The Employee Retirement Income Security Act (ERISA); Breach of fiduciary duty, 29 USC §§ 1104(a)(1) & 1105(a); The Federal Arbitration Act’s (FAA) savings clause (9 USC § 2); The “effective vindication” doctrine; The ability of participants to sue in a representative capacity on behalf of a plan; ERISA §§ 409 & 502(a)(2); Hawkins v Cintas Corp; LaRue v DeWolff, Boberg & Assoc, Inc; Massachusetts Mut Life Ins Co v Russell

[This appeal was from the ED-MI.] The court held that the individual arbitration provisions contained in defendant-Tenneco’s subsidiaries’ ERISA plans were “invalid as a prospective waiver of statutorily guaranteed rights and remedies.” Plaintiffs were employed by the Tenneco subsidiaries. They sued alleging ERISA violations regarding their 401(k) plans, bringing the action for the breach of fiduciary duties as representatives of others similarly situated. Tenneco argued that the case must be submitted to arbitration because the plans both contained “mandatory individual arbitration provisions.” These provisions required that suit be brought “only in an individual capacity, not in a representative, class, or collective capacity,” and that remedies were only be available to individual participants. The district court declined to compel arbitration, ruling that “the individual arbitration provision limited participants’ substantive rights under ERISA. as it eliminated their substantive, statutory right to bring suit on behalf of a plan and pursue plan-wide remedies under ERISA §§ 409 and 502(a)(2).” On appeal, the court considered the interaction of the ERISA with the FAA and discussed the FAA’s savings clause. It noted that “four circuits have struck down arbitration provisions that barred ‘effective vindication’ of the statutory rights guaranteed by ERISA.” Supreme Court case law has held that “§ 502(a)(2) contemplates the ability of participants to sue in a representative capacity on behalf of a plan[,]” and that “based on the plain language of the statutory text, relief under § 409(a) flows to the plan.” The court noted that in Hawkins, it “considered the question of whether § 502(a)(2) claims belong to individuals or to the plan as a whole in light of” Supreme Court precedent. The court concluded the harms alleged in the complaint here were “akin to the plan-wide harms in Hawkins, not the individualized harms in LaRue.” Further, the monetary remedies requested here flowed to the plans, “not individual participants.” The court held that the arbitration provisions eliminated “the ability to proceed in a representative capacity on” the plans’ behalf and obtain relief for losses to them, which, as shown “by Russell, LaRue, and Hawkins, are substantive statutory remedies provided by ERISA. The provision is therefore unenforceable as a prospective waiver of these statutory rights.” Affirmed.

42 USC § 1983 action alleging deliberate indifference to an inmate’s serious medical condition; Whether defendants forfeited their “inconsistent verdict” argument by failing to timely object under FedRCivP 49(b); Whether a jury could have found that deliberate indifference was the “proximate cause” of the inmate’s death; Whether defendants were entitled to judgment as a matter of law or a new trial based on an attorney’s alleged “contumacious conduct”; An attorney’s emotional response to testimony; Alleged juror misconduct for failing to disclose criminal history during voir dire

