motion for reconsideration - Sixth Circuit Appellate Blog

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Case: 10-4188
Document: 006111324687
Filed: 06/03/2012
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CASE NO. 10-4188
__________________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________________________________________________________
GINA GLAZER AND TRINA ALLISON,
Individually and on Behalf of All Others Similarly Situated,
Respondents-Appellees,
v.
WHIRLPOOL CORPORATION,
Petitioner-Appellant.
________________________________________________________________
On Appeal from the United States District Court for
the Northern District of Ohio, Eastern Division, Case
Nos. 1:08-wp-65000 and 1:09-wp-65001
________________________________________________________________
APPELLANT’S MOTION FOR EXPEDITED RECONSIDERATION OF
ORDER SUMMARILY DENYING FIVE MOTIONS FOR LEAVE TO FILE
AMICI BRIEFS OR, IN THE ALTERNATIVE, TO IMMEDIATELY
CIRCULATE AMICI MOTIONS TO THE EN BANC COURT
Malcolm E. Wheeler
Lead Counsel
Michael T. Williams
Galen D. Bellamy
Joel S. Neckers
Wheeler Trigg O’Donnell LLP
1801 California Street, Suite 3600
Denver, Colorado 80202
Telephone: (303) 244-1800
F. Daniel Balmert
Anthony J. O’Malley
Vorys, Sater, Seymour and Pease LLP
2100 One Cleveland Center
1375 East Ninth Street
Cleveland, Ohio 44114-1724
Telephone: (216) 479-6159
Counsel for Petitioner-Appellant Whirlpool Corporation
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INTRODUCTION
On June 1, 2012, the Court 1 entered an extraordinary Order summarily
denying five separate motions filed by 10 of the nation’s and Ohio’s leading
business and professional organizations seeking leave to file a brief as amicus or
amici curiae (collectively, “Amici Motions”) in support of Appellant Whirlpool
Corporation’s Petition for Rehearing En Banc (“Petition”). 2 The Amici Motions
were filed by: (1) the Business Roundtable, the Chamber of Commerce of the
United States of America (“Chamber”), and the National Association of
Manufacturers (“NAM”); (2) DRI - The Voice of the Defense Bar (“DRI”); (3) the
Product Liability Advisory Council (“PLAC”); (4) the Association of Home
Appliance Manufacturers (“AHAM”), the Ohio Manufacturers’ Association
(“OMA”), and the Ohio Business Roundtable (“OBRT”); and (5) the Ohio
Chamber of Commerce (“Ohio Chamber”) and the Ohio Council of Retail
Merchants (“Merchants”), respectively. The Order states no reason for its summary
denial of the five Amici Motions.
1
The Order was signed by the Court’s Clerk, and for that reason Whirlpool does not know
whether one or more members of the hearing Panel determined that the Order should be entered.
If the Order is by one of the judges on the Panel, the Panel may reconsider that action, but “the
panel reviewing a single judge’s action shall not include that judge.” 6 Cir. R. 27(f).
2
Pursuant to Sixth Circuit Internal Operating Procedure 27(c), the Amici Motions should have
been assigned to the “hearing panel,” and any circuit judge on the hearing Panel could act alone.
Further, Whirlpool contacted the Clerk’s Office to determine whether the Order was entered by
the Clerk pursuant to Sixth Circuit Rule 45(a)(1), and the Clerk’s Office confirmed that the
Order was by “the Court,” not the Clerk.
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Because the Order was issued immediately before Whirlpool’s Petition was
forwarded by the Clerk to the en banc Court pursuant to Sixth Circuit Internal
Operating Procedure 35(b), the Order may have prevented the Amici Motions from
being forwarded to the en banc Court along with Whirlpool’s Petition and the
Panel’s comments. Unless the Court reconsiders its Order, the full Court may not
learn of the substantial, national amici interests in this case. Reconsideration of the
Order also would provide the full Court with the benefit of additional arguments
from able amici that will help the Court consider the need for en banc review.
Pursuant to Federal Rule of Appellate Procedure 27(c) and Sixth Circuit
Rule 27(f), Whirlpool moves the Panel for expedited reconsideration of the Order,
to grant the Amici Motions, and to direct the Clerk to forward the amici briefs to
the full Court or, in the alternative, to immediately circulate to the en banc Court
the Amici Motions with an explanation that the motions have been denied by the
Panel, if that has not been done already. The Court should take either of these
actions for the following reasons:
First, the Panel’s Order denying the Amici Motions without stating any
reason is extraordinarily unusual, if not unprecedented, in this Circuit. The Sixth
Circuit freely grants such motions when timely and properly filed, and it is rare for
this Court to deny such motions, especially when filed by able amici who are
among the nation’s and Ohio’s leading business and professional organizations. In
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fact, during the past five years, this Circuit has granted at least 193 motions for
leave to file amicus briefs in approximately 142 cases, has denied only 14 such
motions in 11 other cases, and has never denied any motion by one of the nation’s
leading business or professional organizations, including any amicus who filed in
this case. Further, this Circuit frequently grants motions for leave to file amicus
briefs in support of petitions for rehearing. See, e.g., Sander v. Gray TV Group,
Inc., No. 10-6120, Order dated May 9, 2012; Brown v. Cassens Transport Co., No.
10-2334, Order dated May 3, 2012; Ward v. Wilbanks, No. 10-2100, Order dated
Mar. 5, 2012; United States v. Bistline, No. 10-3106, Order dated Feb. 13, 2012.
Second, the amici briefs in this case will be helpful to the full Court’s
consideration of the need for en banc review because the briefs explain the impact
that the Panel’s Opinion will have not only on manufacturers of home appliances,
many of whom are defending nearly identical “no injury” class actions involving
high-efficiency front-loading clothes washers, but on thousands of businesses of all
types and in all industries throughout the United States.
Third, most of the few cases in which the Sixth Circuit has denied leave to
file an amicus brief have involved situations where the amici failed to follow the
requirements of Rule 29 or the motion suffered from another identifiable
procedural flaw. Neither situation applies here.
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Fourth, if the amici are not granted leave to file their briefs in this case, the
en banc Court will be deprived of receiving the views of the 10 amici who
collectively represent thousands of diverse businesses both in Ohio and
nationwide, and those businesses employ millions of persons in the United States.
Fifth and finally, the unusual denial of the Amici Motions in this case,
without justification, “may also convey an unfortunate message about the openness
of the court.” Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 133 (3d Cir.
2002) (Alito, J.).
In sum, the Court should allow the amici—who expended significant time
and resources to prepare and file their motions and briefs—to file briefs in support
of Whirlpool’s Petition. The Court should reconsider the Order or, in the
alternative, immediately circulate the Amici Motions to the en banc Court for
consideration. Because Sixth Circuit Internal Operating Procedure 35(b) provides
only 14 days in which any member of the en banc Court can call a poll on
Whirlpool’s Petition, the Panel should act immediately. If the Panel were to await
Appellees’ response to this Motion, that would have the practical effect of denying
Whirlpool the relief requested herein and also deny the en banc Court of
information important to the full Court’s consideration of the need for rehearing.
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FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 2012, the hearing Panel issued its Opinion affirming the district
court’s order granting class certification. (Slip op. at 1-16.) On May 17, 2012,
Whirlpool timely filed its Petition. (Doc. # 006111309567.)
