and manner of protected speech are subject to only intermediate scrutiny.

Here, the court found that the city ordinance was content-based and subject to strict scrutiny because the ordinance did not ban all types of outdoor bins; it only regulated donation bins with an expressive message on the topic of charitable giving. Specifically, the ordinance applied only to bins "intended to accept donated goods or items." While the city identified various nuisances associated with the bins, these nuisances could also be associated with non-expressive containers such as dumpsters and trash cans, which were not banned. The city had argued that the ordinance was content-neutral because it applied to all charitable-donation bins, regardless of the nature of the organization that owned the bins. But the court recognized that even a viewpoint-neutral governmental regulation can be content-based.

The city also argued that Sixth Circuit precedent on the regulation of billboards should control. Regulations of billboards were previously upheld because they specified only the size and height of the billboards without any reference to the content of the speech that appeared on them. The city argued that the charitable-donation-bin regulation was similar. The court disagreed, again concentrating on the fact that only bins with a charitable message were banned.

Applying strict scrutiny, the court examined whether the ordinance was both narrowly tailored to promote a compelling government interest and whether the ordinance was the least-restrictive means available to accomplish that interest. Even assuming that the city had a compelling interest in preventing blight and promoting aesthetics, the ordinance failed the strict-scrutiny test because it assumed that charities would be negligent in maintaining the areas around their bins or in picking up donated items in a timely manner. By banning the bins, the ordinance also assumed without evidence that less-restrictive regulations, such as requiring bi-weekly pickups or inspections, would not be effective. Because the ordinance failed the strict-scrutiny test, the charity established that it was likely to prevail on the merits, and the district court's injunction was upheld.

Panel: Circuit Judges Richard Allen Griffin and Jane Branstetter Stranch; District Judge George Caram Steeh (sitting by designation)

Argued: March 5, 2015

Date of Issued Opinion: April 6, 2015

Docket Number: No. 14-1680

Decided: Affirmed

Counsel (argued and on brief): Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellant. Daniel P. Dalton, DALTON & TOMICH, PLC, Detroit, Michigan, for Appellee.

Author of Opinion: Circuit Judge Richard Allen Griffin

Case Alert Author: Greg Masters

Case Alert Circuit Supervisor: Professor Mark Cooney

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/15a0063p-06.pdf

    Posted By: Mark Cooney @ 05/27/2015 03:25 PM     6th Circuit     Comments (0)  

April 1, 2015
  Blackston v. Rapelje -- Sixth Circuit
Headline: Sixth Amendment right to confrontation guarantees accused more than in-person confrontation.

Areas of Law: Criminal Law; Evidence; Confrontation Clause

Issues Presented: Did the state court properly exclude the recantations of two key witnesses, reasoning that the Confrontation Clause only guarantees a defendant's right to in-person cross-examination? If not, was the exclusion of the recanted statements harmless error?

Brief Summary:

The defendant was charged with murder, and the state's case depended on the testimony of five witnesses. After the defendant's first trial, two of the key witnesses recanted their prior inculpatory statements and were declared unavailable to testify at the retrial. The state court allowed the witnesses' testimony from the first trial to be read into the record but refused to allow evidence of the witnesses' recantations. The defendant sought federal habeas relief, arguing that the state unreasonably abridged his right to confrontation under the Sixth Amendment. The Sixth Circuit held that denying the defendant the opportunity to impeach the witnesses' testimony with proof of their recantations violated his Sixth Amendment right to confrontation, and this constitutional error was not harmless.

Extended Summary:

The state charged the defendant with first-degree murder. No physical evidence linked the defendant to the crime. The state's case depended entirely on the testimony of five witnesses. At trial, the defendant's ex-girlfriend and an associate testified against him. The jury convicted the defendant, but the trial judge reversed the conviction and granted a retrial because he had misinformed the jury about the extent of the associate's immunity deal.

Before the defendant's retrial, two of the five witnesses (the associate and the ex-girlfriend) prepared written statements recanting their testimony from the first trial. At the second trial, the state called both witnesses to testify, but due to their erratic behavior on the stand, they were declared unavailable for testifying. Instead, the court ordered that the witnesses' testimony from the first trial be read into the record. The court denied the defendant's request to impeach this testimony by presenting evidence of the witnesses' recantations. The second jury convicted the defendant of first-degree murder.

The defendant appealed in the state appellate system. After exhausting his state remedies, he petitioned for federal habeas relief, arguing that the state trial court violated his Sixth Amendment right of confrontation and his Fourteenth Amendment right to due process by refusing to allow him to impeach the unavailable witnesses' testimony with evidence of their recantations. The district court granted a conditional habeas writ.

The Sixth Circuit affirmed, holding that the state trial court improperly excluded the recantations of both witnesses in violation of the defendant's Sixth Amendment right. The Sixth Circuit stated that a defendant has a right to confront all witnesses that bear testimony against him or her, regardless of the manner in which the state presents its witnesses' testimony to the jury. As such, the defendant had the right to confront and impeach all witnesses who testified against him, whether through live cross-examination or by reading the written recantations into the record.

The Sixth Circuit further concluded that trial court's exclusion of the recantations was not harmless error considering the remaining testimony.
In reaching these conclusions, the Sixth Circuit first rejected the state's argument that there is no clearly established right to confrontation other than by live cross-examination. The state's argument relied, in part, on the Supreme Court's 1895 decision in Mattox v. U.S., which held that "admission of a witness's inconsistent statements required that the offering party lay a foundation by calling the witness to explain the inconsistency."

The Sixth Circuit found two faults with the state's Mattox argument. First, the court noted that the requirement allowing a witness to testify about an inconsistency was rooted in a rule of evidence. Therefore, the Mattox decision merely interpreted a rule of evidence and had no relevance to the constitutional issue presented in the defendant's case. Moreover, the court noted that the comments to Federal Rule of Evidence 806 singled out the Mattox case for express disapproval.

The state also relied on the Supreme Court's 2013 decision in Nevada v. Jackson, which involved a rape conviction and a similar recantation scenario. The Sixth Circuit distinguished Jackson because it concerned a local evidentiary rule that barred admission of extrinsic evidence. And the defendant in Jackson was also able to extensively cross-examine the witness during trial.

Thus, the Sixth Circuit reasoned that Jackson would only be relevant to the state's argument if the unavailable witnesses' recantations were considered extrinsic evidence. But the court found that the witnesses' recantations were not extrinsic evidence because they were not being offered to prove inconsistencies in another witness's testimony; instead, the defense wanted to introduce the witnesses' own written statements to impeach their own testimony. Since the recantations did not address the witnesses' credibility on collateral matters, but rather material issues in dispute, they were admissible at trial.


Panel: Judge Daughtrey, Judge Kethledge, and Judge Donald.

Counsel (Argued and On Brief): B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Kimberly A. Jolson, JONES DAY, Columbus, Ohio, for Appellee.

Date of Issued Opinion: February 17, 2005

Docket Number: 12-2668

Decided: Affirmed

Author of Opinion: Judge Daughtrey

Case Alert Author: Cristina D. Solis

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/14a0251p-06.pdf

    Posted By: Mark Cooney @ 04/01/2015 11:13 AM     6th Circuit     Comments (0)  

February 17, 2015
  Conlon v. InterVarsity Christian Fellowship/USA -- Sixth Circuit
Headline: Sixth Circuit applies First Amendment's ministerial exception in upholding religious organization's firing of employee contemplating divorce

Areas of Law: Employment Law; U.S. Constitution.

Issue Presented: Did the First Amendment's ministerial exception bar state and federal employment-law claims against a religious organization and its individual supervisors?

Brief Summary: A religious organization fired the plaintiff after she disclosed that she and her husband were contemplating a divorce. After her firing, the plaintiff sued the organization and her former supervisors in the United States District Court for the Western District of Michigan, alleging illegal gender discrimination under state and federal civil-rights laws. The defendants moved to dismiss, asserting the First Amendment's ministerial exception. The district court granted the motion, and the Sixth Circuit affirmed, finding that the defendants were entitled to the ministerial exception.

Extended Summary: From 2004 to 2011, the plaintiff worked as a "spiritual director" for InterVarsity Christian Fellowship. In March 2011, the plaintiff told her supervisor that she and her spouse were considering a divorce. This notification was required under InterVarsity's employment policy. InterVarsity placed the plaintiff on leave to repair her marriage but eventually fired her on December 20, 2011. The plaintiff sued InterVarsity and her former supervisors, alleging that her firing was based on gender discrimination and violated Michigan's civil-rights laws and Title VII of the Civil Rights Act of 1964. The defendants moved to dismiss, asserting the First Amendment's ministerial exception. The district court granted the motion.

The Sixth Circuit affirmed. It relied on its decision in Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007), where it held that for the ministerial exception to bar an employment-discrimination claim, "the employer must be a religious institution and the employee must have been a ministerial employee." The court determined that InterVarsity was a religious group because its purpose was to "advance the understanding and practice of Christianity." The Sixth Circuit also relied on the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012), which identified four factors that can establish an employee's "minister" status: "[1] the formal title given by the church, [2] the substance reflected in that title, [3] her own use of that title, and [4] the important religious functions she performed for the church." The Sixth Circuit found that factors one and four existed in the present case and that the ministerial exception "clearly" applied.

In rejecting the plaintiff's argument that the defendants waived the ministerial exception, the Sixth Circuit held that the "ministerial exception is a structural limitation imposed on the government by the Religion Clauses," a limitation that prohibits state and federal governments from interfering with religious leadership matters. Thus, it can never be waived. The Sixth Circuit also noted that even if the ministerial exception was not recognized under Michigan law, because the First Amendment's Religion Clauses apply to states through the Fourteenth Amendment, a violation of the First Amendment by any Michigan statute, as applied, will be defeated by this federal right.

Finally, the Sixth Circuit held that individual supervisors could not be held liable under Michigan law because "holding the individual decision maker liable for the very employment decision for which the organization cannot be held liable would vitiate both the purpose and the effect of the ministerial exception."

For all these reasons, the Sixth Circuit held that the ministerial exception barred both state and federal employment-law claims against all the defendants and affirmed the district court's ruling.

Concurrence: Judge Rogers wrote a concurrence suggesting that InterVarsity could "no more 'agree' to have Title VII extend to claims by the ministerial exception than an employer can 'agree' to have Title VII apply to a new kind of discrimination." He believed that this inability to expand the scope of statutory causes was enough to reject the plaintiff's waiver argument. Judge Rogers also noted that the decision in the present case did not require the Sixth Circuit to decide whether a religious employer could enter into a "judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy)." His belief was that enforcing such an employment contract may interfere with a religious organization's independence from employment laws. Yet if the courts decline to enforce these contracts, religious organizations may not be able to hire the candidates they desire.

Panel: Batchfelder and Rogers, Circuit Judges; Beckwith, District Judge

Date of Issued Opinion: February 5, 2015

Docket Number: 14-1549

Counsel: ARGUED: Katherine Smith Kennedy, PINSKY, SMITH, FAYETTE & Kennedy, LLP, Grand Rapids, Michigan for Appellant. Michelle K. Terry, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, for Appellees. ON BRIEF: Katherine Smith Kennedy, PINSKY, SMITH, FAYETTE & Kennedy, LLP, Grand Rapids, Michigan for Appellant. Michelle K. Terry, David A. French, Abigail A. Southerland, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, Edward L. White III, AMERICAN CENTER FOR LAW & JUSTICE , Ann Arbor, Michigan, for Appellees. David A. Cortman, Kevin H. Theriot, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, David J. Hacker, ALLIANCE DEFENDING FREEDOM, Folsom, California, Kimberlee Wood Colby, CENTER FOR LAW & RELIGIOUS FREEDOM OF THE CHRISTIAN LEGAL SOCIETY, Springfield, Virginia, for Amici Curiae.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/15a0021p-06.pdf

Case Alert Author: Daron J. Berman

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 02/17/2015 at 12:18 PM by Mark Cooney

    Posted By: Mark Cooney @ 02/17/2015 11:42 AM     6th Circuit     Comments (0)  

December 1, 2014
  Deboer v. Snyder -- Sixth Circuit
Headline: The Sixth Circuit denies application of the Fourteenth Amendment to same-sex marriage and upholds a rational basis for constitutional amendments that define marriage as between a man and a woman.

Area of Law: Due Process and Equal Protection Clause of the Fourteenth Amendment; Michigan Constitution; Ohio Constitution; Kentucky Constitution; Tennessee Constitution

Issues Presented: Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to recognize same-sex marriage?

Brief Summary: The Sixth Circuit consolidated cases from Michigan, Kentucky, Ohio, and Tennessee in which plaintiffs challenged state constitutional amendments that defined marriage as between a man and a woman. The Sixth Circuit upheld the state laws on the grounds that the Due Process and Equal Protection Clauses of the Fourteenth Amendment do not require states to recognize same-sex marriages.

The Court based its decision on federalism principles, relying on a Supreme Court decision from 1972, Baker v. Nelson, 409 U.S. 810. The Court further held that there was no constitutional requirement to expand the definition of marriage after analyzing arguments based on originalism, rational-basis review, animus, interference with fundamental rights, evolving moral and policy considerations, and whether or not homosexuals as a group are a discrete and insular class without political power. In the end, the Court rejected all of the plaintiffs' arguments and upheld the state constitutional amendments.

Extended Summary: The entire holding was grounded on federalism principles since the Sixth Circuit determined that state governments have traditionally been given broad authority to regulate domestic-relationship issues. Judge Sutton began the opinion by framing the question as "how best to handle [change] under the United States Constitution." The Judge reinforced the broad framing of the question by pointing out that, practically speaking, this opinion will decide "whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples."

Judge Sutton further pointed out that all the states covered by the Sixth Circuit approved of constitutionalizing the definition of marriage through citizen initiatives that won by large majorities. In Michigan, 59% of the voters opted to constitutionalize the state's definition of marriage; in Kentucky, 74% of the voters approved; in Ohio, 62%; and in Tennessee, 80%. Therefore, the effect of affirming the district courts would be to overrule these citizen initiatives by judicial mandate.

Finally, Judge Sutton anchored the federalism argument on a one-line order from the United States Supreme Court's Baker decision, which held that a case with the same issue as the one presented here did not raise "a substantial federal question." The Sixth Circuit pointed to only two scenarios in which it may ignore a Supreme Court mandate: first, when the Supreme Court overrules the decision expressly by name; and second, when the Supreme Court overrules a decision by outcome.

As to the first, since none of the decisions cited by the plaintiffs mention Baker by name, an express overruling has not occurred. As to the second method, the Court held that no Supreme Court case has actually addressed the federalism issue since Baker. Therefore, the Sixth Circuit is still bound by it. The various plaintiffs made a variety of arguments that doctrinal developments have overruled Baker and that the Sixth Circuit should ignore the case. The plaintiffs rooted all of their arguments in the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and sought various forms of equitable relief. All of the plaintiffs succeeded in their respective district courts, and the district courts applied a variety of reasons for striking down the marriage laws. But the Sixth Circuit rejected all the district courts' rationales and overturned their decisions. The Sixth Circuit held that none of the plaintiffs' arguments make "the case for constitutionalizing the definition of marriage" and "removing the issue from ... the hands of the state voters."

The Court pointed out that no plaintiff in this case argued that the adopters of the Fourteenth Amendment understood it to require the States to change the definition of marriage. Relying on recent Supreme Court decisions, the Sixth Circuit held that tradition and long-accepted practices only reinforce a State's ability to define marriage as between a man and a woman. Thus, the original meaning of the Fourteenth Amendment permits, but does not require, States to define marriage in any particular way.

The Court recognized that all laws are subject to rational-basis review. However, the Court noted that this standard should be applied with a "light touch" and great deference to legislators or, as in this case, the voters. The Court held that under rational-basis review, if the judge can find "any plausible reason, even one that did not motivate the legislators who enacted it - the law must stand, no matter how unfair, unjust, or unwise." The Court found two plausible reasons to justify defining marriage as between a man and a woman: (1) the regulation of sex and the intended and unintended effects of male-female intercourse; and (2) the "wait and see" approach, where States may legitimately wish to wait before changing a norm that has existed for centuries.

As for the first rationale, the Court pointed out that couples of the same sex do not run the risk of unintended offspring. The Court further argued that while people may not need the government's encouragement to have sex or procreate, they may need the government's encouragement to maintain stable relationships. The Court further stated that "it is not society's laws or for that matter any one religion's laws, but nature's laws (that men and women complement each other biologically), that created the policy imperative." Thus, marriage definitions based on gender are rational and help to stabilize society.

As to the second rationale, the "wait-and-see" approach, the Court held that a "sense of caution does not violate the Fourteenth Amendment." The Court found that the trend to adopt gay marriage was a new one, and the Court posed the question: "How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of . . . a new definition of marriage?"

The Court held further that if defining marriage as between a man and a woman could not withstand rational-basis review, then neither could laws enforcing monogamy. The Court stated that "[n]o State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable - if the claimants' theory of rational basis review prevails."

The Court went on to address the argument that these laws were born of animosity. The Court acknowledged that, in rare cases, judges must strike down a law -- even under rational-basis review -- if it is (1) a novel law that (2) targets a single group for disfavored treatment. But the Court held that none of these statewide initiatives met the elements of animus since they merely "codified a long-existing, widely held social norm already reflected in state law." The Court stated that the concern which motivated the enactment of these initiatives was not malice or unthinking prejudice, but "fear that the courts would seize control over an issue that people of good faith care deeply about." The Court stated that to accept such a motivation as animus would make the term useless.

Furthermore, the Court stated that assessing the motives of all voters in a state-wide initiative "strains judicial competence" because analyzing the motivations behind millions of voters is unwieldy. The Court also found that, should it conclude that the initiative was motivated by animus, it would be labeling traditional marriage proponents "as a monolithic group of hate-mongers." But the Court pointed out that the question of animus does not turn on the motivations of the people enacting the law, but whether anything but "prejudice to the affected class could explain the law." The Court hinged the answer to that question on its rational-basis arguments explained above and cited a string of other cases that found many reasons to justify defining marriage between a man and a woman other than anti-gay sentiments.

The Court then moved on to address whether defining marriage as between a man and a woman affects a fundamental right and thus deserves a more "unforgiving" scrutiny. The Court noted that just because something is fundamentally important, does not mean that it is a fundamental right under the precedence of substantive due process.

The test of substantive due process is defined as whether the right is "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist" without the right. The Court stated that this test requires the judge to ask two questions: (1) does the right appear expressly in the Constitution? And (2) does it turn on a bedrock assumption about liberty?

To the first question, the Court held that because neither the right to marry in general nor the right to same-sex marriage appear in the Constitution, "[t]hat route for recognizing a fundamental right to same-sex marriage does not exist." To the second question, the Court held that same-sex marriage does not implicate bedrock assumptions of liberty since the definition of marriage did not include gay couples until 2003; therefore, a bedrock assumption of liberty is not contingent on same-sex marriage.

The Court finished its discussion of fundamental rights by pointing to four examples of laws relating to marriage that have never been subjected to heightened scrutiny. First, States have changed the duration of marriage by enacting no-fault divorce statutes. Second, States have limited the number of people eligible to marry by outlawing polygamy. Third, States have enacted age-of-consent laws requiring a minimum age for marriage. Fourth, some States allow cousins to marry while others do not. The Court concluded that since strict scrutiny has not been applied to any of these types of laws, it cannot apply to sexual-orientation-based distinctions of marriage.

The next argument that the Court considered was whether homosexuals as a group are a discrete and insular class without political power. This argument rests on another line of Equal Protection cases that call for strict scrutiny when laws target groups that legislators have singled out for unequal treatment in the past. The Court held that since the institution of marriage between a man and a woman arose separately from American laws that have targeted same-sex couples, it is impossible to infer that prejudice against gays led to the traditional definition of marriage. The Court then cited the defeat of "Don't Ask, Don't Tell"; the striking down of a discriminatory city charter in Cincinnati; numerous victories in states that have expanded the definition of marriage; and finally, victories in federal courts. According to the Court, all of this supports the proposition that same-sex couples are not politically powerless but, instead, are an "influential, indeed eminently successful" interest group.

The Court finished its discrete-and-insular-minority discussion with a hypothetical question: "If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn't state preeminence in domestic relations call for equally lenient review of state marriage definitions?" The Court held that strict scrutiny does not apply to sexual-orientation-based classifications.

Finally, the Court addressed whether evolving moral and policy considerations should force the Court to strike down these marriage laws. The Court stated that the theory of the living constitution rests on the premise that every generation has the right to govern itself. Therefore, federal judges must appreciate the pace of democratic majorities when voters attempt to decide whether to embrace an evolving societal norm, as long as that pace is within reasonable bounds. The Court found that the current pace of democratic majoritarian rule was reasonable because (1) the laws in question came about from 2004 to 2006; (2) no Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment; and (3) even the European courts have not yet recognized the right to same-sex marriage. Furthermore, the Court stated that it would be "dangerous and demeaning to the citizenry" for Courts to interject themselves into contentious and evolving issues such as this one. Therefore, since the issue was still a moving target, it would be too soon for a Court to intervene on the grounds of the evolving-meanings doctrine.

Dissent: The dissent, authored by Judge Daughtrey, criticized the majority's framing of the question on federalism grounds as an "introductory lecture in Political Philosophy." Judge Daughtrey argued that the broad framing of the question ignored the facts and plaintiffs before the Court, and dodged the specific question of whether a State's prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

The dissent asserted that these laws fail the rational-basis test because they (1) do not actually further any the legitimate interest, and (2) are motivated by animus and based on irrational distrust of a particular group. The dissent argued that the animus standard applies here since the Supreme Court has instructed that "an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group." Pointing to both the expert testimony offered in the Michigan case and the "irresponsible procreation theory," the dissent concluded that the basis of these laws was, in fact, merely a distrust or discomfort with the idea of same-sex couples getting married. The dissent noted the majority's concession that "we as a country have such a long history of prejudice based on sexual orientation." Therefore, the dissent noted, it would be hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of these cases.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0275p-06.pdf

Panel: Circuit Judges Daughtrey, Sutton, Cook

Argument Date: August 6, 2014

Date of Issued Opinion: November 6, 2014

Docket Number: 14-1341; 14-3057; 14-3464; 14-5291; 14-5297; 14-5818

Decided: November 6, 2014

Case Alert Author: Jerrod D. Simpson

Counsel: ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341.

Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 14- 3464.

Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 14- 5818.

Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297.

ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae.

14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae.

14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae.

14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP , San Francisco, California, Nicholas M. O'Donnell, SULLIV AN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae.

14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O'Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.

Author of Opinion: Judge Sutton joined by Judge Cook

Author of Dissent: Judge Daughtrey

Case Alert Supervisor: Prof. Mark Cooney

    Posted By: Mark Cooney @ 12/01/2014 03:38 PM     6th Circuit     Comments (0)  

November 3, 2014
  Occupy Nashville v. Haslam -- Sixth Circuit
Headline: Sixth Circuit rules that state officials are entitled to qualified immunity for alleged violations of protesters' First Amendment rights

Area of Law: The U.S. Constitution

Issue presented: Are state officials entitled to qualified immunity for alleged violations of protesters' constitutional rights?

Brief Summary: Six protesters sued various state officials after being arrested for violating a curfew that those officials had imposed. The protesters alleged, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The district court found that the state officials were not entitled to qualified immunity and were personally liable for damages. The officials appealed. The Sixth Circuit reversed, holding that the state officials were entitled to qualified immunity.