[This appeal was from the WD-MI.] In this deliberate indifference case, the court held that plaintiff-estate’s causation expert’s (F) testimony that the decedent-inmate (Jones) “would have survived if he had been at the hospital,” could have led a reasonable jury to conclude that the decision “not to transfer Jones to a hospital was a proximate cause of his death.” The individual defendants were nurses at defendant-County’s correctional facility where Jones was incarcerated after pleading guilty to stealing alcohol and golf balls. He was taken to the jail infirmary and then to a hospital for alcohol withdrawal and died after going into cardiac arrest. On appeal, defendants argued that they were entitled to a new trial or to judgment as a matter of law because the jury’s finding of no professional negligence was inconsistent with its deliberate indifference finding. But the court held that they forfeited this objection because they failed to timely raise it under Rule 49(b). It rejected the argument that they preserved the issue through their oral motion for a directed verdict. They also argued no reasonable jury could have concluded that deliberate indifference was the proximate cause of Jones’s death. The court found that defendants had not waived this argument, but rejected it on the merits. Based on F’s testimony, the jury could “have concluded that (1) Jones would not have died if he had been transferred to the hospital at 5:00 a.m. on [4/27], and (2) by ‘irreversible,’ [F] meant that Jones’s likelihood of survival at the Jail was less than” 50%. Defendants-Goetterman and Mollo contended that his “death ‘was already certain’ by the time he was placed under [their] care in the” infirmary. But given F’s testimony, the jury could have “concluded that Jones’s likelihood of survival was between 0 and 50 [%] once he was moved to the infirmary. And if the jury believed that Jones had, say, a 25 [%] (or even a 5 or 10 [%]) chance of survival, then it reasonably could have found that Jones’s death was not ‘already certain.’” In the alternative, defendants argued they were entitled to judgment as a matter of law or a new trial because one of the estate’s attorneys became “emotional” during the examination of a witness. The district court concluded (1) that counsel’s conduct “was ‘inappropriate’ but not ‘contumacious’ because it was ‘not stubbornly disobedient or persistent,’ and (2) there was no ‘reasonable probability that the attorney’s misconduct influenced the verdict’ when the ‘display of sympathy was brief and was limited to one witness’ because the court instructed the jury to not let bias or sympathy influence its verdict.” Defendants did not “explain why these conclusions constitute an abuse of the district court’s discretion. Nor do they provide any legal authority holding that an attorney’s display of emotion, even if improper, is enough by itself to warrant dismissal or a new trial.” Affirmed.

Action under 42 USC § 1983 asserting a First Amendment retaliation claim; Termination after sharing a meme on a personal social media page; A “matter of public concern”; Employee’s speech interest weighed against a public employer’s efficiency interest; Pickering v Board of Educ of Twp High Sch Dist

The court held that (1) the Black Lives Matter (BLM) meme plaintiff-Noble shared on his personal Facebook page constituted speech on a matter of public concern and (2) his speech interest outweighed his public employer’s efficiency interests. Thus, it reversed summary judgment for defendants and remanded for entry of summary judgment for Noble. He worked for defendant-Cincinnati & Hamilton County Library as a security guard. In 2020, he shared a meme that contained no racial epithets but “began with a shocking message—'ALL LIVES SPLATTER’—which was a crude word play on the message ‘All Lives Matter,’ which in turn had been used by some BLM opponents as a slogan in response to BLM’s ‘Black Lives Matter’ message.” Only his Facebook friends could see it, and it was posted for 24 hours before he took it down. But some fellow workers saw it and complained to the Library, which fired him after an investigation. He sued for First Amendment retaliation. Noting there was no dispute Noble was speaking as a private citizen, the court first held that the speech addressed “a matter of public concern—namely, whether the alleged violent and destructive tactics of BLM were appropriate means to protest the deaths of George Floyd and others.” Even if the message was “insensitive” or “controversial,” this did not impact whether it was of public concern. Next, applying the Pickering balancing test, the court concluded “Noble’s interest in his speech ‘receives significant First Amendment weight for two reasons: its general content and the context in which it was made.’” It found that “the sentiment that he wished to convey—that the methods of the BLM protests were counterproductive—was by no means an isolated segment of public opinion.” As to context, he was fired “for a post ‘made on his private Facebook page while he was at home and not working,’” and there was no evidence he “took his politics to work or that his views on the BLM protests or any other political matter ever interfered with how he performed his job.” Weighing the competing interests. the court held that his “interest in his speech outweighs the Library’s claimed efficiency interest because no evidence indicates that Noble’s speech significantly hindered Library operations.” It found that in the absence of evidence he “posed a threat or risk to fellow workers, his hyperbolic speech alone was not enough to fire him. Given the short time Noble kept the meme on his Facebook page, its limited viewership, and the lack of public response, the Library could not have reasonably expected that [his] post would incite disruption.”

