The Sixth Circuit has voted to amend Sixth Circuit Rule 28(g), permitting the citation of unpublished opinions, to conform to the amended FRAP 32.1. The Court notifies interested parties that they have until December 20, 2006 to comment on the proposed changes by mail or e-mail addressed to Hon. Leonard Green, Clerk of the Court.
In a week with an exceptionally heavy oral argument calendar, four cases stand out for special attention by the Court:
1. Monday afternoon, October 30, the Sixth Circuit will hear oral arguments on the appeal of a Kentucky inmate sentenced to death following his 1992 conviction on two counts of murder from the summary dismissal of his habeas corpus petition by Judge Reeves (E.D. Ky.) on Younger abstention grounds. Bowling v. Haeberline, Case No. 03-5681, 2:00 p.m., Courtroom 636 (30 minutes per side).
2. Tuesday afternoon, October 31, the Sixth Circuit will hear the appeal from the denial of habeas corpus by Judge Polster (N.D. Ohio) for an Ohio inmate sentenced to death following his 1987 three-judge conviction for aggravated murder. Haliym v. Mitchell, Case No. 04-3207, 2:30 p.m., Courtroom 636 (30 minutes per side).
3. Thursday afternoon, November 2, the Court will hear oral arguments in Bonnell v. Mitchell, Case No. 04-3301, 1:45 p.m., Courtroom 636 (30 minutes per side). Petitioner, an Ohio inmate sentenced to death following his jury conviction for aggravated murder, appeals from the decision of Judge Katz (N.D. Ohio) denying his habeas corpus petition.
4. Thursday afternoon, November 2, the Sixth Circuit hears argument in an appeal by a Tennessee inmate sentenced to death for first-degree murder whose request for habeas relief was denied by Judge McCalla (W.D. Tenn.) -- this case is on remand from the United States Supreme Court. Cone v. Bell, Case No. 99-5279, 3:00 p.m., Courtroom 403 (30 minutes per side).
We have previously posted on the August 17 opinion by Judge Anna Diggs Taylor (E.D. Mich.) declaring the NSA's domestic wiretap and surveillance program unconstitutional and in violation of FISA and Title III. Her decision has been the subject of considerable criticism from political as well as legal circles. The Government appealed Judge Taylor's ruling to the Sixth Circuit (Case No. 06-2095).
On October 4, a panel of the Court (Circuit Judges Batchelder, Gilman and Gibbons) issued an Order unanimously granting the Government's request for a stay of Judge Taylor's injunction pending the appeal. Thus, the district court order enjoining the Government from conducting the NSA Terrorist Surveillance Program ("TSP") in any way that would contravene FISA and Title III, "including . . . conducting warrantless wiretaps of telephone and internet communications," was stayed pending the outcome of the Sixth Circuit's consideration of the merits.
While many commentators have suggested that the import of the Court's stay is that it supposedly presages the panel's intention to reverse Judge Taylor on the merits, the most intriguing aspect of the panel's Order is its use of the standard for stays pending appeal taken from Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), and Michigan Coalition of Radioactive Material Users v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
The Grutter/Michigan Coalition test allows a stay to be granted, even if the party requesting the stay has not demonstrated the traditional "substantial likelihood" of success on the merits, if it can show that the irreparable harm to it from the underlying order absent a stay would outweigh any potential harm to the nonmoving party if the stay were granted. In this fashion, the greater the harm that is shown, the less likely a party's success on the merits has to be. Thus, the degree of "success on the merits" that must be demonstrated is "inversely proportional to the harm." If the harm to a moving party "decidedly outweighs" any potential harm to the nonmoving party if a stay is granted, then all the moving party must show at a minimum are "serious questions going to the merits" rather than a "substantial likelihood of success on the merits."