Significance: Government officials may restrict activity that is conducted on state grounds, especially when that activity threatens the health and safety of the people on those grounds.

Extended Summary: A group of protesters calling themselves "Occupy Nashville" established an around-the-clock presence on the Nashville War Memorial Plaza in Nashville, Tennessee. After several weeks of occupying the Plaza, representatives of the protesters sought a meeting with state officials to discuss safety and health concerns that had developed in the course of the lengthy demonstration. The State agreed that the concerns had to be addressed and adopted a new policy that, in relevant part, imposed a curfew for the Plaza. Six people associated with the demonstration were later arrested for violating the curfew.

The protesters who'd been arrested sued various state officials under 42 U.S.C. § 1983, alleging, in relevant part, violations of rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. The state officials countered that the protesters had no First Amendment right to "occupy" the Plaza indefinitely. Absent this right, the officials argued, there could be no constitutional violation, and qualified immunity applied. The Sixth Circuit agreed.

The Court acknowledged that the qualified immunity that ordinarily protects government officials is forfeited when an official's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." The Court applied a well-settled two-part test to decide whether a government official is entitled to qualified immunity: (1) whether a constitutional right would have been violated on the facts alleged and, if so, (2) whether the right was clearly established. The Court focused on the second part of the test.

In applying the "clearly established right" prong, the Court stressed the importance of accurately defining the claimed constitutional right. The state officials defined the right claimed by the protesters as a right to "24-hour occupation" of the public square. The protesters, on the other hand, asserted a broad "clearly established First Amendment right to be present on the Plaza to air their grievances against the government." The Court concluded that the state officials' framing of the issue was more accurate. Thus, even though the protesters claimed that they had a right under the First Amendment to air their grievances against the government, their activities, as their name suggests, were fundamentally about occupation.

Relying heavily on precedent, the Court addressed whether the indefinite occupation of the Plaza was an established right. The Court stated that for a right to be clearly established, it must be clear enough that a reasonable official would understand that what he or she is doing violates that right. It was undisputed that the State may restrict sleeping and camping on state grounds, and may restrict the times that state grounds are open to the public. Thus, the Court determined that there was no right to indefinite occupation of the Plaza.

Further, the First Amendment does not grant a right to expression that threatens the health and safety of others. Representatives of the "Occupy Nashville" group approached the state officials to discuss sanitation problems, violent assaults, damage to state property, and the generally unsafe and deteriorating conditions in the Plaza. This discussion prompted the state officials to create the curfew. The Court concluded that because the officials had a legitimate basis for creating the curfew, their conduct was objectively reasonable under the circumstances.

For these reasons, the Court reversed the district court's order denying qualified immunity and granting partial judgment of liability.

Panel: SENTELLE, BENTON, and JORDAN, Circuit Judges

Date of issued opinion: October 8, 2014

Docket Number: No. 13-5882

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0253p-06.pdf

Counsel: ARGUED: Dawn M. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashviller, Tennessee, for Appellees. ON BRIEF: Dawn M. Jordan, Heather C. Ross, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. C. David Briley, BONE MCALLESTER NORTON, PLLC, Nashville, Tennessee, Thomas H. Castelli, ACLU FOUNDATION OF TENNESSEE, Nashville, Tennessee, Tricia Herzfeld, OZMENT LAW, Nashville, Tennessee, for Appellees.

Author of Opinion: KENT A. JORDAN, Circuit Judge

Case Alert author: Candis Najor

Case Alert circuit supervisor: Professor Mark Cooney

Edited: 04/01/2015 at 11:44 AM by Mark Cooney

    Posted By: Mark Cooney @ 11/03/2014 11:54 AM     6th Circuit     Comments (0)  

October 29, 2014
  United States v. Young -- Sixth Circuit
Headline: Sixth Circuit upholds the 15-year mandatory minimum sentence of a man charged with possession of seven shotgun shells in violation of the Armed Career Criminal Act.

Areas of Law: Criminal Law; U.S. Constitution

Issues Presented: (1) Did the mandatory minimum sentence of 15 years for the possession of seven shotgun shells violate the proportionality principle of the Eighth Amendment? (2) Did the lower court's failure to notify the defendant of his legal impediment violate the defendant's right to due process under the Fifth Amendment?

Brief Summary: The defendant, a convicted felon, received a 15-year prison sentence under the Armed Career Criminal Act for the possession of seven shotgun shells. He appealed, arguing that this sentence violated the Eighth Amendment's ban on cruel and unusual punishment and that the lower court had also violated his due-process rights by failing to notify him of his legal impediment. The Sixth Circuit disagreed and affirmed the sentence, noting that the defendant's past criminal record was an important factor.

Extended Summary: Edward Young came into possession of seven shotgun shells while helping a widowed neighbor sell off her late husband's belongings. The record showed that there was no "risk of harm or violence" from his mere possession of the shells because he did not possess a compatible gun; there was no evidence that he used the shells in a crime or intended to use them in a future crime; and there was no evidence that he planned to give them to someone else who would use them in a crime. The court further found that Young's innocent acquisition of the shotgun shells was of "the lowest level of culpability that could have rendered him guilty." Nevertheless, the lower court imposed a 15-year mandatory minimum sentence for this possession crime under the Armed Career Criminal Act (ACCA).

Young appealed his sentence, first arguing that the sentence violated the Eighth Amendment's ban on cruel and unusual punishment because it was grossly disproportionate to the offense he committed. Second, he argued that the lower court's failure to notify him of his legal impediment in the lower court's sentencing colloquy and other sentencing-related documents violated his right to due process under the Fifth Amendment.

The Sixth Circuit affirmed. In rejecting Young's Eighth Amendment argument, the court relied on the Supreme Court's three "objective criteria" for assessing proportionality: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed on others in the same jurisdiction; and (3) the sentences imposed for the same offense in other jurisdictions. The court noted that the gravity-versus-harshness test typically answers the question without a need for further inquiry. Unless a court finds that there is a gross disproportionality between the gravity of the crime and the harshness of the penalty, there is no need to look at other sentences for similar crimes.

The court acknowledged that a 15-year sentence for the possession of seven shotgun shells was "harsh and severe," but it noted that "[f]or recidivist offenders, the line is different." Gross disproportionality is rarely met and is especially hard to meet in non-capital-punishment cases, the court observed. But the court relied heavily on Young's recidivism, describing his prior burglaries as his "Achilles heel." His prior offenses included four counts of burglary and seven counts of aggravated burglary. These past crimes involved theft of weapons and ammunition, and also qualified as violent felonies under the ACCA. The court also found it relevant that, while no burglary charges were made in the present case, the ammunition was found during a search for stolen tools, and several other stolen items were found in Young's house during that investigation.

As to Young's Fifth Amendment due-process argument, the Sixth Circuit noted that "unless the statute is so vague, technical, or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct, [the court applies] the centuries-old maxim that ignorance of the law is no excuse." The language in § 922(g) of the ACCA plainly states that it is "unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess . . . ammunition." Therefore, even though the lower court didn't specifically inform Young of his legal disabilities, he was put on notice by the statute itself.

Concurrence: Judge Stranch wrote a concurrence suggesting possible changes to the ACCA, such as allowing for safety valves or graduated sentences based on the kind of weapon or ammunition possessed, the indicia of risk, or how remote the prior crimes. He added that district-court judges are in a much better position than Congress to decide what risk a defendant poses to society and should therefore have discretion in sentencing. Finally, Judge Stranch stated that although he believes that "mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation," he was bound by precedent to uphold the sentence.

Panel: Judge Griffin, White, and Stranch

Date of Issued Opinion: September 11, 2014

Docket Number: 13-5714

Counsel: ARGUED: Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, for Amicus Curiae. Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee. Douglas A. Berman, THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, Columbus, Ohio, Candace C. Crouse, PINALES STACHLER YOUNG BURRELL & CROUSE CO., L.P.A., Cincinnati, Ohio for Amicus Curiae.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0234p-06.pdf

Case Alert Author: Jerrod Simpson

Author of Opinion: Per Curiam

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 10/29/2014 at 12:27 PM by Mark Cooney

    Posted By: Mark Cooney @ 10/29/2014 12:15 PM     6th Circuit     Comments (0)  

July 16, 2014
  Hoven v. Walgreen Co. - Sixth Circuit
Headline: Sixth Circuit upholds Walgreen's firing of employee who shot at armed gunmen during store robbery, rejecting claim that the termination violated public policy.

Areas of Law: Employment law; the United States Constitution; the Michigan Constitution; and Michigan Compiled Laws.

Issue Presented: Did Walgreen violate Michigan public policy when it fired an at-will employee for shooting at a masked gunman during a store robbery, in self-defense, using a handgun for which the employee had a permit?

Brief Summary: A Walgreen employee sued for wrongful termination of employment in violation of public policy after he fired his handgun in self-defense during a robbery at his Walgreen store. Walgreen removed the action to the federal court. The district court granted judgment on the pleadings in favor of Walgreen. The employee appealed. The Sixth Circuit affirmed the district court and held that the employee's termination for exercising his rights of self-defense, defense of others, and carrying a concealed weapon did not violate public policy and thus was not actionable under Michigan law. The Sixth Circuit concluded that Michigan's Self-Defense Act did not confer any general right to engage in self-defense or defense of others.

Extended Summary: Jeremy Hoven, a full-time pharmacist at Walgreen, first experienced an armed robbery in 2007. After the robbery, Hoven asked Walgreen to improve store security. When Walgreen denied his request, Hoven underwent training and got a concealed-weapon permit. He then began carrying a concealed handgun at work.
About three years after the first robbery, Hoven was working the overnight shift when two masked individuals with guns entered the store. Hoven tried to dial 911, but one of the masked gunmen pointed a gun at him. When Hoven saw the masked gunman's finger jerking on the gun's trigger, Hoven drew his own weapon and fired several times. No one was injured in the incident.

After a company investigation, Walgreen officials told Hoven that he had violated the company's nonescalation policy. Walgreen gave Hoven the option to resign or be terminated. He refused to resign, and Walgreen fired him. Hoven sued Walgreen alleging that his termination violated seven public - policy considerations, which the Sixth Circuit addressed.
First, the Court relied on precedent that established three instances when a termination of employment would violate public policy: (1) The employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty; (2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or (3) the employee is discharged for exercising a right conferred by a well-established legislative enactment. McNeil v. Charlevoix Cnty., 772 N.W.2d 18, 24 (Mich. 2009).

Applying these three factors to the employee's case, the Court found no cause of action under the first two instances, but it did consider whether the employee's claims fit under the third instance: exercising a right conferred by a well-established legislative enactment.

To begin, the Sixth Circuit stated that under Michigan law a private actor does not violate public policy when it fires an employee based on a constitutional provision. According to the Sixth Circuit, although the Second Amendment of the United States Constitution and the Michigan Constitution limit state interference with an individual's right to bear arms, private actors are not bound by those limitations. Therefore, the Court found that the employee's federal and state constitutional arguments were not valid.

The Sixth Circuit also rejected the employee's reliance on the Michigan Criminal Jury Instructions and the Michigan Self-Defense Act. The Court held that the employee's arguments were unpersuasive, as the criminal jury instructions were not a legislative enactment, and there is no general "right" to engage in self-defense. Rather the law conferred a right to receive a rebuttable presumption of self-defense. Therefore, the Court rejected these public-policy claims.

Finally, the Sixth Circuit considered the employee's argument about the state's concealed-weapon permit law, which states that an employer may not prohibit employees from receiving a license to carry a concealed weapon and carrying a concealed weapon. The court noted that a section of that statute expresses that the right to carry a concealed weapon in the course of employment may be limited. Therefore, Walgreen was permitted to limit an employee's use of a concealed weapon on its premises. Accordingly, the Court held that the concealed-weapon permit law did not support the employee's claim.

For all these reasons, the Court affirmed the district court's grant of judgment on Walgreen's pleadings.

Panel: Judge Moore, Gibbons, and Sutton

Date of Issued Opinion: June 2, 2014

Docket Number: 13-1011

Decided: Petition for review of a motion for judgment on the pleadings in favor of Walgreens

Counsel: ARGUED: Daniel D. Swanson, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee. ON BRIEF: Daniel D. Swanson, Jesse L. Young, SOMMERS SCHWARTZ, P.C., Southfield, Michigan, for Appellant. Adam S. Forman, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellee.

Link to full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/14a0115p-06.pdf

Case Alert Author: Ogenna Iweajunwa

Author of Opinion: Judge Moore

Case Alert Circuit Supervisor: Professor Erika Breitfeld

    Posted By: Mark Cooney @ 07/16/2014 03:23 PM     6th Circuit     Comments (0)  

June 5, 2014
  Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers -- Sixth Circuit
Headline: Sixth Circuit denies relief to challengers of mining permit, finding that the U.S. Army Corps of Engineers' limited-in-scope environmental analysis and approval of a mitigation plan complied with the Clean Water Act and National Environmental Policy Act.

Areas of Law: Environmental Law; Coal Mining; Clean Water Act; Surface Mining Control and Reclamation Act of 1977; National Environmental Policy Act

Issue Presented: Under the Clean Water Act and the National Environmental Policy Act, what level of environmental analysis is required when issuing a permit that relates to a small but necessary part of a mining operation?

Brief Summary: Plaintiff environmental groups sued after the U.S. Army Corps of Engineers granted a mining company a permit to discharge dredged or fill materials into navigable waters. Plaintiffs alleged that the Army Corps violated federal mandates by issuing a permit that would negatively affect water quality, by failing to consider adverse effects on human health and welfare, and by failing to issue an environmental-impact statement. The district court granted summary judgment to the Army Corps, dismissing the lawsuit in its entirety. The Sixth Circuit affirmed, holding that the Army Corps did not abuse its discretion by (1) limiting the scope of its environmental analysis to only health effects closely related to the discharge of dredged or fill material into navigable waters and (2) approving a mitigation plan that was rationally designed to maintain the water integrity near the mine.

Extended Summary: The Kentucky Division of Mine Permits granted a mining company a permit for a surface coal-mining operation in Kentucky. In 2007, the company applied to the Army Corps for a secondary §404 permit related only to the filling of jurisdictional waters. After the company addressed various concerns and implemented strategies outlined by the Environmental Protection Agency, the Army Corps issued an environmental assessment finding "no significant impact" and issued the §404 permit in 2012. Three months later, plaintiff environmental groups sued the Army Corps alleging Clean Water Act and National Environmental Policy Act violations. The district court granted summary judgment in favor of the Army Corps, finding that it issued the §404 permit in compliance with federal mandates. Plaintiffs appealed to the Sixth Circuit.

The Surface Mining Control and Reclamation Act of 1977 grants states the exclusive right to regulate surface coal-mining and reclamation operations on nonfederal lands. That right is subject to limited federal oversight to ensure compliance with federal standards. Under the Act, the State of Kentucky, through its Department for Natural Resources' Division of Mine Permits, has exclusive authority to grant surface mining permits within its state. However, because surface mining operations may affect navigable waters of the United States, the federal Clean Water Act requires additional permits to preserve the quality of waters and wetlands. At issue in this case was the §404 permit issued by the Army Corps under the Clean Water Act.

Under §404 of the Clean Water Act, the Army Corps' authority is limited to the narrow issue of the filling of navigable waters within the United States. The Army Corps must review several factors, including the health and welfare of individuals likely to be affected by mining discharge into jurisdictional waters. The Army Corps must also comply with the National Environmental Policy Act by taking a "hard look" at the potential environmental consequences of its actions and by preparing an environmental-impact statement or environmental assessment, depending on the level of its actions.

The Sixth Circuit found that its review of compliance under the National Environmental Policy Act was limited to whether the agency's decision was arbitrary and capricious. As such, the Sixth Circuit was limited to review whether the Army Corps had adequately studied the issues surrounding the §404 permit and had taken a "hard look" at the environmental consequences of its decision. Because the Army Corps' authority is limited to the filling of jurisdictional waters, it did not have authority to review the entire mining operation, as plaintiffs suggested.

Moreover, the Sixth Circuit found that the Army Corps and the Environmental Protection Agency had adequately addressed health concerns, even though those concerns were the primary responsibility of the Kentucky Division of Mine Permits. The Sixth Circuit held that the Army Corps performed an environmental assessment reasonably limited in scope to the effects closely related to the discharge of dredged or fill material into navigable waters and approved a mitigation plan that was rationally designed to maintain the water integrity near the mine's location. Therefore, the Army Corps did not act arbitrarily and capriciously in its decision to issue the §404 permit.

Panel: Judges Keith, Siler, and Rogers

Date of Issued Opinion: March 7, 2014

Docket Number: 13-6153

Decided: Petition for Review of a Motion for Summary Judgment granted in favor of the U.S. Army Corps of Engineers.

Counsel: ARGUED: Neil Gormley, EARTHJUSTICE, Washington, D.C., for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellee Lecco. ON BRIEF: Neil Gormley, Jennifer C. Chavez, EARTHJUSTICE, Washington, D.C., Joseph M. Lovett, J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, Mary Cromer, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Appellants. J. David Gunter II, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees. Robert G. McLusky, JACKSON KELLY PLLC, Charleston, West Virginia, Kevin M. McGuire, JACKSON KELLY PLLC, Lexington, Kentucky, for Appellee Leeco.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0046p-06.pdf

Case Alert Author: Minyon Bolton

Author of Opinion: Judge Rogers

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 01:46 PM     6th Circuit     Comments (0)  

  Laster v. City of Kalamazoo -- Sixth Circuit
Headline: The Sixth Circuit highlights the distinction between the "materially adverse action" element of a Title VII retaliation claim and the "adverse employment action" element of a Title VII race-discrimination claim.

Area of Law: Constitutional Law, Employment Law; Title VII (Race Discrimination), Elliot-Larsen Civil Rights Act

Issue Presented: Did the district court improperly dismiss plaintiff's Title VII retaliation claim by requiring plaintiff to prove that he suffered an "adverse employment action" as part of his prima facie case?

Brief Summary: The plaintiff claimed that after he had filed two complaints with the EEOC, his employer retaliated against him in discriminatory ways, ultimately forcing him to resign. Plaintiff sued, claiming race discrimination and retaliation under Title VII and the First Amendment. The Title VII race-discrimination and First Amendment claims were dismissed, but the Sixth Circuit held that the district court erred in dismissing plaintiff's Title VII retaliation claim. The court contrasted the application of the McDonnell-Douglas test to retaliation claims with its application to Title VII race-discrimination claims. A retaliation claim requires a less-onerous standard of "materially adverse action" than a race-discrimination claim, which requires proof of an "adverse employment action." Applying this standard, the court found that the plaintiff could establish a prima facie case of Title VII retaliation even though he could not succeed in his claim for Title VII race discrimination or in his First Amendment claim.

Significance: Even though a plaintiff has failed to establish a prima facie case of race discrimination under Title VII, the plaintiff may establish a prima facie case of Title VII retaliation because the elements for these claims are different.

Extended Summary: Plaintiff, an African-American public-safety officer, filed two Equal Employment Opportunity Commission complaints alleging race discrimination and failure to obtain relief through his employer's internal grievance system. Plaintiff alleged that, following these complaints, he was subjected to retaliatory actions that forced him to resign. Plaintiff sued, claiming Title VII race discrimination and retaliation, and a violation of his First Amendment rights.

The Title VII race-discrimination and First Amendment claims were dismissed in both the district court and the Sixth Circuit. But the Sixth Circuit held that the district court erred in dismissing plaintiff's Title VII retaliation claim. Because the plaintiff sought to establish his Title VII retaliation claim through circumstantial evidence, the court applied the Supreme Court's McDonnell-Douglas burden-shifting analysis. The court noted that it applies McDonnell-Douglas differently to Title VII race-discrimination claims than to retaliation claims. For a discrimination claim, a plaintiff's prima facie case requires proof of an "adverse employment action," which is defined as a "materially adverse change in the terms or conditions" of employment. For a retaliation claim, however, the plaintiff need only show a "materially adverse action," which means that the employer's action might have "dissuaded a reasonable worker from making or supporting a charge of discrimination."

In light of this distinction, the court found that plaintiff's claim that he faced heightened scrutiny, received frequent reprimands for breaking selectively enforced policies, and was disciplined more harshly than similarly situated peers might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Thus, the evidence could establish a prima facie case of Title VII retaliation even though it could not support his claim for Title VII race discrimination or his First Amendment claim.

Panel: Batchelder, Chief Judge; Siler and Clay, Circuit Judges.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...14a0048p-06.pdf


Date of Issued Opinion: March 13, 2014

Docket Number: 13-1640

Decided: Affirmed as to dismissal of Title VII race-discrimination claim; reversed as to dismissal of Title VII retaliation claim and remanded for further proceedings.

Counsel: ON BRIEF: Richard O. Cherry, KALAMAZOO CITY ATTORNEY'S OFFICE, Kalamazoo, Michigan, for Appellee. Mark Laster, Kalamazoo, Michigan, pro se.

Author of Opinion: Circuit Judge Clay; separate concurring opinion by Circuit Judge Batchelder.

Case Alert Author: Theodora Eisenhut

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 01:11 PM     6th Circuit     Comments (0)  

  United States v. Romero-Caspeta - Sixth Circuit
Headline: Under 8 U.S.C. § 1326(a), once an alien has been deported from the United States, it is a felony to reenter the United States at any time without express consent of the Attorney General. Even after the five-year prohibition to apply for reentry lapses, the alien still must obtain consent to lawfully enter the United States.

Area of Law: Criminal law; Immigration law

Issue Presented: Is it a defense to the crime of unlawful reentry to claim that a previously removed alien reentered the United States more than five years after his removal and thus no longer needed express consent of the Attorney General before entering the United States?

Brief Summary: The defendant was charged with the crime of unlawful reentry under 8 U.S.C. § 1326(a). Both the district court and the Sixth Circuit rejected defendant's argument that the requirement that an alien obtain express consent from the Attorney General before reentering the country no longer applies after five years. Considering this issue of first impression, the Sixth Circuit construed 8 U.S.C. § 1182(a)(9)(A)(i), which allows a previously removed alien to apply for a visa five years after removal, to have no effect on §1326.

Significance: A previously removed alien must obtain express consent from the Attorney General before reentering the United States, regardless of the length of time that has passed since removal.

Extended Summary: In 1991, the defendant, a Mexican citizen, was removed from the United States after attempting to enter using another person's border pass. The defendant was deported back to Mexico. The order of removal prohibited the defendant from reentering the United States for a period of five years without prior express consent of the Attorney General. Along with the order of removal, the defendant was given a notice statement warning that, under 8 U.S.C. § 1326, it is a felony for any previously removed alien "to enter, attempt to enter, or be found in the United States without the Attorney General's express consent."

In 2012, the defendant committed a traffic violation in Detroit, Michigan, and was detained by U.S. Immigration and Customs Enforcement agents. Defendant was charged with unlawful reentry under 8 U.S.C. § 1326(a). This required the government to prove that the defendant: (1) was an alien; (2) had been removed from the United States; (3) and re-entered the United States (4) without the consent of the Attorney General.