42 USC § 1983 action alleging deliberate indifference to an inmate’s serious medical condition; Whether defendants forfeited their “inconsistent verdict” argument by failing to timely object under FedRCivP 49(b); Whether a jury could have found that deliberate indifference was the “proximate cause” of the inmate’s death; Whether defendants were entitled to judgment as a matter of law or a new trial based on an attorney’s alleged “contumacious conduct”; An attorney’s emotional response to testimony; Alleged juror misconduct for failing to disclose criminal history during voir dire

[This appeal was from the WD-MI.] In this deliberate indifference case, the court held that plaintiff-estate’s causation expert’s (F) testimony that the decedent-inmate (Jones) “would have survived if he had been at the hospital,” could have led a reasonable jury to conclude that the decision “not to transfer Jones to a hospital was a proximate cause of his death.” The individual defendants were nurses at defendant-County’s correctional facility where Jones was incarcerated after pleading guilty to stealing alcohol and golf balls. He was taken to the jail infirmary and then to a hospital for alcohol withdrawal and died after going into cardiac arrest. On appeal, defendants argued that they were entitled to a new trial or to judgment as a matter of law because the jury’s finding of no professional negligence was inconsistent with its deliberate indifference finding. But the court held that they forfeited this objection because they failed to timely raise it under Rule 49(b). It rejected the argument that they preserved the issue through their oral motion for a directed verdict. They also argued no reasonable jury could have concluded that deliberate indifference was the proximate cause of Jones’s death. The court found that defendants had not waived this argument, but rejected it on the merits. Based on F’s testimony, the jury could “have concluded that (1) Jones would not have died if he had been transferred to the hospital at 5:00 a.m. on [4/27], and (2) by ‘irreversible,’ [F] meant that Jones’s likelihood of survival at the Jail was less than” 50%. Defendants-Goetterman and Mollo contended that his “death ‘was already certain’ by the time he was placed under [their] care in the” infirmary. But given F’s testimony, the jury could have “concluded that Jones’s likelihood of survival was between 0 and 50 [%] once he was moved to the infirmary. And if the jury believed that Jones had, say, a 25 [%] (or even a 5 or 10 [%]) chance of survival, then it reasonably could have found that Jones’s death was not ‘already certain.’” In the alternative, defendants argued they were entitled to judgment as a matter of law or a new trial because one of the estate’s attorneys became “emotional” during the examination of a witness. The district court concluded (1) that counsel’s conduct “was ‘inappropriate’ but not ‘contumacious’ because it was ‘not stubbornly disobedient or persistent,’ and (2) there was no ‘reasonable probability that the attorney’s misconduct influenced the verdict’ when the ‘display of sympathy was brief and was limited to one witness’ because the court instructed the jury to not let bias or sympathy influence its verdict.” Defendants did not “explain why these conclusions constitute an abuse of the district court’s discretion. Nor do they provide any legal authority holding that an attorney’s display of emotion, even if improper, is enough by itself to warrant dismissal or a new trial.” Affirmed.

Action under 42 USC § 1983 asserting a First Amendment retaliation claim; Termination after sharing a meme on a personal social media page; A “matter of public concern”; Employee’s speech interest weighed against a public employer’s efficiency interest; Pickering v Board of Educ of Twp High Sch Dist

