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News and Releases

Sixth Circuit Published Opinions

This part of our site is dedicated to summarizing recent, published Sixth Circuit Court of Appeals opinions.  Each entry begins with the name of the case, the case numbers, and the three judge panel that heard the case, including the author of the opinion in all CAPS.

January 31, 2018

Collin v. Comm’r of Soc. Sec., No. 17-3733 (KETHLEDGE, Sutton, Larsen).

Plaintiff filed a petition for mandamus asking the district court to order the Commissioner of Social Security to pay a lump-sum payment to her for monies allegedly owed to her because the Commissioner had mistakenly stopped garnishing the pay of Plaintiff’s ex-husband.  The district court granted the Commissioner’s motion to dismiss, finding that Plaintiff’s request was one for “money damages,” as to which the United States was immune from suit.

The Sixth Circuit affirmed, holding that the Plaintiff was seeking a substitute for moneys the government should have withheld between October 2015 and January 2017, and not enforcement of “the statutory mandate itself,” such that the relief would be considered equitable in nature.  Because Congress had not waived immunity for demands for money damages, the Court held that the United States was immune from Plaintiff’s suit.


In re Black, No. 17-2147 (Guy, Daughtrey, Sutton) (PER CURIAM).

Black was convicted on drug charges, and the district court sentenced him to an effective term of life in prison.  Black sought relief under § 2255, and the district court denied the motion to vacate and refused to issue a certificate of appealability.  Black then filed a motion under Federal Rule of Civil Procedure 60(b), seeking relief from the order denying his § 2255 motion.  He argued, among other things, that the Assistant U.S. Attorney “perpetrated fraud on the Court” before and during his criminal trial.  The district court transferred the motion to the Sixth Circuit to determine whether Black may proceed with the second or successive claims.

The Sixth Circuit noted that Black’s claims were “second or successive” if Black sought to add a new ground for relief or attacked the court’s merits decision, but that the claims would not be “second or successive” if he merely attacked a defect in the integrity of the federal habeas proceedings.  The Sixth Circuit, relying on precedents from other Circuits, agreed that a fraud-on-the-court argument is “second or successive” unless it calls into question “the integrity of the federal habeas proceedings.”  Because Black had merely challenged the AUSA’s conduct at trial, and did not argue that the allegedly fraudulent conduct had tainted the district court’s assessment of the federal habeas petition, Black had not called into question the integrity of the habeas proceedings.  His petition was therefore second or successive.

January 29, 2018

Biestek v. Comm’r of Soc. Sec., No. 17-1459 (COOK, Clay, White).

Plaintiff argues that an Administrative Law Judge with the Social Security Administration incorrectly found that he was not disabled for a period of time that he claimed he should be entitled to disability benefits.  The district court rejected his claims, and he appealed.

The Sixth Circuit affirmed.  In evaluating Plaintiff’s appeal, the Court noted that the Sixth Circuit had not yet squarely addressed the extent to which vocational experts must produce underlying data in support of their opinions, and there was a circuit split on the issue.  The Seventh Circuit requires vocational experts to provide the data and reasoning used in support of their conclusions upon request, incorporating the essence of Federal Rule of Evidence 702 into the administrative adjudicative process.  The Sixth Circuit, following the Second, Third, and Ninth Circuits, did not follow this approach.  Instead, the Court held that no stringent evidentiary requirements should be applied.  The Court reasoned that Congress specifically exempted the Social Security disability proceedings from the strictures of the Federal Rules of Evidence and the Seventh Circuit’s standards would be difficult to apply.  The Court found that the ultimate responsibility for weighing the credibility of witnesses belongs to the ALJ and, while testimony “conjured out of whole cloth” cannot be considered substantial evidence, there was no reason to suppose that the ALJ in this case did not carefully weigh the credibility of the witnesses.

January 26, 2018

Smith v. Comm’r of Soc. Sec., No. 17-5809 (MERRITT, Griffin, Donald).

When a Social Security Administration Administrative Law Judge issued an unfavorable decision on Plaintiff’s application for disability benefits, Plaintiff had sixty days to file an appeal.  Plaintiff’s attorney claimed he timely mailed a request for review of the decision, but the Appeals Council did not receive the request until four months after the time for appeal had expired.  When the Appeals Council denied the request for untimeliness, Plaintiff filed a complaint seeking review of the Social Security Administration Appeals Council. The district court dismissed the complaint for lack of jurisdiction and because he raised no colorable constitutional claims.

The Sixth Circuit affirmed, holding that an Appeals Council decision to refrain from considering an untimely petition for review is not a “final decision” subject to judicial review in federal court under the Social Security Act.  The Court noted that this holding was in line with previous unpublished opinions of the Sixth Circuit, as well as the majority view among sister Circuits.  Indeed, the Court cited with approval the reasoning of the Eighth Circuit that dismissals for untimeliness do not address the merits of the claim, and thus cannot be considered appealable.

The Court also noted that it would have jurisdiction to hear a challenge to an otherwise unappealable order if the challenge raises cognizable constitutional claims.  But the Court found that none of Plaintiff’s claims raised colorable constitutional claims.

January 8, 2018

Downs v. United States, No. 16-5368 (KETHLEDGE, Suhrheinrich, Griffin).

In 2010, Petitioner pleaded guilty to conspiring to distribute 50 grams or more of crack cocaine.  On August 2, 2010, the district court orally pronounced a sentence of ten years’ imprisonment for Petitioner, the mandatory-minimum sentence for that crime at the time, and entered its judgment on August 16, 2010. The day after the sentencing hearing, the President signed the Fair Sentencing Act, which reduced the mandatory-minimum for the crime Petitioner committed to five years. Although initially the Act presumptively did not apply retroactively, the Supreme Court found in 2012 that the Act applied to defendants sentenced after August 3, 2010—the day after Petitioner was orally sentenced, but before his sentence was entered. Petitioner sought to vacate his sentence, arguing that he was not “sentenced” until the court entered its judgment on August 16, 2010. The district court denied the petition, and the Petitioner appealed.

The Sixth Circuit affirmed, holding that the date of a district court’s oral pronouncement of sentence is the date of sentencing. The Court reasoned that the law, including 18 U.S.C. § 3553 and the Federal Rules of Criminal Procedure, contemplates that “sentencing” occurs during the sentencing hearing. For example, a court is required to state its reasons for a sentence in open court “at the time of sentencing” and the defendant must be physically present “at sentencing,” which can only apply to the sentencing hearing. Because Petitioner was sentenced the day before the Act became effective, Petitioner’s sentence was not affected by the Act and was lawful. This is the case even though Petitioner’s coconspirators were sentenced after August 3, 2010, and therefore their sentences fell under the Act. The Sixth Circuit noted that “Congress with a few keystrokes could have included a retroactivity provision in the [Act] . . . . But we as judges are confined to what the law says.”

January 4, 2018

Stimmel v. Sessions, et al., No. 15-4196 (GRIFFIN, White, Boggs).

The plaintiff challenged a federal firearm statute—18 U.S.C. § 922(g)(9)—that prevents people who have been convicted of misdemeanor domestic violence from possessing firearms, arguing that the statute unconstitutionally burdens the plaintiff’s Second Amendment rights. The district court dismissed the plaintiff's complaint, and he appealed.

The Sixth Circuit affirmed the dismissal, with the majority assuming, without deciding, that a domestic violence misdemeanant has Second Amendment rights to some degree, and then evaluating the statute under intermediate scrutiny.  The Court held that the statute passed intermediate scrutiny because disarming domestic violence misdemeanants is substantially related to the compelling interest of preventing gun violence, especially domestic gun violence. The Court noted that its holding was consistent with decisions from the First, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits. The Court reasoned that the studies and other data the Government presented established that those convicted of misdemeanor domestic violence are sufficiently likely to reoffend, and victims of domestic violence are more likely to be killed when a gun is present.

The Court also affirmed the district court’s dismissal of the plaintiff’s equal protection claim because the plaintiff did not show how he—as a domestic violence misdemeanant—was similarly situated to those who have been “adjudicated as a mental defective” under § 922(g)(4), such that they had avenues for administrative relief from firearms restrictions.

Judge Boggs dissented, finding that the Government did not present sufficient evidence to show that § 922(g)(9)—which acts as a lifetime ban on firearm possession—appropriately fits its stated objective, because the Government did not show that a non-recidivist domestic violence misdemeanant presents a heightened risk of reoffending decades after his or her conviction. Judge Boggs stated that the majority had failed to consider that the question of “fit,” in applying intermediate scrutiny, has a temporal component.

Allied Constr. Indus. v. City of Cincinnati, et al., Nos. 16-4248/4249 (BOGGS, Batchelder, Kathledge).

The plaintiff challenged a Cincinnati ordinance—related to how the city is to select the “lowest and best bidder” on Department of Sewers projects—as preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”). The ordinance provisions (1) require each bidder to certify whether it provides or contributes to a healthcare plan and an employee pension or retirement program for its employees; (2) require each bidder to certify that the bidder will maintain or participate in an apprenticeship program during the project; and (3) require winning contractors to pay $0.10 per hour per worker into a city pre-apprenticeship training fund. The district court held that the ordinances were preempted by ERISA and granted summary judgment to the plaintiff, and the city appealed.