Defendant moved for acquittal arguing that, once five years had elapsed since his removal, he was no longer required to obtain the advance consent of the Attorney General before reentering the United States. According to the defendant, §1326(a) should be read in conjunction with 8 U.S.C. § 1182(a)(9)(A)(i), which permits a removed alien to obtain a visa after five years. Defendant argued that §1182 implicitly modifies §1326 to end the alien's obligation to obtain the Attorney General's express consent to reenter the United States after five years. The district court disagreed and denied defendant's motion of acquittal.

On appeal, the Sixth Circuit examined previous decisions of the Fourth and Fifth Circuits addressing the same issue, and found their reasoning persuasive. Those decisions clarified that §1182 does not implicitly modify §1326. Under §1182(a)(9)(A)(i), a previously removed alien is categorically inadmissible for the first five years after removal. Under §1182(a)(9)(A)(iii), the alien may seek readmission during that time with the express consent of the Attorney General. But the Sixth Circuit explained that §1182 does not give the removed alien "carte blanche to reenter the United States at his leisure" without the express consent of the Attorney General after the five-year prohibition period. It held, therefore, that §1182 has no effect on §1326, which "continues to articulate all the elements necessary to prove a violation." This includes the requirement that a previously removed alien must obtain the Attorney General's advance consent before reentry, even after the five-year prohibition period in §1182(a)(9)(A)(i) expires.

The Sixth Circuit determined that, in order to have had a defense to prosecution under §1326(a), the defendant was required to obtain express consent of the Attorney General before entering the United States. Because defendant admitted he had not done so, he had no defense as a matter of law.


Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0042p-06.pdf

Panel: Judges Bathelder, Griffin, Bell

Date of Issued Opinion: February 28, 2014

Docket Number: 12-2690

Decided: Affirmed.

Case Alert Author: Chelsey Morgenstern

Counsel: George B. Washington, SCHEFF, WASHINGTON & DRIVER, P.C., Detroit, Michigan, for Appellee.

Author of Opinion: District Judge Bell

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 06/05/2014 12:57 PM     6th Circuit     Comments (0)  

April 17, 2014
  Huffman v. The Hilltop Companies, LLC - Sixth Circuit
Headline: The presumption in favor of arbitration applies even after a contract expires, even if the contract's survival clause did not mention the arbitration clause.

Area of Law: Contract Law; Arbitration

Issue Presented: Does the strong federal presumption in favor of arbitration apply after a contract expires when the arbitration clause is not specifically listed in the survival clause?

Brief Summary: The plaintiffs each signed an employment agreement with the defendant. The agreement contained an arbitration clause, but the arbitration clause was not listed in the survival clause. After the plaintiffs' employment ended, they sued for alleged violations of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The defendant argued that the claim had to be submitted to arbitration. The Sixth Circuit held that the arbitration clause did not expire with the contract, even though it was not listed in the survival clause.

Significance: Despite the doctrine of expressio unius, arbitration clauses can survive after a contract expires even if they are not listed in the contract's survival clause.

Extended Summary: Defendant hired the plaintiffs in 2011 to review the files of mortgage loans originated by PNC Bank. The plaintiffs each signed an employment agreement that contained an arbitration clause. The clause stated that all claims "arising out of or related to" the agreement would be settled by arbitration. The agreements also contained a survival clause, which listed provisions of the agreement that would remain in effect after its expiration. The survival clause did not mention the arbitration clause.

After their employment agreements with the defendant expired, the plaintiffs sued, alleging that the defendant had violated the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. The defendant filed a motion to dismiss and compel arbitration, arguing that the arbitration clause applied after the agreement's expiration even though the survival clause did not list it. The district court found for the plaintiffs. It relied on the doctrine of expressio unius est exclusio alterius, which states that when a contract contains a detailed list of particulars, courts should presume that items not included in that list were intentionally omitted. The district court reasoned that if certain provisions were included in the survival clause, the provisions not included were not meant to apply post-expiration. The defendant appealed.

The Sixth Circuit held that the doctrine of expressio unius, by itself, was not enough to rebut the strong presumption in favor of arbitration. It reasoned that the list of provisions in the survival clause was not meant to be exhaustive because it did not contain other clauses that would necessarily survive expiration, including a 12-month noncompetition clause and integration and severability clauses. Reading the employment agreement as a whole, the Sixth Circuit concluded that the arbitration clause was meant to survive the agreement, even though it was not mentioned in the survival clause. Thus, the Sixth Circuit reversed, holding that the district court should have dismissed the case and compelled arbitration.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0056p-06.pdf

Panel: Gilman, Cook, McKeague

Argument: March 19, 2014

Date of Issued Opinion: March 27, 2014

Docket Number: 13-3938

Decided: March 27, 2014

Counsel: ARGUED: Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Adam W. Hansen, NICHOLS KASTER, LLP, San Francisco, California, for Appellees. ON BRIEF: Matthew C. Blickensderfer, Eugene Droder III, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant. Adam W. Hansen, NICHOLS KASTER, LLP, San Francisco, California, Rachhana T. Srey, NICHOLS KASTER, PLLP, Minneapolis, Minnesota, for Appellees.

Author of Opinion: Circuit Judge McKeague

Case Alert Author: Sarah Fuhrman

Case Alert Circuit Supervisor: Prof. Barbara Kalinowski

Edited: 04/17/2014 at 04:00 PM by Mark Cooney

    Posted By: Mark Cooney @ 04/17/2014 03:51 PM     6th Circuit     Comments (0)  

April 9, 2014
  Shazor v. Prof'l Transit Mgmt. - Sixth Circuit
Headline: One witness interview about employee's suspected workplace dishonesty is insufficient investigation to support employer's "honest belief" defense to discrimination claim.

Area of Law: Title VII Employment Discrimination

Issue Presented: Was summary judgment of plaintiff's Title VII employment-discrimination claims proper where plaintiff presented evidence that her supervisors had exchanged emails describing her in unflattering terms and that she was replaced by a person outside her protected racial class, but where there was also evidence that she had lied to her supervisors before she was fired?

Brief Summary: Plaintiff, a female African-American executive of a regional transit authority, claimed she was fired in violation of federal law and brought a Title VII employment-discrimination claim. Plaintiff based her claim on emails between her former supervisors calling her a "prima donna" and a "helluva bitch," and the fact that she was replaced by a person outside her protected racial class. Defendants countered that plaintiff had been fired for the legitimate reason that she had twice lied to her supervisors. The Sixth Circuit held that plaintiff's proofs rebutted defendants' evidence. And because defendants did not conduct a "reasonably informed and considered" investigation before firing plaintiff, they could not establish an "honest belief" in the proffered reason for plaintiff's firing.

Significance: Although a defendant can defeat a prima facie discrimination claim under the honest-belief doctrine if the employer made a "reasonably informed and considered decision" before taking the complained-of action, the investigation supporting the honest belief cannot be cursory. Here, an investigation into the plaintiff's truthfulness that included a single conversation with one person was not enough to show an honest belief in the proffered reason for plaintiff's firing.

Extended Summary: Plaintiff was fired from her assigned position as CEO of a transit authority and brought a Title VII claim for race and sex discrimination. The district court granted defendants' motion for summary judgment. Plaintiff appealed, contending that she presented both direct and circumstantial evidence of discrimination on the basis of her sex and race.

Although the Sixth Circuit identified complex issues of fact and law under plaintiff's direct-evidence theory of employment discrimination, it found no need to rule on these because plaintiff's circumstantial-evidence theory provided a sufficient basis to overturn the summary judgment. The circumstantial-evidence theory requires a plaintiff to establish a prima facie case of discrimination by showing four elements: (1) she was a member of a protected class, (2) she was discharged, (3) she was qualified for the position held, and (4) she was replaced by someone outside of her protected class. The parties agreed that the first three elements were met but disagreed on the fourth. Defendant argued that the relevant question was whether similarly situated, nonprotected individuals were treated any better, but the court disagreed. Since plaintiff was African American and her replacement was Hispanic, it was clear that someone outside plaintiff's protected class had replaced her. Accordingly, the prima facie case of race discrimination was established.

Addressing the sex-discrimination claim, plaintiff presented evidence of emails between her former supervisors in which they referred to her as a "prima donna" and a "helluva bitch." The Sixth Circuit agreed that the emails revealed sexist animus toward plaintiff. Thus, the plaintiff met the prima facie burden for discrimination on the basis of both sex and race.

Defendants then offered a legitimate, nondiscriminatory reason for plaintiff's firing: that plaintiff had twice lied about issues related to the unionization of the transit authority's drivers and maintenance technicians. The court found, however, that genuine issues of material fact existed regarding the truthfulness of plaintiff's assertions, which precluded summary judgment.

Finally, the Sixth Circuit noted that an employer's "honest belief" in the proffered basis for the firing can overcome a finding of pretext. The key inquiry in assessing whether an employer had an honest belief is whether the employer made a "reasonably informed and considered decision" before taking the complained-of action. In this case, defendants' investigation into plaintiff's purported lies consisted of a single conversation between plaintiff's supervisor and another person. This evidence did not establish defendants' reasonable reliance on particularized facts concerning plaintiff's truthfulness. The Sixth Circuit reversed and remanded the case, finding sufficient evidence to survive summary judgment.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0034p-06.pdf

Panel: Cole and Clay, Circuit Judges; Bertelsman, District Judge

Argument: December 4, 2013

Date of Issued Opinion: February 19, 2014

Docket Number: 13-3253

Decided: February 19, 2014

Case Alert Author: Iris Timm

Counsel: ARGUED: Laura Welles Wilson, BLANK ROME LLP, Cincinnati, Ohio, for Appellant. Susan R. Bell, CORS & BASSETT LLC, Cincinnati, Ohio, for Appellees. ON BRIEF: Laura Welles Wilson, Nathaniel R. Jones, Michael L. Cioffi, Lori G. Nuckolls, BLANK ROME LLP, Cincinnati, Ohio, for Appellant. Susan R. Bell, Robert J. Hollingsworth, Alexis L. McDaniel, CORS & BASSETT LLC, Cincinnati, Ohio, for Appellees.
Author of Opinion: Circuit Judge Clay

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 04/09/2014 12:32 PM     6th Circuit     Comments (0)  

March 18, 2014
  T.S. v. Doe - Sixth Circuit
Headline: A juvenile-detention center may implement a generally applicable, suspicionless strip-search policy.

Area of Law: Constitutional Law; Fourth Amendment

Issue Presented: May government officials invoking qualified immunity benefit from a post-arrest Supreme Court decision that validated the government's complained-of procedure?

Brief Summary: After being arrested for underage drinking, two juveniles were brought to a detention center where they were strip-searched. The juveniles sued, arguing that strip searches for minor offenses are not allowed unless reasonable suspicion is present. The district court denied the defendants qualified immunity under both federal and Kentucky law.

The Sixth Circuit held that plaintiffs failed to meet their burden of demonstrating that, at the time the strip search occurred, a reasonable official would have known that a suspicionless strip search of a juvenile during intake violated the Fourth Amendment. But the court agreed with the district court that the officials who strip-searched the juveniles were conducting "ministerial" acts and thus were not protected by qualified official immunity under Kentucky law.

Significance: For the purpose of establishing that an official has acted in objective good faith, the most recent pronouncement of the Supreme Court on the issue is relevant, even if it was decided after the disputed acts occurred.

Extended Summary: Plaintiffs, two juveniles, were arrested for underage drinking and were transferred to a juvenile-detention center. During intake, plaintiffs were strip-searched, and their bodies were inspected for general condition and markings.

Plaintiffs, through their parents, sued the officials who strip-searched them, the officials' supervisors, and the detention-center administrators. They claimed that the search violated their Fourth Amendment right against unreasonable searches. Plaintiffs argued that the strip searches were unreasonable because they had been arrested for a minor offense that did not warrant such a search.

Defendants argued that their actions were protected under the qualified-immunity doctrine. The district court held that both adults and juveniles have the right to be free from unreasonable strip searches, and it denied immunity to defendants under both federal and Kentucky law.

The Sixth Circuit reversed in part and affirmed in part. Once defendants raised a qualified-immunity defense, the burden shifted to plaintiffs to prove that (1) the officials' conduct violated a constitutional or statutory right, and (2) that this right was so clearly established at the time of the offense that the officials understood that their actions were violating plaintiffs' constitutional rights.

Plaintiffs relied on Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989), which prohibited suspicionless strip searches of adult detainees who committed a minor offense. The Sixth Circuit noted, however, that Masters conflicts with the Supreme Court's decision in Florence v. Board of Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510 (2012), which held that officials may conduct suspicionless strip searches of pretrial detainees, regardless of the severity of their offense, during their initial entry into the general population of a prison. The Sixth Circuit held, therefore, that Masters was abrogated.

Plaintiffs argued that Florence was not controlling because it was decided three years after their arrests. But the Sixth Circuit observed that when the arrest occurred, there was already an extensive body of caselaw supporting a reasonable official's good-faith belief that strip searches for minor offenses were not prohibited. Thus, the court reversed the district court's decision and held that defendants were entitled to qualified immunity against plaintiffs' federal constitutional claims.

The court also briefly noted that other circuits' decisions had uniformly affirmed the reasonableness of suspicionless strip searches of juveniles, observing that the state's status in loco parentis over juveniles created an enhanced responsibility to protect detained juveniles from weapons and other contraband.

But the Sixth Circuit affirmed the district court's holding that defendants were not entitled to qualified official immunity under Kentucky law. The court noted that this immunity is available for discretionary, but not ministerial, acts. Because the officials acted under the orders of their supervisors, their acts were ministerial and thus not protected under qualified official immunity.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...ns.pdf/14a0026p-06.pdf

Panel: Boggs and Donald, Circuit Court Judges; and Stamp, District Judge, sitting by designation.

Argument: June 12, 2013

Date of Issued Opinion: February 5, 2014

Docket Number: 12-5724

Decided: Reversed in part, affirmed in part.

Case Alert Author: Meri Kligman

Counsel: Roger G. Wright, Lexington, Kentucky, for Appellants. Joe F. Childers, JOE F. CHILDERS & ASSOCIATES, Lexington, Kentucky, for Appellees. ON BRIEF: Roger G. Wright, Lexington, Kentucky, for Appellants. Joe F. Childers, JOE F. CHILDERS & ASSOCIATES, Lexington, Kentucky, for Appellees. Marsha Levick, JUVENILE LAW CENTER, Philadelphia, Pennsylvania, for Amici Curiae.

Author of Opinion: Circuit Court Judge Boggs

Case Alert Circuit Supervisor: Professor Kalinowski

    Posted By: Mark Cooney @ 03/18/2014 02:58 PM     6th Circuit     Comments (0)  

March 14, 2014
  Shuler v. Garrett - Sixth Circuit
Headline: A medical injection is a "procedure" that can support a medical-battery claim if unauthorized.

Area of Law: Tort Law; Medical Battery

Issue Presented: Is an unauthorized medical injection a "procedure" leading to medical-battery liability or a component part of treatment leading only to medical-malpractice liability?

Brief Summary: A hospital patient died because of allegedly unauthorized injections. The district court found that the injections were not "procedures" and dismissed the case because the hospital did not need the patient's consent. The Sixth Circuit reversed, finding that medical injections are "procedures" and that the hospital needed the patient's authorization.

Significance: The Sixth Circuit rejected a narrow interpretation of the term "procedure" for a medical-battery theory.

Extended Summary:

A patient died in a Memphis hospital. The patient's heirs sued the doctors, the hospital, and the clinic where the patient received treatment, alleging negligence and medical battery. The complaint alleged that despite being aware of the patient's heparin allergy, the medical staff injected the patient with heparin over her objections, causing her death. The district court dismissed the case, finding that there was no claim for medical battery under Tennessee law.

The Sixth Circuit reversed, explaining that medical battery is an intentional tort and that performing an unauthorized procedure is a medical battery. This is different from medical malpractice, the court noted, which is rooted in negligence.

Tennessee law provides a two-prong test to decide if a medical-battery claim exists. The court must determine (1) whether the patient was aware that the doctor was going to perform the procedure, and (2) whether the patient authorized the procedure. The Sixth Circuit explained that this case turned solely on the second question: what qualifies as a "procedure" and what constitutes authorization. Since the Tennessee Supreme Court has never defined the word "procedure," the Sixth Circuit used the common dictionary definition: "a surgical or (later) other therapeutic or diagnostic operation or technique." It concluded that an injection qualified as a procedure and noted that other states have reached the same conclusion. Next, the court found that the patient did not authorize the injections - in fact, she expressly refused them.

Finding that the patient did not authorize the procedure, the court concluded that the complaint made a case for nonconsensual contact (the injection) that violated the patient's right to bodily integrity. The court reversed the district court's order dismissing the medical-battery claim.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0033p-06.pdf

Panel: Cook and Stranch, Circuit Judges; Carr, District Judge

Argument: December 4, 2013

Date of Issued Opinion: February 14, 2014

Docket Number: 12-6279

Decided: February 14, 2014

Case Alert Author: Jessica Michels

Counsel: ARGUED: Rachael E. Putnam, PUTNAM FIRM PLC, Memphis, Tennessee, for Appellants. Buckner Wellford, Memphis, Tennessee, for Appellees. ON BRIEF: Rachael E. Putnam, Austin T. Rainey, PUTNAM FIRM PLC, Memphis, Tennessee, for Appellants. Buckner Wellford, Shannon Wiley, Memphis, Tennessee, William H. Haltom, Jr., Claire M. Cissell, Memphis, Tennessee, William W. Dunlap, Jr., Tabitha F. McNabb, Laura S. Martin, Memphis, Tennessee, for Appellees.

Author of Opinion: Circuit Judge Stranch

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

    Posted By: Mark Cooney @ 03/14/2014 02:48 PM     6th Circuit     Comments (0)  

March 4, 2014
  Mik v. Federal Home Loan Mortgage -- Sixth Circuit
Headline: No private right of action exists under the Protecting Tenants at Foreclosure Act of 2009 (PTFA). But violations of the Act can be used to establish the elements of a state-law claim.

Area of Law: Property Law, Landlord-Tenant Law

Issue Presented: Did the district court err in dismissing plaintiffs' complaint because it arose solely under the Protecting Tenants at Foreclosure Act of 2009, and that Act did not create a federal cause of action?

Brief Summary: Plaintiffs sued the Federal Home Loan Corporation (Freddie Mac), arguing that they were unlawfully evicted from their rental home after their landlord defaulted on her mortgage and the property was sold at a foreclosure sale. The district court granted Freddie Mac's motion to dismiss the complaint because the PTFA did not create a private cause of action. On appeal, plaintiffs argued that their three claims didn't arise under the PTFA but, instead, arose under Kentucky law. The Sixth Circuit held that plaintiffs stated a claim for wrongful eviction but failed to state claims for denial of due process and outrageous infliction of emotional distress. Therefore, the court reversed in part and affirmed in part.

Significance: The PTFA preempts state laws that are less protective of tenants.

Extended Summary: In 2010, plaintiffs rented a home. The lease included an option to purchase. The owner defaulted on her mortgage, and her lender foreclosed. Plaintiffs were not named as parties. The lender was the successful bidder at the April 2011 foreclosure sale and assigned its bid to Freddie Mac. Plaintiffs stopped paying rent after April 2011 because they did not know to whom rent should be paid.

In June 2011, plaintiffs informed Freddie Mac of their lease and their desire to stay in the home. They were told that they could avoid eviction if they participated in a program called "Cash for Keys," where they would be paid $1,500 to vacate the property. Plaintiffs signed the agreement but were never paid and never moved out.

In June 2011, Freddie Mac obtained a writ of possession, which evicted the owner from the property but did not mention the plaintiffs. In July, plaintiffs were informed that they could buy the home for $190,000 and avoid being evicted if they could demonstrate that they qualified for a loan by 5 p.m. on Friday, July 29, 2011.

Plaintiffs applied for a loan but were told it would take two weeks to have the home appraised. On July 31, 2011, Freddie Mac told plaintiffs that they would be evicted the following day.

On August 8, 2011, plaintiffs posted a copy of the lease on the door with a note stating: "We are asserting our rights under the lease agreement and object to entry by anyone." That day, sheriff deputies removed plaintiffs' personal property from the home and placed it outside. As a result, more than $38,000 of property was damaged or destroyed by rain. In November 2011, plaintiffs obtained a loan and purchased the home from Freddie Mac.

In May 2012, plaintiffs sued Freddie Mac, arguing that (1) Freddie Mac disregarded the PTFA, (2) they were wrongfully evicted from their home, and (3) Freddie Mac's actions were outrageous and inflicted severe emotional distress.

The district court granted Freddie Mac's motion to dismiss under Fed. R. Civ. P. 12(b)(6). It interpreted plaintiffs' complaint as asserting claims under the PTFA, which protects tenants by imposing certain requirements on successors-in-interest to foreclosed properties. The district court held that the PTFA does not provide a private right of action.

On appeal, plaintiffs argued that their claims did not arise under the PTFA and that their complaint asserted claims under Kentucky law for wrongful eviction, denial of due process, and outrageous infliction of emotional distress.

The Sixth Circuit agreed that the PTFA does not provide a private right of action. But it noted that the PTFA requires successors-in-interest to foreclosed properties to provide bona fide tenants with 90 days' notice to vacate and to allow them to occupy the premises until the end of their lease term unless certain conditions are met. Freddie Mac violated this provision.

While Freddie Mac's actions were tolerable under Kentucky law, they were not under the PTFA. The PTFA's requirements preempt state laws that provide less protection to tenants. While no federal cause of action for violations of PTFA exists, tenants may use PTFA violations to establish the elements of state-law claims. Here, Freddie Mac did not meet the conditions laid out by the PTFA, and plaintiffs could use this fact to support their state-law claims.

The Sixth Circuit held that plaintiffs stated a claim for wrongful eviction but failed to state claims for denial of due process and outrageous infliction of emotional distress. Therefore, the court reversed in part and affirmed in part.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0030p-06.pdf

Panel: Gibbons, Stranch, Hood*
*District Judge, sitting by designation

Argument: June 19, 2013

Date of Issued Opinion: February 7, 2014

Docket Number: No. 12-6051

Decided: Reversed in part, affirmed in part.

Case Alert Author: Jenna Adamson

Counsel: ARGUED: Alan W. Roles, COLEMAN, ROLES & ASSOCIATES, PLLC, Louisville, Kentucky, for Appellants. Rick D. DeBlasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for Appellee. ON BRIEF: Alan W. Roles, Theodore J. Palmer, COLEMAN, ROLES & ASSOCIATES, PLLC, Louisville, Kentucky, for Appellants. Rick D. DeBlasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for Appellee. Kent Qian, NATIONAL HOUSING LAW PROJECT, San Francisco, California, C. Matthew Hill, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici Curiae.

Author of Opinion: Circuit Judge Gibbons

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

Edited: 03/14/2014 at 01:24 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/04/2014 02:51 PM     6th Circuit     Comments (0)  

March 3, 2014
  Slyusar v. Eric H. Holder, Jr. - Sixth Circuit
Headline: Sixth Circuit denies relief to asylum-seeker, finding that the REAL ID Act has the practical effect of foreclosing stays of removal to asylum-seekers who have received adverse credibility determinations.

Areas of Law: Immigration; Asylum; REAL ID Act of 2005

Issue Presented: Whether the REAL ID Act of 2005 permits adjudication of petitions for asylum, withholding of removal, and other relief from removal after an adverse credibility determination.