The court held that (1) the Black Lives Matter (BLM) meme plaintiff-Noble shared on his personal Facebook page constituted speech on a matter of public concern and (2) his speech interest outweighed his public employer’s efficiency interests. Thus, it reversed summary judgment for defendants and remanded for entry of summary judgment for Noble. He worked for defendant-Cincinnati & Hamilton County Library as a security guard. In 2020, he shared a meme that contained no racial epithets but “began with a shocking message—'ALL LIVES SPLATTER’—which was a crude word play on the message ‘All Lives Matter,’ which in turn had been used by some BLM opponents as a slogan in response to BLM’s ‘Black Lives Matter’ message.” Only his Facebook friends could see it, and it was posted for 24 hours before he took it down. But some fellow workers saw it and complained to the Library, which fired him after an investigation. He sued for First Amendment retaliation. Noting there was no dispute Noble was speaking as a private citizen, the court first held that the speech addressed “a matter of public concern—namely, whether the alleged violent and destructive tactics of BLM were appropriate means to protest the deaths of George Floyd and others.” Even if the message was “insensitive” or “controversial,” this did not impact whether it was of public concern. Next, applying the Pickering balancing test, the court concluded “Noble’s interest in his speech ‘receives significant First Amendment weight for two reasons: its general content and the context in which it was made.’” It found that “the sentiment that he wished to convey—that the methods of the BLM protests were counterproductive—was by no means an isolated segment of public opinion.” As to context, he was fired “for a post ‘made on his private Facebook page while he was at home and not working,’” and there was no evidence he “took his politics to work or that his views on the BLM protests or any other political matter ever interfered with how he performed his job.” Weighing the competing interests. the court held that his “interest in his speech outweighs the Library’s claimed efficiency interest because no evidence indicates that Noble’s speech significantly hindered Library operations.” It found that in the absence of evidence he “posed a threat or risk to fellow workers, his hyperbolic speech alone was not enough to fire him. Given the short time Noble kept the meme on his Facebook page, its limited viewership, and the lack of public response, the Library could not have reasonably expected that [his] post would incite disruption.”

The Fair Credit Reporting Act (FCRA); The FCRA’s “child support” provision (15 USC § 1681s-1); Whether defendant-consumer reporting agency (CRA) used “reasonable procedures” to ensure “maximum possible accuracy”; §§ 1681e(b) & 1681i; Whether a showing of inaccuracy is required for a § 1681i claim; Office of Child Support (OCS)

[This appeal was from the ED-MI.] The court held that plaintiff-Berry stated a claim under the FCRA that defendant-Experian failed to “adopt reasonable procedures to ensure maximum possible accuracy and did not reasonably reinvestigate Berry’s consumer report after he challenged its accuracy[.]” For the first time, it held “that a showing of inaccuracy is an essential element of a § 1681i claim.” Experian is a CRA under the FCRA. Berry alleged that it continued to report that he owed back spousal and child support, while, in fact, he did not. Experian countered that it had received this information from the Michigan OCS, and despite Berry’s production of court orders providing that his obligation was abated, Experian continued to report this information. Berry sued under §§ 1681e(b) and 1681i. He claimed that he was unable to obtain loans or refinance his student loans because of this inaccurate information. The district court granted Experian judgment on the pleadings, ruling that the FCRA’s child support provision required a CRA “to ‘include in consumer reports any information [it] receive[s] from state child support enforcement agencies regarding failure to pay overdue child support.’” On appeal, the court held that Experian was required to report the unpaid support balance but that the district court erred “in ending its analysis at this step.” The court noted that because “the FCRA is designed to promote accuracy, ‘false impressions can be just as damaging as false information.’” The court found that taking “Berry’s allegations as true, Experian’s omission of the court orders and its failure to inquire further resulted in a consumer report that was ‘misleading in such a way . . . that it [could have been] expected to have an adverse effect’” on him. It held that “FCRA does not allow Experian to remain immune from liability for reporting incomplete information that could be materially misleading and impact Berry’s perceived creditworthiness. As such, Berry’s complaint meets the inaccuracy element for §§ 1681e(b) and 1681i.” In addition, upon “receipt of the furnisher’s information and the court orders, Experian was required to conduct a ‘reasonable reinvestigation’ of the issue in dispute.” The court noted “Experian did not take any action beyond sending the automated form to OCS.” In this case, “Berry submitted three disputes and counter-documentation (from a court), but Experian continued to repeat the same ineffective steps.” As a result, the court found that he sufficiently pled “that Experian failed to follow reasonable procedures to reinvestigate Berry’s dispute and ensure maximum possible accuracy of his consumer report.” Reversed and remanded.