The panel found the more lenient Grutter/Michigan Coalition standard "has been met in this case." That does not necessary signal the panel's conclusions on the merits beyond findng that the appeal raises serious questions regarding the merits. It more probably reflects the panel's determination that the potential harm to the Government's efforts to fight terrorism from denying the stay and leaving the injunction against the TSP in force decidedly outweighs any harm to the plaintiffs or the public from granting the stay. The panel's Order granting a stay pending appeal is not necessarily the broader prediction of the eventual outcome of the case that critics of Judge Taylor's opinion wish it were.
On October 2, the Supreme Court denied certiorari in Case No. 06-38, Detroit Entertainment LLC v. Romanski. A jury found that respondent had been arrested at a casino without probable cause and awarded her compensatory and punitive damages under 42 U.S.C. 1983. The Sixth Circuit held, based on a provision of Michigan law, that the actions taken by the casino and one of its security guards constituted "state action" subjecting them to liability under section 1983.
The questions presented by the petition were:
1. Has the Sixth Circuit fundamentally departed from this Court's state action jurisprudence, faithfully applied by other circuits, holding that private conduct that is contrary to state policy does not constitute "state action" for purposes of 42 U.S.C. 1983?
2. Did the Sixth Circuit err in holding, contrary to decisions of other circuits and the Michigan Supreme Court, that an arrest by a private party constitutes state action?
Romanski is the only case from the Sixth Circuit on the Court's conference schedule thus far during the new 2006 term.
After having been away for two months due to a variety of factors (en banc argument in Sixth Circuit, Jewish high holy days, daughter's wedding), we are more than ready to climb back into the saddle with a review of important developments within or affecting the Sixth Circuit since the end of August.
The first concerns an important issue of federal diversity jurisdiction, both original and removal, currently relevant to multi-plaintiff and class-action cases where the damage claims do not exceed $5 million. Federal courts may exercise diversity jurisdiction only where, among other things, the matter in controversy exceeds the sum of $75,000 exclusive of interest and costs. See 28 U.S.C. 1332. This requirement that the matter in controversy in a diversity case must exceed a specified amount, currently $75,000, is "[t]o ensure that diversity jurisdiction does not flood the federal courts with minor disputes." Exxon Mobil Corp. v. Allapattah Services, 545 U.S. __, 125 S. Ct. 2611, 2617 (2005). While a single plaintiff may aggregate the value of as many claims as she may have against the same defendant(s) in order to satisfy the amount-in-controversy requirement, even if the claims have nothing in common except the identity of the parties, the same is not true with respect to multiple plaintiffs.
For 175 years, since the Supreme Court's seminal decision in Oliver v. Alexander, 31 U.S. 143 (1832), multiple plaintiffs with separate and distinct claims have not been permitted to aggregate their respective "amounts in controversy" to satisfy the jurisdictional amount requirement. Even in the class action context, the Court has allowed multiple plaintiffs to aggregate their compensatory damage claims only where they "unite to enforce a single title or right in which they have a common and undivided interest." Snyder v. Harris, 394 U.S. 332, 335 (1969); see also Zahn v. Int'l Paper Co., 414 U.S. 291, 294 (1973), superseded on other grounds by statute, Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, sec. 310.
Four telephone customers living in Ohio and Michigan brought a class action (prior to the enactment of the Class Action Fairness Act (CAFA), Pub. L. No. 109-2, 119 Stat. 4, 9 (2-18-05), codified at 28 U.S.C. 1332(d)(2)) against their respective wireless service providers alleging they falsely represented to customers that there would be no charge for phone calls which were unanswered or rang busy. Seeking compensatory and punitive damages, injunctive relief, restitution and disgorgement for unjust enrichment, the plaintiff class sued in Ohio state court and the defendants removed the case to federal district court on diversity grounds. The Northern District of Ohio denied the plaintiffs' remand motion based on its conclusion that the damages alleged by the disgorgement claim alone exceeded $75,000 in the aggregate. The only remaining defendant, Dobson Cellular Systems, thereafter recovered summary judgment in its favor, and plaintiffs appealed the remand order to the Sixth Circuit, arguing that the district court never had valid diversity jurisdiction over the case.