Brief Summary: After receiving notices to appear from the Department of Homeland Security in 2005, Petitioner and her minor children requested asylum, withholding of removal, and protection under the Convention Against Torture. In 2011, an immigration judge denied all relief based on an adverse credibility determination and other secondary adverse findings. Petitioner unsuccessfully appealed to the Board of Immigration Appeals. The Sixth Circuit denied the petition for review and motion for a stay of removal, holding that (1) inconsistencies in Petitioner's testimony were a sufficient basis for a determination of adverse credibility and (2) under the REAL ID Act, an adverse credibility determination is dispositive, foreclosing applications for asylum, the withholding of removal, or other relief from removal.

Extended Summary: In 2003, Petitioner entered the United States under an alias with a Russian passport. After marrying a United States citizen, she and her two minor children applied for adjustment of status. In 2005, their applications for adjustment of status were denied, and Petitioner filed applications for asylum.

While awaiting disposition of the applications, the Department of Homeland Security issued notices to appear that requested removal and alleged that Petitioner and her children had entered the United States without inspection. Petitioner then requested asylum, withholding of removal, and protection under the Convention Against Torture. In 2011, an immigration judge denied all of Petitioner's relief because of her inconsistent testimony. The judge found that Petitioner failed to timely apply for asylum and failed to show extraordinary circumstances warranting the delay. But the judge found that even if Petitioner's application had been timely, it would have been denied because her testimony was not credible. Further, the judge found that Petitioner failed to prove her eligibility for asylum and for withholding of removal and that the adverse credibility determination barred relief under the Convention Against Torture. In 2012, the Board of Immigration Appeals dismissed Petitioner's appeal, finding no error and agreeing that Petitioner's testimony was inconsistent and not credible. Petitioner then sought relief in the Sixth Circuit.

The Sixth Circuit explained that the REAL ID Act of 2005 applies to applications for asylum, withholding of removal, or other relief from removal filed on or after May 11, 2005. Before the REAL ID Act, immigration judges assessing an applicant's credibility were allowed to consider only inconsistencies that went to the heart of an applicant's claim. But under the REAL ID Act, judges are allowed to consider any inconsistencies or falsehoods in an applicant's statements - and any other relevant factor - without regard to its relationship to the heart of an applicant's claim.

Applying the REAL ID Act, the Sixth Circuit found that Petitioner had not provided sufficient evidence to reverse the immigration judge's adverse credibility determination. The court found that adverse credibility determinations are conclusive unless a reasonable adjudicator would be compelled to reach a contrary conclusion. But the fact that the court could conceivably make a contrary conclusion is not enough to justify reversal of the immigration judge's decision. The immigration judge's findings of numerous inconsistencies between Petitioner's testimony and the information provided to the Department of Homeland Security were enough, under the Act, to foreclose relief.

The Sixth Circuit found that, although Petitioner had not been given the opportunity to demonstrate the strength of her case on its merits, the immigration judge's adverse credibility determination under the Act was dispositive. As applied, the Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for that relief. Yet the Sixth Circuit, quoting a Ninth Circuit opinion, was careful to caution that "[a]lthough the REAL ID Act expands the bases on which an [immigration judge] may rest an adverse credibility determination, it does not give a blank check to the [judge] enabling him or her to insulate an adverse credibility determination from our review of the reasonableness of that determination."

Panel: Judges Keith, Guy, and Gibbons

Date of Issued Opinion: January 30, 2014

Docket Number: 13-3071

Decided: Petition for Review of an Order from the Board of Immigration Appeals

Counsel: ARGUED: Troy A. Murphy, MURPHY LAW OFFICES, Avon, Ohio, for Petitioners. Claire L. Workman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. On BRIEF: Troy A. Murphy, MURPHY LAW OFFICES, Avon, Ohio, for Petitioners. Kathryn M. McKinney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/14a0021p-06.pdf

Case Alert Author: Minyon Bolton

Author of Opinion: Judge Keith

Case Alert Circuit Supervisor: Professor Barbara Kalinowski

Edited: 03/14/2014 at 01:30 PM by Mark Cooney

    Posted By: Mark Cooney @ 03/03/2014 03:25 PM     6th Circuit     Comments (0)  

February 25, 2014
  Phillips v. U.S. - Sixth Circuit
Headline: To invoke an equitable exception to the statute of limitations for filing a motion to vacate, a defendant must identify a binding intervening change of law.

Area of Law: Criminal Procedure - "Actual Innocence" Exception

Issue Presented: Can a defendant use an intervening decision from another circuit - or an intervening Supreme Court decision addressing the elements of a different criminal statute - to support an equitable-exception argument for actual innocence?

Brief Summary: Gregory Phillips was convicted of engaging in illicit sexual acts with a male minor in a foreign place. After the statute of limitations had run, Phillips filed a motion to vacate judgment, arguing that he was actually innocent because his travel ended when he moved to Thailand, which occurred two years before the statute was enacted. The Sixth Circuit held that Phillips failed to identify any binding intervening precedent that demonstrated a change in the law that would establish "that he now stands convicted of a crime that the law does not deem criminal." Therefore, the Sixth Circuit reaffirmed the district court's decision denying Phillips's motion to vacate judgment.

Significance: This case demonstrates the Sixth Circuit's unwillingness to extend the actual-innocence exception unless there is a "fundamental miscarriage of justice."

Extended Summary: In 2001, after serving 36 months' probation for "taking indecent liberties with a child," Gregory Phillips moved to Thailand because he was prohibited from seeking employment as a teacher in the United States. While in Thailand, Phillips engaged in sexual conduct with a minor male. In 2003, Title 18 U.S.C. § 2423 was enacted to protect children; this section makes it illegal to travel to a foreign place and engage in illicit sexual conduct.

In 2005, Phillips pleaded guilty to "engaging in illicit sexual conduct in foreign places" and was sentenced to 37 months' imprisonment and a life term of supervised release. In 2008, just days before serving a second prison term for violating his supervised release, Phillips filed a motion to vacate his 2005 conviction, arguing that § 2423(c) applied only to individuals who both traveled in foreign commerce and engaged in illicit sexual acts after the statute was enacted.

Although Phillips filed his motion after the statute of limitations had expired, he argued that he was entitled to relief because he did not discover grounds for his motion until the Ninth Circuit decided United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007). Because the Jackson court held that the "travel" element of § 2423 must occur after the statute was enacted, Phillips argued that he was actually innocent because his "travel" ended when he moved to Thailand, which occurred two years before the statute was enacted. While serving his second prison term, Phillips filed a supplemental memorandum of law in support of his 2008 motion to vacate, which had not yet been ruled on by the district court. In his supplemental memorandum, Phillips argued that Carr v. United States, 130 S. Ct. 2229 (2010) indicated an additional change in the law, which further established his "actual innocence."

The district court declined to address the timeliness of Phillips's motion and, instead, denied Phillips's motion to vacate on statutory-interpretation grounds; Phillips appealed. The Sixth Circuit found that the timeliness issue was dispositive of Phillips's claims and affirmed the district court on this alternate basis.

The Sixth Circuit explained that the heart of Phillips's argument was "that an equitable exception should be applied to 'bypass the statutory bar' . . . because an intervening change in the law rendered him actually innocent." The Sixth Circuit refused to accept his argument because Phillips failed to show any binding precedent that demonstrated that he "now stands convicted of a crime that the law does not deem criminal." The Sixth Circuit also found that Phillips's reliance on Carr was misplaced because Carr interpreted the substantive elements of a different criminal statute. Without binding precedent interpreting the scope of "travels," Phillips failed to meet the requirements of the actual-innocence exception to his untimely petition. Therefore, the Sixth Circuit affirmed the district court's decision denying Phillips's motion to vacate judgment because Phillips's petition remained untimely.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0321p-06.pdf

Panel: Rogers and Kethledge, Circuit Judges; and Borman, District Judge (sitting by designation)

Argument: June 21, 2013

Date of Issued Opinion: November 4, 2013

Docket Number: 11-6249

Decided: November 4, 2013

Case Alert Author: Theodora Eisenhut

Counsel: ARGUED: Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant. Debra A. Breneman, Charles E. Atchley, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Author of Opinion: District Judge Borman

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 02/25/2014 03:28 PM     6th Circuit     Comments (0)  

January 28, 2014
  Elsevier, Inc. v. Crockett - Sixth Circuit
Headline: Courts - not arbitrators - should decide whether an arbitration agreement allows for classwide arbitration when the agreement is silent or ambiguous on the question.

Area of Law: Alternative Dispute Resolution; Contract Law

Issue Presented: May an arbitrator decide whether an arbitration agreement allows for classwide arbitration when the agreement is silent on the question?

Brief Summary: Two parties disagreed on whether their arbitration agreement allowed for classwide arbitration. The agreement did not specifically mention classwide arbitration. The district court held that a court, not an arbitrator, should decide whether an arbitration agreement allows for classwide arbitration. The Sixth Circuit affirmed, holding that the question of classwide arbitration is a gateway question, not a subsidiary question. And gateway questions are reserved for the courts unless the parties clearly and unmistakably provide otherwise.

Significance: The Sixth Circuit is the first court to decide whether classwide arbitrability is presumptively for an arbitrator to decide or presumptively for a court to decide.

Extended Summary: A New York lawyer entered into a LexisNexis subscription agreement. Later, the parties had a billing dispute. The agreement contained an arbitration clause. The clause required that any arbitration of a billing dispute occur in LexisNexis's home city. Because the provision made the lawyer's dispute economically unfeasible, he filed an arbitration demand on behalf of himself and two putative classes, seeking damages exceeding $500 million. In response, LexisNexis sued the lawyer in a federal district court in Ohio, seeking a declaration that the arbitration clause does not authorize class arbitration and seeking an injunction barring the lawyer from proceeding with classwide arbitration. The district court granted summary judgment in favor of LexisNexis. The lawyer appealed.

On appeal, the lawyer argued that an arbitrator - not the district court - should have decided whether the arbitration clause allowed classwide arbitration. The Sixth Circuit rejected this argument and affirmed. The court's first order of business was to determine whether classwide arbitrability is a gateway question or a subsidiary one. The court explained that "gateway questions" relate to the manner in which the parties will resolve their dispute. Conversely, "subsidiary questions" involve issues that "grow out of the dispute and bear on its final disposition."

The Sixth Circuit looked to the Supreme Court for guidance. Although the Supreme Court hasn't squarely decided the question, its most-recent precedent "has given every indication, short of an outright holding, that classwide arbitrability is a gateway question rather than a subsidiary one." The Supreme Court has also emphasized that arbitration clauses must be interpreted according to their terms. Against this backdrop, the Sixth Circuit examined the fundamental differences between bilateral and classwide arbitration. First, arbitration's putative benefits - reducing costs and improving efficiency - are less assured in classwide arbitration. Second, maintaining confidentiality is more difficult in classwide arbitrations. Third, the commercial stakes in classwide arbitration are similar to that of class-action litigation. And fourth, if arbitration is expanded classwide, it could potentially violate the due-process rights of individuals who are not part of the class.

After examining the fundamental differences between bilateral and classwide arbitration, the Sixth Circuit concluded that whether an arbitration agreement allows classwide arbitration is a gateway question reserved "for judicial determination unless the parties clearly and unmistakable provide otherwise."

Next, the Sixth Circuit examined the arbitration-clause language and concluded that the clause did not mention classwide arbitration at all. So the Sixth Circuit concluded that the agreement, at best, was ambiguous on the question of classwide arbitrability. Thus, the Sixth Circuit agreed with the district court and held that the question of whether the parties agreed to arbitrate must be decided by a court - not an arbitrator. Consenting to arbitration, the court noted, does not necessarily mean consenting to classwide arbitration.

The lawyer's final argument was that the arbitration clause was unconscionable because it didn't allow classwide arbitration. The Sixth Circuit acknowledged that the agreement favored LexisNexis but found that "the absence of a class-action right doesn't render an arbitration agreement unenforceable."

Link to Full Opinion: http://www.ca6.uscourts.gov/op...13a0323p-06.pdf


Panel: Batchelder, Merritt, and Kethledge

Argument: January 17, 2013

Date of Issued Opinion: November 5, 2013

Docket Number: 12-3574

Decided: Affirmed.

Case Alert Author: Jessica Michels

Counsel: Blair C. Fensterstock, FENSTERSTOCK & PARTNERS LLP, New York, New York, for Appellants. Charles J. Faruki, FARUKI, IRELAND & COX, P.L.L., Dayton, Ohio, for Appellee. ON BRIEF: Blair C. Fensterstock, Eugene D. Kublanovsky, FENSTERSTOCK & PARTNERS LLP, New York, New York, Patrick F. Haggerty, Lindsey A. Carr-Siegler, FRANTZ WARD LLP, Cleveland, Ohio, for Appellants. Charles J. Faruki, Donald E. Burton, FARUKI, IRELAND & COX, P.L.L., Dayton, Ohio, for Appellee.

Author of Opinion: Circuit Judge Kethledge

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 01/28/2014 02:45 PM     6th Circuit     Comments (0)  

January 23, 2014
  NLRB v. Allied Mechanical Services, Inc. - Sixth Circuit
Headline: Citing First Amendment considerations, the Sixth Circuit denies the NLRB's petition to enforce an order requiring a union contractor to pay all litigation costs, holding that the union contractor's suit was neither objectively baseless nor motivated by an unlawful, retaliatory purpose.

Area of Law: Constitutional Law - First Amendment

Issue Presented: Did the NLRB err when it concluded that a union contractor's federal suit was both objectively baseless and subjectively motivated by a desire to retaliate against the unions?

Brief Summary: Allied Mechanical Services brought a federal suit against two local labor unions and their national counterparts, alleging breach of a collective-bargaining agreement and violations under the National Labor Relations Act. After the case was dismissed, the unions brought an unfair-labor-practice claim before the National Labor Relations Board. An administrative-law judge agreed with the unions and held that Allied must reimburse the unions for their litigation expenses. Allied timely sought review in the Sixth Circuit, arguing that (a) the Board's test for finding liability under the Act "underprotects First Amendment rights to file suit in federal court," (b) its suit wasn't "objectively baseless and retaliatory," and (c) the Board improperly awarded attorney's fees and expenses.

Significance: The Sixth Circuit refused to give deference to the Board's fact finding because the case implicated the First Amendment right to bring suit, and courts - not agencies - have expertise in determining the scope of the right to sue and the objective merit of a federal lawsuit.

Extended Summary: Allied brought a federal suit against two local unions and their national counterparts, claiming that the local unions conspired to withhold certain job-targeting funds for projects because Allied had not signed a collective-bargaining agreement with one of the local unions. The district court dismissed Allied's complaint in its entirety, and the Sixth Circuit affirmed in a per curiam opinion. Following the dismissal, the unions brought an unfair-labor-practice claim before the National Labor Relations Board, claiming that Allied violated the National Labor Relations Act by filing the federal suit. An administrative-law judge agreed with the unions and decided that Allied had to reimburse the unions for the litigation expenses. Several parties filed exceptions to that decision, and the full Board reviewed the case.

While the case was pending before the Board, the Supreme Court issued an opinion, BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002), which suggested that a more stringent test may be required to avoid implicating First Amendment concerns related to a citizen's rights to sue. After the BE & K opinion was issued, the Board remanded the case to the administrative judge for reconsideration in light of BE & K.

In its supplemental decision, the administrative judge applied a modified test to determine when the Act is violated: "the litigation must be both (1) objectively baseless (as opposed to simply unsuccessful) and (2) retaliatory." In its supplemental decision, the administrative judge concluded that Allied violated the Act and, therefore, awarded attorney's fees and expenses to the unions. The Board adopted the administrative judge's supplemental decision. Allied timely sought review in the Sixth Circuit, arguing (a) that the Board's test for finding liability under the Act "underprotects First Amendment rights to file suit in federal court," (b) that its suit wasn't "objectively baseless and retaliatory," and (c) that the Board improperly awarded attorney's fees and expenses.

The Sixth Circuit explained that although deference to agency fact finding is justified when a case involves issues of fact that are "not within the conventional experience of judges," it is not justified when the case implicates the First Amendment right to sue because courts have more expertise in determining the scope of that right and the merit of federal lawsuits. The Sixth Circuit further explained that unsuccessful lawsuits can have an objective basis.

Applying the test adopted by the Board, the Sixth Circuit found that Allied did not lack an objective basis for filing its suit because Allied had reason to believe that it could have succeeded on the merits of the case against the local unions. And although Allied couldn't succeed against the international unions because of the unions' organizational structure, the Court found that Allied's inclusion of the international unions appeared to be "more like thorough lawyer and less like frivolity."

The Sixth Circuit also determined that the retaliatory prong was not met because there was insufficient evidence to suggest that Allied sued only to burden the unions with litigation costs. Instead, the record merely indicated that there was ill will between Allied and the unions, which is not uncommon in litigation. Therefore, the Court denied the Board's petition to enforce its order.

Link to Full Opinion:http://www.ca6.uscourts.gov/op...13a0312p-06.pdf


Panel: Daughtrey, Rogers, McKeague

Argument: March 15, 2013

Date of Issued Opinion: October 30, 2013

Docket Number: 12-1235/1351

Case Alert Author: Theodora Eisenhut

Counsel: ARGUED: Kira Dellinger Vol, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner/Cross-Respondent. David M. Buday, MILLER JOHNSON, Kalamazoo, Michigan, for Respondent/Cross-Petitioner. Nicholas R. Femia, O'DONOGHUE & O'DONOGHUE LLP, Washington, D.C., for Intervenor United Association of Journeymen. Tinamarie Pappas, LAW OFFICES OF TINAMARIE PAPPAS, Ann Arbor, Michigan, for Intervenor UA Plumbers. ON BRIEF: Kira Dellinger Vol, Julie Broido, Linda Dreeben, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner/Cross-Respondent. David M. Buday, Gregory P. Ripple, MILLER JOHNSON, Kalamazoo, Michigan, for Respondent/Cross-Petitioner. Nicholas R. Femia, O'DONOGHUE & O'DONOGHUE LLP, Washington, D.C., for Intervenor United Association of Journeymen. Tinamarie Pappas, LAW OFFICES OF TINAMARIE PAPPAS, Ann Arbor, Michigan, for Intervenor UA Plumbers.

Author of Opinion: Circuit Judge Rogers, McKeague concurred.

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 01/23/2014 02:45 PM     6th Circuit     Comments (0)  

January 14, 2014
  Rachells v. Cingular Wireless Employee Services, LLC -- Sixth Circuit
Headline: Sixth Circuit clarifies the standard for prima facie discrimination cases when there is no direct evidence of racial discrimination.

Area of Law: Title VII Civil Rights Act, 42 U.S.C. § 2000e; Ohio Rev. Code § 4112.99

Issue Presented: Did the district court err in finding that the plaintiff's evidence of racial discrimination was insufficient under state and federal law?

Brief Summary: After Cingular Wireless Employee Services acquired AT&T Wireless Services, Inc., Cingular reduced its workforce and fired five of the companies' nine existing National Retail Account Executives. Petitioner, an African-American, was one of the fired executives. He sued Cingular in federal district court, alleging state and federal claims for racial discrimination. Cingular moved for summary judgment, and Petitioner moved to compel or extend discovery. The district court held that Petitioner failed to establish a prima facie case of racial discrimination and granted Cingular's motion for summary judgment. The Sixth Circuit reversed, holding that the district court erred in granting summary judgment for Cingular.

Significance: This case clarifies a plaintiff's burden under the burden-shifting analysis for a Title VII or state-law discrimination case.

Extended Summary: In 2004, Cingular acquired AT&T and reduced its workforce. As part of the reduction, Cingular fired five of the nine existing National Retail Account Executives who were employed by the two companies. Petitioner was one of the nine employees vying for the four National Retail Account Executive positions. To identify the most qualified employees for retention, a Cingular employee named Keith Hart evaluated and ranked the nine employees. As part of the evaluation process, Hart reviewed the nine employees' 2004 performance reviews and conducted one-on-one interviews with the nine employees. During the one-on-one interview, Hart rated each employee on a scale of one to five, with five being the highest score, in the following categories: (1) Create Customer Loyalty; (2) Drive for Results; and (3) Use Sound Judgment. After completing his two-part evaluation process, Hart submitted his findings to David Fine, who was the head of Cingular's Cleveland region.

In his 2004 annual review, Hart assigned Petitioner, an African-American, an overall score of 2.6, which was the lowest 2004 performance score received by any of the nine employees. And as part of his two-part evaluation process, Hart assigned Petitioner the following scores: Create Customer Loyalty, 2 out of 5; Drive for Result, 2 out of 5; and Use Sound Judgment, 3 out of 5. These scores gave Petitioner the seventh ranking among the nine candidates, resulting in his firing. Petitioner sued Cingular, alleging claims of racial discrimination under Title VII of the Civil Rights Act and under Ohio law. Petitioner failed to make timely discovery requests, and in early 2009, Cingular moved for summary judgment on all claims. Petitioner moved to compel discovery or extend the discovery cut-off deadline, but the district court denied the motion without comment, and Petitioner filed a response in opposition to Cingular's motion for summary judgment.

The district court referred Cingular's summary judgment motion to a magistrate judge for findings of fact and conclusions of law, and the magistrate concluded that Petitioner's evidence was insufficient to establish a prima facie case of discrimination and recommended summary judgment for Cingular. The district court overruled Petitioner's timely objections and adopted the magistrate's report and recommendations. Petitioner appealed both the district court's denial of his motion to extend discovery and the district court's decision to grant summary judgment to Cingular.

The Sixth Circuit held that the district court erred in granting summary judgment for Cingular and further held that it did not need to decide whether the district court abused its discretion in denying Petitioner's motion to extend discovery.

The Sixth Circuit explained that to establish a prima facie case of racial discrimination when there is no direct evidence of racial discrimination, a plaintiff must meet the four elements of the McDonnell burden-shifting test for inferential proof of discrimination. The elements are (1) whether the plaintiff was a member of a protected class; (2) whether the plaintiff was discharged; (3) whether the plaintiff was qualified for the position; and (4) whether a "similarly situated" non-protected person was treated better than the plaintiff. But when a discrimination claim is based on a firing arising from a work-force reduction, the fourth element is modified, and the plaintiff must "provide 'additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.'" If the plaintiff can establish a prima facie case, the defendant may rebut that by showing that there was a legitimate, nondiscriminatory reason for its employment decision. The plaintiff then has a final opportunity to prove his or her case by presenting "'evidence from which a jury could reasonably reject [the defendant's] explanation''' as pretextual.

Although Cingular did not dispute that Petitioner satisfied the first three prima facie elements, Cingular argued that Petitioner failed to present evidence to show that he was "singled out" for impermissible reasons.

As a preliminary matter, the Sixth Circuit disagreed with the magistrate's finding that the other eight candidates formed the comparative group from which to determine whether Petitioner was singled out because of race. The Court reached this conclusion because the AT&T candidates had a different supervisor than the Cingular candidates, and the AT&T candidates' performance evaluations were based on different criteria.

Here, the evidence showed that, unlike the other Cingular candidates, Petitioner was not told what the 2004 interview would entail and was not interviewed regarding the "Drive for Results" component. Although the Sixth Circuit noted that, alone, this evidence might be insufficient to raise a genuine factual dispute, the Court noted that the district court erred in dismissing two other categories of evidence that tended to show racial discrimination: Petitioner's superior qualifications and evidence of a discriminatory atmosphere at Cingular.