After Whirlpool filed its Petition, 10 organizations filed five separate
motions seeking leave to file amicus or amici curiae briefs and tendered briefs in
support of Whirlpool’s Petition. The organizations that filed amicus or amici
motions include the following:
•
Business Roundtable, the Chamber, and NAM (Mot. for Leave to File
Br. as Amici Curiae in Supp. of Whirlpool Corp.’s Pet. for Rehearing
En Banc (“BRT, Chamber, & NAM Mot.”), Doc. # 006111310184);
•
DRI (Mot. for Leave to File Br. of DRI – The Voice of the Defense
Bar as Amicus Curiae in Supp. of Appellant’s Pet. for Rehearing En
Banc (“DRI Mot.”), Doc. # 006111310573);
•
PLAC (Mot. of PLAC to File Br. as Amicus Curiae in Supp. of
Appellant’s Pet. for Rehearing En Banc, Doc. # 006111310705);
•
AHAM, OMA, and OBRT (Mot. of Amici Curiae AHAM, OMA &
OBRT for Leave to File Br. in Supp. of Appellant’s Pet. for Rehearing
En Banc, Doc. # 006111310801); and
•
The Ohio Chamber and the Merchants (Mot. for Leave to File Br. as
Amici Curiae in Supp. of Whirlpool Corp.’s Pet. for Rehearing En
Banc, Doc. # 006111319317).
The above-listed organizations include some of the largest and most
prominent business and professional organizations in the United States:
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(1) Business Roundtable is an association of chief executive officers of
leading U.S. companies with over 14 million employees and over $6 trillion in
annual revenues. (BRT, Chamber, & NAM Mot. at 1.)
(2) The Chamber is the world’s largest business federation. (Id. at 2.)
(3) NAM is the nation’s largest industrial trade association, representing
small and large manufacturers in literally every industrial sector and in all 50
states. (Id. at 3.)
(4) DRI is an international organization comprised of over 22,000 attorneys
representing businesses and individuals in civil litigation. (DRI Mot. at 1.)
(5) PLAC is a non-profit association with more than 100 corporate members
representing a broad cross-section of American and international product
manufacturers. (PLAC Mot. at 1.) A motions panel of this Court granted an earlier
motion by PLAC for leave to file an amicus brief in support of Whirlpool’s
principal brief at the merits stage. (Order, Doc. # 006111090152.)
(6) AHAM is a not-for-profit trade association representing over 150
manufacturers of major, portable, and floor care residential appliances. (AHAM,
OMA & OBRT Mot. at 3.)
(7) OMA is a not-for-profit trade association that represents approximately
1,500 manufacturers in the State of Ohio. (Id. at 4.)
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(8) OBRT is a not-for-profit organization that is a partnership of the chief
executives of Ohio’s major businesses who represent all sectors of the economy.
(Id.)
(9) The Merchants is the leading Ohio trade association representing
companies along the business supply chain and has more than 4,000 members.
(Merchants & Ohio Chamber Mot. at 1.)
(10) The Ohio Chamber is Ohio’s largest and most diverse business
advocacy organization and has over 6,000 members. (Id.)
All of the Amici Motions and briefs complied with the applicable Federal
Rules of Appellate Procedure and Sixth Circuit Rules. Further, the amici briefs
were not authored by any party, nor did any party contribute money that was
intended to fund preparing or submitting the brief. See Fed. R. App. P. 29(c)(5).
Still further, each of the amici briefs provides helpful insight into issues of national
importance that further support for Whirlpool’s Petition. See Fed. R. App. P. 35(a).
On June 1, 2012, the Clerk entered an order of the Court summarily denying
all five Amici Motions. (Order, Doc. # 006111323876, at 1.)
ARGUMENT
I.
THE COURT SHOULD RECONSIDER THE ORDER, IN KEEPING
WITH THIS CIRCUIT’S PRACTICE OF ALLOWING AMICI
BRIEFS IN SUPPORT OF PETITIONS FOR REHEARING EN BANC
Federal Rule of Appellate Procedure 29 permits amici curiae to file briefs by
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leave of the Court or if all parties consent to its filing. Fed. R. App. P. 29 (a), (b).
The 1998 committee notes to the amendment to Rule 29 explicitly authorize
amicus briefs to be filed in support of petitions for rehearing: “A court may grant
permission to file an amicus brief in a context in which the party does not file a
‘principal brief’; for example, an amicus may be permitted to file in support of a
party’s petition for rehearing.” Fed. R. App. P. 29, 1998 advisory committee notes,
subdivision (e). The Sixth Circuit has not limited the role of amici curiae in
connection with petitions for rehearing en banc. See 6 Cir. R. 29.
This Circuit’s policy recognizes the important role that amici curiae play in
appellate litigation and is consistent with most other Circuits’ practices. See, e.g.,
Grutter v. Bollinger, 539 U.S. 306, 330-32 (2003) (citing amicus briefs as evidence
of the importance of issues addressed); Garner v. Cuyahoga Cnty. Juvenile Court,
554 F.3d 624, 636 (6th Cir. 2009) (referring to amicus curiae’s arguments
throughout Court’s analysis because the “arguments as developed by NELA’s
amicus brief on behalf of the employees are often clearer than those presented in
the appellants’ brief”); Pfennig v. Household Credit Servs., Inc., 295 F.3d 522, 529
n.2 (6th Cir. 2001) (permitting amici briefs in connection with petition for hearing
en banc); Mass. Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197
F.3d 560, 567 (1st Cir. 1999) (“a court is usually delighted to hear additional
arguments from able amici that will help the court toward right answers”). In
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Neonatology Associates, then-circuit judge Samuel Alito cogently explained the
reasons in favor of a permissive approach to amicus briefs:
Even when a party is very well represented, an amicus may provide
important assistance to the court. “Some amicus briefs collect
background or factual references that merit judicial notice. Some
friends of the court are entities with particular expertise not possessed
by any party to the case. Others argue points deemed too far-reaching
for emphasis by a party intent on winning a particular case. Still
others explain the impact a potential holding might have on an
industry or other group.” Luther T. Munford, When Does the Curiae
Need An Amicus?, 1 J. App. Prac. & Process 279 (1999). . . .
The criterion of desirability set out in Rule 29(b)(2) is open-ended, but
a broad reading is prudent. . . . If an amicus brief that turns out to be
unhelpful is filed, the merits panel, after studying the case, will often
be able to make that determination without much trouble and can then
simply disregard the amicus brief. On the other hand, if a good brief is
rejected, the merits panel will be deprived of a resource that might
have been of assistance.
A restrictive policy with respect to granting leave to file may also
create at least the perception of viewpoint discrimination. Unless a
court follows a policy of either granting or denying motions for leave
to file in virtually all cases, instances of seemingly disparate treatment
are predictable. A restrictive policy may also convey an unfortunate
message about the openness of the court.
293 F.3d at 132-33. The reasoning of Neonatology Associates applies here with
equal force.
This Circuit, in practice, espouses a permissive approach to participation by
amici curiae. Whirlpool’s thorough research of this Circuit’s orders during the past
five years shows that this Circuit freely grants such motions when timely and
properly filed, and it is rare for the Court to deny such motions. During the past
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five years, this Circuit has granted at least 193 motions for leave to file amicus
briefs in 142 cases, and has denied only 14 such motions in 11 other cases (not
including this case). (Aff. of Theresa R. Wardon in Supp. of Appellant’s Mot. for
Expedited Reconsideration of Order Summarily Denying Five Mots. for Leave to
File Amici Brs. or, in the Alternative, to Immediately Circulate Amici Mots. to the
En Banc Court (“Wardon Aff.”) ¶ 7, attached hereto as Exhibit 1.) Of the 11 orders
by which this Court denied leave to file an amicus brief, at least six of them
involved motions that suffered from an identifiable procedural flaw. (Id. ¶ 8 & Ex.
C.) None of those orders denied leave to one of the nation’s or Ohio’s leading
business or professional organizations like the amici who filed motions here. (Id. ¶
9 & Exs. C-D.) To the best of Whirlpool’s knowledge, this Court has never denied
any motion for leave to file an amicus brief by any of the organizations that filed a
motion in this case. (Wardon Aff. ¶ 10.)
Still further, this Circuit frequently grants motions for leave to file amicus
briefs in support of petitions for rehearing. In fact, the Court already has granted
such motions in four other cases in 2012 alone. See Sander v. Gray TV Group, Inc.,
No. 10-6120, Order dated May 9, 2012; Brown v. Cassens Transport Co., No. 102334, Order dated May 3, 2012; Ward v. Wilbanks, No. 10-2100, Order dated Mar.