In Everett v. Verizon Wireless, Inc., 2006 Fed. App. 0324p, 2006 U.S. App. LEXIS 21931 (6th Cir. 8-28-06), the Sixth Circuit held that the district court erred in aggregating plaintiff's disgorgement claims. The Court rejected three of Dobson Cellular's arguments supporting aggregation and determined it need not decide the fourth:
1. Understanding that it had to show plaintiffs had "unite[d] to enforce a single title or right in which they have a common and undivided interest," Dobson Cellular relied on the plaintiffs' unjust enrichment claim to argue that plaintiffs' request for disgorgement of its ill-gotten gains would mean the imposition of a constructive trust and the creation of a "common fund" in which all plaintiffs share an interest. However, the Sixth Circuit ruled that the required "common and undivided interest" exists only when the defendant owes an obligation to the group of plaintiffs as a group and not to the individuals severally:
Aggregation is permitted "where there is not only a common fund from which the plaintiffs seek relief, but where the plaintiffs also have a joint interest in that fund, such that if plaintiffs' rights are not affected by the rights of co-plaintiffs then there can be no aggregation. In other words, the obligation to the plaintiffs must be a joint one."
Everett, supra, at *12, quoting Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 781 (5th Cir. 1963) (emphasis supplied and citations omitted). In other words, the "common fund" exception does not permit plaintiffs to aggregate their claims whenever they share a proprietary interest in the proceeds of litigation; it permits them to aggregate claims only when they jointly own, or have an undivided interest in, the property at issue in the litigation. "Plaintiffs suing to enforce a 'single title or right' must share their 'common and undivided interest' in vindicating that right before the litigation, not as a result of it." Id. at *14, citing Gilman v. BHC Sec., 104 F.3d 1418, 1424, 1430 (2nd Cir. 1997).
2. Dobson Cellular also argued that there was a "collective action" exception to the non-aggregation principle, on the supposed basis that the class as a whole had an undivided interest in the disgorgement claim because the class members brought it "in addition to" their compensatory damages claims. The Sixth Circuit found this argument to be without merit for three reasons, including (i) the fact that, under Ohio law, unjust enrichment claims are in the alternative rather than in addition to plaintiffs' compensatory damages contract claims (citing Rice v. Wheeling Dollar Sav. & Trust Co., 155 Ohio St. 391, 396-97 (1951) and All Occasion Limousine v. HMP Events, 2004-Ohio-5116), and (ii) there is no logical reason why the nature of the disgorgement remedy alters the underlying rights plaintiffs are seeking to vindicate, and thus why the rule should be different in this circumstance.
3. Consistent with extensive case law from many other circuits, the Court held that multiple plaintiffs likewise may not aggregate punitive damages to meet the amount-in-controversy requirement when they do not share a "joint or common interest or title" in the suit.
4. Finally, the Court addressed the last theory offered by Dobson Cellular to support removal jurisdiction -- the monetary cost of complying with plaintiffs' request for injunctive relief was sufficient to satisfy the jurisdictional amount. It is well-settled that the costs of complying with an injunction may establish the amount-in-controversy. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 181 (1936). However, as the Sixth Circuit had previously remarked, "there is a circuit split as to whether a court may determine the amount in controversy from the perspective of either party (the 'either viewpoint rule') or whether a court may only consider the plaintiff's viewpoint." Olden v. Lafarge Corp., 383 F.3d 495, 503 n.1 (6th Cir. 2004). As in Olden, the Court determined that it need not decide the issue because Dobson Cellular had failed to show any evidence in the record demonstrating that the costs of complying with the requested injunctive relief would probably exceed $75,000.
For class action suits filed after February 18, 2005, CAFA raises the jurisdictional amount requirement to $5 million and specifically authorizes the aggregation of individual claims to meet the increased amount-in-controvery requirement. See 28 U.S.C. 1332(d)(2), 1332(d)(6). Thus, the decision in Everett v. Verizon Wireless supplies the rule of decision in non-class multi-plaintiff cases, and in those class actions not governed by the provisions of CAFA.