Right to a jury trial; Juror misconduct; People v Messenger; Prejudice; Ineffective assistance of counsel for failure to move for a mistrial; Failure to make a futile objection; Defense counsel’s failure to challenge venue; Defense counsel’s failure to protect defendant’s right of confrontation; Request for a Franks hearing; Franks v Delaware; Jury instructions; Specific unanimity instruction; Waiver; Defense counsel’s failure to request a jury instruction; Right to a unanimous jury verdict; MCR 6.410(B)

Finding no errors requiring reversal, the court affirmed defendant’s conviction of conspiracy to possess with intent to deliver 1,000 grams or more of cocaine. On appeal, the court rejected his argument that the jury violated the trial court’s instruction to refrain from discussing the case before formal deliberations, and that defense counsel was ineffective for failing to move for a mistrial on the basis of juror misconduct. He failed to present “any basis for overcoming the presumption that the jury followed these instructions.” And defense counsel’s “failure to move for a mistrial was not objectively unreasonable.” The court also rejected his claim that defense counsel was ineffective for failing to challenge venue, finding he failed to show a reasonable probability that such a challenge would have been successful. It further rejected his contention that defense counsel was ineffective for failing to object to the admission of co-conspirator-R’s statements to protect his right of confrontation, holding that defense counsel’s decision to not object, but to use the statements to show that defendant and R “never conversed about cocaine, particularly since [R] never delivered the drugs to defendant, was objectively sound and reasonable.” The court next rejected defendant’s argument that the trial court abused its discretion by denying his request for a Franks hearing because the affiant made statements that were deliberate falsehoods or with reckless disregard for the truth to procure the warrant to search his phone. It found he did not “overcome the presumption of validity with respect to the affidavit supporting the search warrant.” Finally, the court rejected his claim that the trial court erred by failing to give a specific unanimity instruction, and defense counsel was ineffective for failing to request it, finding he failed to show that “a specific unanimity instruction was required, and, therefore, it was not objectively unreasonable for defense counsel to not request it.”

Law of the case doctrine; Scope of remand; Macomb Cnty v AFSCME Council 25; Arbitration award; Collective bargaining agreements (CBAs)

Concluding the circuit court did not err in upholding the arbitration award, the court affirmed the order granting the motion of plaintiff-Michigan AFSCME Council 25 and several affiliated locals to enforce the parties’ arbitration award. The case involved a health care benefits dispute. Defendant contended the arbitrator’s decision conflicted with the court’s “2014 decision in this case, thereby violating the doctrine of law of the case.” The issue before the court “in 2014 was whether the disputed issue was encompassed by the parties CBAs; if so, then the parties’ grievance procedure was the proper avenue to address plaintiff’s past-practice claim.” The court determined then “that the CBAs were unambiguous in that they were not silent on the issue, and therefore a remand for arbitration was the appropriate remedy to address the past-practice claim.” In addition, it “identified the remaining issue involving the past practice, and noted that it was left to the arbitrator to make the final determination on the issue.” The court only decided “that the matter should be remanded for arbitration and did not decide the merits of the underlying dispute regarding health care benefits; any extraneous discussion of law by the Court was obiter dictum lacking the force of an adjudication.” Thus, the arbitrator “did not violate the law of the case doctrine by finding ambiguity in certain provisions of the CBAs with respect to the underlying dispute.” Defendant contended “the trial court erred by enforcing the arbitrator’s award because the arbitrator failed to act within the scope of” the court’s remand order by failing to follow its “directive that on remand the arbitrator determine whether” a meeting of the minds was established. But the court’s “statement of the standard applicable to an unambiguous contract did not preclude the arbitrator finding ambiguity within the parties’ contract regarding the specific issue before the arbitrator. Thus, the arbitrator was not bound by this Court’s discussion anticipating the arbitrator’s treatment of the specific issue before the arbitrator.” Defendant also asserted “the arbitrator failed to adhere to the language of the CBAs and the relevant law.” It argued that the CBAs were “unambiguous, that there was no evidence of a meeting of the minds, that the arbitrator dispensed her own brand of ‘industrial justice,’ and that the zipper clause prevents enforcement of the award.” The court found that it could not “be said that the arbitrator made a material error of law. After finding ambiguity in the contract language, the arbitrator found no repudiation of the parties’ past practice. The arbitrator found that the parties’ conduct showed a ‘mutual intent to provide healthcare benefits to disability retirees upon their meeting age and service requirements for disability retirement pension.’” As to the zipper clause, the court held that the “arbitrator’s finding that the saving provision applied to the benefit in this case was not based on a clear error of law and must be upheld.”