5, 2012; United States v. Bistline, No. 10-3106, Order dated Feb. 13, 2012;
Wardon Aff. ¶ 11 & Ex. E.
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In short, the Court’s Order runs counter to this Circuit’s permissive approach
to amici participation and practice of routinely allowing timely and properly filed
amicus briefs in support of petitions for rehearing, and fails to recognize the
important role that amici curiae play in appellate litigation.
II.
THERE ARE MULTIPLE REASONS WHY THE COURT SHOULD
HAVE GRANTED THE AMICI MOTIONS IN THIS CASE AND NO
REASON WHY THEY SHOULD BE DENIED
In its Order, the Court denied all five Amici Motions without explanation.
The summary denial of all five motions was misguided for several reasons. The
need for expedited reconsideration here is heightened if, as is usually the
circumstance where a hearing panel decides procedural motions, only one of the
three Panel judges took the action to deny the Amici Motions. Cf. 6 Cir. R. 27(f)
(the panel reconsidering a single judge’s action “shall not include that judge”).
A.
The Court’s Order Is Extraordinary, If Not Unprecedented
First, the Court’s Order summarily denying amicus and amici motions filed
by several of the nation’s most prominent business and professional organizations
is extraordinarily unusual in this Circuit. (See Argument, Part I, supra.) Indeed,
Whirlpool’s research indicates that the Court’s Order may be unprecedented in this
Circuit. (See id.) And this is especially true because the Court denied PLAC’s
motion, even though a motions panel of the Court previously had granted an earlier
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motion by PLAC for leave to file an amicus brief in support of Whirlpool’s
principal brief at the argument stage. (See Order, Doc. # 006111090152.)
B.
The Amici Briefs Address Issues Important to the Full Court’s
Consideration of the Need for En Banc Review
Second, as now-Justice Alito noted in Neonatology Associates, “‘[s]ome
friends of the court . . . argue points deemed too far-reaching for emphasis by a
party intent on winning a particular case. Still others explain the impact a potential
holding might have on an industry or other group.’” 293 F.3d at 132 (internal
citation omitted). Here, the amici briefs are necessary to address points that are
both too far-reaching for inclusion in Whirlpool’s Petition and are important to the
full Court’s consideration of the need for en banc review. The Amici Motions and
briefs also explain the impact that the Panel’s Opinion will have on numerous
businesses and industries throughout Ohio and the United States.
As just one example, the amici briefs are necessary to show that the Panel’s
Opinion creates a split in authority between this Circuit and all other circuits that
have considered the question of whether the district court is required to make
reviewable findings when confronted with disputed factual questions that are
relevant to Rule 23’s factors. (See, e.g., Br. of BRT, Chamber, & NAM, Doc. #
006111310192, at 3 n.2, 5-6.) The amici briefs also explain the structural pressures
that the Panel’s permissive class certification standard would impose on classaction defendants. (See, e.g., id. at 6-7; Br. of PLAC, Doc. # 006111310965, at 2.)
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By way of another example, the amici briefs more fully explain how the
Panel’s Opinion effectively strips Whirlpool of its liability defenses in the interest
of facilitating a class trial proceeding, and in the process contravenes Article III,
considerations of due process, and the Rules Enabling Act. (See, e.g., Br. of DRI,
Doc. # 006111310580, at 2-5.)
As a third example, Whirlpool’s Petition briefly discusses the Panel’s
“premium price” theory of tort injury that Plaintiffs did not argue, that the district
court did not consider or adopt, and that no Ohio court has ever recognized. (Pet. at
14-15.) The amici briefs more fully explain not only that the “premium price”
theory is not supported by Ohio tort law or the laws in most of the numerous
jurisdictions in which multiple putative class actions are pending against Whirlpool
and five other manufacturers of front-loading clothes washers (Br. of AHAM,
OMA & OBRT, Doc. # 006111310804, at 2 n.1 (identifying other front-loading
washer class actions), but also the impact that the Panel’s novel theory of injury
will have on thousands of businesses throughout Ohio and the United States. (See
Br. of BRT, Chamber, & NAM at 7-8; Br. of DRI at 6-7; Br. of AHAM, OMA &
BRT at 4-6.)
C.
The Amici Motions and Briefs Complied With the Federal Rules
of Appellate Procedure and Sixth Circuit Rules
Third, although the Court in Fharmacy Records v. Nassar, No. 10-1354,
2012 WL 573942, at *1 n.1 (6th Cir. Feb. 23, 2012), denied leave to file amici
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briefs “because none of the six proposed amicus briefs included the certification
required by Fed. R. App. P. 29(c)(5)” and because “[n]one of the proposed amicus
briefs were resubmitted with the required certification,” the logical implication of
the Court’s language is that the Court would have accepted those briefs if they
amici had resubmitted motions that complied with the rule. Here, all of the amici
briefs complied with Rule 29(c)(5) and other applicable rules, and the Court’s
Order does not suggest otherwise.
D.
Circulation of the Amici Motions to the En Banc Court Is
Necessary to Ensure That the Full Court Is Apprised of the
Substantial National Amici Interests in This Appeal
Fourth, the relief requested herein is necessary to ensure that the en banc
Court is apprised of the substantial, diverse interests and views of the 10 leading
business and professional organizations that filed the Amici Motions. The business
organizations collectively represent thousands of businesses throughout Ohio and
the United States, of all types, sizes, and industries, and collectively employ
millions of persons in this country. There is no legitimate reason why the other
members of the en banc Court should be prevented from knowing that the Amici
Motions had been filed and the identity of the amici curiae who expressed concrete
interests in the outcome of Whirlpool’s Petition.
E.
The Court’s Order Sends the Wrong Message to Litigants
Finally, as now-Justice Alito noted in Neonatology Associates, it is
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“preferable to err on the side of granting leave” so as not to convey a message that
the Court is not an open forum or is acting discriminately against specific litigants.
293 F.3d at 133. This Court should adopt a similar view and grant leave to file the
amici briefs so as not to convey the wrong message to current and future Sixth
Circuit litigants and to avoid the appearance of viewpoint discrimination. Cf. id.
CONCLUSION
For all these reasons, the Court should reverse the June 1, 2012, Order
without awaiting Appellee’s response to this Motion, grant the Amici Motions, and
immediately forward the amici briefs to the en banc Court. In the alternative, the
Court should immediately circulate the Amici Motions to the full Court with an
explanation that the Panel has denied those motions.
Dated: June 3, 2012
Respectfully submitted,
s/ Michael T. Williams
Malcolm E. Wheeler
Lead Counsel
Michael T. Williams
Galen D. Bellamy
Joel S. Neckers
Telephone: (303) 244-1800
Facsimile: (303) 244-1879
Email: williams@wtotrial.com
F. Daniel Balmert (0013809)
Anthony J. O’Malley (0017506)
VORYS, SATER, SEYMOUR
AND PEASE LLP
Telephone: (216) 479-6159
Facsimile: (216) 937-3735
Email: ajomalley@vorys.com
Counsel for Petitioner-Appellant,
Whirlpool Corporation
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CERTIFICATE OF SERVICE
I hereby certify that on June 3, 2012, a copy of the foregoing
CIRCULATE AMICI MOTIONS TO THE EN BANC COURT was filed
electronically. Notice of this filing will be sent to all parties by operation of the
Court’s electronic filing system. Parties may access this filing through the Court’s
system.
s/ Michael T. Williams
Michael T. Williams
Telephone: (303) 244-1800
Facsimile: (303) 244-1879
Email: williams@wtotrial.com
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EXHIBIT 1
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CASE NO. 10-4188
__________________________________________________________________
__________________________________________________________________
GINA GLAZER AND TRINA ALLISON,
Individually and on Behalf of All Others Similarly Situated,
Respondents-Appellees,
v.