The Sixth Circuit reversed, joining the Ninth Circuit in holding that the market-participant doctrine outlined in Bldg. & Constr. Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993) (“Boston Harbor”) applies to ERISA. Specifically, the Court held that, “Where a state or municipality acts as a proprietor rather than a regulator, it is not subject to ERISA preemption.” The Court reasoned that, just as a private purchaser can seek certain concessions from a contractor, so too can a state or municipality. The Court further adopted the two-step inquiry framework of Cardinal Towing & Auto Repair, Inc. v. City of Bedford, 180 F.3d 686 (5th Cir. 1999), as the test to be applied in assessing whether municipal conduct qualifies as market participation. Applying this framework, the Court found that Cincinnati was acting as a market participant in enacting the ordinance at issue, and therefore that ERISA did not preempt the ordinance provisions.

January 3, 2018

Richmond v. Huq (Amended Opinion), No. 16-2560 (DONALD, Stranch, Moore).

The plaintiff sued a number of defendants, alleging that while she was incarcerated she received constitutionally inadequate treatment for a self-inflicted burn wound and that she was unconstitutionally deprived of her psychiatric medication for over two weeks, in violation of the Eighth Amendment. The district court granted summary judgment for the defendants because the plaintiff had failed to show a constitutional violation. The plaintiff appealed.

On September 20, 2017, the Sixth Circuit affirmed summary judgment in part, and reversed in part. Today, the Court reversed its previous decision in the case with regard to one of the defendants.  In this amended opinion, the Court affirmed summary judgment for the psychiatric social worker at the jail. Although the social worker did not review the plaintiff’s chart or otherwise attempt to verify the plaintiff’s claims that she had been on prescription medication prior to entering the jail, the social worker reacted reasonably when she referred the plaintiff for a mental health evaluation. The Court found that this was a “medically reasonable” response, even though the social worker did not personally make an effort to secure the plaintiff’s medications.

January 2, 2018

Heimer v. Companion Life Ins. Co., No. 16-2274 (COLE, Stranch, McKeague).

The plaintiff was injured while playing a game of “chicken” on a motorbike with his friends in a Michigan field. The intoxicated plaintiff and one of his friends rode their bikes at one another, but neither swerved and they struck each other head-on.  Thereafter, the plaintiff submitted a medical claim to his insurance provider. The insurance company denied the claim, citing a plan exclusion that disclaimed coverage for injuries resulting from the “illegal use of alcohol.” After exhausting his administrative remedies, the plaintiff filed suit in court, eventually landing in federal district court. The district court ruled in the plaintiff’s favor, holding that that plan provision only included the illegal consumption of alcohol, and not the plaintiff’s illegal post-consumption conduct of operating a motorbike under the influence of alcohol.

The Sixth Circuit affirmed the decision. The majority found that the provision was unambiguous, and relied on several dictionary definitions in holding that, in everyday English, “illegal use of alcohol” means “the illegal act of consuming alcohol.” Judge McKeague concurred in the judgement, but dissented from the conclusion that the provision was unambiguous, warning that that determination says more than needs to be said and may establish bad precedent unnecessarily. The Court was unanimous in holding that, even if the contract language were ambiguous, any ambiguities must be construed strictly against the drafter, in this case the insurance company.

November 16, 2017

Kamar v. Sessions, No. 16-3750 (MERRITT, Moore, Rogers).

Petitioner, who was born in Jordan but is a citizen of Lebanon, overstayed her student visa in the United States. She was charged removable in 2007, and filed an application for withholding of removal pursuant to the Immigration and Nationality Act and protection under the Convention Against Torture. She argued that if she returned to Jordan, under Islamic tradition she would be subject to an “honor killing” by her youngest male relative for bringing shame to her family by getting pregnant out of wedlock. The immigration judge ordered her removed, and her appeal was dismissed by the Board of Immigration Appeals. This petition followed.

The Sixth Circuit granted the petition for review and remanded the case to the Board for further proceedings. The Court found that the Petitioner’s fear for her life was supported by uncontradicted evidence, including a letter from her mother stating that her cousin wishes to kill her even if it is his last act on earth. And substantial evidence did not support the Board’s conclusion that the Jordanian government would protect her, because in Jordan “protective custody” often includes extended incarceration in jail. The Court found that this was “akin to persecuting the victim as she must choose between death and an indefinite prison term.” The Court also held that Jordanian “protective custody” would result in mental pain and suffering such that the petitioner should be protected under the Convention Against Torture.

November 15, 2017

Gascho v. Global Fitness Holdings, LLC, et al., Nos. 17-3577/3578/3579/3804/3805/3821/3822/3825/3826/3827 (THAPAR, Sutton, Donald).

Members of the gym Global Fitness sued the gym as a class, arguing that the gym misrepresented the terms of its membership. The gym settled, and agreed to pay $1.3 million to the class members, class counsel’s fees, and the claims administrator’s fees and costs. The payments owed to the class members had been put into escrow, but the gym funneled $10.4 million of sale proceeds to company managers as “tax distributions,” and declared that it did not have money to pay counsel or the administrator. The district court held the gym and managers in civil contempt and ordered them to pay the full amount owed. The gym and managers appealed. At issue in the appeal was when the district court’s order to pay class counsel and the administrator became “definite and specific” such that a knowing violation of that order would be punishable as contempt.

The Sixth Circuit reversed, holding that the order to pay became definite and specific when the time expired to request a hearing of the Supreme Court’s denial of certiorari on the claims raised by class members who objected to the settlement. The Court came to that conclusion because the district court had ordered the gym to pay “in accordance with the Settlement Agreement,” and the Settlement Agreement provided that the obligation to pay would not become effective until the agreement was “fully and finally affirmed by the highest court.”

The Court rejected the argument that the gym had an implied obligation to conserve its funds during the appeals, because the contempt power only applies to judgments set forth in an unequivocal command. If the plaintiffs wanted to ensure that the gym would be able to pay class counsel and the administrator, they should have insisted that the gym escrow the funds during the appeals, the Court reasoned.

Williams v. U.S., No. 17-3211 (ROGERS, Moore, Merritt).

Petitioner pleaded guilty to being a felon in possession of a firearm, and was declared an Armed Career Criminal subject to a fifteen-year mandatory minimum sentence because he had three prior convictions for violent felonies, including a conviction for felonious assault in Ohio. He filed this habeas petition challenging his sentence in light of U.S. v. Johnson, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional. The district court denied the petition, finding that the petition was foreclosed by Sixth Circuit precedent holding that Ohio felonious assault necessarily requires the use of physical force, and therefore falls under the ACCA’s still-effective elements clause. The petitioner appealed.

The Sixth Circuit affirmed the denial, holding that U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012) unambiguously held that the Ohio felonious assault statute qualifies as a predicate violent felony under the elements clause. Because Anderson was a published opinion, the Circuit panel could not overturn it unless the Supreme Court or the en banc Circuit issued a new, inconsistent intervening opinion.

Judge Moore wrote a separate concurrence expressing her belief that Anderson should fall because the Ohio felonious assault and aggravated statutes include conduct that Congress did not target by passing the ACCA. “Serious physical harm” under Ohio law includes “[a]ny mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment,” whereas the ACCA covers “violent force,” which is limited to physical force.

Judge Merritt dissented, arguing that an intervening Supreme Court case, Mathis v. U.S., 136 S. Ct. 2243 (2016), established a new procedure for sentencing courts such that the sentencing court in this case should have considered the divisibility of the felonious assault statute as a threshold matter. Because the Anderson court did not engage in the new procedure established by Mathis, Judge Merritt does not consider it controlling in this case.

October 27, 2017

U.S. ex rel. Ibanez v. Bristol-Myers Squibb Company, et al., No. 16-3154 (McKEAGUE, Kethledge, Stranch).

The relators filed this qui tam False Claims Act claim against two pharmaceutical companies, alleging that the companies participated in a complex, nationwide scheme to improperly promote the antipsychotic drug Abilify, which caused false claims to be submitted to the government. The district court granted the defendants’ motion to dismiss the qui tam claims, and denied the plaintiffs an opportunity to file a third amended complaint, finding that the amended complaint failed to plead presentment with adequate particularity. The plaintiffs appealed.

The Sixth Circuit affirmed. The Court held that the plaintiffs had failed to provide a representative claim describing each step in the causal link leading to the false claim with the particularity required by Rule 9(b): a prescription reimbursement submitted to the government for a tainted prescription of Abilify. The Court refused to apply a “relaxed” pleading standard that would have allowed a claim if there was an allegation of “specific personal knowledge that relates directly to billing practices” supporting a “strong inference that a [false] claim was submitted.” The Court found that this personal-knowledge exception only applies in limited circumstances like those of U.S. ex rel. Prather v. Brookdale Senior Living Cmtys., Inc., 838 F.3d 750, 768 (6th Cir. 2016), where the relators directly engaged with the false claims such that they had personal knowledge of billing practices. The majority held that the proposed amended complaint did not provide any representative claims, and that the relators did not have the requisite personal knowledge of billing practices necessary to meet the particularity pleading standard.

