CASE NO. 10-4188 UNITED STATES COURT OF APPEALS FOR …

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

Case: 10-4188 Document: 006111324687 Filed: 06/03/2012 Page: 1 (1 of 74)

INTRODUCTION

On June 1, 2012, the Court1 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


8

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


10

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. 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;

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


12

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 class-

action defendants. (See, e.g., id. at 6-7; Br. of PLAC, Doc. # 006111310965, at 2.)


13

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


14

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


15

“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 s/ Michael T. Williams 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 Facsimile: (303) 244-1879 Email: [email protected] Counsel for Petitioner-Appellant, Whirlpool Corporation

Respectfully submitted,

F. Daniel Balmert (0013809) Anthony J. O’Malley (0017506) VORYS, SATER, SEYMOUR AND PEASE LLP 2100 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114-1724 Telephone: (216) 479-6159 Facsimile: (216) 937-3735 Email: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on June 3, 2012, a copy of the foregoing

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 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 Wheeler Trigg O’Donnell LLP 1801 California Street, Suite 3600 Denver, Colorado 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 Email: [email protected]


EXHIBIT 1


CASE NO. 10-4188 __________________________________________________________________


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

________________________________________________________________

AFFIDAVIT OF THERESA R. WARDON 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 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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State of Colorado ) ) ss: County of Denver )

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.)


3

4. 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 cases2, 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.


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8. 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


5

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.



EXHIBIT A



EXHIBIT B








EXHIBIT C


Case No. 10-2073


FOR THE SIXTH CIRCUIT

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

___________________________________

Case: 10-2073 Document: 006111161397 Filed: 12/20/2011 Page: 1 (1 of 3) Case: 10-4188 Document: 006111324691 Filed: 06/03/2012 Page: 2 (35 of 74)



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


Mr. Lovester J. Wilson Jr.

Enclosure


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

___________________________________




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


Enclosure


FILEDJan 16, 2009

LEONARD GREEN, Clerk

No. 07-2230



UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BARBARA J. WALLACE,

Defendant-Appellant.

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O R D E R

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.


No. 07-2230

- 2 -

The 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




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


The Honorable George Caram Steeh, United States District Judge for the Eastern District*

of Michigan, sitting by designation.

FILEDOct 23, 2008


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),

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF

TENNESSEE

O R D E R

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).


No. 07-6229

- 2 -

Kazerooni 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


No. 07-6229

- 3 -

before 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


No. 07-6229

- 4 -

ruling 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




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




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


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

___________________________________


FILEDMar 18, 2008


No. 07-3437



YUSUF B. BILAAL,

Petitioner-Appellant,

v.

ERNIE L. MOORE,

Respondent-Appellee.

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O R D E R

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




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


EXHIBIT D


Nos. 08-1387/1389/1534/09-1111



COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND

IMMIGRANT RIGHTS AND FIGHT 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),

JENNIFER GRATZ,

Proposed Intevenor-Appellant (08-1389).

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O R D E R

Upon consideration of the motion from Hans von Spakovsky, J. Christian Adams, Karl S. “Butch”

Bowers, Jr., and H. Christopher Coates for leave to file a brief as amici curiae in support of the petition for

rehearing en banc,





FILED


Aug 17, 2011




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


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


No. 08-4537

UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

NATIONAL UNION FIRE INSURANCE COMPANY,

Appellant,

v.

VP BUILDINGS, INC.,

Appellee.

))))))))))

O R D E R

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,





FILED


Jul 09, 2010




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


Nos. 09-1134/1135


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant (09-1134),

CHERYL PERICH,

Intervenor Plaintiff-Appellant (09-1135),

v.

HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH ANDSCHOOL,

Defendant-Appellee.

)))))))))))))))

O R D E R

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.




FILED


May 13, 2010




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


FILEDMay 20, 2009


No. 07-6494


DAWN MAGGARD AND DARRELL MAGGARD,

Plaintiffs-Appellees,

v.

FORD MOTOR COMPANY,

Defendant-Appellant.

))))))))))

O R D E R

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




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




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

Case: 06-4092 Document: 00615301 Filed: 09/05/2007 Page: 1 Case: 10-4188 Document: 006111324692 Filed: 06/03/2012 Page: 11 (63 of 74)

EXHIBIT E


No. 10-6120


JERRY SANDER,


v.

GRAY TELEVISION GROUP, INC., DOING BUSINESS AS WKYT-TV-LEXINGTON, ET AL.,


)))))))))))

O R D E R

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.




FILED


May 09, 2012




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


No. 10-2334


PAUL BROWN, ET AL.,

Plaintiffs-Appellants,

v.

CASSENS TRANSPORT COMPANY, ET AL.,


))))))))))

O R D E R

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,





FILED


May 03, 2012




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


No. 10-2334


PAUL BROWN, ET AL.,

Plaintiffs-Appellants,

v.

CASSENS TRANSPORT COMPANY, ET AL.,


))))))))))

O R D E R

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,





FILED


May 09, 2012




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


No. 10-3106




v.

RICHARD BISTLINE,

Defendant-Appellee.

))))))))))

O R D E R

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.




FILED


Feb 13, 2012




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




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


Nos. 10-2100/2145


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.

))))))))))))))))

O R D E R

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.




FILED


Mar 05, 2012


Documents

CASE NO. 10-4188 UNITED STATES COURT OF APPEALS FOR …