WHIRLPOOL CORPORATION,
Petitioner-Appellant.
________________________________________________________________
On Appeal from the United States District Court for
the Northern District of Ohio, Eastern Division, Case
Nos. 1:08-wp-65000 and 1:09-wp-65001
________________________________________________________________
AFFIDAVIT OF THERESA R. WARDON IN SUPPORT OF
CIRCULATE AMICI MOTIONS TO THE EN BANC COURT
Malcolm E. Wheeler
F. Daniel Balmert
Lead Counsel
Anthony J. O’Malley
Michael T. Williams
Vorys, Sater, Seymour and Pease LLP
Galen D. Bellamy
Joel S. Neckers
Telephone: (216) 479-6159
Telephone: (303) 244-1800
Counsel for Petitioner-Appellant Whirlpool Corporation
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State of Colorado )
)
County of Denver )
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ss:
Theresa R. Wardon, being duly sworn, hereby deposes and says as follows:
1.
I am an associate with the law firm of Wheeler Trigg O’Donnell LLP.
I am over 21 years of age, of sound mind, and competent to testify. Except as
otherwise stated, I have personal knowledge of the facts stated in this affidavit. If
called as witness, I could testify as to each of them.
2.
In this affidavit I state facts in support of Appellant’s Motion for
Expedited Reconsideration of Order Summarily Denying Five Motions for Leave
to File Amici Briefs or, in the Alternative, to Immediately Circulate Amici
Motions to the En Banc Court (“Motion”).
3.
As part of my work on the Motion, I personally searched, and
supervised another Wheeler Trigg O’Donnell’s attorney’s searches of, this Court’s
PACER system to obtain a list of orders, judgments, and opinions entered by the
Sixth Circuit for the period June 1, 2007, through May 31, 2012. The resulting list
contained the case name and number, the date each order, judgment, or opinion
was entered by the Court, and the docket entry with the action taken by the Court.
(See, e.g., Example of Resulting List, attached hereto as Exhibit A.)
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I searched the resulting list to identify every order granting or denying
any motion for leave to file an amicus curiae brief.
5.
In order to be over-inclusive, my search included any order issued by
the Sixth Circuit for the period June 1, 2007, through May 31, 2012, the docket
entry of which contained the search term “amic”.
6.
After conducting the searches described above, I compiled a chart that
included (a) all orders in which any such motion was granted or denied, and (b) the
number of such motions granted or denied with each order.1 The compiled chart is
attached as Exhibit B. I also reviewed the orders denying motions for leave to file
amicus briefs to determine, to the extent practicable, the grounds for the denial of
each such motion.
7.
Based on my exhaustive search, I determined that from June 1, 2007
until May 31, 2012, the Sixth Circuit has issued at least 152 orders granting at least
193 motions for leave to file amicus briefs in approximately 142 cases 2, and has
issued only 11 orders denying only 14 such motions in 11 cases. (See Ex. B.)
1
In determining how many motions were granted or denied with each order, I
counted the number of motions referenced by docket number listed in the docket
entry. When no motion docket number was listed, I counted the number of separate
motions listed in the docket entry.
2
In compiling the total number of cases, I counted consolidated cases once.
3
(21 of 74)
Case: 10-4188
8.
Document: 006111324688
Filed: 06/03/2012
Page: 5
My search revealed that of the 11 orders by which this Court denied
leave to file an amicus brief, at least 6 of them involved instances where the
motion suffered from an identifiable procedural flaw. See Fharmacy Records v.
Nassar, No. 10-2073, Order dated Dec. 20, 2011 (denying motions for failure to
comply with Rule 29); United States v. Ovell Evers, No. 08-5774, Order dated June
30, 2011 (denying pro se amicus and prisoner Edgar Searcy’s motion); United
States v. Wallace, No. 07-2230, Order dated Jan. 16, 2009 (denying attorney’s
motion for leave to appear as amicus on behalf of defendant and to file a motion
for release on bail pending appeal because attorney “has not demonstrated why an
amicus brief is desirable in the appeal and did not file his motion for leave in a
timely manner” (citing Fed. R. App. P. 29(b), (e)); Kazerooni v. Vanderbilt Univ.,
Inc., No. 07-6229, Order dated Oct. 23, 2008 (denying motions for miscellaneous
relief, including pro se plaintiff’s own motion to permit amicus brief); United
States v. Bailey, No. 07-6477, Order dated July 29, 2008 (denying criminal
defendant’s own motion to grant leave to the Tennessee Association of Criminal
Defense Lawyers to file an amicus brief); Bilaal v. Moore, No. 07-3437, Order
dated Mar. 18, 2008 (denying Southern Christian Leadership Conference’s motion
for leave to file amicus brief because the motion “asserts the same arguments as
[plaintiff]”). A copy of each such order, downloaded from PACER, is attached as
4
(22 of 74)
Case: 10-4188
Document: 006111324688
Filed: 06/03/2012
Page: 6
Exhibit C. Copies of the 5 remaining orders denying motions for leave to file
amicus briefs, also downloaded from PACER, are attached as Exhibit D.
9.
My search did not reveal any case, in the last five years, in which this
Court denied leave to one of the nation’s leading business or professional
organizations like those that filed motions in this case. (See Exs. C & D.)
10.
Further, my search did not reveal a single instance where this Court,
in the last five years, denied any motion for leave to file an amicus curiae brief by
any of the amici who filed a motion in this case. (Id.)
11.
Additionally, my search revealed that the Sixth Circuit has granted
leave to file amicus briefs in support of petitions for rehearing or rehearing en banc
in four other cases in 2012 alone. See Sander v. Gray TV Group, Inc., No. 10-6120,
Order dated May 9, 2012; Brown v. Cassens Transport Co., No. 10-2334, Orders
dated May 3, 2012 and May 9, 2012; Ward v. Wilbanks, No. 10-2100, Order dated
Mar. 5, 2012; United States v. Bistline, No. 10-3106, Order dated Feb. 13, 2012.
Copies of those orders, downloaded from PACER, are attached as Exhibit E.
12.
I declare under the penalty of perjury that the foregoing is true and
correct to the best of my knowledge.
5
(23 of 74)
Case: 10-4188
Document: 006111324688
Filed: 06/03/2012
Page: 7
(24 of 74)
Case: 10-4188
Document: 006111324689
Filed: 06/03/2012
EXHIBIT A
Page: 1
(25 of 74)
Case: 10-4188
Document: 006111324689
Filed: 06/03/2012
Page: 2
(26 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
EXHIBIT B
Page: 1
(27 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 2
(28 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 3
(29 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 4
(30 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 5
(31 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 6
(32 of 74)
Case: 10-4188
Document: 006111324690
Filed: 06/03/2012
Page: 7
(33 of 74)
Case: 10-4188
Document: 006111324691
Filed: 06/03/2012
EXHIBIT C
Page: 1
(34 of 74)
Case: 10-4188
10-2073
Document: 006111324691
006111161397
Filed: 06/03/2012
12/20/2011
Page: 2
1
Case No. 10-2073
ORDER
FHARMACY RECORDS, aka Pharmacy Records Production Company; FHARM I
PUBLISHING COMPANY; SHELTON RIVERS
Plaintiffs - Appellants
v.
SALAAM NASSAR; CURTIS JACKSON, aka 50 Cent; DEF JAM RECORDING; JUSTIN
COMBS PUBLISHING; UNIVERSAL MUSIC PUBLISHING, INC.; UNIVERSAL MUSIC
AND VIDEO DISTRIBUTION CORPORATION; EMI APRIL, INCORPORATED; SOO
SOOS SWEET SWISHER MUSIC; EARL SIMMONS, aka DMX; DAVID STYLES, aka
D.Styles; DARRIN DEAN, aka Dee; RUFF RYDERS; BOOMER X PUBLISHING,
INCORPORATED; DEAD GAME PUBLISHING; SCHLECTER, Agents and Attorneys;
PANIROS PUBLISHING
Defendants - Appellees
Upon consideration of the motions filed by Jeffrey Thennisch, William Haley and Sharon
Lawson, Linda D. Bernard, et al., Lovester J. Wilson, Jr., Billy Wilson, James Fischbach all for
leave to file amicus briefs,
It is ORDERED that all the motions are DENIED for lack of compliance with Fed.R.App. P.