Judge Stranch dissented as to whether the plaintiffs satisfied their pleading requirements. Relying on precedent from other circuits, she found that particularity may be satisfied where a relator “alleg[es] particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” She pointed to a number of examples in the complaint that she found provide adequate and fair notice to the defendants as to the claims brought against them, and she found that the relators’ personal knowledge of the corporate strategies employed by the companies to promote off-label uses of Abilify, combined with extensive statistical evidence, created a strong inference that the scheme occurred and that it resulted in substantial claims paid by the government.

U.S. v. Rucker, No. 16-6415 (KETHLEDGE, Cook, Donald).

The defendant violated the conditions of his supervised release, and the district court sentenced him to 24 months’ imprisonment, in part because the sentence would allow him to qualify for the Bureau of Prisons’ residential drug-abuse program. The defendant appealed the sentence, arguing that it was substantively unreasonable because it was based on an impermissible factor—rehabilitation.

The Sixth Circuit agreed, vacated the sentence, and remanded. The Court noted that sentencing courts cannot impose or lengthen a prison term to promote an offender’s rehabilitation. A district court may discuss the opportunities for rehabilitation, but the court’s discussion of those things cannot be its explanation for the sentence it imposes. The Court here found that, although the district court said that it found 24 months to be appropriate irrespective of the BOP regulation relating to the drug treatment program, the court did not provide an independent rationale for that conclusion. Moreover, the defendant’s eligibility for the program appeared to have been an important factor in the court’s decision, based on the sentencing transcript. Therefore, the Sixth Circuit vacated the sentence and remanded for resentencing.

Judge Donald dissented, finding that the court did set forth a rationale independent of rehabilitative concerns.

U.S. v. White, No. 15-5793 (GRIFFIN, Gilman, Stranch).

After a narcotics officer watched the defendant sell marijuana to an undercover informant in the driveway of the defendant’s home, the officer sought a search warrant for the residence based on the witnessed drug deal, a confidential tip that the defendant was selling marijuana from the residence, the defendant’s previous drug offenses, and the fact that the defendant keeps pit bulls “at his residence.” The judge issued the search warrant, and the deputies executed the warrant and found drugs and a gun. The defendant was convicted of drug and gun offenses, and the issue on appeal is whether the information supporting the search warrant was so lacking in indicia of probable cause that no reasonable officer would rely on the warrant. The Sixth Circuit affirmed the conviction, holding that, even if the warrant lacked probable cause, the “good-faith exception” applied.

The majority noted that a search warrant is not “bare bones” if the reviewing court is able to identify some connection between the illegal activity and the place to be searched. Official reliance on a search warrant that is not “bare bones” is reasonable, even if the warrant is not supported by probable cause. The majority held that there was a minimally sufficient nexus between the defendant’s drug-distribution activity and the defendant’s home because the officer received a tip that the defendant was selling drugs from the home, and the official verified that tip. The majority emphasized that an affidavit must be read holistically and reasonably, and should not be parsed line-by-line in a way that a reasonable officer would not read it.

Judge Stranch dissented, finding that the defendant’s selling “one baggie” of marijuana in the driveway of a residence provided no evidence that drugs would be found inside that residence, and therefore the affidavit was “bare bones” and the officers’ reliance on it was unreasonable.

Perreault v. Smith, No. 16-1213 (SUTTON, Clay Rogers).

In this habeas petition, the petitioner argues that his statement “Well, then let’s call the lawyer then ‘cause I gave what I could” was an invocation of his right to counsel and required the police to stop questioning him. The Sixth Circuit considered whether the state court unreasonably applied clearly established U.S. Supreme Court precedent in holding that the statement was “akin to [a] negotiation[],” and was not an unequivocal request for counsel. The Court denied the petition, finding that the state court’s interpretation of the statement was reasonable.

October 26, 2017

Wilson v. Sheldon, No. 16-3981 (DONALD, Sutton, Thapar).

In 1993, police found a woman unresponsive and bleeding from the head. A bloody, 110-pound boulder was lying near the body. The police collected evidence, including the boulder, and classified the case as a felonious-assault investigation. The woman later died from her injuries, but the police neglected to change the case’s classification to “homicide,” and therefore the evidence was destroyed after the statute of limitations for felonious assault ran. Over a decade later, during the course of a different investigation, detectives interviewed a woman who said that Robert Wilson had made statements to her on the night of the murder suggesting that he had been the killer. Wilson was tried and convicted of the woman’s murder, and after exhausting his direct appeals he filed a § 2254 habeas corpus petition, arguing that the destruction of the evidence made his conviction unconstitutional.

The Sixth Circuit denied his petition. The Court noted that in order to prove a violation of due process because of destruction of evidence, the petitioner must show bad faith where the state fails to preserve evidentiary material that only might have been exculpatory. Specifically, the petitioner must show either “official animus” or a “conscious effort to suppress exculpatory evidence.” The petitioner also must show  that the exculpatory value was evident before the material’s destruction, and that the defendant was unable to obtain comparable evidence. The Court held that the facts as alleged by the petitioner only show negligence or gross negligence, not bad faith. Therefore, the Court denied the petition.

U.S. v. Haroon, No. 16-3440 (SUTTON, Donald, Thapar).

The defendant was convicted of knowingly procuring his citizenship contrary to law by making false statements in immigration documents. He appealed, arguing that the district court misinstructed the jury when it instructed that the government must “prove facts that raise a fair inference that the material false statement, if disclosed, would have made the person ineligible,” but then stated that the government need not show that the false statement “would more likely than not have produced an erroneous naturalization decision.”

The Sixth Circuit held that the jury instructions were proper. The government had to prove that the defendant (i) knowingly (ii) misrepresented (iii) material facts and (iv) procured citizenship as a result. With respect to materiality, the government must only prove facts that raise a fair inference that the material fact, if disclosed, would have made the person ineligible for citizenship, not that the person was actually ineligible. 

The defendant also challenged the sufficiency of the evidence with respect to the causation element. The Court noted that the government could show causation by showing that the misrepresented facts themselves were disqualifying or by showing that the truth would have led to the discovery of disqualifying facts. Because the defendant repeatedly lied about making false statements to immigration officials in sworn immigration interviews, and the predicate lie had some influence on the prior naturalization decision, the defendant was automatically disqualified from obtaining citizenship. Therefore, because the instructions were proper and the conviction was properly supported by evidence, the Court affirmed his conviction and sentence.

October 25, 2017

In re Campbell, No. 17-3855 (Gibbons, McKeague) (per curiam) (Moore, dissenting).

An Ohio prisoner sentenced to death filed a § 2254 habeas petition challenging Ohio’s lethal injection protocol. His petition was sent to the Sixth Circuit for initial review because the district court held that the petition was a successive habeas petition. The prisoner moved the Sixth Circuit to remand his petition to the district court.

After reviewing the law and history relating to method-of-execution habeas challenges to death sentences, the Court held that after the Supreme Court’s opinion in Glossip v. Gross, 135 S. Ct. 2726 (2015), no habeas petition can properly challenge a particular application of a particular execution protocol to a particular person as unconstitutionally painful. Those challenges are properly made by seeking an injunction under § 1983 prohibiting the state from taking certain actions, rather than a writ of habeas corpus that vacates the sentence entirely. The Sixth Circuit held, “[I]f a petitioner’s legal theory would not inherently require the nullification of his death sentence, he has no business proceeding in a habeas court,” reasoning that “[t]he Great Writ is not concerned with the piecemeal reformation of an imperfect criminal justice system.” In so holding, the Court declared as dicta language in a previous case that suggested that habeas claims are permitted even when the claims refuse to concede the possibility of an acceptable means of execution.

The majority therefore found that the habeas petitioner did not raise any proper habeas claims, and dismissed his petition as successive.

Judge Moore dissented, arguing that the petitioner raised sufficient newly present biological facts to render his own death sentence potentially unconstitutional and thus to render his habeas petition not “second or successive.” She disagreed with the majority’s conclusion about Supreme Court and Sixth Circuit precedent in this area. She concluded that it is permissible in habeas to make the argument that, because of newly developed biological facts, the state cannot constitutionally execute the petitioner by lethal injection, and because the state cannot execute him by any means other than lethal injection under Ohio law, his death sentence cannot now be carried out in a way that is consistent with the Eighth Amendment.

October 23, 2017

AuSable River Trading Post, LLC v. Dovetail Solutions, Inc., et al., No. 17-1283 (DONALD, Sutton, Thapar).

The city of Tawas, Michigan, hosts an annual winter festival called “Perchville,” and has had a registered trademark for “Perchville” since 2003. The corporation that manages the city’s Chamber of Commerce sued an employee of AuSable to obtain an injunction against his unauthorized use of the term “Perchville” on t-shirts. The court granted an injunction against him, as well as “on those persons in active concert or participation with them who receive actual notice of this order.” AuSable filed the instant suit, challenging the city’s trademark, and the city argued that the challenge was barred by res judicata due to the litigation involving the employee. The court agreed, and AuSable appealed.