As evidence of his superior qualifications, Petitioner pointed to the nine awards and accolades he received between 1999 and 2003. He also presented evidence that his 2002, 2003, and 2004 attainment percentages exceeded those of his Cingular peers and that his 2003 performance review was the highest of any of his co-workers. Although the district court correctly determined that the relevant inquiry is Petitioner's qualification relative to the other Cingular candidates at the time of the performance review, the Sixth Circuit stated that a fact finder could infer that Petitioner's poor scores in the employee-reduction selection process "did not reflect an actual decline in performance, but rather the reviewer's attempt to ensure [Petitioner] was among those discharged in the workplace reduction." Thus, the Court held that a genuine issue of material fact existed as to whether Petitioner had qualifications superior to those of nonprotected candidates who were not discharged.

As evidence of Cingular's discriminatory atmosphere, Petitioner provided the affidavits of two minority retail-store managers in the Cleveland region. The Sixth Circuit held that the district court erred when it struck the two affidavits because, even though some parts of the affidavits were "inadmissable, they also contained relevant, admissible evidence concerning the affiants' personal experience of allegedly discriminatory treatment at Cingular." As such, the Sixth Circuit held that the affidavits could "be probative of whether a discriminatory atmosphere existed at Cingular during [Petitioner's] tenure." Thus, according to the Sixth Circuit, Petitioner presented sufficient evidence to establish a genuine issue of material fact as to whether Cingular singled out Petitioner for discharge because of his race.

The Sixth Circuit next observed that the same evidence of Petitioner's superior qualifications and the discriminatory atmosphere at Cingular were also sufficient to establish pretext, emphasizing that such evidence could "cast doubt on the basis in fact of [Cingular's] proffered legitimate, non-discriminatory reasons."

Because all evidence and reasonable inferences in a motion for summary judgment must be viewed in the light most favorable to the nonmoving party, the Sixth Circuit reversed the district court's grant of summary judgment and remanded the case.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0295p-06.pdf

Panel: Cole and Donald, Circuit Judges; and Marbley, District Judge (sitting by designation)

Argument: July 25, 2013

Date of Issued Opinion: October 17, 2013

Docket Number: 12-4137

Decided: Reversed and remanded.

Case Alert Author: Yvonne Carver

Counsel: ARGUED: E. Yvonne Harris, Cleveland, Ohio, for Appellant. Casey Alan Coyle, RHOADS & SINON LLP, Harrisburg, Pennsylvania, for Appellees. ON BRIEF: E. Yvonne Harris, Cleveland, Ohio, for Appellant. Todd J. Shill, John R. Martin, RHOADS & SINON LLP, Harrisburg, Pennsylvania, for Appellees.

Author of Opinion: District Judge Marbley

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 01/14/2014 02:22 PM     6th Circuit     Comments (0)  

December 2, 2013
  Eden Foods, Inc. v. Sebelius - Sixth Circuit
Headline: The Sixth Circuit holds that a secular, for-profit corporation cannot "exercise" religion; thus, if the corporation is governed by the Affordable Care Act, the corporation's health-insurance policy must provide female employees with no-cost contraceptive coverage.

Area of Law: Affordable Care Act; Religious Freedom Restoration Act.

Issue Presented: Did the district court abuse its discretion when it denied the plaintiffs' requests for injunctive relief under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb - 2000bb-4 (RFRA)?

Brief Summary: The plaintiffs, a secular, for-profit corporation and its Roman Catholic sole shareholder, filed a complaint in federal district court, challenging the legality of the Affordable Care Act's contraceptive mandate and seeking a motion for issuance of a temporary restraining order and a preliminary injunction. The district court denied the plaintiffs' motion for injunctive relief, noting that the plaintiffs failed to satisfy their RFRA burden of showing that the contraceptive mandate substantially burdened their exercise of religion. The Sixth Circuit affirmed the district court's denial of the corporate plaintiff's motion for injunctive relief and remanded the case with instructions to dismiss the sole shareholder plaintiff's claims for lack of jurisdiction.

Significance: If a corporation is governed by the Affordable Care Act, the corporation's health-insurance policy must provide female employees with no-cost contraceptive coverage because a secular, for-profit corporation cannot "exercise" religion and an individual's rights under RFRA do not extend to a secular, for-profit corporation that is not the alter ego of its owner.

Extended Summary: The individual plaintiff is the founder, chairperson, president, and sole shareholder of the corporate plaintiff, a secular, for-profit corporation. Because the corporate plaintiff employs more than 50 full-time employees, it is subject to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) and the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010), collectively known as the Affordable Care Act. According to the Affordable Care Act, non-exempt, non-grandfathered employers of 50 or more individuals must provide their full-time employees with a minimum level of health insurance.

This minimal level of health insurance mandates employers to provide female employees with health-insurance coverage that complies with the guidelines supported by the Health Resources and Services Administration (HRSA). 42 U.S.C. § 300gg-13(a)(4). HRSA's guidelines require insurance plans to provide female employees with preventative services that include contraceptive methods and contraceptive counseling. But the contraceptive methods and contraceptive counseling guidelines "do not apply to women who are participants or beneficiaries in group health insurance plans sponsored by [non-profit] religious employers."

If a non-exempt employer fails to provide any health-insurance coverage, the non-exempt employer will be imposed an "assessable payment." And if a non-exempt employer fails to provide the required insurance coverage, the non-exempt employer will be imposed significant taxes.

After President Obama signed the Affordable Care Act, the plaintiffs filed a complaint in federal court, challenging the legality of the contraceptive mandate and requesting a temporary restraining order and a preliminary injunction. According to the individual plaintiff, a practicing Roman Catholic, compliance with the contraceptive mandate would substantially burden the plaintiffs' exercise of religion in contravention of the protections afforded by the RFRA.

The district court denied the plaintiffs' request for injunctive relief, noting that the plaintiffs failed to satisfy their RFRA burden of showing that the contraceptive mandate substantially burdened their exercise of religion. And the district court concluded that the plaintiffs did not establish a likelihood of success on their First Amendment free-exercise claim, noting that free-exercise-of-religion rights have never been extended to secular, for-profit corporations that are not the alter egos of their owners. The district court further concluded that the mandate did not infringe on the individual plaintiff's First Amendment rights because the regulation did "not seek to burden religion, but rather to promote public health and gender equality."

The corporate and individual plaintiff appealed to the Sixth Circuit, claiming that they were likely to succeed on their RFRA claims. And pending resolution of the appeal, the plaintiffs sought an injunction that would restore them to the positions they were in before the Affordable Care Act was implemented. The Sixth Circuit denied the plaintiffs' request for an injunction, finding that the plaintiffs had no likelihood of success on the merits. In reaching its conclusion, the Sixth Circuit looked to Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013), a case involving a similar challenge to the Affordable Care Act's contraceptive mandate.

First, the Sixth Circuit dismissed the individual plaintiff's claims for lack of jurisdiction, reasoning that an individual has no standing to challenge obligations placed only upon the corporation. The Court based this decision on basic, well-established principles of corporate law - incorporation "create[s] a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it."

Second, the Sixth Circuit held that the for-profit, secular corporation is not a "person" capable of engaging in religious exercise under the RFRA. Because the corporate plaintiff could not establish a likelihood of success on the merits, the Sixth Circuit held that the district court did not abuse its discretion when it denied the corporate plaintiff's request for injunctive relief.

Thus, the Sixth Circuit affirmed the district court's denial of the corporate plaintiff's motion for a preliminary injunction and remanded the case to the district court with instructions to dismiss the individual plaintiff's claims for lack of jurisdiction.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...13a0304p-06.pdf


Panel: Daughtrey, Cole, and White

Argument: October 24, 2013

Date of Issued Opinion: October 24, 2013

Docket Number: 13-1677

Decided: Affirmed in part, and remanded in part with instructions to dismiss the individual plaintiff's claims for lack of jurisdiction.

Case Alert Author: Sandra Reizen

Counsel: Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellants. Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Mailee R. Smith, AMERICANS UNITED FOR LIFE, Washington, D.C., Kimberlee Wood Colby, CENTER FOR LAW AND RELIGIOUS FREEDOM CHRISTIAN LEGAL SOCIETY, Springfield, Virginia, Deborah J. Dewart, LIBERTY, LIFE, AND LAW FOUNDATION, Swansboro, North Carolina, Thomas W. Ude, Jr., LAMBDA LEGAL AND DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Jennifer C. Pizer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Los Angeles, California, Charles E. Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., Bruce H. Schneider, STROOCK & STROOCK & LAVAN LLP, New York, New York, Daniel Mach, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., Ayesha N. Khan, Gregory M. Lipper, Caitlin E. O'Connell, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Jessica Ellsworth, HOGAN LOVELLS
US LLP, Washington, D.C., for Amici Curiae.

Author of Opinion: Circuit Judge Martha Craig Daughtrey

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 12/02/2013 09:52 AM     6th Circuit     Comments (0)  

November 22, 2013
  Patel v. United States Citizenship and Immigration Services - Sixth Circuit
Headline: The Sixth Circuit decides that aliens have prudential and constitutional standing to challenge the denial of their potential employer's petition for an employment visa.

Area of Law: Constitutional Law

Issues Presented: (1) Does an alien have prudential standing to challenge the denial of his or her potential employer's petition for an employment visa? (2) If the alien can establish prudential standing, does the alien have constitutional standing to bring an action in federal court?

Brief Summary: Patel, a citizen of India, entered the United States on a one-year visitor's visa, overstayed the visa, and began looking for a job that would allow him to obtain an employment visa. Six years after his visa expired, Patel obtained a job offer from Deluxe Inn. The United States Citizenship and Immigration Services (CIS) denied Deluxe Inn's petition. Patel obtained another job offer from a second prospective employer, Peshtal Inc, and the CIS denied Peshtal Inc.'s petition. Peshtal Inc. did not appeal the denial of the petition. Instead, Patel sued the CIS under the Administrative Procedure Act (APA), alleging that the denial of the prospective employer's petition was arbitrary, capricious, and not in accordance with law. The district court dismissed the case for lack of prudential standing. The Sixth Circuit reversed and remanded.

Significance: An alien has prudential standing to sue under the APA and constitutional standing to challenge the denial of his prospective employer's petition for an employment visa.

Extended Summary: Patel, a citizen of India, faced removal proceedings when he overstayed his visa. To stay in the country, he tried to become a permanent resident by obtaining an employment visa. There is a three-step process to obtain an employment visa. First, the potential employer must apply for a labor certification from the United States Department of Labor and must demonstrate that there are no qualified U.S. workers available or willing to work for the proffered wage. Second, if the Department of Labor approves the application, the potential employer must file a petition for an employment visa on the alien's behalf with the CIS. The CIS will approve the petition if the employer has an approved labor certification and the alien has at least two years of relevant training or experience. Third, the alien must apply to adjust his status to that of a permanent resident.

Six years after Patel's visa expired, Patel obtained a job offer from Deluxe Inn. Deluxe Inn applied for and received a labor certification. But when Deluxe Inn filed a petition for an employment visa on Patel's behalf, the CIS denied the petition because Deluxe Inn could not establish that it could pay the proffered wage. Deluxe Inn did not appeal the decision. Four years later, Patel obtained a job offer from another prospective employer, Peshtal Inc. Instead of applying for a labor certification, Peshtal Inc. jumped to the second step of the status-adjustment process and filed a petition for an employment visa on Patel's behalf. The CIS denied Peshtal Inc.'s petition because Peshtal Inc. failed to complete the first step of the process, i.e. get a labor certification. Peshtal Inc. did not appeal the denial of the petition. Instead, Patel sued the CIS under the APA, alleging that the denial of Peshtal Inc.'s petition was arbitrary, capricious, and not in accordance with law. The district court dismissed the case for lack of prudential standing.

Under the APA, a party has prudential standing if the party is adversely affected or aggrieved by agency action. "A party is 'adversely affected or aggrieved' if the interest he seeks to protect is 'arguably within the zone of interests to be protected or regulated by the statute" in question. The Sixth Circuit explained that the prudential-standing test was not meant to be demanding, that Congress wanted to make agency action presumptively reviewable, and that the benefit of any doubt goes to a plaintiff because the plaintiff only needs to be "arguably" within the statute's zone of interest.

The Sixth Circuit concluded that Patel had prudential standing because employment visas are issued directly to qualified aliens, which demonstrates that "the alien's interests are among those 'protected or regulated by the statute.'" To corroborate its conclusion, the Sixth Circuit cited two other provisions: 8 U.S.C. § 1255(b) and the portability provisions in 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv).

Under 8 U.S.C. § 1255(b), if an alien's employment visa is approved under section 1153(b)(3), the alien becomes eligible for a permanent visa - not a temporary one. And, under the portability provisions in 8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv), an alien's petition can remain valid even if the alien changes jobs. Therefore, according to the Sixth Circuit, this demonstrates that Congress intended to benefit both the alien and the U.S. employer because Congress had the option of making the visa temporary, lasting only as long as the employer needed the alien's service. And lastly, the Sixth Circuit noted that its conclusion was supported by decisions from three other circuits.

Although the district court did not decide whether Patel had constitutional standing, the Sixth Circuit decided the issue because Patel's application process had already dragged on for years. To establish constitutional standing, an alien "must prove that he suffered an injury in fact that is fairly traceable to CIS's conduct and redressable by a favorable decision." The Sixth Circuit found that Patel's injury - the loss of an opportunity to become a permanent resident - is fairly traceable to the CIS and that a favorable decision would redress Patel's injury.

The Sixth Circuit reversed the judgment of the district court but declined to address the merits of the case. Instead, the court remanded the case for further proceedings.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0293p-06.pdf

Panel: Daughtrey, Sutton, and Kethledge

Date of Issued Opinion: October 11, 2012

Docket Number: 12-1962

Decided: October 11, 2013

Counsel: ON BRIEF: Michael E. Piston, Troy, Michigan, for Appellant. Troy D. Liggett, United States Department of Justice, Washington, D.C., Agnes Kempker-Cloyd, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Author of Opinion: Circuit Judge Kethledge

Case Alert Author: Jessica Michels

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 11/22/2013 02:50 PM     6th Circuit     Comments (0)  

November 20, 2013
  Williamson v. Recovery Limited Partnership - Sixth Circuit
Headline: The Sixth Circuit declines to follow the majority of its sister circuits, which allows a defendant to bring an interlocutory appeal simply because its claim is part of a broader admiralty suit, claiming that the majority's interpretation would render the final-judgment rule a nullity in admiralty cases.

Area of Law: Admiralty Law; Civil Procedure (federal jurisdiction)

Issues Presented: (1) Did the district court properly find that the plaintiffs' action was not time-barred? (2) Did the district court err in granting the plaintiffs' summary-judgment motion against the business-entity defendants? (3) Did the district court abuse its discretion in granting a preliminary injunction against two of the defendants?

Brief Summary: The plaintiffs were hired to help find and recover a century-old shipwreck and its cargo, which contained many tons of gold. The first round of litigation over the gold began in the late 1980s; the litigation has now spanned three decades. The latest round of litigation was brought by the plaintiffs, who are still waiting to receive their promised compensation. After the plaintiffs sued, both defendants counterclaimed, and this appeal consolidated several of these claims and counterclaims. The Sixth Circuit held that the plaintiffs' suit was not time-barred under 46 U.S.C. § 80107(c) because section 80107(c) applies only to pure salvors. The Sixth Circuit also upheld the district court's grant of summary judgment against the business-entity defendants because the defendants' evidence was too vague or irrelevant to sufficiently establish their counterclaims. Finally, the Sixth Circuit ruled that the district court did not abuse its discretion in granting a preliminary injunction against the property of two defendants because the defendants failed to present the correct legal argument to the court and, therefore, forfeited the opportunity to raise the issue on appeal.

Significance: This is the first case in which the Sixth Circuit had to interpret the admiralty exception to the final-judgment rule. The Sixth Circuit refused to follow its sister circuits' narrow reading of the rule because that reading would render the final-judgment rule a nullity in admiralty cases by "effectively strik[ing] out the word 'cases' and replac[ing] it with the word 'claims.'"

Extended Summary: The plaintiffs, a group of employees and one company, were hired by the defendants to help find and recover the Central America, a ship that sunk in 1857 while transporting many tons of gold. As a condition of their employment, the plaintiffs had to sign both an employment contract and a nondisclosure agreement. The nondisclosure agreement provided that the employees would receive a share of the "net recovery" in exchange for their silence about the recovery effort. Although the parties began removing millions of dollars in gold from the Central America in 1988, the plaintiffs have never received any compensation.

This "salvo of litigation began in 2005 and 2006," and, in 2011, the parties filed cross-motions for summary judgment. The defendants asserted "a two-year statute of limitations for actions in salvage and three counterclaims." The district court rejected the defendants' time-bar argument and granted summary judgment against all of their counterclaims. The defendants filed an interlocutory appeal. While the appeal was pending, the district court granted (1) the plaintiffs' motion for prejudgment attachment to certain assets belonging to some of the defendants and (2) an injunction against two defendants, preventing them from divesting themselves of property that could be used to fulfill a judgment against them.
The defendants took an interlocutory appeal of the order.

This consolidated appeal addressed several complex questions about federal jurisdiction and admiralty law. When the plaintiffs asserted that the Sixth Circuit lacked jurisdiction to hear the defendants' appeal of summary adjudication of their counterclaim and the prejudgment-attachment order, the Sixth Circuit had to decide, for the first time, how it should interpret 28 U.S.C. § 1292(a)(3). Section 1292(a)(3) provides an exception to the final-judgment rule and grants courts the authority to hear appeals of interlocutory decrees in admiralty cases. The Sixth Circuit declined to adopt the majority view, which advocates "a narrower interpretation [of the statute] that looks to the nature of each individual claim involved in the interlocutory appeal, as opposed to the nature of the broader suit." The Sixth Circuit instead applied the plain-language rule because the majority view "would effectively strike out the word 'cases' and replace it with the word 'claim.'"

The Sixth Circuit noted that its interpretation of the statute was supported by Rule 9(h)(2) of the Federal Rules of Civil Procedure. According to Rule 9(h)(2), "'[a] case that includes an admiralty or maritime claim . . . is an admiralty case within 28 U.S.C. § 1292(a)(3).'" Because the case is an admiralty case under Rule 9(h)(2) and because the district court's summary-judgment order determined the rights and liabilities of the parties, the Sixth Circuit determined that it had jurisdiction over the interlocutory appeal under § 1292(a)(3). Therefore, the court addressed the merits of the defendants' appeal in their entirety.

The Sixth Circuit first addressed the defendants' argument that the plaintiffs' entire case was time-barred under 46 U.S.C. § 80107(c). According to section 81007(c), a civil action to recover remuneration for salvage services must be brought within two years after the salvage services were performed unless the plaintiff has not had "a reasonable opportunity to seize the . . . salvaged vessel within the jurisdiction of the court." In holding that section 80107(c) did not apply in this case, the Court noticed two basic points: (1) the plaintiffs were not suing on their employment contracts, which could have been deemed to provide "salvage services"; instead, they were suing on their nondisclosure agreements; and (2) under admiralty law, a person who provides services under an employment contract does not meet the definition of a "pure" salvor, i.e., a person who voluntarily helps a ship in distress. Accordingly, the Sixth Circuit held that the plaintiffs' case was not time-barred under section 80107(c).

Next, the court addressed the district court's grant of summary judgment against the business-entity defendants' counterclaims, noting that the counterclaims were interlinked; therefore, if the defendants' breach-of-contract claim did not survive summary judgment, the defendants' remaining counterclaims would also fail to survive summary judgment. The Sixth Circuit affirmed the district court's grant of summary judgment against the entity defendants' counterclaims because, even when viewed in a favorable light, the defendants' evidence was too vague or irrelevant to establish the elements for any of the counterclaims.

Finally, the Sixth Circuit addressed the district court's preliminary-injunction orders. The defendants argued that (1) the district court had no jurisdiction to hear the plaintiffs' motion, (2) the district court did not have authority to grant a preliminary injunction, (3) the district court abused its discretion in granting the injunction, and (4) the district court set the bond "unconstitutionally low." In addressing the defendants' arguments that the district court lacked jurisdiction to hear the plaintiffs' motion, the Sixth Circuit held that the defendants forfeited their opportunity to raise this argument on appeal because they failed to argue that the district court lacked authority to grant the equitable remedy of a preliminary injunction to protect a future potential remedy at law.

In addressing the defendants' argument that the district court abused its discretion in granting the preliminary injunction, the Sixth Circuit noted that it was required to give deference to the district court because all the defendants' arguments related to the district court's fact finding and its balancing of the factors. After analyzing the factors and giving deference to the district court, the Sixth Circuit found that the district court did not abuse its discretion in granting the preliminary injunction.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0288p-06.pdf

Panel: Boggs, Suhrheinrich, and Murphy

Argument: June 14, 2013

Date of Issued Opinion: October 2, 2013

Docket Number: 11-3723/12-3949

Decided: Affirmed as to all issues over which the court had jurisdiction.

Case Alert Author: Theodora Eisenhut

Counsel: ARGUED: Christopher L. Trolinger, FARLOW & ASSOCIATES LLC, Dublin Ohio, for Appellants. Michael J. Frevola, HOLLAND & KNIGHT, LLP, New York, New York, for Appellees. ON BRIEF: Christopher L. Trolinger, FARLOW & ASSOCIATES LLC, Dublin Ohio, for Appellants. Michael J. Frevola, HOLLAND & KNIGHT, LLP, New York, New York, Michael R. Szolosi, Sr., MCNAMARA AND MCNAMARA, L.L.P., Columbus, Ohio, for Appellees.

Author of Opinion: Circuit Judge Boggs

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 11/20/2013 01:42 PM     6th Circuit     Comments (0)  

October 24, 2013
  In re Underhill - Bankruptcy Appellate Panel, Sixth Circuit
Headline: A debtor's misleading LLC valuation prevents abandonment of debtors' bankruptcy-estate asset.

Area of Law: Bankruptcy.

Issues Presented: (1) Did the bankruptcy court abuse its discretion in granting the creditor bank's motion to reopen the debtors' bankruptcy estate? (2) Did the bankruptcy court err in ruling that all of the settlement proceeds received by the debtor in her capacity as the sole LLC member were property of the debtors' bankruptcy estate?

Brief Summary: When the debtors filed a Chapter 7 bankruptcy petition, they represented that an LLC had no value and that neither they nor the LLC owned any causes of action. After the debtors received a bankruptcy discharge, the LLC filed a claim for tortious interference against several defendants. The parties settled the lawsuit for $80,000, but the settlement proceeds were distributed directly to the attorney who represented the LLC and to one of the debtors, who was the sole member of the LLC.

After the creditor bank learned of the LLC's settlement, the bank moved to reopen the debtors' discharged bankruptcy case so that the settlement proceeds could be administered as a bankruptcy-estate asset. The bankruptcy court granted the creditor bank's motion, and the debtors appealed.

Significance: A creditor may reopen a debtor's discharged bankruptcy case to administer an LLC's settlement proceeds that were awarded after the debtors' case was closed if the proceeds resulted from an undisclosed, pre-petition cause of action. And state law must be used to determine the value of a debtor's LLC membership interest.