29(5)(c).
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
Issued: December 20, 2011
___________________________________
(35(1ofof74)
3)
10-4188
Case: 10-2073
006111324691
Document: 006111161398
06/03/2012
Filed: 12/20/2011
3
Page: 1
Leonard Green
Clerk
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: December 20, 2011
Mr. Gregory J. Reed
Gregory J. Reed & Associates
1201 Bagley Avenue
Detroit, MI 48226-0000
Re: Case No. 10-2073, Fharmacy Records, et al v. Salaam Nassar, et al
Originating Case No. : 05-72126
Dear Parties,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Roy G. Ford
Case Manager
Direct Dial No. 513-564-7016
cc: Linda D. Bernard
Mr. James Fischbach
William Haley
Mr. John Michael Huget
Sharon Lawson
Tom Lewis
Mr. Daniel Dietrich Quick
Raymond Reed
Robert E. Reed
Mr. Leslie Craig Schefman
Ms. Deborah J. Swedlow
Mr. Jeffrey P. Thennisch
Mr. David J. Weaver
Mr. Billy Wilson
(36(2ofof74)
3)
10-4188
Case: 10-2073
006111324691
Document: 006111161398
Mr. Lovester J. Wilson Jr.
Enclosure
06/03/2012
Filed: 12/20/2011
4
Page: 2
(37(3ofof74)
3)
Case: 10-4188
08-5774
Document: 006111324691
006111001250
Filed: 06/03/2012
06/30/2011
Page: 5
1
Case No. 08-5774
ORDER
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OVELL EVERS, SR.
Defendant - Appellant
Upon consideration of Edgar Searcy’s motion for permission to submit
an amicus brief and motion requesting oral argument,
It is ORDERED that the motions be and hereby are DENIED.
Issued: June 30, 2011
___________________________________
(38(1ofof74)
3)
Case: 08-5774
10-4188
Document: 006111001251
006111324691
Filed: 06/30/2011
06/03/2012
6
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: June 30, 2011
Mr. Randolph W. Alden
Office of the Federal Public Defender
200 Jefferson Avenue
Suite 200
Memphis, TN 38103
Mr. Dan L. Newsom
U.S. Attorney's Office
167 N. Main Street
Suite 800
Memphis, TN 38103
Mr. Edgar Searcy
F.C.I. Oakdale
P.O. Box 5000
Oakdale, LA 71463
Re: Case No. 08-5774, USA v. Ovell Evers, Sr.
Originating Case No. : 07-20048-001
Dear Sir or Madam,
Sincerely yours,
s/Florence P. Ebert
Case Manager
cc:
Calendar Fax
Calendar Deputy
(39(2ofof74)
3)
10-4188
Case: 08-5774
Enclosure
006111324691
Document: 006111001251
06/03/2012
Filed: 06/30/2011
7
Page: 2
(40(3ofof74)
3)
Case:
Case:10-4188
07-2230
Document:
Document:006111324691
00615362794
Filed:01/16/2009
06/03/2012
Filed:
Page:18
Page:
(41(1ofof74)
3)
No. 07-2230
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BARBARA J. WALLACE,
Defendant-Appellant.
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FILED
Jan 16, 2009
LEONARD GREEN, Clerk
ORDER
Before: KENNEDY, COLE, and GILMAN, Circuit Judges.
The defendant appeals her conviction of conspiracy to distribute or possess with intent to
distribute oxycodone, distribution of or possession with intent to distribute oxycodone, use of a
communication facility to facilitate a drug trafficking crime, and perjury. She was represented in the
district court by a court-appointed attorney under the Criminal Justice Act. That appointment was
automatically extended in this court when her appeal was docketed in March of 2007.
Attorney Roger Hanson moves for leave to appear as an amicus curiae on behalf of the
defendant to file an appellate brief and to file a motion for release on bail pending appeal. Hanson
has not demonstrated why an amicus brief is desirable in the appeal and did not file his motion for
leave in a timely manner. See Fed. R. App. P. 29(b), (e). Hanson states that he was retained by the
defendant in January of 2008, but does not supply any details about the financial arrangements of
his retention. If the defendant has the ability to retain appellate counsel, she will not be permitted
to proceed on appeal in forma pauperis (“IFP”). If her IFP status is revoked, Hanson should enter
an appearance on her behalf as retained counsel, not as an amicus curiae.
Case:
Case:10-4188
07-2230
Document:
Document:006111324691
00615362794
Filed:01/16/2009
06/03/2012
Filed:
Page:29
Page:
No. 07-2230
-2The motion for leave to appear as an amicus curiae is DENIED. The defendant is directed
to advise the court if she now has funds to retain counsel to represent her on appeal.
Leonard Green
Clerk
(42(2ofof74)
3)
Case:
Case:10-4188
07-2230 Document:
Document:006111324691
00615362800
06/03/2012
Filed: 01/16/2009
10
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: January 16, 2009
Mr. Roger S. Hanson
Ms. Janet Parker
Mr. Eric E. Proschek
Re: Case No. 07-2230 , USA v. Barbara Wallace
Dear Counsel:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Kathryn Kasner
Case Manager
Fax No. 513-564-7096
Enclosure
(43(3ofof74)
3)
Case:
Case:10-4188
07-6229 Document:
Document:006111324691
00611608548
06/03/2012
Filed: 10/23/2008
11
Page: 1
(44(1ofof74)
5)
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 07-6229
ALEXANDER C. KAZEROONI,
Plaintiff-Appellant,
v.
VANDERBILT UNIVERSITY, INC.,
DEPARTMENT OF BIOMEDICAL
INFORMATICS VANDERBILT
UNIVERSITY; ACADEMIC PROGRAM
COMMITTEE, Department of Biomedical
Informatics; VANDERBILT UNIVERSITY,
doing business as Vanderbilt Universtiy
Medical Center; RANDOLPH MILLER,
M.D.; NANCY LORENZI, Ph.D.; JUDY
OZBOLT, R.N., Ph.D.; KEVIN JOHNSON,
M.D.; ANDREW GREGORY, M.D.; JOHN
DOE(S)/JANE DOE(S),
)
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FILED
Oct 23, 2008
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
Defendants-Appellees.
ORDER
Before: GIBBONS and COOK, Circuit Judges; STEEH, District Judge.*
Alexander C. Kazerooni, a current Michigan resident, moves for oral argument and other
miscellaneous relief and appeals pro se the summary judgment for defendants in an action filed
pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq., among other
claims. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the
Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed.
Fed. R. App. P. 34(a).
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Case:
Case:10-4188
07-6229 Document:
Document:006111324691
00611608548
06/03/2012
Filed: 10/23/2008
12
Page: 2
No. 07-6229
-2Kazerooni filed a complaint alleging that defendants, Vanderbilt University, its Department
of Biomedical Informatics, the academic program committee of that department, and several
individuals employed by the university, had committed a number of state torts, constitutional
violations, and violations of the ADA and the Rehabilitation Act, 29 U.S.C. § 794, when Kazerooni
was a graduate student at the university. Defendants moved to dismiss the majority of the claims on
the ground of claim preclusion, because Kazerooni had filed a very similar action in state court prior
to filing this complaint in federal court. The matter was referred to a magistrate judge, who
recommended that all claims other than those of retaliation in violation of the ADA and the
Rehabilitation Act be dismissed on the ground of claim preclusion. Kazerooni filed no objections
to this recommendation, which was adopted by the district court. The magistrate judge subsequently
recommended that defendants be granted summary judgment on the remaining claims. Kazerooni
did file objections to this recommendation, although most of the objections addressed the dismissal
of the earlier claims. The district court again adopted the magistrate judge’s recommendation, and
granted summary judgment to defendants.