The Employee Retirement Income Security Act (ERISA); Breach of fiduciary duty, 29 USC §§ 1104(a)(1) & 1105(a); The Federal Arbitration Act’s (FAA) savings clause (9 USC § 2); The “effective vindication” doctrine; The ability of participants to sue in a representative capacity on behalf of a plan; ERISA §§ 409 & 502(a)(2); Hawkins v Cintas Corp; LaRue v DeWolff, Boberg & Assoc, Inc; Massachusetts Mut Life Ins Co v Russell

[This appeal was from the ED-MI.] The court held that the individual arbitration provisions contained in defendant-Tenneco’s subsidiaries’ ERISA plans were “invalid as a prospective waiver of statutorily guaranteed rights and remedies.” Plaintiffs were employed by the Tenneco subsidiaries. They sued alleging ERISA violations regarding their 401(k) plans, bringing the action for the breach of fiduciary duties as representatives of others similarly situated. Tenneco argued that the case must be submitted to arbitration because the plans both contained “mandatory individual arbitration provisions.” These provisions required that suit be brought “only in an individual capacity, not in a representative, class, or collective capacity,” and that remedies were only be available to individual participants. The district court declined to compel arbitration, ruling that “the individual arbitration provision limited participants’ substantive rights under ERISA. as it eliminated their substantive, statutory right to bring suit on behalf of a plan and pursue plan-wide remedies under ERISA §§ 409 and 502(a)(2).” On appeal, the court considered the interaction of the ERISA with the FAA and discussed the FAA’s savings clause. It noted that “four circuits have struck down arbitration provisions that barred ‘effective vindication’ of the statutory rights guaranteed by ERISA.” Supreme Court case law has held that “§ 502(a)(2) contemplates the ability of participants to sue in a representative capacity on behalf of a plan[,]” and that “based on the plain language of the statutory text, relief under § 409(a) flows to the plan.” The court noted that in Hawkins, it “considered the question of whether § 502(a)(2) claims belong to individuals or to the plan as a whole in light of” Supreme Court precedent. The court concluded the harms alleged in the complaint here were “akin to the plan-wide harms in Hawkins, not the individualized harms in LaRue.” Further, the monetary remedies requested here flowed to the plans, “not individual participants.” The court held that the arbitration provisions eliminated “the ability to proceed in a representative capacity on” the plans’ behalf and obtain relief for losses to them, which, as shown “by Russell, LaRue, and Hawkins, are substantive statutory remedies provided by ERISA. The provision is therefore unenforceable as a prospective waiver of these statutory rights.” Affirmed.

The Michigan Medical Records Access Act; The Health Information Technology for Economic & Clinical Health Act (HITECH Act); Damages; Summary disposition under MCR 2.116(C)(10); Henry Ford Macomb Hospital Corporation (HFMH)