Extended Summary:

In January 2010, the debtors filed for Chapter 7 bankruptcy. Their bankruptcy schedule stated that the debtors had "a 100% ownership and membership interest in [the LLC]." The schedule also listed the creditor bank as holding a claim totaling $25,000, which was secured by a lien on all of the LLC's property and was personally guaranteed by one of the debtors. In addition, the creditor bank held a non-priority unsecured $105,000 loan, which was made to another debtor-owned company. The debtors also represented that neither they nor the LLC owned any causes of action.

In April 2010, the debtors' Chapter 7 trustee filed a report of no distribution, and several months after the debtors were discharged, the LLC filed a claim for tortious interference against several defendants. The case settled for $80,000, and the settlement proceeds were distributed as follows: the attorney who represented the LLC received $35,015, and the debtor who was the sole member of the LLC received $44,985.

After the creditor bank learned of the LLC's settlement, the creditor bank filed a motion to reopen the debtors' bankruptcy case to administer the settlement as an undisclosed asset. The debtors filed an objection to the creditor bank's motion, but the bankruptcy court granted the motion, holding that the tortious-interference claim "was sufficiently rooted in the debtors' pre-bankruptcy past so . . . the $80,000 settlement funds . . . constitute property of the estate." The debtors appealed, arguing that the bankruptcy court abused its discretion in granting the creditor bank's motion to reopen the case. They also argued that the bankruptcy court erred in holding that all of the settlement proceeds that were received by the debtor in her capacity as the sole member of the LLC were property of the debtors' estate.

In holding that the bankruptcy court did not abuse its discretion in reopening the debtors' bankruptcy estate, the Panel noted that the debtors didn't seriously challenge the bankruptcy court's authority to reopen the case. Instead, the debtors argued that the settlement proceeds were not property of their bankruptcy estate because (1) the settlement proceeds were paid to the debtor after the debtors received a discharge, and (2) the trustee abandoned the cause of action when the debtors' bankruptcy case was closed.

Section 541 of the Bankruptcy Code defines property of the estate as "all legal or equitable interests of the debtor in property as of the commencement of the case." And courts have held that interests of the debtor include causes of action. In determining whether a cause of action is property of the estate, courts apply the test from Segal v. Rochelle, 382 U.S. 375 (1966), which states that claims are property of the bankruptcy estate if they are "sufficiently rooted in the pre-bankruptcy past."

Applying the Segal test, the Panel affirmed the bankruptcy court's order, which held that the debtors' interest in the LLC included a contingent, unliquidated value for the LLC's claim for tortious interference. The Panel explained that because the LLC's claim began before the debtors filed their bankruptcy petition, the "claim had its roots in prebankruptcy and pre-abandonment conduct." Consequently, "the debtors' interest in the LLC included some or all of the settlement proceeds."

The Panel noted that state law must be used to determine the value of a debtor's LLC membership interest. And under Ohio law, if a company is dissolved, the LLC's assets "are retained for the benefit of creditors of the company, not for the benefit of its members." The Panel explained that if the debtor had listed the LLC's cause of action on her bankruptcy schedule, then when the case settled, the debtor's membership interest in the LLC would have been $80,000, less amounts owed to creditors of the LLC. After the LLC's creditors had been paid, then the balance of the settlement proceeds would have belonged to the debtors' bankruptcy estate for distribution to the debtors' creditors.

To determine if the trustee abandoned the cause of action, the Panel looked to section 554 of the Bankruptcy Code. According to section 554, if a debtor conceals or fails to schedule an asset, the asset "will not be deemed to be abandoned by the trustee and belongs to the bankruptcy estate." The Panel held that the LLC's claim for tortious interference was not abandoned because the debtors (1) knew about the tort claim before filing for bankruptcy, (2) failed to list the claim on the debtors' schedule, and (3) placed a value of zero on the LLC membership interest.

Therefore, the bankruptcy court correctly reopened the debtors' estate, and the Panel remanded the case to determine how the settlement proceeds should have been distributed under Ohio law.

Affirmed and remanded for further proceedings.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13b0004p-06.pdf

Panel: EMERSON, LLOYD, and McIVOR, Bankruptcy Appellate Panel Judges

Argument: August 20, 2013

Date of Issued Opinion: September 16, 2013

Docket Number: 12-8045

Decided: Affirmed and Remanded.

Case Alert Author: Sandra Reizen

Counsel: David S. Blessing, THE BLESSING LAW FIRM, Cincinnati, Ohio, for Appellants. Jody Michelle Oster, THE HUNTINGTON NATIONAL BANK, Columbus, Ohio, for Appellee.

Author of Opinion: MARCI B. McIVOR, Chief Bankruptcy Appellate Panel Judge

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 10/24/2013 12:31 PM     6th Circuit     Comments (0)  

October 21, 2013
  Bennett v. State Farm Mutual Automobile Insurance Co. - Sixth Circuit
Headline: Sixth Circuit holds that a pedestrian who was hit by a vehicle was an "occupant" of the vehicle and, therefore, entitled to coverage under the driver's insurance policy.

Area of Law: Contract Law; Insurance Law

Issue Presented: Did the district err in finding that a pedestrian was not an "occupant" of the vehicle that struck her when she landed on the hood of the vehicle after impact?

Brief Summary: A pedestrian was struck by a vehicle, which was insured by State Farm. The impact threw the pedestrian onto the hood of the vehicle, where she suffered additional injuries. The pedestrian sued State Farm, seeking a declaration that she was entitled to coverage under the vehicle's insurance policy. The district court found that the pedestrian was not an "occupant" of the vehicle and granted summary judgment in State Farm's favor. The pedestrian appealed, arguing that summary judgment was improper because State Farm defined "occupy" as "in, on, entering or alighting from." The Sixth Circuit reversed and remanded the case with instructions to enter judgment in favor of the pedestrian.

Significance: The case exemplifies the importance of legal drafting and demonstrates that parties should carefully define each term of their agreement because a policy's defined term will control - not the term's ordinary meaning. The opinion also comments on civility, noting that State Farm's derisive tone in its brief only undermined its argument.

Extended Summary: A pedestrian was walking her dog when a vehicle struck her. The impact threw her onto the hood of the vehicle. The pedestrian sued the driver's insurance company, State Farm, seeking a declaration that she was covered under State Farm's policy as an "occupant" of the vehicle.

The district court held that the pedestrian was not an "occupant" under the insurance policy and granted summary judgment in favor of State Farm. The pedestrian appealed. The Sixth Circuit reversed and remanded the case with instructions to enter judgment for the pedestrian.

First, the Sixth Circuit noted that "occupants" are normally inside a vehicle - not on the hood of a vehicle. The court next explained that "parties to a contract can define its terms as they wish." Here, State Farm defined "occupying" as "in, on, entering or alighting from." Moreover, the parties had already stipulated to the following: (1) the driver's negligence caused the accident; (2) the impact threw the pedestrian onto the vehicle's hood; and (3) the pedestrian sustained further bodily injuries when she landed on the hood. Applying the policy's definition, the court found that the pedestrian was an "occupant" of the vehicle and, thus, entitled to coverage for the injuries suffered while on the hood of the car.

Finally, the Sixth Circuit rejected both of State Farm's arguments. First, State Farm argued that the court should follow other decisions where courts have held that pedestrians are not "occupants" of the vehicles that struck them. The Sixth Circuit rejected State Farm's argument, noting that all of the prior cases were factually distinguishable and explaining that courts "do not construe contractual provisions in gross"; they interpret each contract individually, according to its terms.

Second, State Farm argued that to determine if the pedestrian was an "occupant" of the vehicle, the court should have asked whether she had some "intrinsic relationship" with the vehicle, rather than whether she was "on" it. The Sixth Circuit disagreed, explaining that the intrinsic-relationship test is one of several tests that Ohio courts use "where a gray area exists concerning whether a person was" an "occupant" of a vehicle. The court concluded that there was no gray area because State Farm had clearly defined the term "occupy." Thus, the Sixth Circuit reversed the district court's grant of summary judgment and remanded the case with instructions to enter judgment for the pedestrian.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...13a0283p-06.pdf


Panel: Cole, Kethledge, and Stranch

Date of Issued Opinion: September 24, 2013

Docket Number: 13-3047

Decided: Reversed and remanded.

Case Alert Author: Shaun Kelley

Counsel: ON BRIEF: Mark C. Willis, Matthew L. Rizzi, Jr., WILLIS & WILLIS CO., L.P.A., Akron, Ohio, for Appellants. Richard M. Garner, DAVIS & YOUNG, Westerville,
Ohio, Gregory H. Collins, DAVIS & YOUNG, Akron, Ohio, for Appellee.

Author of Opinion: Circuit Judge Kethledge

Case Alert Circuit Supervisor: Professor Tammy Asher

    Posted By: Mark Cooney @ 10/21/2013 09:25 AM     6th Circuit     Comments (0)  

August 19, 2013
  Louzon v. Ford Motor Company -- Sixth Circuit
Headline: Sixth Circuit decides that in-limine rulings in civil cases may not be used to resolve factual disputes that should be resolved by summary judgment.

Area of Law: Civil Procedure; Employment Law

Issue(s) Presented: (1) Did the district court abuse its discretion in resolving genuine issues of material fact during a motion in limine? (2) Did the district court properly deny in part a motion to compel?

Brief Summary: A Ford employee was fired after he was forced to stay abroad longer than his approved leave of absence because of the worsening security situation in Gaza, where he was visiting his mother. He sued alleging age discrimination, national origin discrimination, and retaliation. The district court granted Ford's motion in limine seeking to exclude the employee's evidence about similarly situated employees on the basis that none were similarly situated as a matter of law. The court granted the motion and then granted summary judgment to Ford. The employee appealed, arguing that the district court considered issues improperly raised in limine and abused its discretion by resolving genuine issues of material fact.

Significance: The Sixth Circuit joins other circuits in holing that motions in limine may not be used in civil cases to resolve factual issues that are properly raised by motion for summary judgment. It also holds that determining whether employees are similarly situated to the plaintiff is not based solely on whether those comparators had the same supervisor as the plaintiff.

Extended Summary: A Ford engineer was granted a leave of absence to visit his mother in Gaza. The security situation in the area worsened, and American citizens in Gaza were unable to leave due to border closings. At first, Ford extended his leave of absence, but by the time the State Department was able to evacuate the employee, his extended leave of absence had expired. When he returned to work, he learned that he was terminated. The employee filed a civil action alleging age discrimination under the Age Discrimination in Employment Act (ADEA) and the Elliot-Larsen Civil Rights Act (ELCRA); national-origin discrimination under Title VII and ELCRA; and retaliation.

There were several discovery disputes, including two motions to compel, which the district court granted in part and denied in part. Later, the district court denied the company's motion for summary judgment. After the case was transferred to another district judge, the company filed a motion in limine seeking to exclude all evidence relating to seven other Ford employees that the plaintiff-employee sought to use as similarly situated employees. The district court granted this motion and entered an order to show cause why summary judgment should not be granted in light of the in-limine ruling. The district court granted summary judgment for Ford after the employee conceded that he could not support his discrimination claims without evidence of similarly situated employees.

The employee appealed, arguing that the district court considered issues improperly raised in limine and abused its discretion by resolving genuine issues of material fact. The Sixth Circuit reversed, vacating the district court's grant of summary judgment and remanding for further proceedings.

The Sixth Circuit explained that in-limine rulings in civil cases serve a more limited purpose than in criminal cases. The court noted that some courts have held that in criminal cases a district court may consider nonevidentiary matters because summary judgment is not available in a criminal case. In civil cases, however, in-limine rulings serve the limited purpose of resolving evidentiary issues, and the proper pretrial device to resolve nonevidentiary matters is the summary judgment motion. The Sixth Circuit noted that sister circuits and other district courts in the circuit consistently refuse to allow litigants to raise nonevidentiary issues in limine.

The court found that Ford's motion in limine was nothing more than a disguised motion for summary judgment. The court found that the true nature of the company's motion was apparent because it argued that none of the employee's proffered comparators were really comparable, and resolution of this issue requires summary-judgment analysis. More importantly, the court noted, the motion in limine did not require any rulings on the admissibility of trial evidence.

The Sixth Circuit also found that the district court applied an incorrect legal standard to determine similarly situated comparators. It rejected the district court's heavy reliance on what the district court saw as a same-supervisor requirement, reaffirming that whether the individuals dealt with the same supervisor is one factor to consider out of many and is not an inflexible requirement. The court ruled that given the facts of this particular case, whether a comparator was working for the same supervisor should not be given significant weight considering the management structure of the company.

The Sixth Circuit noted that the district court, in relying heavily on the same-supervisor factor, made factual findings on contested issues. Specifically, the Sixth Circuit found that the district court erred in concluding that the company employed an automatic termination policy because of the plain language of the policy to the contrary. The Sixth Circuit also found that the district court erred in ruling that the employee's comparators were not similarly situated in all other relevant aspects, because it was a previously litigated issue in the initial summary-judgment motion.

The court also held that it was error for the district court to restrict discovery based on the mischaracterization of the same-supervisor factor as a prerequisite or a requirement; therefore, the court vacated the district court's order denying the employee's motion to compel.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0158p-06.pdf

Panel: Moore and Stranch, Circuit Judges; and Hood, District Judge (sitting by designation)

Argument: April 25, 2013

Date of Issued Opinion: June 4, 2013

Docket Number: 11-2356

Decided: June 4, 2013

Case Alert Author: Cathryn Rudolph

Counsel: ARGUED: Lawrence J. Breskin, Detroit, Michigan, for Appellant. William B. Forrest III, Kienbaum Opperwall Hardy & Pelton P.L.C., Birmingham, Michigan for Appellant. ON BRIEF: Lawrence J. Breskin, Detroit, Michigan, for Appellant. William B. Forrest III, Elizabeth Hardy, Julia Turner Baumhart, Kienbaum Opperwall Hardy & Pelton P.L.C., Birmingham, Michigan for Appellant.

Author of opinion: Circuit Judge Moore

Case Alert Circuit Supervisor: Professor Eileen Kavanagh

    Posted By: Mark Cooney @ 08/19/2013 09:32 AM     6th Circuit     Comments (0)  

  Vanderbilt Mortgage & Finance, Inc. v. Westenhoefer, Trustee -- Sixth Circuit
Headline: Kentucky statute governing perfection of liens must be read as a whole to determine whether a lender has perfected its lien. If the application for first title and title-lien statement were not filed in the debtor's county of residence, the lien is not perfected.

Area of Law: Secured Transactions; Strong-Arm Proceeding

Issue Presented: Did Vanderbilt Mortgage properly perfect its security interest in the manufactured home?

Brief Summary: The debtor bought a manufactured home, borrowing the funds from Vanderbilt Mortgage and Finance, Inc., who took a security interest in the home. Vanderbilt filed the application for first title and the title-lien statement required under Kentucky law in the county where it did business: Bell County, Kentucky. But the debtor resided in Magoffin County, Kentucky. The debtor filed for Chapter 7 bankruptcy, and the trustee brought a strong-arm proceeding seeking to avoid Vanderbilt's lien on the manufactured home. The trustee argued that the lien was not perfected under Kentucky law because Vanderbilt failed to file the title-lien statement in Magoffin County, where the debtor resided. The Sixth Circuit affirmed the decisions of the bankruptcy court and the district court for summary judgment in favor of the trustee, holding that Vanderbilt failed to perfect its lien.

Significance: The Sixth Circuit resolves a question frequently litigated by the lender, Vanderbilt Mortgage, holding that the Kentucky statute on perfecting liens must be read as a whole to determine whether a lien was perfected and that the lien can be perfected only by filing the application for first title and the title-lien statement in the county where the debtor resided.

Extended summary: The debtor purchased a manufactured home with funds borrowed from Vanderbilt Mortgage and Finance, Inc., who took a security interest in the home. Vanderbilt filed an application for first title and an application for a title-lien statement in the county in which it did business, that is, in its county of residence. After the debtor filed a voluntary Chapter 7 bankruptcy petition, the bankruptcy trustee brought a strong-arm proceeding against Vanderbilt to avoid the lien, claiming that the lien was not properly perfected under Kentucky statutes. The bankruptcy court granted the trustee's motion for summary judgment, and the district court affirmed. The Sixth Circuit affirmed.

The relevant Kentucky statute provides that the "perfection and discharge of a security interest in any property for which has been issued a Kentucky certificate of title shall be by notation on the certificate of title." The Kentucky Supreme Court had held that this notation is the sole means of perfecting title. Vanderbilt argued that such a notation was made on the certificate in this case, so its lien was perfected. But the court noted that the statute goes on to say, "The notation of the security interest on the certificate of title shall be in accordance with this chapter." Another section of that statute provides, "[T]he notation of security interests relating to property required to be titled in Kentucky through the county clerk shall be done in the office of the county clerk of the county in which the debtor resides." The Sixth Circuit found that section to be unambiguous and conclusive. Other sections described additional steps, but they all relate back to the notation by the clerk in the debtor's county of residence.

The Sixth Circuit rejected Vanderbilt's arguments that were based on statutes relating to other kinds of security interests or other factual bases (e.g., cases where the clerk failed to note the lien, or where the mobile home was permanently affixed to property). Vanderbilt also relied on another section of the code, but the court noted that that section related to applications for certificates of title or registration, not to notation of a lien on that title. The court noted that Vanderbilt had raised these same arguments unsuccessfully in several other bankruptcy and district court cases in Kentucky. The Sixth Circuit agreed with those other decisions and held that Vanderbilt did not perfect its lien, affirming summary judgment in the trustee's favor.

Link to full opinion: http://www.ca6.uscourts.gov/op...13a0150p-06.pdf


Panel: Circuit Judges Moore, Sutton, and Donald

Argument: March 8, 2013

Date of Issued Opinion: May 28, 2013

Docket Number: 11-6216

Decided: Affirmed

Case Alert Author: Kathryn Burkhart

Counsel: ARGUED: John P. Brice, WYATT, TARRANT & COMBS, Lexington, Kentucky, for Appellant. John M. Simms, ATKINSON, SIMMS & KERMODE PLLC, Lexington, Kentucky, for Appellee. ON BRIEF: John P. Brice, WYATT, TARRANT & COMBS, Lexington, Kentucky, for Appellant. John M. Simms, ATKINSON, SIMMS & KERMODE PLLC, Lexington, Kentucky, for Appellee.
Author of Opinion: Circuit Judge Donald

Case alert circuit supervisor: Professor Eileen Kavanagh

    Posted By: Mark Cooney @ 08/19/2013 09:16 AM     6th Circuit     Comments (0)  

  County of Oakland v. Federal Housing Finance Agency -- Sixth Circuit
Headline: The Federal Housing Finance Agency, Fannie Mae, and Freddie Mac are exempt from Michigan state and county real-estate transfer tax.

Area of Law: Tax

Issue Presented: Does the exemption from "all [state and local] taxation" include Michigan state and county real-estate transfer tax?

Brief Summary: The State and several counties sued the Federal Housing Finance Agency, Fannie Mae, and Freddie Mac to collect real-estate transfer taxes for real-estate property transfers recorded by the defendants in Michigan. Federal law creating those agencies exempted them from "all [state and local] taxation," except for taxes on real property. The district court agreed with the State and counties that "all taxation" is a term of art, applying to direct taxes only, not to excise taxes like transfer taxes. The Sixth Circuit reversed, interpreting the phrase "all taxation" according to its common, non-technical meaning and concluding that Congress intended to include real-estate transfer taxes within the exemption. It reversed the district court and remanded for entry of summary judgment in favor of the defendants.

Significance: The Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal Housing and Finance Agency are exempt from state and local real-estate transfer taxes. Congress created the defendants and expressly exempted them from "all taxation" imposed by a State or county, and that phrase includes transfer taxes.

Extended summary: The State of Michigan and several counties sued the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the Federal Housing Finance Agency to collect real-estate transfer taxes for real-estate property transfers recorded by the defendants in Michigan. When creating the defendants, Congress expressly exempted them from "all [state and local] taxation," except for taxes on real property. The State and the counties argued that "all taxation" is a term of art that only applies to direct taxes and that transfer taxes are excise taxes, so the defendants would not be exempt from the State and County real-estate transfer tax.

The district court agreed with the State and counties' argument, granting summary judgment in their favor. In the district court, the parties agreed that property transfer taxes are not taxes on real estate, an exception to the statutory exemption. The district court relied on U.S. v. Wells Fargo Bank, 108 U.S. 351 (1988), which held that the phrase "all taxation" had an understood meaning, and that it applied only to direct taxes, not excise taxes.

The Sixth Circuit disagreed. It concluded that the plain meaning of "all taxation" governed, so the defendants were exempted from the State and county real-estate transfer tax. The court noted that the plain meaning of a statute governs unless the literal application of a statute would lead to an absurd result. It said that "all means all," and a straightforward, non-technical reading of the exemption applied. The court further reasoned that when Congress explicitly carves out an exception, "[t]he proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth." Here, the only exception Congress provided was to subject defendants to taxes on real property; it did not provide an exception for transfer taxes.

In addition, the court rejected the States and counties' term-of-art argument on several grounds. In Wells Fargo Bank, the case relied on by the State and counties, the Court applied the term "all taxation" to an exemption of property, not to an exemption of an entity like the defendants. And in that case, the Supreme Court did not address the distinction or refer to earlier cases involving entity exemptions, as would be expected if the Court were introducing such a change in the law. The Sixth Circuit also said that the State and counties failed to show any evidence of legislative intent to deviate from the plain meaning of the term "all taxation" or to support a more specialized meaning. The court also noted that under the plain language of relevant Michigan statutes, the transfer tax falls on the seller, here, the federally created entities, not on a privilege. So the tax, under Michigan law, is squarely within the entity exemption. And finally, the court said that to apply the State and counties' argument would lead to an absurd result because under that interpretation, "all taxation" would apply to only one type of direct taxes, and if Congress meant for the defendants to be exempted from only one type of tax, it would not have used the phrase "all taxation." Consequently, "all taxation" was given its plain meaning, and the defendants were exempted from the State and County real estate transfer tax.

Link to full opinion:http://www.ca6.uscourts.gov/op...ns.pdf/13a0142p-06.pdf

Panel: Circuit Judges Martin, Guy, and McKeague

Argument: May 2, 2013

Date of Issued Opinion: May 20, 2013

Docket Number: 12-2135/2136

Decided: Reversed and remanded, instructing the district court to enter summary judgment for defendants.

Counsel: ARGUED: Michael A.F. Johnson, ARNOLD & PORTER LLP, Washington, D.C., for Appellants. William H. Horton, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, for Appellees. Matthew K. Payok, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Intervenor Appellees. Patrick J. Urda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF: Michael A.F. Johnson, Howard N. Cayne, Dirk C. Phillips, ARNOLD & PORTER LLP, Washington, D.C., David B. Goroff, Ann Marie Uetz, FOLEY & LARDNER LLP, Detroit, Michigan, Michael J. Ciatti, Merritt E. McAllister, KING & SPALDING LLP, Washington, D.C., for Appellants. William H. Horton, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, Kenneth J. Robinson, Bloomfield Hills, Michigan, Jason J. Thompson, SOMMERS SCHWARTZ, Southfield, Michigan, for Appellees. Matthew K. Payok, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Intervenor Appellees. Patrick J. Urda, Jonathan S. Cohen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Mark H. Troutman, Mark Landes, ISAAC, BRANT, LEDMAN & TEETOR LLP, Columbus, Ohio, Don Springmeyer, Jonathan H. Waller, Bradley S. Schrager, Tracy H. Slaughter, WOLF, RIFKIN, SHAPIRO SCHULMAN & RABKIN, LLP, Las Vegas, Nevada, for Amici Curiae.
Author of Opinion: Circuit Judge McKeague

Case Alert Author: Kathryn Burkhart

Supervisor: Professor Eileen Kavanagh

Edited: 08/19/2013 at 09:19 AM by Mark Cooney

    Posted By: Mark Cooney @ 08/19/2013 09:00 AM     6th Circuit     Comments (0)  

August 8, 2013
  Triple A International v. The Democratic Republic of the Congo -- Sixth Circuit
Case Name: Triple A International, Inc. v. The Democratic Republic of the Congo

Headline: Sixth Circuit declines to exercise jurisdiction over a foreign nation with no commercial dealings in the United States.