On appeal, Kazerooni challenges the decisions of both the district court and the state court,
argues that his evidence was not admitted by the district court, and asks that a trial be held in either
Texas or Michigan, that he be reinstated to the university’s graduate program, and that he be granted
monetary damages.
Initially, we note that the decision of the state court in Kazerooni’s original proceeding is not
subject to review by this court. Further, Kazerooni waived his right to appeal the dismissal of the
majority of his claims by the district court when he failed to object to the magistrate judge’s report
recommending that dismissal. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Even were the
failure to object overlooked, the dismissal on claim preclusion grounds was clearly correct, as the
majority of the claims were decided on the merits in the earlier state court action, or could have been
raised and resolved in that action, which was between the same parties. Smith, Hinchman & Grylls,
Assocs., v. Tassic, 990 F.2d 256, 257-58 (6th Cir. 1993). Therefore, the only judgment properly
(45(2ofof74)
5)
Case:
Case:10-4188
07-6229 Document:
Document:006111324691
00611608548
06/03/2012
Filed: 10/23/2008
13
Page: 3
No. 07-6229
-3before us is the summary judgment in favor of defendants on the claims of retaliation in violation
of the ADA and the Rehabilitation Act.
The record in this case shows that Kazerooni entered the graduate program at the university
in August of 2002. In September, he began reporting to the student clinic with complaints of neck
and shoulder pain and numbness in his wrist on the right side. He was treated conservatively, with
physical therapy and pain relievers, for his complaints, diagnosed as cervical radiculopathy and
carpal tunnel syndrome. The university also provided a new desk and chair in Kazerooni’s study
carrel. In April of 2003, he reported that his condition had improved. In August 2004, the syndrome
was repeated, involving the left shoulder and wrist, with similar successful results by July 2005.
Throughout, it appears that Kazerooni remained physically active, including running and weight
lifting, but complained that he could not work on his computer. In the spring of 2006, Kazerooni
was dismissed from the graduate school program for failing to make satisfactory progress towards
his degree.
In response to defendants’ motion for summary judgment, Kazerooni could not rest on
conclusory allegations, but was required to respond with affirmative evidence supporting his claims.
Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989). The district court
properly concluded that the evidence of record did not show that Kazerooni was disabled. Moderate
difficulty and pain, or distress in performing some daily activities, do not establish a substantial
limitation of a major life function or support a finding of disability. Black v. Roadway Express, Inc.,
297 F.3d 445, 451 (6th Cir. 2002); Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002). The
district court also found no evidence to support a claim of retaliation, which requires a showing that
Kazerooni engaged in a protected activity, an adverse action was taken against him, and there was
a causal connection between the protected activity and the adverse action. Penny v. United Parcel
Serv., 128 F.3d 408, 417 (6th Cir. 1997). The evidence of record in this case does not raise an
inference that some protected activity was the likely motivation for the adverse action of Kazerooni’s
dismissal from the graduate program. See E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th
Cir. 1997). Although Kazerooni complains that the district court excluded his evidence, the only
(46(3ofof74)
5)
Case:
Case:10-4188
07-6229 Document:
Document:006111324691
00611608548
Filed: 06/03/2012
10/23/2008
Page: 14
4
No. 07-6229
-4ruling that could possibly be referenced by this complaint is the denial of a request for subpoenas
on the ground that the discovery period was over. Again, Kazerooni did not object to the magistrate
judge’s ruling on this request, and has waived any appeal of that ruling.
In summary, because Kazerooni failed to submit any evidence in support of his claims of
retaliation in violation of the ADA and the Rehabilitation Act, the summary judgment for defendants
is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. The motions for miscellaneous relief are
denied.
Leonard Green
Clerk
(47(4ofof74)
5)
Case:
Case:10-4188
07-6229 Document:
Document:006111324691
00611608552
06/03/2012
Filed: 10/23/2008
15
Page: 1
(48(5ofof74)
5)
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: October 23, 2008
Mr. Alexander C. Kazerooni
P.O. Box 7433
Ann Arbor, MI 48107
Re: Case No. 07-6229, Alexander Kazerooni v. Department of Biomedical Infor, et al
Dear Sir,
The Court issued the enclosed opinion today in this case.
Sincerely yours,
s/Audrey Crockett
Case Manager
Fax No. 513-564-7094
cc: Ms. Leona Marx
Mr. William N. Ozier
Mr. Keith Throckmorton
Enclosure
Mandate to issue
Case:
Case:10-4188
07-6477 Document:
Document:006111324691
00611531667
06/03/2012
Filed: 07/29/2008
16
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: July 29, 2008
Mr. Richard Daryl Bailey
F.M.C. Lexington
P.O. Box 14500
Lexington, KY 40512
Re: Case No. 07-6477, USA v. Richard Bailey
Dear Sir,
The Court issued the enclosed order today in this case.
Sincerely yours,
s/Audrey Crockett
Case Manager
Fax No. 513-564-7094
cc: Mr. Arthur William Mackie
Enclosure
(49(1ofof74)
2)
Case:
Case:10-4188
07-6477 Document:
Document:006111324691
00611531668
Filed: 06/03/2012
07/29/2008
Page: 17
1
Case No. 07-6477
ORDER
Plaintiff - Appellee
v.
RICHARD DARYL BAILEY,
Defendant - Appellant
Upon consideration of appellant’s motion to grant leave to The Tennessee Associaton of
Criminal Defense Laywers to file an Amicus Curiae Brief on behalf of the interest of the
people and the law of the State of Tennessee,
It is ORDERED that the motion be and it hereby is DENIED.
ENTERED PURSUANT TO RULE 45(a),
RULES OF THE SIXTH CIRCUIT
Issued: July 29, 2008
___________________________________
(50(2ofof74)
2)
Case:
10-4188
006111324691
Case:
07-3437 Document:
Document:
0061486809
Filed:03/18/2008
06/03/2012
Filed:
Page:118
Page:
(51(1ofof74)
2)
No. 07-3437
YUSUF B. BILAAL,
Petitioner-Appellant,
v.
ERNIE L. MOORE,
Respondent-Appellee.
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FILED
Mar 18, 2008
ORDER
Before: SILER, MOORE, and MCKEAGUE, Circuit Judges.
Yusuf Bilaal, a pro se Ohio prisoner, petitions for rehearing of this court’s order of October
31, 2007, denying his application for a certificate of appealability. The application for a certificate
of appealability arose from the district court’s order denying his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Additionally, Bilaal moves the court to waive the page requirement for
filing a petition for rehearing. The Southern Christian Leadership Conference (“SCLC”) moves for
leave to file as amicus curiae on Bilaal’s petition for rehearing.
In his petition for rehearing, Bilaal reasserts his prior arguments. The SCLC asserts the same
arguments as Bilaal in its motion. The panel has reviewed the petition for rehearing and concludes
that the application for a certificate of appealability was properly denied.
For the foregoing reasons, the court grants Bilaal’s motion to waive the page requirement
and denies his petition for rehearing. The court also denies the SCLC’s motion for leave to file as
an amicus curiae.