The Sixth Circuit reversed, finding that the employer and employee were not in privity. The Court noted that, while an injunction against an employer necessarily applies to its employees, the inverse is not necessarily true. The Court also found that, in this case, the employee did not raise the issue of the validity of the city’s trademark, the very issue at the heart of the case at bar. The Court ultimately held, “While there may be circumstances when an employee’s interests are so aligned with his or her employer as to be in privity for the purposes of res judicata, there is no support for that here.”

October 20, 2017

U.S. v. Verwiebe, No. 16-2591 (SUTTON, Clay, Rogers) (Amended Opinion).

This opinion amends the Court's September 17, 2017 opinion. In this amended opinion, the Court added to its discussion of whether assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), is a “crime of violence” for purposes of satisfying the career-offender enhancement of Sentencing Guidelines § 4B1.1. The defendant had argued that crimes that require only a showing of “recklessness” cannot qualify as a crime of violence under U.S. v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010).

The Court held that § 113(a)(6) is a crime of violence. The Court noted that the U.S. Supreme Court found recklessness sufficient in Voisine v. U.S., 136 S. Ct. 2272, 2280 (2016), a case decided after McFalls. This amended opinion notes that while that holding is in accord with the Fifth, Eighth, and Tenth Circuits, the First Circuit partially came out the other way in Bennett v. U.S., 868 F.3d 1, 23 (1st Cir. 2017). In Bennett, the First Circuit noted that the use of the phrase “against the person of another” in the Armed Career Criminal Act and in § 4B1.2(a) could possibly make Voisine inapplicable because the statute at issue in Voisine lacked that clause.

The Sixth Circuit declined to revise its initial holding in light of Bennett, reasoning that the key insight of Voisine, namely that the word “use” refers to “the act of employing something” and does not require a purposeful or knowing state of mind, does not change if a statute says that the “use of physical force” is “against” a person.

Barbara Bays v. Montmorency County, Mich., et al., Nos. 16-2761/17-1215 (SUTTON, Clay, Rogers).

The parents of a man who killed himself in jail after describing symptoms of a mental illness to a jail nurse filed a § 1983 suit against Montmorency County officials, alleging violations of the man’s Fourteenth Amendment right to sufficient treatment for a serious medical problem. The parties filed cross-motions for summary judgment, and the district court granted summary judgment to the County, and denied the plaintiffs’ motion, but also denied qualified immunity to the nurse. The parties all appealed.

The Sixth Circuit affirmed the denial of qualified immunity because the detainee’s mental illness was objectively serious, evidenced by his repeated complaints of severe psychological symptoms, which got more severe leading up to his suicide. In addition, the nurse subjectively understood the detainee’s plight, as she was a trained medical professional, indicated that he should be referred to mental health specialists, and tried to expedite his being seen by a mental-health professional. She also admitted in her deposition testimony that the care she provided fell short of what the detainee needed. The Court found that the nurse not only committed malpractice, but was deliberately indifferent, because she scheduled an appointment weeks in the future despite symptoms that she agrees required immediate or near-immediate care. And even when she realized that he should have been seen sooner, she only made two phone calls and left one message trying to expedite his appointment.

Importantly, the Court affirmed that the right at issue is the detainee’s right to have a serious psychological illness treated seriously, which is clearly established. The Court declined to define the right as an inmate’s right to the proper implementation of suicide prevention procedures, which the Supreme Court has held is not clearly established.

October 16, 2017

Flight Options, LLC, et al. v. Int’l Bhd. of Teamsters, Local 1108, et al., No. 17-3188 (THAPAR, Sutton, Donald).

 This is one of several appeals stemming out of a merger between Flight Operations and Flexjet. At issue in this appeal was how to integrate the pilots under one collective-bargaining agreement. The existing collective-bargaining agreement became “amendable” under the Railway Labor Act shortly after the airlines merged, allowing either party to propose broad changes affecting the pilots’ rates of pay and working conditions. The airlines argue that the negotiations under the agreement and the negotiations regarding the proposals should take place at the same time, while the union argued that the airlines should be required to bargain the proposals in good faith first. The union applied for a preliminary injunction, which the district court granted. The airlines appealed.

The Sixth Circuit reversed, vacating the preliminary injunction and remanding the case. Airlines and their unions must resolve their disputes consistent with the procedures in the Railway Labor Act. The Act provides two procedural tracks: one for major disputes—those that concern the acquisition of rights for the future—and one for minor disputes, which arise from disagreements about how an existing agreement applies to a particular situation. In the case of minor disputes, the parties are required to submit to binding arbitration and the court has no role unless asked to review the arbitrator’s decision.

The district court found that the dispute about the order of negotiations was major, but the Sixth Circuit disagreed, reasoning that “[a] dispute can be minor even if it affects the parties’ obligations under [the Railway Act's "amendable" section]. The proper inquiry is whether the existing collective-bargaining agreement controls the controversy.” The argument at issue involved the interpretation of the existing agreement, and the plain language of the agreement implied that the airlines did not have to bargain over proposals involving all the pilots of the combined airlines until a fully merged agreement was reached, and therefore the Court held that the union failed to show that the dispute was major.

October 12, 2017

Stein, et al. v. hhgregg, Inc., et al.b, No. 16-3364 (MOORE, Sutton, White).

Plaintiffs, current or former employees in hhgregg stores in Ohio, filed suit challenging hhggregg’s draw-on-commission policy. Under this policy, all retail sales employees are paid solely on the basis of commissions. However, in pay periods when an employee’s earned commissions fall below the minimum wage, he or she is paid a “draw” to meet the minimum-wage requirements. According to the plaintiffs’ amended complaint, employees who receive a draw are required to repay it out of future commissions, and are liable for the amount of the draw when they are terminated, which they argued was a violation of the Fair Labor Standards Act. The district court dismissed their complaint for failure to state a claim upon which relief could be granted, and the plaintiffs appealed.

The Sixth Circuit reversed, with the majority finding that the complaint alleged sufficient facts to demonstrate that the draw policy violated the FLSA, but only because the policy held employees liable for any unearned draw payments upon termination for any reason. The majority held that this violated the FLSA regulations requiring that a minimum wage be paid “finally and unconditionally or ‘free and clear.’” The majority drew a distinction between wages already paid and wages to be paid, holding that an employer can deduct from the latter but cannot require repayment of the former.

The Court also held that hhgregg’s policies and practices encouraged employees to work “off the clock,” violating the minimum wage and overtime requirements of the FLSA by not properly compensating them for all hours worked in a given week.

Judge Sutton concurred in part, but dissented with respect to the majority’s conclusion that the company violated the rights of the named plaintiffs in this case. He noted that the complaint did not allege that hhgregg actually enforces the clawback-after-termination provision, and the plaintiffs conceded that hhgregg did not enforce the policy as to them. Therefore, Judge Sutton would have affirmed the dismissal of their claims.

October 11, 2017

U.S. v. Adams, No. 16-2786 (MOORE, White, Donald).

A defendant who had been addicted to opiates for several decades tested positive for opiates several times while on supervised release. The district court ultimately revoked his supervised release and sentenced him to a below-Guidelines term of incarceration of eighteen months. The defendant appealed, arguing that the sentence was both procedurally and substantively unreasonable.

The Sixth Circuit agreed, vacating the sentence and remanding for resentencing. The Court, relying on Circuit precedent, reiterated that a defendant has a due-process right to be sentenced based on accurate information, which right extends beyond the defendant’s own actions and criminal history. Because the district court relied on the Government’s unsupported, and therefore unreliable, proposition that long-term heroin addicts need eighteen months for their brain chemistry to “reset” in order for future treatment to be effective, the sentence was procedurally unreasonable.

The Court also found the defendant’s sentence substantively unreasonable because the district court calculated the length of the sentence for the purpose of promoting the rehabilitation of the defendant, in violation of the rule set out by the U.S. Supreme Court in Tapia v. U.S., 564 U.S. 319, 335 (2011).

October 10, 2017

U.S. v. Phillips, No. 16-6667 (SUTTON, Donald, Thapar).

The defendant appealed his conviction for conspiracy to commit mail and wire fraud, arguing in part than an IRS agent called as a lay witness should not have been allowed to testify as to his opinion that the defendant was part of a conspiracy and received proceeds derived from criminal activity.

The Sixth Circuit noted that “the court at a minimum toed the abuse-of-discretion line” when it allowed the testimony, but found any potential error to be harmless because the thrust of the question was whether the defendant conspired to launder money, and the jury acquitted the defendant on that charge. The district court also cured any error by instructing the jury that it was to decide the issue for itself, based on the facts as the jury finds them, whether or not the jurors come to the same conclusion as the agent.

October 3, 2017

U.S. v. Greer, No. 16-5701 (BATCHELDER, Keith, Sutton).

The defendant, a deputy sheriff, was convicted of witness tampering in connection with a federal aggravated sexual abuse prosecution. The pre-sentence report calculated his base offense level as 27, in part because the witness tampering section (USSG § 2J1.2) provides for a cross reference to USSG § 2X3.1, Accessory After the Fact, which considers the base offense level of the underlying criminal offense when the obstructive conduct is part of a particularly serious offense that has been committed. The defendant appealed, arguing that § 2X3.1 cannot apply when there has been no prosecution or conviction for the underlying offense. He argued that in his case there had not even been sufficient evidence that the underlying rape had been committed at all.