Areas of Law: Foreign Sovereign Immunities Act

Issue(s) Presented: (1) Did the district court properly find that the Congo did not have commercial activity in the United States? (2) Does merely purchasing a product from a corporation with an office in the United States confer jurisdiction on the United States?

Brief Summary: Triple A International, a military-equipment company with offices in several locations, including Michigan, sued the Congo alleging breach of contract because the Congo failed to pay for over $15 million worth of equipment it purchased from Triple A. The Congo moved to dismiss based on sovereign immunity. The district court granted the motion, holding that the Congo was immune from suit under the Foreign Sovereign Immunities Act. Triple A appealed, arguing that purchasing the military equipment was enough to satisfy the Act's substantial-contact requirement. The Sixth Circuit disagreed and affirmed the district court's dismissal of the case.

Significance: This case clarifies that the mere act of purchasing equipment from a corporation with an office in the United States does not confer jurisdiction on United States courts.

Extended Summary:

Triple A International is a Michigan corporation with various offices across the world, including one in Dearborn, Michigan. The Democratic Republic of the Congo is an African country that used to be known as Zaire. In 1993, Zaire ordered nearly $15 million worth of military equipment from Triple A, which was sent directly from a South Korean manufacturer. Seventeen years later, Triple A sued the Congo for breach of contract in the United States District Court for the Eastern District of Michigan. The district court dismissed the case based on sovereign immunity, and Triple A appealed.

Under the Foreign Sovereign Immunities Act, states are usually immune from suit in the United States. But there are a number of exceptions to this general rule, including cases where the action is based on "a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States."

Triple A argued that the first clause applied, that is, that the foreign nation's commercial activity occurred in the United States. The Court rejected this argument, stating that "this case is not based upon commercial activity that the Congo (or Zaire) 'carried on in the United States.'"

The Court said that in reality, Triple A's argument rested solely on the Act's definition of "commercial activity." The Act defines "commercial activity" as "activity carried on by such state and having substantial contact with the United States." Specifically, Triple A argued that Zaire's purchase of equipment, though it was overseas, was substantially in the United States because Triple A was an American-based company and it performed some of its contractual obligations here.

Though the Court acknowledged that this definition is far from clear, it explained that the definition clearly could not be satisfied on the facts of this case. The Court rejected Triple A's argument that the definition could be satisfied even if no commercial activity had taken place in the United States. The Court explained that allowing this interpretation would "make nonsense of the language that § 1603(e) is supposed to define." Further, Triple A's interpretation would negate any need for the distinctions found in the statutory language. Specifically, Triple A's interpretation of the definition would allow the first clause of the definition to govern any case where the foreign state's activity "has 'substantial contact' with the United States, . . . regardless of whether that activity occurs here or overseas." With this reading, the second and third clauses would, therefore, no longer be useful.

Circuit Judge Merritt concurred in the Court's holding. He emphasized that the Congo had insufficient contacts with the United States to satisfy the basic requirements for personal jurisdiction: "We have no claim here that the Congo representatives came to the United States or had any products shipped to or from the United States. We have no claim that the Congo ordered any products in the United States, and Triple A does not argue that the Congo's order had a 'direct effect' in the United States."

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0171p-06.pdf

Panel: Batchelder, Merritt, and Kethledge

Author of Opinion: Kethledge, Merritt concurred

Argument: January 16, 2013

Date of Issued Opinion: July 2, 2013

Docket Number: 12-1595

Decided: Affirmed

Case Alert Author: Peter J. Tomasek

Counsel: ARGUED: Davidde A. Stella, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan for Appellant. ON BRIEF: Davidde A. Stella, Robert E. Forrest, KERR, RUSSELL AND WEBBER, PLC, Detroit, Michigan, for Appellant. Eric Linden, Patrice S. Arend, JAFFE RAITT HEUER & WEISS, P.C., Southfield, Michigan, for Appellee.

Case Alert Circuit Supervisor: Professor Eileen Kavanagh

Edited: 08/08/2013 at 12:56 PM by Mark Cooney

    Posted By: Mark Cooney @ 08/08/2013 12:31 PM     6th Circuit     Comments (0)  

  LaFountain v. Harry -- Sixth Circuit
Wayne Earl LaFountain v. Shirlee Harry, Warden, Muskegon Correctional Facility, et al. - Sixth Circuit

Headline: The Sixth Circuit determines that under FRCP 15(a), a district court can allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under the Prison Litigation Reform Act, overruling McGore v. Wrigglesworth.

Area of Law: Prison Litigation Reform Act, Retaliation, FRCP 15(a)

Issue(s) Presented: (1) Did the district court err in dismissing the prisoner's retaliation claims for failure to state a claim? (2) Were the claims based on the prisoner's misconduct hearings barred because success on those claims would demonstrate the invalidity of the duration of his sentence? (3) Did the district court err in dismissing the prisoner's equal-protection claim for failure to state a claim? (4) Should McGore be overruled, allowing a prisoner leave to amend the complaint?

Brief Summary: A prisoner agreed to dismiss two claims in exchange for transfer from the Muskegon Correctional Facility to a facility in Lakeland. After transfer, he filed a retaliation claim against Muskegon correctional officers, causing him to be sent back to Muskegon. During transfer, his typewriter was broken while in the possession of correctional officers. In addition, the officers assigned him to a cell with a mentally ill prisoner who, among other behavior, threatened to kill him. After refusing to remain in his cell, he was cited for major misconduct resulting in a forfeit of 770 days of his good-time credit.

The prisoner filed a complaint, which the district court dismissed for not sufficiently alleging retaliation or discrimination. In addition, the district court held that the Prison Litigation Reform Act requires that a claim implying the invalidity of a conviction or sentence must be dismissed. Lastly, the district court held that McGore v. Wrigglesworth bars a plaintiff from amending his complaint if the Prison Litigation Reform Act required dismissal.

The prisoner appealed, arguing that dismissal of his claims was improper and that McGore should be overruled to allow for leave to amend. The Sixth Circuit (1) dismissed the prisoner's equal-protection claim for failure to state a claim, (2) found that the prisoner sufficiently stated a claim for retaliation, (3) dismissed the retaliation claim according to the Prison Litigation Reform Act, and (4) reversed the district court's finding that McGore bars the prisoner from amending his complaint.

Significance: The Sixth Circuit, conforming to the decisions of other circuits, determined that a district court can allow a plaintiff to amend the complaint even when the complaint is subject to dismissal under the Prison Litigation Reform Act.

Extended Summary: A prisoner at the Muskegon Correctional Facility agreed to dismiss two complaints in exchange for transfer to a Lakeland facility. The Lakeland facility was closer to his family and would help him avoid further retaliation by Muskegon officials.

After transfer to Lakeland, the prisoner filed complaints against three Muskegon prison officials, claiming that they were enforcing housing-unit rules based on race. The prisoner was then immediately transferred back to Muskegon. During transfer, his typewriter was damaged, requiring repairs of $280. At Muskegon, the prison officials assigned him to a cell with a mentally ill prisoner. After repeatedly being denied cell reassignment, the prisoner refused to stay in his cell and was repeatedly cited for major misconduct, which resulted in a loss of 770 days of his good-time credit.

The prisoner then sued the prison officials alleging that they retaliated against him in violation of the First and Fourteenth Amendments. Before serving the complaint on the defendants, however, the district court dismissed it with prejudice for failure to state a claim. In response, the prisoner filed this appeal, claiming that the district court erred in dismissing the claim with prejudice and denying leave to amend. The Sixth Circuit reviewed the dismissal de novo.

The first issue was whether the prisoner sufficiently alleged retaliation. The court said that in order to state a claim for retaliation, a plaintiff must allege that "(1) [he] engaged in protected conduct; (2) an adverse action was taken against [him] . . . ; and (3) there is a causal connection between elements one and two - that is, the adverse action was motivated at least in part by [his] protected conduct."

The court said that filing a complaint or grievance was protected conduct. The court then considered whether any of the officials took adverse actions against the prisoner, and whether those actions were causally connected to protected conduct. An adverse action is one that would deter a person from the exercise of a right. And even though prisoners' rights are more restricted than others', the "act need not be egregious to be adverse."

The court held that the prisoner sufficiently alleged all three adverse actions. The prisoner's transfer from Lakeland back to Muskegon was adverse because, while a transfer is not usually adverse, it could be in this case because of the allegation that the transfer would deprive the prisoner of the benefit of his settlement agreement with prison officials. The typewriter damage claim could be sustained only against one official who allegedly had control of the typewriter. And the assignment to a cell with a mentally ill person could be adverse because of the extraordinary circumstances posed by the mentally ill cellmate's threats against the prisoner. So the court held that the three adverse actions were sufficiently pled and causally connected to protected activity, and reversed the district court's dismissal for failure to state a claim for retaliation.

On the second issue, the Sixth Circuit agreed with the district court that a series of Supreme Court decisions barred the prisoner's claim based on the misconduct charges. Those charges resulted in forfeiture of good-time credits, which affect the length of the sentence. The Supreme Court had held that such challenges cannot be brought if they "necessarily imply the invalidity of [the] conviction or sentence," and that holding was later extended to suits challenging prison disciplinary measures that affect the length of the sentence. In this case, the challenge to the discipline was based on entrapment and on alleged falsified evidence in the misconduct proceedings. Those claims, therefore, challenged the validity of the misconduct findings, and were properly barred.

The third issue was whether the district court erred in dismissing the equal-protection claim. The prisoner, who was white, alleged that the prison officials treated a similarly situated prisoner who was black differently than they treated him. The complaint named a specific black prisoner who was not charged with misconduct for actions similar to those that the prisoner was charged with. The Sixth Circuit agreed with the district court and dismissed the equal-protection claim for failure to allege that the prison officials named in the suit knew about the other prisoner's misconduct or were involved in the decision whether to charge him.

The fourth issue was whether a district court can allow a prisoner to amend the complaint under Fed. R. Civ. P 15(a), even when the complaint is subject to dismissal under the Prison Litigation Reform Act. The district court dismissed the complaint without leave to amend, following the Sixth Circuit's decision in McGore v. Wrigglesworth, which held that when the Act requires dismissal, a district court cannot grant leave to amend. The Sixth Circuit noted that every other circuit that had decided the question disagreed with McGore, and ultimately, the Supreme Court in Jones v. Bock, 549 U.S. 199 (2007) held that the Act's screening requirement does not require deviating from the procedural requirements for dismissing a complaint under Rule 15(a).The court overruled McGore and held that "under Rule 15(a), a district court can allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under the [Act]."

Reversed in part and vacated in part, with remand for further proceedings.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0143p-06.pdf

Panel: Moore, Gibbons, and Kethledge

Argument: March 6, 2013

Date of Issued Opinion: April 1, 2013

Docket Number: No. 11-1496

Decided: Reversed in part and vacated in part.

Case Alert Author: Sandra Reizen

Counsel: ARGUED: Alistair E. Newbern, Seamus E. Kelly, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellant. Clifton B. Schneider, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Alistair E. Newbern, VANDERBILT APPELLATE LITIGATION CLINIC, Nashville, Tennessee, for Appellant. A. Peter Govorchin, Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

Author of Opinion: Circuit Judge Kethledge

Case Alert Circuit Supervisor: Professor Eileen Kavanagh

Edited: 08/08/2013 at 11:51 AM by Mark Cooney

    Posted By: Mark Cooney @ 08/08/2013 10:55 AM     6th Circuit     Comments (0)  

April 19, 2013
  A.C. et al v. Shelby County Board of Education - 6th Circuit
Headline: Sixth Circuit clarifies standard for prima facie cases under the ADA.

Area of Law: Americans with Disabilities Act (ADA); Rehabilitation Act (Section 504).

Issue(s) Presented: (1) Did the district court properly apply the test for a prima facie case of retaliation under the ADA and Section 504? (2) Did the district court err in finding that the plaintiffs' evidence of retaliatory intent was insufficient?

Brief Summary: After the parents of a disabled child asked their child's school for a series of accommodations, their relationship with the school grew tense, and the school principal filed a Department of Child Services report alleging parental abuse. The district court found that the report was not retaliatory and granted summary judgment in the school district's favor. The parents appealed, arguing that summary judgment was improper because the district court applied a heightened clear-and-convincing-evidence standard and because the court had ignored substantial evidence of retaliatory intent. The Sixth Circuit agreed, reversing and remanding the case.

Significance: This case clarifies the plaintiff's burden under the burden-shifting analysis for an ADA or Section 504 case.

Extended Summary: When a child with Type 1 diabetes began kindergarten, her parents sought a number of accommodations for her. The school met some of their requests, but it did not meet others, and the relationship between the school and the family soured. Their relationship continued to deteriorate as the child continued through school. By her second-grade year, tensions between the school and the family boiled over, and the school principal filed a Department of Child Services report alleging that the parents were medically abusing their child. The report was found to be untrue. The parents sued the school district, alleging that the false report of abuse was a retaliatory act that violated the Americans with Disabilities Act and the Rehabilitation Act (Section 504).

After discovery, the school district moved for summary judgment; the district court granted the motion. The district court held that the parents failed to prove two essential elements of their prima facie case: an adverse action by the school district and a causal link between that action and the plaintiffs' protected act. In assessing the parents' prima facie case (and pretext argument), the district court required clear and convincing evidence that the principal had acted in bad faith, with a punitive or retaliatory intent. In imposing this higher burden, the district court relied largely on a state law cloaking school reports of child abuse with a presumption of good faith.

The parents appealed, arguing that the district court improperly imposed a heightened burden of proof and that the court failed to fully consider evidence that the school district had illegally retaliated against them. The Sixth Circuit reversed.

The Sixth Circuit explained that to establish a prima facie case of retaliation where there is no direct evidence of retaliation, a plaintiff must meet the four elements of the McDonnell burden-shifting test. The elements are (1) whether the plaintiff's act was protected under the ADA or Section 504; (2) whether the defendant was aware of the plaintiff's protected act; (3) whether the defendant's action constituted "adverse action"; and (4) whether there was a causal relationship between the plaintiff's protected act and the defendant's supposedly retaliatory action. If the plaintiff can establish a prima facie case, the defendant may rebut that by showing that there was a legitimate basis for its action. The plaintiff then has a final opportunity to prove his or her case by showing, by a preponderance of the evidence, that the defendant acted illegally.

The Sixth Circuit disagreed with the district court's finding that the parents failed to establish a prima facie case. It rejected the district court's heightened clear-and-convincing-evidence standard, reaffirming that the proper standard is preponderance of the evidence. Under this standard, the Sixth Circuit found sufficient evidence of retaliation. The court noted that the filing of a Department of Child Services report has previously been considered an adverse action. And the Sixth Circuit indicated that the standard for a retaliatory act is quite low; it is satisfied by any act that would make a reasonable person stop pursuing a protected activity.

The court next observed that a plaintiff can meet the causal-connection element by showing "temporal proximity" between the protected activity and the defendant's adverse action. Here, the evidence showed that the principal's report of abuse was untrue and that its timing could be seen as suspicious. Thus, according to the Sixth Circuit, the parents presented sufficient evidence to establish a prima facie case, and the burden shifted to the school district.

The Sixth Circuit believed that the school district adequately rebutted the parents' prima facie case, but it also found that the parents' proofs were sufficient to prove pretext. The court concluded that a reasonable jury could find by a preponderance of the evidence that the school district's "stated concerns about [the child's] health [when making the abuse report] were pretextual, and that the [reports] were actually motivated by the school's well-established displeasure with [the] parents and their accommodation requests." Thus, the Sixth Circuit reversed the district court's grant of summary judgment and remanded the case.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0086p-06.pdf

Panel: Batchelder, Keith, and Martin

Argument: October 10, 2012

Date of Issued Opinion: April 1, 2013

Docket Number: 11-6506

Decided: Reversed and remanded.

Case Alert Author: Sarah Fuhrman

Counsel: ARGUED: Justin S. Gilbert, Gilbert Russell McWherter, PLC, Jackson, Tennessee, for Appellants. Valerie B. Speakman, Shelby County Board of Education, Memphis, Tennessee, for Appellee. ON BRIEF: Justin S. Gilbert, Gilbert Russell McWherter, PLC, Jackson, Tennessee, for Appellants. Valerie B. Speakman, Shelby County Board of Education, Memphis, Tennessee, for Appellee. Gregory C. Paul, Morgan & Paul, PLC, Sewickly, Pennsylvania, for Amicus Curiae.
Author of Opinion: Alice M. Batchelder, Chief Judge

Case Alert Circuit Supervisor: Professor Mark Cooney

Edited: 04/19/2013 at 12:35 PM by Mark Cooney

    Posted By: Mark Cooney @ 04/19/2013 12:24 PM     6th Circuit     Comments (0)  

April 1, 2013
  United States v. Kwame Williams a/k/a Arnold Fordham - Sixth Circuit
Headline: Sixth Circuit vacates sentence enhancement for use of alias in court proceedings.

Area of law: Sentence Enhancement; Materiality of False Information to Judge or Magistrate

Issue(s) presented: Whether the defendant's use of an alias was material to any issue decided by the magistrate and, therefore, a valid basis for applying a two-level sentence enhancement.

Brief summary: The defendant used a false name to secure a driver's license, and he used this alias when DEA agents arrested him and during preliminary proceedings before a federal magistrate. After revealing his true name, the defendant pleaded guilty to possession with intent to distribute oxycodone. At the sentencing hearing, the district court applied a two-level sentence enhancement because the defendant had provided "materially false information to the magistrate judge" by using the alias. The Sixth Circuit vacated and remanded for resentencing, holding that the defendant's alias was not material to the magistrate's findings on indigency and probable cause.

Significance: The Sixth Circuit's decision clarifies the meaning of "materially false information" in the sentencing context, explaining that the government cannot prevail based on a general showing of importance. Instead, the government must show that the false information given to a judge or a magistrate, if believed, would have influenced or affected the issue being decided.

Extended summary: After being deported, the defendant illegally re-entered the United States and was arrested in New York for kidnapping, robbery, assault, and marijuana possession. He failed to appear for his court dates and relocated to Tennessee. In 2010, the defendant obtained a Tennessee driver's license under the alias Arnold Fordham. The DEA later investigated him for distributing oxycodone and found over 1,000 oxycodone pills and 190 oxymorphone pills in his home. The DEA arrested the defendant, still believing that his name was Arnold Fordham.

During his initial appearance before a federal magistrate, the defendant identified himself as Arnold Fordham. He requested counsel and signed a financial affidavit under the name Arnold Fordham. He used the same name during a preliminary hearing to determine probable cause. The grand jury later indicted "Arnold Fordham" for possession with intent to distribute oxycodone. Two months after his initial court appearance, the defendant finally disclosed to the court his true identity: Kwame Williams. The defendant later pleaded guilty.

At the sentencing hearing, the government argued that the defendant obstructed justice by initially obscuring his actual name and that, for this reason, the district court should apply a two-level sentence enhancement. The district court agreed. It applied the enhancement, finding that the defendant had "provid[ed] materially false information to the magistrate judge." The district court sentenced the defendant to 87 months in prison. The defendant appealed.

The Sixth Circuit reversed and remanded for resentencing. It explained that under the United States Sentencing Guidelines, courts "must increase a defendant's offense level by two points if the defendant 'willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.'" This type of willful conduct includes "providing materially false information to a judge or magistrate." Thus, the defendant's use of a false name before the magistrate would trigger the two-step enhancement if this falsehood was material.

Notwithstanding the district court's finding that a "defendant's identity is always material in a criminal proceeding," the Sixth Circuit held that the defendant's alias was not material in this case. The Sixth Circuit reasoned that for a falsehood to be "material," it must be information that, "if believed, would tend to influence or affect the issue under determination." For the two issues decided by the magistrate while the defendant was still using his alias - indigency and probable cause - this was not the case.

The magistrate's decision on whether to appoint counsel hinged on the defendant's financial needs. Although the defendant signed a financial affidavit with the false name Arnold Fordham, the Sixth Circuit found that "Arnold Fordham, for purposes of appointed counsel, was just as indigent as Kwame Williams." The court added that none of the financial information in the affidavit was false, only the name. Thus, there was no basis to find that the defendant's alias "had any tendency to affect the magistrate's decision" in determining whether to appoint counsel.

The magistrate's second relevant decision concerned the DEA's probable cause to arrest the defendant for possession of oxycodone with the intent to distribute it. In finding that probable cause existed, the magistrate relied on DEA agents' testimony about what they found in the defendant's home and the defendant's admission that he sold oxycodone. The defendant's alias did not influence this decision. Thus, the alias was not material on this issue, either.

Therefore, the Sixth Circuit reversed the district court's application of a two-level enhancement, vacated the defendant's sentence, and remanded the case for resentencing.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0067p-06.pdf

Panel: Gibbons, Kethledge, and Stranch

Argument: N/A

Date of issued opinion: March 14, 2013

Docket number: No:12-5675

Decided: Vacated and Remanded

Case alert author: Jody-Ann Greenwood

Counsel: ON BRIEF: Mariah A. Wooten, Anne-Marie Moyes, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Blanche B. Cook, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Author of opinion: Circuit Judge Kethledge

Case alert circuit supervisor: Professor Mark Cooney

Edited: 04/01/2013 at 04:13 PM by Mark Cooney

    Posted By: Mark Cooney @ 04/01/2013 03:46 PM     6th Circuit     Comments (0)  

March 20, 2013
  Ballinger v. Prelesnik - Sixth Circuit
2013-02-14

Headline: Sixth Circuit Reverses Grant of Habeas Corpus Petition.

Area of Law: Writs of Habeas Corpus; Ineffective Assistance of Counsel

Issues Presented: (1) Did the district court err by conducting an evidentiary hearing on an ineffective-assistance-of-counsel claim after state courts had decided the issue? (2) Did the state courts violate clearly established federal law when they rejected the defendant's ineffective-assistance claim?

Brief Summary: A jury convicted the defendant on two counts of first-degree murder. The defendant claimed ineffective assistance of counsel, arguing that his trial attorney failed to interview and call a crucial alibi witness. The trial court rejected his ineffective-assistance claim, and the Michigan Court of Appeals affirmed. The defendant then petitioned in federal court for a writ of habeas corpus. The district court granted an evidentiary hearing to consider the ineffective-assistance claim and found for the defendant. The Sixth Circuit reversed, holding that the district court should have dismissed the defendant's petition without an evidentiary hearing.

Significance: The Sixth Circuit's opinion clarifies that district courts should not hold evidentiary hearings to decide ineffective-assistance claims when a state court has already decided that issue on the merits.