Thanks to Tom Theado for bringing this case to our attention.
Lyle Denniston has this post in Scotusblog on the NSA spy program declared unconstitutional last week by Judge Anna Diggs Taylor. Our post on the decision can be found here.
Scotusblog also has a round-up of other commentaries on the NSA wiretap ruling here.
Finally, Denniston provides his analysis of U.S. District Judge Gladys Kessler's 1742-page ruling on August 17 that the tobacco industry violated RICO in this post also in Scotusblog.
In a Rule 23(b)(3) class action filed in the Southern District of Ohio, the class seeks damages against Ford Motor Company for a defective throttle assembly that allegedly causes the accelerator to stick in some 1999 and 2000 Mercury Villager minivans. The district court certified a class of all Ohio residents who owned or leased those vehicles during the initial express warranty period, thus potentially including in the class some number of owners and lessees who never actually experienced the problem.
On interlocutory appeal of the class certification order under Rule 23(f), the Sixth Circuit held that certifying a state-wide class to litigate the express warranty claims was not an abuse of the district court's discretion because the class and the named plaintiffs satisfied the criteria of Rules 23(a) and 23(b)(3).
The Court's decision in Daffin v. Ford Motor Company, Case No. 05-3545, filed on August 18, 2006, may be found here.
In a ruling of first impression in the Sixth Circuit on whether attorney opinion work product given to expert witnesses is discoverable under Rule 26 of the Federal Rules of Civil Procedure, the Court joined the Federal Circuit and a majority of district courts in holding that the expert disclosure requirements of Rule 26(a)(2)(B) establish a "bright-line" rule mandating the disclosure of all documents given to testifying experts, specifically including attorney opinion work product.
In affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.
Rule 26(a)(2)(B) as amended requires that, for any "witness who is retained or specially employed to provide expert testimony in the case," the parties are required to disclose, inter alia, "the data or other information considered by the witness in forming the opinions."
Since the 1993 amendments two distinct lines of cases had formed that reached opposite conclusions. The first, beginning with Haworth Inc. v. Herman Miller Inc., 162 F.R.D. 289, 292-96 (W.D. Mich. 1995), held that attorney work product is not discoverable merely because it had been shared with a testifying expert. The district court in Haworth concluded that the expert disclosure provisions added by the 1993 amendments did not alter the pre-amendment rule that attorney opinion work product disclosed to testifying experts was immune from discovery. The Haworth decision was based on the venerable principle of Hickman v. Taylor, 329 U.S. 495, 510-12 (1947)(work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation or for trial), and pre-amendment Sixth Circuit precedent in Toledo Edison Co. v. GA Techs., Inc., 847 F.2d 335, 339-41 (6th Cir. 1988)(Rule 26 categorically excludes the discovery of opinion work product even when provided to testifying experts). As Haworth stated, "[f]or the high privilege accorded to attorney opinion work product not to apply would require clear and unambiguous language in the statute." 162 F.R.D. at 295. Finding none, the district court in Haworth declined to depart from the doctrine of absolute privilege that traditionally attached to attorney opinion work product.
The second line of cases, including In re Pioneer High-Bred Int'l. Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001), adopted the contrary view that the 1993 amendment to Rule 26 created a bright-line rule requiring disclosure of all information provided to testifying experts.
The Sixth Circuit determined that the text of Rule 26(a)(2)(B) requires adherence to the second line of cases mandating disclosure, and that, while Rule 26(b)(3) imposes certain limitations on discovery rights and procedures available under the civil rules, it does not address the mandatory disclosure obligations established by the 1993 amendments.
The Sixth Circuit held as follows:
The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.
The panel opinion in Regional Airport Authority can be found here.
In a strongly-worded and broadly-based rebuke of a cornerstone of the Administration's war on terror, U.S. District Judge Anna Diggs Taylor today issued an opinion declaring the Terrorist Surveillance Program (TSP) implemented by the National Security Agency (NSA) to be unconstitutional and in violation of federal law. Her permanent injunction orders the NSA to cease operating the TSP in any way, including warrantless wiretaps of telephone and internet communications, that contravenes the requirements and safeguards for electronic surveillance imposed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. (FISA).