The Sixth Circuit conceded that one particular passage in U.S. v. Shabazz, 263 F.3d 603, 610–11 (6th Cir. 2001), supported the defendant’s claim that the cross-reference applies only to underlying offenses that the State has established by a preponderance of the evidence. But the Court held that the relevant passage was dicta, and therefore without precedential value. The Court limited Shabazz to holding that the sentencing court applying USSG § 2X3.1 must use the underlying offense’s base offense level (along with the applicable specific offense characteristics that the State can show were known or reasonably should have been known to the obstructing defendant), not the total offense level.

Relying on precedent from other Circuits, the Court held that the State need not prove that the defendant committed the underlying crime for the cross-reference to apply. “We find it unlikely,” the Court reasoned, “that the Guidelines intended that a defendant should avoid or minimize punishment for obstruction of a criminal investigation just because that obstruction was so successful that he prevented a conviction on the underlying crime, or because the obstruction was of an investigation for which, as it might turn out, there actually was no underlying crime.”

U.S. v. Long Phi Pham, No. 17-5096 (COLE, Rogers, Griffin).

The defendant appealed his sentence, arguing that he should not be considered an Armed Career Criminal under 18 U.S.C. § 924(e) because two of the three predicate offenses were in furtherance of a conspiracy for which he was convicted. Therefore, only the one remaining conviction and the conspiracy conviction should have been properly considered as qualifying offenses. To be considered an ACC, the Government must prove that the defendant has three prior qualifying convictions.

The Sixth Circuit affirmed the sentence, finding that the district court had properly found that the three predicate offenses were committed on different occasions. The Court noted that offenses that are part of a series are considered distinct in time under the Armed Career Criminal Act so long as they form a separate unit within the whole and are punctuated occurrences with a limited duration. These separate offenses may include crimes committed during and in furtherance of a conspiracy. The Court considered the qualifying offenses the district court relied upon, and held that they were discrete offenses with limited durations during the conspiracy and therefore the district court properly enhanced the defendant’s sentence under the ACCA.

September 29, 2017

U.S. v. Robinson, et al., Nos. 15-4095/4100/4124 (ROGERS, Gibbons, Donald).

Three African-Americans were convicted of offenses arising out of a kickback scheme. During jury deliberations, the jury notified the court a couple times that it did not feel it would be able to come to an agreement, and the court responded with an Allen charge and instructed the jury to continue deliberating. After the jury found the defendants guilty—and against the court’s no-contact order—one of the defendant’s attorneys contacted the two African-American jurors on the panel, who reported that the jury foreperson—who was white—repeatedly told them that she believed they were reluctant to convict because they “owed something” to their “black brothers.” The defendants appealed their convictions, arguing that the foreperson’s racially insensitive remarks required granting a new trial or holding an evidentiary hearing in light of the U.S. Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

The Sixth Circuit affirmed the convictions. The majority found that, unlike in Pena-Rodriguez, the district court denied the motion because it was based on evidence gathered in violation of both a local court rule and a specific admonishment from the district court not to contact jurors. This fact alone was sufficient to deny the motion because a district court is entitled to oversee post-verdict juror contact. Moreover, the majority found that the holding of Pena-Rodriguez would not apply, even absent a rule violation, because it “does not apply to a mere ‘offhand comment indicating racial bias or hostility,’ but only to a ‘clear statement’ that ‘tend[s] to show that racial animus was a significant motivating factor in the juror’s vote to convict.’” The jury foreperson expressed racial bias or hostility, but her comment did not suggest that she voted to convict in reliance on that bias. Moreover, the two affected jurors expressed anger about the remarks, but nevertheless stood by their ultimate decision to vote to convict, and pointed to the evidence that ultimately swayed them.

Judge Donald dissented as to the majority’s decision with regard to the racial remarks. She considered the case in light of the historical racial discrimination in the administration of justice in the United States—and the precedents designed to minimize the role that race plays in the jury system—and concluded that, because a jury is supposed to be a criminal defendant’s fundamental protection of life and liberty against race prejudice, a statement like the foreperson’s taints the fairness and impartiality of the jury. Judge Donald read Pena-Rodriguez as casting a wider constitutional net than the majority acknowledged, reaching those statements that “cast serious doubt on the fairness and impartiality” of the jury’s decision. She reasoned that “where a juror displays a racial bias towards another juror of the same race as the defendant, that juror is incapable of impartially judging the guilt of the defendant.”

Judge Donald also dissented as to the majority’s conclusion that the district court’s Allen charges were not coercive. She noted that the first charge stated, “ultimately, all these issues have to be resolved,” which she noted “tends to mislead a jury by failing to inform the jury of its right not to reach a unanimous verdict.”

Island Fork Construction v. Bowling, No. 16-4319 (STRANCH, Moore, Donald).

Bowling worked as a coal miner for over 29 years, and applied for benefits under the Black Lung Benefits Act. His most recent employer denied that it was responsible for paying the benefits, and the matter went before an administrative law judge. At that point, the employer informed the judge that it and its insurer were both insolvent. There is no mechanism by which an ALJ can designate a different responsible operator, so the question before the ALJ was whether the Benefits Act Trust Find or the Kentucky Insurance Guaranty Association (KIGA) should be responsible for paying the benefits. The ALJ held that KIGA was responsible, and a Review Board agreed. KIGA appealed.

KIGA’s argument was that Benefits Act was authorized by the Longshore and Harborworkers Act, and should therefore be considered “ocean marine insurance,” which is excluded under the Guaranty Act, which created KIGA and defines the insurance KIGA must guarantee. Alternatively, KIGA argued that the Benefits Act Trust Fund acts as a guarantor of benefits, and therefore KIGA should not be responsible under another Guaranty Act exception for insurance “guaranteed by . . . governmental agencies.”

The Sixth Circuit affirmed that KIGA is responsible for paying the benefits. The Court held that the Benefits Act was not authorized by the Longshore Act, and there is no logic in finding the two statutes similar because the Longshore Act directly involves traditional maritime activities. The Court also held that there were no contracts between the Trust Fund and any insurance companies to make the Trust Fund a guaranty under Kentucky law. Because no exception to the Guaranty Act applies, KIGA must guarantee the insurance agreement between Island Fork and its insurer.

September 27, 2017

U.S. v. Verwiebe, No. 16-2591 (SUTTON, Clay, Rogers).

The defendant pleaded guilty to assaulting a federal officer with a dangerous weapon and was sentenced as a career offender under the U.S. Sentencing Guidelines § 4B1.1 based on the defendant’s prior convictions for assault with a dangerous weapon with intent to do bodily harm (pursuant to 18 U.S.C. § 113(a)(3)) and assault resulting in serious bodily injury (pursuant to 18 U.S.C. § 113(a)(6)). The issue on appeal was whether each crime constituted a “crime of violence” for purposes of the career offender Guideline.

The Sixth Circuit held that each was a crime of violence, and affirmed the sentence. As for § 113(a)(3) assault, the Court reasoned that simple assault already involves some use or threat of physical force, so the use of a dangerous weapon transforms the force into the type of violent force necessary to constitute a crime of violence. As for § 113(a)(6) assault, the Court relied on Circuit precedent in holding that crimes requiring proof of serious physical injury necessarily require proof of violent physical force.

September 25, 2017

Doe v. Univ. of Cincinnati, No. 16-4693 (GRIFFIN, Clay, Thapar).

A male graduate student at the University of Cincinnati (UC) was accused by a female student of sexual assault, which he denied. UC held a disciplinary hearing, but the accusing student failed to attend. Nevertheless, UC suspended the graduate student based on the hearsay testimony the female student gave to investigators. The graduate student appealed his suspension to the district court, arguing that the complete denial of his right to confront his accuser violated his due process right to a fair hearing. The district court granted the student a preliminary injunction against his suspension, and UC appealed.

The Sixth Circuit affirmed the grant of the preliminary injunction, holding that “[t]he Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process.” The Court found that, although a university need not provide the level of due process afforded in a criminal trial, this case resolved itself into a problem of credibility: should the disciplinary committee believe the female student, or the male student? There was no other corroborating evidence. The Court held that in such a case, where the outcome turns on a question of credibility, cross-examination is a due process right and the committee’s decision to suspend the male student without seeing or hearing from the female student at the hearing amounted to a denial of due process.

September 22, 2017

UAW v. Kelsey-Hayes Co., No. 15-2285 (GIBBONS) (concurring opinion to denial of rehearing en banc), (SUTTON) (concurring opinion to denial of rehearing en banc), (GRIFFIN, Gilman) (dissenting opinion to denial of rehearing en banc).

This is one of three cases revolving around a disagreement about the benefits conferred by a collective bargaining agreement, which came to differing results although they were factually similar. The Sixth Circuit denied a petition for rehearing en banc, and Judges Gibbons, Sutton, and Griffin filed separate opinions regarding the decision.

Judge Gibbons found that one disagreement between the majority and dissenting opinions in the three cases was the interpretation of Gallo v. Moen, Inc., 813 F.3d 265 (6th Cir. 2016). She found that Gallo merely relied on ordinary contract principals requiring a case-by-case factual inquiry, and did not announce a more broadly applicable legal principle. She concurred with the denial because she found that the underlying cases came to differing results because of different facts, and “[a] difference of opinion about whether one case is factually similar to another is not good fodder for en banc review.”