Leonard Green
Clerk
Case:
10-4188
006111324691
Case:
07-3437 Document:
Document:
0061486810
Filed:03/18/2008
06/03/2012
Filed:
Page:119
Page:
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: March 18, 2008
Richard E. Cox
SCLC Redress Committee
Dayton Chapter SCLC
2132 W. Third Street
Dayton, OH 45417-0000
Jerri L. Fosnaught
Office of the Attorney General
Corrections Litigation Section
150 E. Gay Street
16th Floor
Columbus, OH 43215-6001
Yusuf Bilaal
Lebanon Correctional Facility
P.O. Box 56
Lebanon, OH 45036-0000
Re: No. 07-3437, Bilaal v. Moore
Originating Case No. 05-01733
Dear Counsel and Mr. Bilaal:
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Yvonne Henderson
Case Manager
Fax No. 513-564-7098
cc: Honorable Ann Aldrich
Ms. Geri M. Smith
Enclosure
(52(2ofof74)
2)
Case: 10-4188
Document: 006111324692
Filed: 06/03/2012
EXHIBIT D
Page: 1
(53 of 74)
Case: 08-1387
10-4188
Document: 006111045080
006111324692
Filed: 08/17/2011
06/03/2012
2
Page: 1
(54(1ofof74)
3)
Nos. 08-1387/1389/1534/09-1111
FILED
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATIO N AND
IMMIGRANT RIGHTS AND FIG HT FOR EQUALITY BY ANY MEANS
NECESSARY (BAMN), ET AL.,
Plaintiffs-Appellants 08-1387)/Cross-Appellees,
Plaintiffs (08-1389/09-1111)
CHASE CANTRELL, ET AL.,
Plaintiffs-Appellees (08-1389),
Plaintiffs-Appellants (09-1111),
v.
REGENTS OF THE UNIVERSITY OF MICHIGAN, BOARD OF TRUSTEES OF
MICHIGAN STATE UNIVERSITY, ET AL.,
Defendants-Appellees/Cross-Appellants 08-1534),
Defendants (08-1389-09-1111)
MICHAEL COX, MICHIGAN ATTORNEY GENERAL,
Intervenor-Defendant-Appellee (08-1387-09-1111)
ERIC RUSSELL,
Intervenor-Defendant-Appellant (08-1389),
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Aug 17, 2011
ORDER
JENNIFER GRATZ,
Proposed Intevenor-Appellant (08-1389).
Upon consideration of the m otion from Hans von Spakovsky, J. Christian Adam s, Karl S. “Butch”
Bowers, Jr., and H. Christopher Coates for leave to file a brief as am ici curiae in support of the petition for
rehearing en banc,
It is ORDERED that the m otion be and it hereby is DENIED.
10-4188
Case: 08-1387
006111324692
Document: 006111045082
06/03/2012
Filed: 08/17/2011
3
Page: 1
(55(2ofof74)
3)
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: August 17, 2011
Mr. Michael Francis Smith
Law Firm
1747 Pennsylvania Avenue, N.W.
Suite 300
Washington, DC 20006
Re:
Case No. 08-1387/08-1389/09-1111/08-1534, Coalition to Defend Affirmative, et al v.
Regents of the University of Michigan, et al
Dear Mr. Smith,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Ms. Sharon Louise Browne
Mr. John J. Bursch
Mr. Joshua Ian Civin
Mr. Charles J. Cooper
Ms. Karin A. DeMasi
Ms. Shanta Driver
Mr. Mark P. Fancher
Melvin Hollowell
Ms. Sherri Sokeland Kaiser
Ms. Winifred V. Kao
Mr. Daniel M. Levy
Ms. Heather S. Meingast
10-4188
Case: 08-1387
006111324692
Document: 006111045082
Mr. Kerry L. Morgan
Ms. Kary Leslie Moss
Ms. Margaret A Nelson
Mr. Leonard M. Niehoff
Mr. Alan K. Palmer
Mr. Jesse M. Panuccio
Mr. Joseph E. Potchen
Mr. Mark D. Rosenbaum
Mr. Michael E. Rosman
Mr. Michael Jay Steinberg
Mr. John David Taliaferro
Mr. David H. Thompson
Mr. Laurence H. Tribe
Mr. George Boyer Washington
Mr. David J. Weaver
Mr. William F. Young
Enclosure
06/03/2012
Filed: 08/17/2011
4
Page: 2
(56(3ofof74)
3)
10-4188
Case: 08-4537
006111324692
Document: 006110676175
06/03/2012
Filed: 07/09/2010
5
Page: 1
(57(1ofof74)
2)
No. 08-4537
FILED
Jul 09, 2010
NATIONAL UNION FIRE INSURANCE COMPANY,
Appellant,
v.
VP BUILDINGS, INC.,
Appellee.
) LEONARD GREEN, Clerk
)
)
)
)
ORDER
)
)
)
)
)
Upon consideration of the motion from Zurich American Insurance Company for leave to
file a brief as amicus curiae in support of the petition for rehearing en banc,
10-4188
Case: 08-4537
006111324692
Document: 006110676180
06/03/2012
Filed: 07/09/2010
6
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: July 09, 2010
Mr. Craig Goldblatt
Wilmer Hale
1875 Pennsylvania Avenue, N.W.
Re: Case No. 08-4537 , National Union Fire Insurance v. VP Buildings, Inc.
Dear Mr. Goldblatt,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. G. Eric Brunstad Jr.
Mr. Franklin Ciaccio
Enclosure
(58(2ofof74)
2)
10-4188
Case: 09-1134
006111324692
Document: 006110627845
06/03/2012
Filed: 05/13/2010
7
Page: 1
(59(1ofof74)
2)
Nos. 09-1134/1135
FILED
May 13, 2010
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant (09-1134),
CHERYL PERICH,
Intervenor Plaintiff-Appellant (09-1135),
v.
HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND
SCHOOL,
Defendant-Appellee.
)
)
)
)
)
)
)
)
ORDER
)
)
)
)
)
)
Upon consideration of the motions from the National Association of Evangelicals, Union of
Orthodox Jewish Congregations of America, International Mission Board, SBC, Alliance Defense
Fund, Association of Christian Schools International, Council of Hindu Temples of North America,
International Society of Krishna Consciousness, and Michigan Association of Non-Public Schools,
the Christian Reformed Church in North America, Council for Christian Colleges and Universities,
Calvin College, Kuyper College for leave to file a brief as amicus/amici curiae in support of the
petition for rehearing en banc,
It is ORDERED that the motions be and they hereby are DENIED.
10-4188
Case: 09-1134
006111324692
Document: 006110627846
06/03/2012
Filed: 05/13/2010
8
Page: 1
(60(2ofof74)
2)
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: May 13, 2010
Mr. John J. Bursch
Mr. Luke William Goodrich
Mr. Robert K. Kelner
Mr. Aaron D. Lindstrom
Mr. Matthew T. Nelson
Mr. Andrew James Soukup
Mr. Kevin H. Theriot
Re: Case No. 09-1134 /09-1135 , EEOC, et al v. Hosanna-Tabor Evangelical Lut
Dear Counsel,
The Court issued the enclosed Order today in these cases.
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Ms. Dori Kay Bernstein
Mr. James W. Erwin
Mr. James E. Roach
Ms. Sherri C. Strand
Mr. Deano C. Ware
Mr. Omar Weaver
Enclosure
Case:
Case:10-4188
07-6494
Document:
Document:006111324692
00615532111
Filed:05/20/2009
06/03/2012
Filed:
Page:19
Page:
(61(1ofof74)
2)
No. 07-6494
FILED
DAWN MAGGARD AND DARRELL MAGGARD,
)
)
)
)
)
)
)
)
)
)
Plaintiffs-Appellees,
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
May 20, 2009
ORDER
Upon consideration of the motion from Consumers for Auto Reliability and Safety for leave
to file a statement as amicus curiae in support of the appellees’ petition for rehearing en banc,
Leonard Green
Clerk
Case:
Case:10-4188
07-6494 Document:
Document:006111324692
00615532121
06/03/2012
Filed: 05/20/2009
10
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: May 20, 2009
Mr. Steven Andrew Taterka
Law Office of Steven A. Taterka
P.O. Box 368
Kingston Springs, TN 37082-0000
Re: Case No. 07-6494, Dawn Maggard, et al v. Ford Motor Company, Inc.
Originating Case No. : 05-00369 : 05-00369
Dear Taterka,
Sincerely yours,
s/Beverly L. Harris
Transcript/En Banc Coordinator
cc: Mr. John Randolph Bibb Jr.