Extended Summary: Before trial, the defendant's attorney submitted a tardy witness list that included the names of potential alibi witnesses. The prosecutor objected to the late submission, and the defendant's attorney withdrew it, announcing that the defendant did not intend to raise an alibi defense after all. At trial, two eyewitnesses testified that they saw the defendant shoot the victims.

The jury convicted the defendant on two counts of first-degree murder. The defendant then hired a new attorney and moved for a judgment notwithstanding the verdict or a new trial based on ineffective assistance of counsel. He argued that his trial lawyer failed to interview a crucial alibi witness before trial. In support of this claim, he attached the affidavit of a woman named Cunningham, who stated that she was with the defendant when the shootings occurred. No "Cunningham" had appeared on the defendant's pretrial witness list, but the defendant claimed that Cunningham had been listed under a different last name and that, therefore, his trial attorney knew of her and could have interviewed her before trial.

The trial court denied the defendant's motion and sentenced him to life in prison. The defendant appealed to the Michigan Court of Appeals, which likewise rejected his ineffective-assistance claim. The Michigan Supreme Court denied his application for leave to appeal.

Later, the defendant petitioned in federal court for a writ of habeas corpus. The district court granted an evidentiary hearing on the ineffective-assistance claim, finding that the state court's denial of an evidentiary hearing was unreasonable. The evidentiary hearing revealed that the defendant's trial attorney had not interviewed the potential alibi witness named Cunningham and that the defendant's trial attorney had never contacted her. Cunningham also testified that she was, in fact, the same person who had been listed (under her former name) on the defendant's pretrial witness list. Based on this evidence - plus the trial attorney's disbarment soon after the trial - the district court held that the defendant received ineffective assistance of counsel.

The Sixth Circuit reversed.

The Sixth Circuit first held that the district court erred by conducting an evidentiary hearing. It observed that "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits." Thus, the district court should not have granted an evidentiary hearing after the Michigan Court of Appeals had resolved the defendant's ineffective-assistance claim on the merits.

The Sixth Circuit next turned to the merits of the defendant's ineffective-assistance claim. Limiting its review to "the record that was before the state court," it held that the Michigan courts were not unreasonable in finding that the trial attorney's performance was constitutionally sufficient. The defendant failed to prove that his trial attorney was aware of the alibi witness named Cunningham. And the state-court record contained no evidence establishing that she was the same witness who had been listed, under a different name, on the defendant's pretrial witness list. Finally, even if the attorney's performance was below acceptable professional standards, the defendant could not show prejudice given that two eyewitnesses unequivocally identified him as the shooter.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...13a0057p-06.pdf


Panel: Circuit Judges Siler, Sole, and Sutton

Argument: November 27, 2012

Date of Issued Opinion: March 4, 2013

Docket Number: 12-1357

Decided: Reversed.

Case Alert Author: Chris Jennings

Counsel: Argued:Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Sanford A. Schulman, SCHULMAN &
ASSOCIATES, P.C., Detroit, Michigan, for Appellee. On Brief:Mark G. Sands,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Sanford A. Schulman, SCHULMAN & ASSOCIATES, P.C., Detroit,
Michigan, for Appellee.

Author of Opinion: Judge Siler

Media Alerts Supervisor: Professor Mark Cooney

    Posted By: Mark Cooney @ 03/20/2013 02:32 PM     6th Circuit     Comments (0)  

March 19, 2013
  Wright v. O'Day -- Sixth Circuit
2013-02-11

Headline: Sixth Circuit requires state to grant a 13-year-old boy a hearing to challenge his listing on child-abuse registry.

Area of Law: Constitutional Law; Procedural Due Process

Issue(s) Presented: Whether a child's procedural-due-process rights are violated when the state lists him on the state's child-abuse registry without giving him an administrative hearing to challenge the listing.

Brief Summary: A teenager asked for an administrative hearing to challenge his listing on a state child-abuse registry, but the state refused his request. He sued the state alleging a denial of his due-process rights. The district court dismissed his claim, reasoning that his alleged injury was speculative because he was not yet old enough to apply for work and thus hadn't lost employment opportunities based on the listing. The Sixth Circuit reversed, holding that the denial of a hearing violated his due-process rights because being listed on the registry was an actual injury.

Extended Summary: A 13-year-old boy was placed on the Tennessee child-abuse registry after another child claimed that the boy had groped his genitals and penetrated his anus with a finger. Through his mother, the accused boy asked for an administrative hearing to challenge his listing on the registry. The state denied the request, citing a regulation that allowed a hearing only if the state was about to release information about the accusations or if the accused was denied employment in a field affected by the listing.

The boy argued that being listed as a perpetrator of child sexual abuse prevented him from pursuing certain occupations. So he sued to force the state to grant him an administrative hearing to challenge the listing. The district court dismissed his claim because the boy's alleged injury only contemplated future events and the possibility of future harm. Because he was only 13, the district court explained, he was not yet seeking employment, and the state was not threatening to release information about the accusations.

The Sixth Circuit reversed, holding that the denial of a hearing violated the boy's procedural-due-process rights. The court reasoned that his claim did not merely contemplate future events because being a registered child abuser was the boy's present status. Because this label would not be removed without a hearing, the injury was "sufficiently imminent and concrete" to trigger his procedural rights, rather than being speculative. As the Sixth Circuit put it, the boy's injury was "actual because he has already been classified as a child abuser." Thus, he was entitled to an administrative hearing to challenge the listing.

Panel: Guy, Rogers, and US District Judge Hood sitting by designation.

Date of Issued Opinion: 02/08/2013

Docket Number: No. 12-5261

Decided: Reversed and remanded

Case Alert Author: Felix H. Sharpe II

Counsel: ON BRIEF: Melanie Stepp Lane, Jamestown, Tennessee for Appellant. Alexander S. Rieger, OFFICE OF THE TENNESEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

Author of Opinion: Hon. Judge John M. Rogers

Case Alert Supervisor: Mark Cooney

    Posted By: Mark Cooney @ 03/19/2013 03:34 PM     6th Circuit     Comments (0)  

  United States v. Terry -- Sixth Circuit
2013-02-14

Headline: Sixth Circuit Affirms Ohio Judge's Conviction for Fixing Cases

Area of Law: Federal Anti-Corruption Statute

Issues Presented: (1) Did an indictment charging a judge with honest-services mail fraud specifically identify a crime, as required by law? (2) Was the jury properly instructed on the elements for accepting a bribe? (3) Was the evidence sufficient to establish that the judge accepted a bribe?

Brief Summary: A grand jury indicted a trial judge on five counts of political corruption. The judge had sought help with his reelection campaign from the county auditor. In exchange for the auditor's financial and political support, the auditor expected the judge to fix cases. The jury convicted the judge on three of five charges. The judge argued on appeal that the indictment should have been dismissed because it failed to identify a crime, that the jury instruction was improper, and that there was insufficient evidence to show he had accepted a bribe. The Sixth Circuit rejected these arguments and affirmed the convictions.

Significance: This case offers a vivid look at how the federal anti-corruption statute applies when a public official receives a bribe disguised as a legitimate campaign contribution.

Extended Summary: A judge seeking reelection asked a county auditor for financial and political support. In exchange for this support, the auditor expected the judge to fix cases. The judge did just that. For instance, the auditor asked the judge to deny a bank's motions for summary judgment, and the judge denied the motions without reviewing the case files or reading the motions. The judge was ultimately indicated on five political-corruption charges. All the charges pertained either to mail fraud or honest-services fraud. The jury convicted the judge on three of the five charges.

On appeal, the judge first argued that the district court should have dismissed the charges because they failed to identify a crime. The Sixth Circuit rejected this argument. It found that the indictment contained a "plain, concise, and definite written statement of the essential facts" by outlining, among other things, the judge's relationship with the auditor and detailing the auditor's request that the judge deny the bank's motions for summary judgment. The court explained that honest-services mail fraud requires the government to show that the judge used the mail to carry out a scheme to defraud another of the right to honest services. The indictment alleged this sufficiently by describing the bribery and kickback scheme between the judge and the auditor.

The judge's second argument on appeal was that the jury instruction on bribery was improper because it should have distinguished between public officials who may accept campaign contributions and those who may not. The Sixth Circuit rejected this argument, noting that neither Congress nor the Supreme Court has made such a distinction. Here, the instruction adequately described the type of transaction that constitutes a bribe, properly requiring some form of agreement as "the key component" of the offense.

Finally, the judge argued that there was insufficient evidence to prove that he had accepted a bribe. The Sixth Circuit disagreed, concluding that the evidence showed that the judge entered into an agreement to fix cases in order to receive benefits from the auditor. Recorded phone calls revealed that the auditor explicitly asked the judge to deny the bank's motions for summary judgment, and the judge did exactly that within 24 hours of the call, without having reviewed the motions or the case files. Thus, the jury could reasonably infer that the judge accepted a bribe to fix cases.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...s.pdf/13a0040p-06.pdf

Panel: Circuit Judges Sutton, Griffin, and White

Argument: 10/10/2012

Date of Issued Opinion: 02/14/2013

Docket Number: 11-4130

Decided: Affirmed

Case Alert Author: Kathryn Burkhart

Counsel: Argued: Sylvester Summers, Jr., SYLVESTER SUMMERS, JR., CO., LPA, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. On Brief:Sylvester Summers, Jr., SYLVESTER SUMMERS, JR., CO., LPA, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.
Author of Opinion: Judge Sutton

Supervisor: Professor Mark Cooney

Edited: 03/25/2013 at 10:50 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/19/2013 12:39 PM     6th Circuit     Comments (0)  

March 11, 2013
  Nimer v. Litchfield Township Board of Trustees -- Sixth Circuit
2013-02-21

Headline: Sixth Circuit holds that Younger abstention doctrine applies to a damage claim under 42 U.S.C. § 1983.

Area of Law: Abstention; Civil Procedure; Constitutional Law

Issues Presented: (1) Does the Younger abstention doctrine apply to a damages claim under 42 U.S.C. § 1983? (2) After applying the doctrine, may a federal district court exercise its discretion and dismiss the damages claim?

Brief Summary: A couple wanted to expand their meat-producing business to include butchering cattle and pigs. But the couple's land was only zoned for residential use. The township sought injunctive relief in state court after the couple began improving the buildings on their property without obtaining appropriate zoning certificates. The state court stopped the couple from building until they obtained the necessary zoning certificates. The couple appealed to the state appellate court and, a week later, sued the township in federal district court.

The district court dismissed the case, holding that the Younger abstention doctrine applied. On appeal, the Sixth Circuit agreed that the Younger doctrine applied but concluded that the district court should have stayed the case rather than dismissing it. In reaching this conclusion, the Sixth Circuit noted that the Younger doctrine applies if there is a pending state proceeding that involves an important state interest, and the state proceeding will provide an adequate opportunity for a plaintiff to raise his or her constitutional claims. The court found that these elements were met because (1) the couple filed their federal claim while their state appeal was pending, (2) states have a substantial interest in enforcing zoning ordinances, and (3) the couple was able to raise - and, in fact, did raise - constitutional defenses in the state case. Thus, the district court was correct in applying the doctrine. But the district court erred in dismissing the case because a district court only has the power to dismiss a case based on abstention where the relief sought is equitable. The court explained that "where, as here, the plaintiffs seek only legal relief, and the district court properly applies the Younger doctrine to abstain from adjudicating a claim for damages, it must stay the case instead of exercising its discretion in deciding to dismiss the case." Here, the couple sought only legal relief, in the form of compensatory and punitive damages. Because the couple's federal complaint sought only legal relief, the district court did not have the authority to dismiss the case.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...s.pdf/13a0046p-06.pdf

Panel: Circuit Judges Martin, Siler, and Donald

Date of Issued Opinion: 02/21/2013

Docket Number: 12-3309

Decided: Remand, instructing the district court to stay proceedings.

Case Alert Author: Kathryn Burkhart

Counsel: On brief: Theodore J. Lesiak, LESIAK HENSAL & HATHCOCK, LLC, Medina, Ohio, for Appellants. Timothy T. Reid, Meghan B. Kilbane, MANSOUR, GAVIN, GERLACK & MANOS CO., LPA, Cleveland, Ohio, for Appellees.
Author of Opinion: Judge Martin

Supervisor: Professor Mark Cooney

Edited: 03/25/2013 at 10:46 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/11/2013 01:14 PM     6th Circuit     Comments (0)  

February 22, 2013
  Volpe v. Trim - 6th Circuit
2013-02-011

Headline: Sixth Circuit rejects prisoner's double-jeopardy argument urging retroactive application of new, post-conviction precedent.

Area of Law: Criminal, Double Jeopardy

Issue(s) Presented: Can a habeas petitioner convicted of two state offenses avoid consecutive-term sentences based on retroactive application of a state-court decision released after her conviction became final?

Brief Summary: A prisoner appealed her sentence to consecutive prison terms for aggravated vehicular homicide and operating a vehicle while under the influence. The prisoner argued that the offenses were similar and that the prison terms thus should have been merged rather than consecutive. The prisoner argued that the consecutive-term sentencing violated the Double Jeopardy Clause of the Fifth Amendment, which prohibits cumulative punishments for the same offense. She argued that the federal district court should have granted her habeas petition, and thus reduced her sentence, based on an Ohio Supreme Court decision issued after her state-court conviction became final - a decision that changed Ohio's standards for consecutive-term sentencing. The Sixth Circuit held that the district court correctly assessed the prisoner's double-jeopardy claim based on Ohio precedent in place when she was convicted, rather than under Ohio's new standard.

Extended Summary: Volpe was driving drunk while her daughter was a passenger. Other motorists reported Volpe's erratic driving. Before police could locate Volpe's truck, Volpe lost control, drove off the road, and crashed into a tree. Her daughter died three days later from accident-related injuries.

Volpe was convicted of (1) operating a vehicle while under the influence and (2) aggravated vehicular homicide. The trial court ordered that the prison terms for the two offenses run consecutively, producing a total prison term of more than 26 years.

When Volpe was convicted, the Ohio Supreme Court applied the test from State v. Rance to determine whether cumulative punishments could be imposed for crimes arising from a single criminal act. The Rance test required Ohio courts to compare the elements of each offense to determine whether "the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other." If so, then the defendant could not be punished separately for both crimes. Under this test, the Ohio courts found that Volpe could serve time for both crimes because the elements of operating a vehicle while under the influence and aggravated vehicular homicide were not so similar. For instance, a person could drive drunk but not cause death (operating a vehicle while under the influence), and a person could drive negligently or recklessly while sober but still cause a death (aggravated vehicular homicide).

Two years after Vople exhausted her appeals, the Ohio Supreme Court overruled and replaced the Rance test. In Ohio v. Johnson, the Ohio Supreme Court held that the proper test to determine whether two crimes were similar for double-jeopardy purposes is whether it is possible to commit both offenses with a single act. If so, the court must next determine whether the offenses actually were committed in a single act. If this is also true, the court explained, then the offenses are sufficiently similar to trigger double jeopardy and will be merged.

Applying this new test to Volpe's case would greatly reduce her sentence. So she filed a habeas corpus petition in federal court, arguing that under Ohio's new Johnson standard, her convictions and sentences for both offenses violated the Double Jeopardy Clause. The district court denied her petition.

The Sixth Circuit affirmed, holding that the multiple punishments here did not offend the Double Jeopardy Clause. Noting that state courts have the last word on matters of state law, the Sixth Circuit analyzed whether Ohio courts would have applied Johnson retroactively. After surveying Ohio cases, the court said no. The Sixth Circuit observed that in Ohio, a new judicial decision only applies to cases still pending on the decision date, not retroactively to a conviction that has already become final. "Because Rance was the controlling precedent at the time Volpe's conviction became final," the Sixth Circuit explained, Rance properly governed her case. Johnson's new standard did not.

Panel: Clay, White, and US District Judge Hood sitting by designation.

Argument: 10/12/2012

Date of Issued Opinion: 01/31/2013

Docket Number: No. 11-4365

Decided: Affirmed

Case Alert Author: Felix H. Sharpe II

Counsel: ARGUED: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee. ON BRIEF: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee.

Author of Opinion: Hon. Helene N. White

Case Alert Circuit Supervisor: Prof. Mark Cooney

    Posted By: Mark Cooney @ 02/22/2013 02:54 PM     6th Circuit     Comments (0)  

February 12, 2013
  U.S. v. Stout - Sixth Circuit
Headline: An Unarmed Prisoner's Jailbreak Using No Physical Force Can Still Be a "Crime of Violence"

Area of Law: Criminal, Crimes of Violence

Issue Presented: Whether an unarmed jail escape resulting in a state-court conviction is a "crime of violence" under 18 U.S.C. § 16(b).

Brief Summary: Federal prosecutors charged the defendant with knowingly possessing body armor after previously being convicted of a "crime of violence." The defendant argued that his prior conviction for escaping jail did not involve a crime of violence. The district court disagreed. On appeal, the Sixth Circuit affirmed, reasoning that a jail escape poses a substantial risk of confrontation and violence, satisfying the statutory definition of "crime of violence."

Significance: To determine whether the prior crime was a "crime of violence," the court focused on whether the nature of the crime created a risk of violence rather than on whether any violence actually occurred.

Extended Summary: Federal prosecutors charged the defendant with knowingly possessing body armor after previously being convicted of "a crime of violence." The previous crime-of-violence conviction, according to prosecutors, was the defendant's state-court conviction for second-degree escape. That conviction stemmed from the defendant's escape from a county jail, during which he climbed a recreation-area wall and crawled through a hole in the fence at the top.

The defendant asked the district court for a hearing on whether that past crime could properly be considered a crime of violence under 18 U.S.C. § 16(b). The district court held a hearing and concluded that the defendant's jail escape was a crime of violence because his escape was a "purposeful and aggressive" act that created "a serious risk" that he would use physical force against guards or members of the public. After this ruling, the defendant pleaded guilty, but his plea agreement allowed him to appeal.

The Sixth Circuit affirmed the district court's holding that the defendant's jail escape was a crime of violence. To reach this decision, the court performed a two-part analysis. First, the court used a "categorical approach" to determine the nature of the underlying crime. For this step, the court focused on the underlying crime's statutory definition and elements, rather than on the facts. The court noted that second-degree escape, as defined in Kentucky's statute, could range from violent escapes (such as escapes from maximum-security prisons) to nonviolent escapes (such as "walkaways" from nonsecure settings or mere failures to report). The court found that in this case, "the proper classification of [the defendant's] offense [was] an escape by leaving custody in a secured setting." This form of escape, the court observed, involves a purposeful act to achieve freedom from confinement, which typically requires stealth and creates the potential for detection and confrontation.

The court's next step was to determine whether this category of escape - leaving a secured setting - was a crime of violence. The court noted that under 18 U.S.C. 16(b), "crime of violence" includes any felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The court found that escape from a secured setting satisfies this definition because of the "substantial risk that offenders who choose to escape from secured settings will engage in physical violence during the course of the escape." Thus, the Sixth Circuit affirmed the district court's decision that the crime was one of violence.

Dissent: Judge Donald disagreed with the majority's analysis, stating that when deciding the crime-of-violence question, the court "should only consider the risk that arises from [the defendant's] escape standing alone, not the risk arising from events that may occur subsequent to his escape, including his apprehension." He pointed out that when the defendant escaped, he was unarmed and crawled through a preexisting hole in the fence. He did not harm anyone, and there was no evidence that he harmed property. Thus, Judge Donald believed that the defendant's escape was not a crime of violence.


Panel: Cole and Donald, Circuit Judges; Sargus, District Judge

Argument: 7/26/2012

Date of Issued Opinion: 2/5/2013

Docket Number: 10-6163

Decided: Affirmed conviction.

Case Alert Author: Kristina Bilowus

Counsel: Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF: Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

Author of Opinion: Judge Sargus

Case Alert Circuit Supervisor: Professor Mark Cooney

    Posted By: Mark Cooney @ 02/12/2013 04:05 PM     6th Circuit     Comments (0)  

February 5, 2013
  Taylor v. Geithner - Sixth Circuit
Headline: Sovereign Immunity Not Waived for IRS's Alleged Breach of Settlement Agreement

Area of Law: Civil, Employment Law, Title VII, Sovereign Immunity

Issue Presented: Whether Congress has waived sovereign immunity for an IRS employee's Title VII claim alleging that her supervisor breached a settlement agreement.

Brief Summary: An IRS employee sued her supervisor in federal court for retaliating against her and for breaching a settlement agreement that resolved her earlier discrimination claim. The Sixth Circuit affirmed the district court's dismissal, based on sovereign immunity, of her breach-of-settlement-agreement claim. But the Sixth Circuit reversed dismissal of her retaliation claim, finding that her evidence was sufficient to reach a jury.

Significance: This case was one of first impression concerning sovereign immunity for Title VII breach-of-settlement-agreement claims against the federal government as an employer.

Extended Summary: Over a two-year span, an IRS employee applied for a series of promotions and transfers, but supervisors rejected all her requests. Before her application was finally granted, she filed an Equal Employment Opportunity discrimination claim. After this filing, she was transferred to another IRS unit. She alleged that while working in the new unit, her supervisor retaliated against her for filing the discrimination claim. His alleged acts of retaliation included a three-day suspension without pay, written reprimands, and negative references. In response, the employee filed additional agency claims alleging retaliation.

The IRS and the employee eventually settled the discrimination claim. The settlement agreement required the IRS to remove the three-day suspension from the employee's record. She, in turn, waived future litigation on that claim. The settlement agreement also allowed the employee to monitor and report noncompliance. She later invoked this provision to report acts of IRS noncompliance, but the agency denied her claims. The agency found that even if the IRS had breached the agreement, the issue was moot because the IRS was now in compliance. She did not appeal those decisions within the agency.

Later, the employee sued her supervisor in the Western District of Tennessee, alleging retaliation and breach of the settlement agreement. The Western District dismissed both claims.

The Sixth Circuit affirmed dismissal of the breach-of-settlement-agreement claim, reasoning that the government is immune from liability unless Congress has explicitly and unambiguously waived immunity. The court noted that although Congress has waived sovereign immunity for Title VII discrimination suits against the federal government, the employee offered no compelling argument why this waiver extended to claims for settlement noncompliance. The court observed that the EEOC's regulations on reporting settlement noncompliance are silent on potential judicial remedies. And because a waiver of sovereign immunity must be explicit, this regulatory silence - coupled with the lack of an express statutory waiver for this type of claim - could not waive immunity. Thus, the employee was required to exhaust her administrative appeals rather than sue in federal court.

The Sixth Circuit reversed the district court's dismissal of the employee's retaliation claim, finding that she had "produced sufficient evidence to establish a prima facie case of retaliation." Her proofs showed, among other things, that she had applied for 52 positions in two years but was rejected every time. She also received negative references while her agency discrimination claims were pending.

Panel: McKeague, Merritt, and Moore, Circuit Judges

Argument: 10/4/2012

Date of Issued Opinion: 1/2/2013

Docket Number: 11-6122

Decided: Affirmed in part; reversed in part.

Case Alert Author: Kristina Bilowus

Counsel: David H. Shapiro, Swick & Shapiro, P.C Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee. ON BRIEF: David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Author of Opinion: Judge Moore

Case Alert Circuit Supervisor: Professor Mark Cooney

    Posted By: Mark Cooney @ 02/05/2013 02:03 PM     6th Circuit     Comments (0)  

FuseTalk Enterprise Edition - © 1999-2017 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top