Judge Sutton also concurred in the denial. Although he found that this case merited en banc review—because the three opinions in the three cases “face in different directions” and may be inconsistent with Supreme Court precedent and the approach of other circuits—he found good reason to doubt that the Court sitting en banc would agree on the proper approach to the lifetime vesting of healthcare benefits in time-limited collective bargaining agreements.

Judge Griffin dissented to the denial. He also found that the Supreme Court requires that collective bargaining agreements be interpreted according to ordinary contract principles, but found that panels of the Sixth Circuit have applied these “ordinary principles” in irreconcilably conflicting ways. Judge Griffin would have granted rehearing in order to bring uniformity to the Circuit’s application of the “ordinary principles.”

September 20, 2017

Giasson Aerospace Sci. Inc., et al. v. RCO Eng’g Inc., No. 16-1769 (GRIFFIN, Norris, Suhrheinrich).

Giasson and RCO were in business together, trying to secure a contract to sell airline seats to a luxury jet manufacturer. Giasson sued RCO after RCO allegedly cut Giasson out of the deal, and the parties settled for a fixed amount, determined in part on RCO’s estimation of its gross sales price per seat. After settlement, Giasson learned that RCO had increased its gross sales price on two kinds of seats, and thereafter sued RCO claiming fraud in the inducement. Giasson argued that its claim should proceed as an independent action in equity for relief from judgment under Federal Rule of Civil Procedure 60(d)(1). The district court dismissed the claim pursuant to Fed. R. Civ. P. 12(b)(6), and Giasson appealed.

The Sixth Circuit affirmed dismissal, noting at the outset that parties claiming fraud or misrepresentation normally attack a judgment under Rule 60(b)(3), but such an action must be brought within one year. Because Giasson brought this claim four years later, it had to claim an independent action under Rule 60(d)(1). Relying on U.S. Supreme Court and Circuit precedent, the Court held that relief from judgment pursuant to Rule 60(d)(1) is only available “under unusual and exception circumstances to prevent a grave miscarriage of justice.” The Court emphasized that the policy behind that strictness—the “repose of judgments”—was especially strong when the judgment was the result of a settlement agreement. The Court found that Giasson’s claim that it had received less-than-ideal royalty payments because of a misrepresentation simply did not involve the kind of injustice necessary for relief under Rule 60(d)(1), especially when Giasson was a sophisticated, represented party.

U.S. v. $31,000.00, et al., No. 16-4279 (BATCHELDER, Cole, Moore).

A Drug Enforcement Administration (DEA) search of two men at Cleveland Hopkins International Airport revealed that each were carrying tens of thousands of dollars in cash, which the men claimed to own but about which they could not provide details. After a drug dog alerted to the scent of drugs on each man’s cash, the DEA seized the money and the government filed for forfeiture of the cash. Both men filed verified claims, alleging that they were the sole owners of the cash taken from them. The government filed a motion to strike the claims before any discovery was taken, and the district court struck the claims, finding that the men lacked standing to challenge forfeiture because they only put forth a “naked assertion of ownership” over the seized money. The men appealed.

The Sixth Circuit reversed the district court, identifying this as a case of first impression in this Circuit. The Court noted that the government only moved to strike the claims for the men’s alleged failure to establish statutory standing under the procedural rules, specifically Supplemental Rule G(5) of the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions. After considering the Rules and case law in detail, the Court held that Rule G(5) only requires claimants to identify themselves and state their interests in the property subject to forfeiture at the pleading stage. The Court reasoned that the text of Rule G does not support the government’s assertion that claimants have to provide additional detail, and moreover the requirement that a claimant establish Article III standing and the Rules’ provision allowing the government to investigate claims through discovery adequately protects against false claims.

Islamic Center of Nashville v. State of Tennessee, et al., No. 17-5045 (MOORE, Merritt, Rogers).

An Islamic Center filed suit in federal court, alleging constitutional, federal statutory, and state statutory claims that it alleged relieved it of its obligation to pay a property tax assessed against it during the time period the property was legally owned by a bank pursuant to an ijara agreement. In an ijara agreement, a financial institution purchases an asset, retains title, and then leases it to the client, and entering into such an agreement allowed the Islamic Center to borrow money without running afoul of the Islamic prohibition on the payment of interest. During the period of the agreement, the Islamic Center alone used the property, and only for religious educational purposes. The district court dismissed the Center’s claim for lack of subject-matter jurisdiction because the Tennessee statute governing tax appeals names the appropriate state chancery court as the first step for obtaining judicial review after administrative adjudication. The Center appealed.

The Sixth Circuit affirmed the dismissal, holding that the Tax Injunction Act (TIA), 28 U.S.C. § 1341, applies to the Center’s claims and divests the district court of jurisdiction. The Court assumed that the Center was seeking only declaratory and injunctive relief, that being to declare Tennessee’s tax statute unconstitutional, but held that the TIA “prevents federal courts from awarding declaratory or injunctive relief to plaintiffs who challenge state tax laws.” The Court reasoned that, by seeking to declare a state tax statute unconstitutional, the Center “seeks, at bottom,” an order allowing it and others to avoid a future tax, like that arising from ijara agreements. Because Tennessee’s tax statute makes available “a plain, speedy and efficient remedy” in a state court, the Court held that the TIA applied and the district court lacked subject-matter jurisdiction over the Center’s claims.

Richmond v. Huq, et al., No. 16-2560 (DONALD, Moore, Stranch).

The plaintiff sued a number of defendants, alleging that while she was incarcerated she received constitutionally inadequate treatment for a self-inflicted burn wound and that she was unconstitutionally deprived of her psychiatric medication for over two weeks, in violation of the Eighth Amendment. The district court granted summary judgment for the defendants because the plaintiff had failed to show a constitutional violation. The plaintiff appealed.

The Sixth Circuit affirmed summary judgment in part, and reversed in part. The Court noted at the outset that failure of jail staff to adhere to a prescribed course of treatment may satisfy the subjective “deliberate indifference” component of an Eighth Amendment violation, but that claims of inadequate treatment—as opposed to claims of a complete lack of any treatment—will generally not suffice unless it is “so woefully inadequate as to amount to no treatment at all.”

The Court then examined each of the plaintiff’s claims against the individual defendants, affirming judgment as to some and reversing as to others after carefully examining the facts relating to each defendant. One important holding was the Court’s rejection of the defendants’ argument that, had the need arisen, the plaintiff could have been admitted to the jail’s mental health inpatient program, finding that “[t]o wait until an inmate with a documented history of mental illness has a psychiatric episode so severe that it requires inpatient treatment before providing her with any psychiatric medication will inevitably result in unnecessary suffering by the inmate. This is the very type suffering the Eighth Amendment aims to prevent.”

In re Conzelmann, No. 17-3270 (Gibbons, Sutton, Thapar).

The petitioner is a federal prisoner seeking leave to file a successive collateral attack on his sentence as a career offender. He argues that he should not have been classified as a career offender because his prior conviction for possessing chemicals to manufacture drugs no longer qualifies as a predicate conviction for career offender purposes after Mathis v. United States, 136 S. Ct. 2243 (2016). A second or successive collateral attack is permissible under 28 U.S.C. § 2255(h) if it is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

The Sixth Circuit held that Mathis did not announce a new rule of constitutional law, and denied the petitioner permission to file a successive petition. Agreeing with the conclusions of several sister circuits, the Court reasoned that the holding in Mathis was dictated by prior precedent and therefore was not “new” as that word was defined in Teague v. Lane, 489 U.S. 288 (1989). Moreover, the Court found that Mathis was a statutory-interpretation case, not a constitutional-law case, and the Supreme Court did not make Mathis retroactive to cases on collateral review.

September 15, 2017

Mullendore v. City of Belding, Mich., et al., No. 16-2198 (BATCHELDER, Merritt, Clay).

The City Manager of Belding filed suit against the City and City Council members under the Family and Medical Leave Act after the Council voted to terminate her employment while she was out of work following a surgery. The district court granted summary judgment for the defendants, and the City Manager appealed. The Sixth Circuit affirmed, holding that the fact that an adverse employment action occurred while a plaintiff was on leave does not suffice to demonstrate that the action was based, in whole or in part, on the fact that the employee took FMLA-protected leave. The Court found that in this case the City Manager had not presented more than a “mere scintilla” of evidence—as required to overcome the defendants’ summary judgment motion—that the Council had terminated her because she was on FMLA leave.

The Court noted that there was a genuine dispute as to whether the City Manager notified the defendants that she would be taking FMLA-qualifying leave, but found this dispute irrelevant because the Council had a non-discriminatory reason for terminating the City Manager—political strife. The City Manager did not present any evidence beyond the timing of the termination to show that the termination was because of her leave, and the Court found that this was not enough to show that the Council’s reason was pretextual. The Court had no problem with the fact that the City Manager’s absence for medical reasons helped secure the requisite votes to terminate her because the Council could have done the same thing while she was on vacation or absent for any non-medical reason as well. “The problem with [the City Manager]’s theory of her case,” the Court reasoned, “is that it equates a termination in her absence with a termination because she was absent on FMLA-qualifying medical leave. The former is permissible, even when an employee is on medical leave; the latter is not permissible.”