Mr. Stephen C. Knight
Mr. Robert W. Powell
Enclosure
(62(2ofof74)
2)
Case:
06-4092Document:
Document:
00615301 Filed:
09/05/2007
Case:
10-4188
006111324692
Filed:
06/03/2012 Page:
Page:
1 11
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: September 05, 2007
Mr. Orin S. Kerr
George Washington University Law School
2000 H Street, NW
Washington, DC 20052-0000
Re: No. 06-4092, Warshak v. USA
Originating Case No. 06-00357
Dear Counsel,
The Court issued the enclosed Order today in this appeal.
Sincerely yours,
s/Beverly L. Harris
Deputy Clerk
cc: Steven L. Lane
Martin G. Weinberg
Enclosure
(63 of 74)
Case: 10-4188
Document: 006111324693
Filed: 06/03/2012
EXHIBIT E
Page: 1
(64 of 74)
10-4188
Case: 10-6120
006111324693
Document: 006111299747
06/03/2012
Filed: 05/09/2012
2
Page: 1
(65(1ofof74)
2)
No. 10-6120
FILED
May 09, 2012
JERRY SANDER,
v.
GRAY TELEVISION GROUP, INC., DOING BUSINESS AS WKYT-TVLEXINGTON, ET AL.,
)
)
)
)
ORDER
)
)
)
)
)
)
Upon consideration of the motion from AARP for leave to file a brief as amicus curiae
supporting the petition of Appellant Jerry Sander for rehearing and rehearing en banc,
It is ORDERED that the motion be and it hereby is GRANTED.
10-4188
Case: 10-6120
006111324693
Document: 006111299751
06/03/2012
Filed: 05/09/2012
3
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: May 09, 2012
Mr. Daniel Benjamin Kohrman
AARP Foundation Litigation
601 E Street, N.W.
Fourth Floor
B4-454
Re: Case No. 10-6120, Jerry Sander v. Gray Television Group, Inc., et al
Dear Mr., Kohrman,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. Alan Howard Abes
Mr. Robert Harmon Buckler
Ms. Barbara B. Edelman
Mr. Randolph H Freking
Ms. Katherine Daughtrey Neff
Ms. Rebecca Williams Shanlever
Enclosure
(66(2ofof74)
2)
10-4188
Case: 10-2334
006111324693
Document: 006111293431
06/03/2012
Filed: 05/03/2012
4
Page: 1
(67(1ofof74)
2)
No. 10-2334
FILED
May 03, 2012
PAUL BROWN, ET AL.,
Plaintiffs-Appellants,
v.
CASSENS TRANSPORT COMPANY, ET AL.,
)
)
)
)
ORDER
)
)
)
)
)
Upon consideration of the motion from American Insurance Association, National Council
of Self-Insurers, and the Chamber of Commerce of the United States of America for leave to file
a brief as amici curiae in support of defendants’ petitions for rehearing en banc,
10-4188
Case: 10-2334
006111324693
Document: 006111293436
06/03/2012
Filed: 05/03/2012
5
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: May 03, 2012
Mr. Mark Frederick Horning
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Re: Case No. 10-2334, Paul Brown, et al v. Cassens Transport Co., et al
Dear Mr. Horning,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. Jeffrey Charles Gerish
Ms. Janet E. Lanyon
Mr. Marshall David Lasser
Mr. Jeffrey T. Stewart
Mr. Jerry R. Swift
Mr. Timothy R. Winship
Enclosure
(68(2ofof74)
2)
10-4188
Case: 10-2334
006111324693
Document: 006111299904
06/03/2012
Filed: 05/09/2012
6
Page: 1
(69(1ofof74)
2)
No. 10-2334
FILED
May 09, 2012
PAUL BROWN, ET AL.,
Plaintiffs-Appellants,
v.
CASSENS TRANSPORT COMPANY, ET AL.,
)
)
)
)
ORDER
)
)
)
)
)
Upon consideration of the motion from the Michigan Self-Insurers’ Association for leave to
file a brief as amicus curiae in support of defendants-appellees’ petitions for rehearing en banc,
Case: 10-2334
10-4188
Document: 006111299915
006111324693
Filed: 05/09/2012
06/03/2012
7
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: May 09, 2012
Mr. Gerald M. Marcinkoski
Lacey & Jones
600 S. Adams Road
Suite 300
Birmingham, MI 48009-6827
Re: Case No. 10-2334, Paul Brown, et al v. Cassens Transport Co., et al
Dear Mr. Marcinkoski,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. Jeffrey Charles Gerish
Mr. Mark Frederick Horning
Ms. Janet E. Lanyon
Mr. Marshall David Lasser
Mr. Jeffrey T. Stewart
Mr. Jerry R. Swift
Mr. Timothy R. Winship
Enclosure
(70(2ofof74)
2)
10-4188
Case: 10-3106
006111324693
Document: 006111213173
06/03/2012
Filed: 02/13/2012
8
Page: 1
(71(1ofof74)
2)
No. 10-3106
FILED
Feb 13, 2012
)
)
)
)
)
ORDER
)
)
)
)
)
v.
RICHARD BISTLINE,
Defendant-Appellee.
Upon consideration of the motion from the Federal Public Defenders for the Western District
of Kentucky, et al., for leave to file a brief as amici curiae in support of the petition for rehearing en
banc,
The TENDERED brief will be filed.
Case: 10-3106
10-4188
Document: 006111213180
006111324693
Filed: 02/13/2012
06/03/2012
9
Page: 1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: February 13, 2012
Mr. Steven S. Nolder
Federal Public Defender's Office
10 W. Broad Street
Suite 1020
Columbus, OH 43215
Re: Case No. 10-3106, USA v. Richard Bistline
Dear Mr. Nolder,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. Christopher K. Barnes
Mr. Benjamin C. Glassman
Mr. Kevin Michael Schad
Ms. Deborah Ann Solove
Mr. Jonathan T. Tyack
Enclosure
(72(2ofof74)
2)
Case:
Case:10-4188
10-2100
Document:
Document:006111324693
006111233440
Filed:
Filed:06/03/2012
03/05/2012
Page:
Page:10
1
Leonard Green
Clerk
Tel. (513) 564-7000
Filed: March 05, 2012
Ms. Susan Grogan Faller
Frost Brown Todd
301 E. Fourth Street
Suite 3300
Cincinnati, OH 45202
Re: Case No. 10-2100/10-2145, Julea Ward v. Roy Wilbanks, et al
Dear Ms. Faller,
Sincerely yours,
s/Beverly L. Harris
En Banc Coordinator
cc: Mr. Mark T. Boonstra
Mr. David Andrew Cortman
Mr. Paul D. Hudson
Mr. Steven M. Jentzen
Mr. Joseph J. Martins
Mr. Jeffrey A. Shafer
Mr. Clifford W. Taylor
Mr. Jeremy D. Tedesco
Mr. Jerome R. Watson
Enclosure
(73(1ofof74)
2)
Case:
Case:10-4188
10-2100
Document:
Document:006111324693
006111233514
Filed:
03/05/2012
Filed:06/03/2012
Page:
Page:11
1
(74(2ofof74)
2)
Nos. 10-2100/2145
FILED
Mar 05, 2012
JULEA WARD,
Plaintiff-Appellant/Cross-Appellee,
v.
POLITE, AMETRANO, FRANCIS, MARX, STANIFER, CALLAWAY,
DUGGER,
Defendants-Appellees/Cross-Appellants,
WILBANKS, CLACK, HAWKS, INCARNATI, OKDIE, PARKER, SIDLIK,
STAPLETON, MARTIN,
Defendants.
)
)
)
)
)
ORDER
)
)
)
)
)
)
)
)
)
)
)
Upon consideration of the motion from the Student Press Law Center for leave to file a brief
as amicus curiae in support of the petition for rehearing en banc,
It is further ORDERED that the parties respond to the issues raised in the brief not later than
the close of business on Monday, March 26, 2012.

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