The action was filed in the Eastern District of Michigan by the ACLU and a group of organizations and individuals who contend that they regularly communicate by telephone and e-mail with persons abroad, including in the Middle East, for entirely legitimate reasons relating to their practice of law, journalism and scholarship. The plaintiffs allege they have been subjected to the covert, warrantless interception or monitoring of such international communications, violating their rights and chilling their constitutionally protected communications. Since persons abroad who formerly spoke with them will no longer do so, the plaintiffs argue they have been stifled in their ability to conduct research and scholarship, talk with sources, interact with clients and, in the case of those plaintiffs who are attorneys, locate witnesses and provide effective and ethical reperesentation to their clients.
The Government argued that dismissal was required by the so-called "state secrets" privilege because the plaintiffs could establish neither their own standing to sue (i.e., whether they had actually been the targets of the covert wiretapping and monitoring they suspect) nor the elements of their claims without the use of confidential information in the hands of the Government that constitute state secrets. Moreover, the Government argued that it could not defend its programs as being both necessary to the national defense and in compliance with constitutional and statutory standards without revealing state secrets.
In Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004), the Sixth Circuit affirmed the dismissal of discrimination claims against federal agencies because they could not defend themselves "without disclosing information protected by the state secrets doctrine." Other district courts have invoked the doctrine to dismiss challenges to various aspects of the war on terror. In one such recent case, Terkel v. AT&T Corp., 2006 WL 2088202 (N.D. Ill. 07-25-06), Studs Terkel and the other plaintiffs alleged that their wireless service provider, AT&T, turned over to the NSA confidential information regarding their telephone calls and internet communications. District Judge Matthew Kennely dismissed the case on the ground that the state secrets privilege made it impossible for the plaintiffs to establish standing.
However, like District Judge Vaughn Walker in Hepting v. AT&T Corp., 2006 WL 2038464 (N.D. Cal. 6-20-06), Judge Taylor rejected the state secrets argument. She found that the Government has on many occasions admitted and confirmed that:
1. the TSP exists and has existed since 2002;
2. it operates without warrants; and
3. it targets communications where one party is outside the United States, and the government has a reasonable basis to conclude that one party is a member of al-Qaeda, affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.
Indeed, in his December 17, 2005 radio address, President Bush disclosed:
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
The court ruled that the NSA's warrantless wiretaps violated the plaintiffs' free speech and privacy rights embodied in the First and Fourth Amendments to the Constitution. The decision also concluded that the TSP program violated the constitutional separation of powers doctrine and FISA, noting that FISA (like Title III) permits delayed applications for warrants after surveillance has already begun.
Judge Taylor rejected the Government's arguments that (i) Congress' Authorization for Use of Military Force on September 18, 2001, Pub. L. 107-40, 115 Stat. 224, 50 U.S.C. 1541, granted the President the power to conduct the TSP in violation of FISA and the Constitution, and (ii) the designation of the President as Commander in Chief of the Army and Navy grants him the inherent power to violate laws enacted by Congress and the Constitution whenever he deems it necessary to the national defense. The court noted that the same "inherent powers" argument had been unsuccessfully raised before in the Steel Seizure Case, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), and that "since Ex parte Milligan [71 U.S. (4 Wall.) 2, 120 (1866)], we have been taught that the 'Constitution of the United States is a law for rulers and people, equally in war and in peace . . .' "
Judge Taylor's opinion concludes with a message and a challenge: "Plaintiffs have prevailed, and the public interest is clear . . . It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258, [264] (1967):
Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction a subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile."
The NSA's public information statement on the TSP sets forth several justifications for the program.
The Justice Department will apparently ask Judge Taylor for a stay of her injunction order pending its appeal to the Sixth Circuit.
Jurist News has a story on Judge Taylor's ruling here. AP also has a story on the wires here.
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