September 14, 2017

U.S. v. Cox, No. 16-2404 (KEITH, Batchelder, Sutton).

The defendant was sentenced to 2,880 months in prison for child exploitation and child pornography offenses. He appealed, alleging—among other things—trial errors in violation of the Confrontation Clause of the U.S. Constitution and the Federal Rules of Evidence. The Sixth Circuit affirmed the convictions and sentence.

 The Sixth Circuit affirmed the district court’s decision to allow two of the victim-children to testify by closed-circuit television. Reviewing for clear error, the Court found that the district court “made an adequate case-specific showing of necessity for the use of closed-circuit television” to overcome the Confrontation Clause challenge. The district court had heard evidence from a licensed professional counselor with experience treating children who had suffered sexual abuse, and the court also questioned the children directly. Based on the expert testimony and the court’s own questioning of the children, the court found that the children would be traumatized by the presence of the defendant, that the emotional stress that would be endured was more than de minimis, and that the closed-circuit television procedure was also necessary to protect the welfare of the children.

The defendant challenged the district court’s exclusion of a number of statements of an unavailable witness that the witness was good with technology, had performed a variety of technological work in the defendant’s home (including installing cameras), and had never met one of the named defendants and met another on one occasion on the street. The defendant sought to introduce the statements as statements against interest. The Sixth Circuit held that the fact that a defendant invokes his Fifth Amendment rights does not mean the court must assume that the statements are against penal interest. The Court relied on Circuit precedent and Williamson v. United States, 512 U.S. 594 (1994) in holding that a court must break down a proffered narrative and determine the admissibility of each single declaration or remark separately. The Court found that, at least when broken up, each of the witness’s statements was either innocuous or an attempt to exculpate himself and shift the blame, and therefore not admissible under the statement-against-interest exception to hearsay.

Judge Batchelder wrote a concurring opinion in which she noted how the Confrontation Clause rights provided to most criminal suspects in Crawford v. Washington, 541 U.S. 36 (2004), and to sex-offender suspects in Maryland v. Craig, 497 U.S. 836 (1990), differ as to their nature and reach. The opinion points out a number of ways in which the two opinions differ as to their methodology, characterization of the Confrontation Clause guarantee, and relationship to the rules of evidence. “Those accused of sexually abusing children, it’s fair to say, are not sympathetic defendants,” she writes. “But Crawford explained that the Framers drafted the Confrontation Clause to ensure that those accused of the worst crimes have the opportunity to prove their innocence through a specific, time-tested procedure. Craig is in tension with, if not in opposition to, that holding. And yet, both decisions stand.”

September 13, 2017

U.S. v. Coleman, No. 16-3972 (SUHRHEINRICH, Norris, Griffin).

The defendant-appellant was convicted of being a felon in possession of a firearm and sentenced to 36 months in prison. He appealed his conviction, arguing that the district court should have ordered sua sponte a competency evaluation because throughout the trial and other proceedings the defendant espoused sovereign citizen and other fringe legal theories. For instance, he referred to himself as a “flesh and blood living being,” contested the district court’s jurisdiction over him, listed his address as being in “Warren, Ohio Republic,” filed a “Common Law Copyright Notice” for his own name, and claimed he was present in court as a “third-party intervenor.” After the trial, he moved to dismiss his trial attorney. At a hearing on the issue, the attorney testified that the defendant was paranoid about his representation and believed that the attorney was working for the government and had been sent to sabotage the case. The attorney stated that it was difficult to communicate with the defendant because the defendant would not discuss the facts of the case with him.

The Sixth Circuit held that it was not error for the district court to fail to order sua sponte a competency hearing. The Court noted that a district court is required to hold a competency hearing sua sponte if there is “reasonable cause” to believe the defendant presently suffers from a mental disease rendering him unable to understand the nature and consequences of the proceedings or to assist properly in his defense, but that the bar for incompetency is high. Drawing upon cases in the Ninth and Seventh Circuits, the Court held that “although Defendant expressed views that are fringe, he did not exhibit irrational behavior . . . or otherwise act in a way that called his competency into question.” The Court further found that the defendant understood the criminal nature of the proceedings because he challenged the district court’s jurisdiction, made legal arguments, drafted a detailed affidavit, cited case law and statutes, and tried to provide counter-incriminating facts in his trial testimony. The defendant also cooperated with the probation officer in preparing the presentence report, and at sentencing passionately asked the court to return him to his family.

 As to the defendant’s ability to communicate with his attorneys and prepare in his defense, the Court found that he had the ability to communicate, but not the desire to do so. The Court relied on Circuit precedent to hold that “the decision not to speak to one’s lawyer is a defendant’s prerogative, not a sign of mental incompetence.” Finally, the Court noted that the defendant had no history of mental illness. Overall, the Court found nothing in the record to suggest that the district judge should have questioned the defendant’s competency to stand trial.    

September 12, 2017

Beydoun, et al. v. Sessions, et al., Nos. 16-2168/2406 (CLAY, Griffin, Thapar).

The plaintiffs-appellants are Michigan residents who were subjected to repeated secondary screenings before flying at airports across the U.S.. They believe that they are on the “Selectee List”—a subset of the Terrorist Screening Database—but their attempts to use Dept. of Homeland Security procedures to get their names removed were futile and the government did not confirm or deny whether they were on the list at all. The plaintiffs each filed suit, arguing that the government failed to provide notice and a hearing to challenge inclusion on the list, in violation of the Fifth Amendment. The district court dismissed both plaintiffs’ complaints, and each appealed. On appeal, they argued that the district court erred in determining that the alleged inclusion on the list does not implicate a liberty interest protected by the Fifth Amendment.

The Sixth Circuit affirmed the dismissal for failure to state a claim upon which relief can be granted. The Court held that the alleged inclusion on the list has not resulted in a constitutional violation. The Court found that the plaintiffs’ right to travel had not been violated because the plaintiffs had not been prevented from flying altogether or traveling by means other than an airplane and delays of “ten minutes, thirty minutes, or even an hour” have not been held to be anything but incidental or negligible, not implicating the right to travel.

The Court also rejected the plaintiffs’ argument that they had been subject to routine humiliation by being singled out for screening, and that their reputations were harmed because other passengers could infer that they were suspected of terrorism when they were pulled for secondary screening. The Court relied on Circuit precedent in holding that a “stigma” claim like this is only cognizable if the damaged reputation is accompanied by a deprivation of a right previously held under law. The Court found that because the plaintiffs’ liberty interest in travel was not infringed upon by being subject to the relatively minor additional screening, this claim failed as well.

September 11, 2017

Moody, et al. v. Mich. Gaming Control Bd., et al., Nos. 16-2244/2369 (MOORE, Cole, Batchelder).

The Michigan Gaming Control Board suspended the licenses of four horse-racing drivers and excluded them from a racetrack after the drivers invoked their Fifth Amendment right and refused to answer questions during an investigation into an illegal race-fixing scheme. The drivers filed suit, alleging violations of their procedural due process and Fifth Amendment rights. At the summary-judgment stage, the district court denied qualified immunity on the procedural due process claim and granted qualified immunity on the Fifth Amendment claim, and both the plaintiffs and defendants appealed.

The Sixth Circuit reconsidered the issue of qualified immunity on the procedural due process claim even though it had already been decided by a prior panel, holding that “[the law-of-the-case] doctrine is applied only loosely when we reconsider our own decisions” and finding that in this case there were exceptional circumstances justifying reconsideration of the issue. The Court ultimately held that the post-deprivation hearing—which took place almost two and a half years after the issuance of the order excluding the plaintiffs from the track—was not timely and therefore the plaintiffs established a violation of a clearly established right and the defendants were not entitled to qualified immunity on the procedural due process claim.

As for the Fifth Amendment claim, the Court identified the right at issue as the right to refuse to answer self-incriminating questions without threat of punishment, unless immunity was offered. It therefore found that the right was clearly established at the time of the investigation. The Court rejected the defendants’ argument that immunity applied automatically under Garrity v. New Jersey, 385 U.S. 493 (1967), reasoning that the grant of immunity in Garrity is not necessarily coextensive with the level of immunity necessary to supplant the Fifth Amendment privilege because Garrity did not grant derivative use immunity. The Court compared Garrity to Lefkowitz v. Turley, 414 U.S. 70, 78 (1973), finding that Turley balanced different interests because it dealt with public employment and holding that under Turley a grant of immunity is a required procedural step to supplant a public employee’s Fifth Amendment privilege. Therefore, the Court reversed the district court’s granting of qualified immunity on the Fifth Amendment claim.

Judge Batchelder wrote separately. She concurred with the majority on the procedural due process claim, although on slightly different grounds. She dissented as to the Fifth Amendment claim, arguing that the right was not clearly established because the majority defined the right at too high a level of generality, the Supreme Court has not directly addressed the issue, and there is a split among circuits. She also argued that the majority ignored Sixth Circuit precedent undermining the conclusion that the right at issue was clearly established.

Mays, et al. v. City of Flint, Mich., et al., No. 16-2484 (GILMAN, Suhrheinrich, McKeague).

The plaintiffs—residents of Flint, Michigan—sued several city and state officials in Michigan state court for alleged state torts arising from the toxic condition of the Flint water supply. The defendants removed the case to federal court, arguing that they performed the conduct in question under the supervision and direction of the U.S. Environmental Protection Agency (EPA) and contending that the plaintiffs’ claims implicate a substantial federal issue that merits federal-question jurisdiction. The district court remanded the case to the state court, and the defendants appealed the remand order.

The Sixth Circuit affirmed. Persons who are not federal officers may only remove a case under the federal-officer removal statute if they establish that (1) they acted under a federal officer, (2) those actions were performed under color of federal office, and (3) they have a colorable federal defense. After considering the history of the federal-officer removal statue and the Supreme Court’s interpretation of the statute, the Sixth Circuit held that merely receiving funds from the EPA does not establish a delegation of legal authority to support removal. Moreover, although it acknowledged that there was no precedent addressing whether state officers in a joint state-federal regulatory system can invoke the statute, the Court held that there was no contract or trust between the defendants and the EPA that would have created the type of legal agency relationship allowing removal under the statute. The Court also held that the case does not present a substantial federal question meriting removal because the presence of a claimed violation of a federal statute as an element of a plaintiff’s “garden-variety tort claims”—like the negligence claims at issue here—is insufficiently substantial to confer federal-question jurisdiction.

 Judge McKeague dissented, arguing that the defendants’ notice of removal was replete with detailed allegations that, if proved, could support a finding that they were acting under the guidance, oversight, and direction of the EPA. Judge McKeague would have accepted these allegations as true and resolved all doubts in favor of removal because the federal-officer removal statute is concerned with the status of the defendants.   

In re Coley, Nos. 17-3071/3815 (Siler, Sutton) (Per Curiam) (Merritt, dissenting).

The petitioner is on death row in Ohio, and filed a second habeas petition under 28 U.S.C. § 2254, arguing that Hurst v. Florida, 136 S. Ct. 616 (2016), announced a new rule of constitutional law requiring juries to make specific findings about mitigating evidence during capital sentencing. He argued that in light of Hurst, Ohio’s capital-sentencing scheme is unconstitutional. The district court transferred the petition to the Sixth Circuit for permission to be filed.

The Sixth Circuit held that the Supreme Court did not make Hurst retroactive to cases on collateral review, and therefore the petitioner could not base a second or successive petition on that case, even if it did announce a new rule of constitutional law. The majority rejected the petitioner’s argument that a petition is not “second or successive” when it relies on a rule that did not exist when the petitioner filed the first petition, reasoning that to allow second petitions in that situation would negate § 2244(b)(2)(A), which addresses bringing a claim relying on new rules of constitutional law.

Judge Merritt dissented, arguing that the petitioner met the requirements of § 2244(b)(2)(B) because Hurst’s holding created a “factual predicate . . . [that] could not have been discovered previously through the exercise of due diligence.” While the opinion is a bit unclear, it seems that Judge Merritt reasoned that the fact that the judge made the final decision in the petitioner’s case only became relevant and material after Hurst because the Supreme Court had to overrule prior precedents which had allowed judges to make the final decision. Therefore, no amount of due diligence would have revealed the factual predicate (that the judge made the decision, not the jury) of the petitioner’s second motion because the Supreme Court had not made that fact material until Hurst.

September 8, 2017

Hand v. Houk, Case No. 14-3148 (BOGGS, Clay, Rogers).

The defendant-appellant is on death row in Ohio after being convicted of two counts of aggravated murder stemming from a decades-long scheme to hire a friend to kill his wives in order to collect their insurance policies. The opinion sets out the detailed facts of the investigation and procedural history, which ultimately ended with the defendant losing on direct appeal and state post-conviction relief. In 2007, the defendant filed a writ for habeas corpus, which was denied. He then appealed, arguing that the petition should have been granted because there were problems with the trial court’s voir dire, ineffective assistance of counsel, evidentiary problems at trial, and insufficient evidence to convict on one of the charges.

The Sixth Circuit affirmed the district court’s denial of the defendant’s petition. The Court held that a number of the defendant’s claims were barred because Ohio requires a claim based only on evidence contained within the trial record to be raised on direct appeal or else the claim is barred by res judicata. Only claims involving evidence outside the trial record may first be raised in a petition for state post-conviction relief. The defendant in this case first raised many of the arguments in his state post-conviction relief action, and therefore the Court held that they were barred under Ohio law. The Sixth Circuit noted that Ohio courts’ application of res judicata is an adequate and independent state ground that bars federal habeas relief. The defendant argued that his procedural default on the claims should be excused because his appellate counsel was ineffective for not raising the grounds in the direct appeal. The Court noted that ineffective assistance can excuse procedural default, but found that here the appellate counsel was not ineffective under the Strickland because “counsel need not raise every non-frivolous claim on direct appeal” and “only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” The Court noted that the defendant’s counsel had raised a number of claims that were much stronger than those raised in the habeas petition, and therefore counsel’s failure to raise the claims did not fall outside the wide range of professionally competent assistance. The Court found the defendant's remaining claims either procedurally barred or otherwise meritless.

September 7, 2017

United States v. Lanier et al., Case Nos. 16-6655/6657 (MOORE, Stranch, Donald).

The defendants-appellants were charged with federal fraud crimes. During jury deliberations, a juror contacted a state prosecutor who was a social acquaintance not involved with the federal prosecution to report a “problem” with the jury deliberations. The state prosecutor told the juror that they could not discuss the deliberations, and to report any problems to the district-court judge. No juror reported any problems to the court, but the state prosecutor informed the court of the conversation. After the jury returned a guilty verdict, the defense requested to interview the jurors and moved for a mistrial. The motion was denied, as were subsequent defense motions to interview jurors and for a new trial. After sentencing, the defendants timely appealed.

The district court has an obligation to investigate a colorable claim of external influence on the jury to determine whether any external influence occurred and, if so, whether it was prejudicial See Remmer v. United States, 347 U.S. 227, 229–30 (1954). The Sixth Circuit held that it was an abuse of discretion for the district court to decline to hold a Remmer hearing in this case because the case involved “intentional improper contacts or contacts that had an obvious potential for improperly influencing the jury.” The Court held that the fact that a juror instigated contact with a third party in order to discuss the case would be enough to require a Remmer hearing, but noted that there were additional facts that supported that conclusion in this case. The Court vacated the convictions and remanded for a Remmer hearing.

Zappone et al. v. United States et al., Case No. 16-4111 (COOK, Batchelder, Gibbons).  

The Internal Revenue Service executed search-and-seizure warrants on the plaintiffs-appellants’ business during an investigation for tax evasion and seized a large amount of cash from the business’s safe. The plaintiffs contended that the IRS agents illegally pocketed a portion of the seized money, and filed administrative claims to the IRS seeking the amount allegedly stolen. Plaintiffs submitted executed power-of-attorney forms with their claims. About six months later, the IRS mailed letters denying the claims to two of the plaintiffs’ listed attorneys. By that time, however, the plaintiffs had switched counsel without notifying the IRS. The letters stated that the plaintiffs must bring suit within six months of the date of mailing of the letters in order to contest the decision.

Over eight months later, the plaintiffs sued the United States and several IRS agents for alleged torts stemming from the execution of the warrants and the alleged conversion of the cash from the safe. The district court granted summary judgment for the defendants, rejecting the plaintiffs’ requests for equitable tolling and finding that the claims against the United States were barred by the statute of limitations because they were not filed within six months of the mailing of the IRS notices of denial, and the claims against the individual special agents were barred by the two-year statute of limitations for Bivens claims in Ohio. The plaintiffs appealed.

As to the United States, the Sixth Circuit affirmed the trial court’s denial of equitable tolling. In so doing, the Court cast further doubt on the five-factor test this Circuit has historically used to evaluate whether or not to apply equitable tolling, see Jackson v. United States, 751 F.3d 712, 719 (6th Cir. 2014), strongly suggesting that it no longer has to be followed strictly. Indeed, the panel suggested a willingness to abandon the test entirely and replace it with the two-factor test the U.S. Supreme Court set out for habeas cases in Holland v. Florida, 560 U.S. 631, 649 (2010) (requiring (1) that the petitioner has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way and prevented timely filing). The Court held that it could consider both standards in evaluating the plaintiffs’ case, and noted that “the two approaches are quite compatible and may often lead to the same result.” The Court ultimately found that the plaintiffs failed to meet the requisite burden as to the United States under either test because the IRS complied with notice requirements, the claim was a mere “garden variety claim of excusable neglect,” and the plaintiffs were not diligent in pursuing their claims.

As to the individual special-agent defendants, the Court held that the plaintiffs’ Bivens claim arose on the date of the alleged constitutional violation—the date of the search and seizure. Therefore, because the suit was filed more than two years later, the Court held that the suit was barred by the statute of limitations. In doing so, the Court confirmed well-settled precedent that the statute of limitations for a Bivens claim against federal officials for constitutional violations in Ohio is two years, as the Bivens claim takes the statute of limitations set out in the state’s residual or general personal injury statute, which in Ohio is Ohio Rev. Code § 2305.10.

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