In this case arising from a medical records request, the court concluded defendants-HFMH and a medical records provider supported their summary disposition motion and that no genuine issue of material fact existed. Thus, it affirmed summary disposition for defendants under MCR 2.116(C)(10). Plaintiff-White was treated at HFMO after an auto accident. Seeking to pursue an auto negligence claim, he requested that his medical records be sent to his attorney (S). He later sued defendants, essentially claiming they “improperly withheld” his records. In a prior appeal, the court concluded they “failed to act on White’s request for his medical records within 30 days, as they were required to under the HITECH Act and related regulations,” and remanded the case “for a determination of the ‘appropriate fee based on the actual cost of preparing a duplicate record.’” In moving for summary disposition, “HFMH alleged that, at a status conference held following remand, White disclosed that his sole remaining issue was damages. Specifically, [he] asserted that if the medical records had been timely received from HFMH, he would have” obtained a higher settlement in his underlying case. Defendants contended “there was no genuine issue of material fact that White did not suffer his alleged damages—namely, that any delay in the provision of the HFMH medical records did not impact [his] $15,000 settlement because [he] used the HFMH medical records in his settlement demand letter—and therefore, defendants were entitled to judgment as a matter of law. In light of [their] challenge to the correlation between the timely provision of the medical records and White’s settlement acceptance,” the court found that summary disposition based “on MCR 2.116(C)(10) was the valid framework to analyze this dispute.” Further, defendants supported their motion with documentary evidence that days after receiving the medical records, S used them to negotiate a settlement of White’s claim. S’s affidavit did not create a genuine issue of material fact showing that the “claim would have settled for $30,000 more if the HFMH medical records had been received within 30 days. Although [S] may have experience as a processor of bodily injury claims, this affidavit offered a mere conclusion and failed to delineate an underlying foundation to support its position. Nor did White offer any other evidence to that effect[.]”

Withholding of removal under the Immigration & Nationality Act (INA); Asylum based on domestic violence; Matter of A-B-I; Matter of A-R-C-G- & A-B-III; Application of the “circularity rule”; Board of Immigration Appeals (BIA); Immigration judge (IJ); Particular social group (PSG)

The court granted petitioner-Marta Tista-Ruiz de Ajualip’s petition for review of the BIA’s denial of her applications for asylum and withholding of removal, holding that the denial was inconsistent with the court’s precedent and other immigration authority. Marta, a Guatemalan native, applied for asylum and withholding of removal for herself, her children, and her grandchild. She claimed that her son-in-law in Guatemala had threatened to kill them. The IJ ruled that Marta and her family were subject to persecution under the INA but denied the application, relying on precedent (A-B-I) providing that domestic violence victims are not protected under the asylum laws. The BIA affirmed. The court noted that A-B-I was overruled by Attorney General Garland after the IJ's decision but before the BIA reviewed the IJ’s denial. “A-B-III vacated A-B-I in its entirety.” The Attorney General “instructed immigration courts to follow ‘pre-A-B-I precedent, including’” A-R-C-G-. That decision, “unlike A-B-I, recognizes that victims of domestic violence can qualify for asylum relief. . . . A-R-C-G- also clarifies that asylum claims premised on domestic violence contain unique issues that require a careful evaluation of the record[.]” In affirming the IJ here, the BIA determined that “even if A-B-I was overruled, ‘victims of domestic violence’ does not qualify as a PSG under Sixth Circuit precedent . . . .” It also concluded the IJ did not clearly err in finding that “Marta did not meet her burden of showing that ‘the Guatemalan government would be unwilling or unable to protect her.’” But the court found the BIA determined “that her first proposed PSG, ‘victims of domestic violence,’ was impermissibly circular without reviewing any of the evidence in the record.” As a result, its “analysis, and subsequent conclusion, were” deficient. The court held that the BIA misapplied the circularity rule. It emphasized the IJ and the BIA have “‘obligations under international law to extend refuge to those who qualify for such relief and bear the responsibility for assuring that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant’s claim.’” In this case, Marta’s “proposed PSG was not circular because her application reflects additional immutable and narrowing characteristics separate and apart from her suffering of domestic violence.” The court also held that the BIA’s conclusion “Marta did not show that the Guatemalan government was unwilling or unable to protect her family” did not comport with the court’s precedent and there was not “substantial evidence in the record to support it.” The court vacated the BIA’s denial of her applications for asylum and withholding of removal, and remanded to the BIA for reconsideration.

Law of the case doctrine; Scope of remand; Macomb Cnty v AFSCME Council 25; Arbitration award; Collective bargaining agreements (CBAs)

Concluding the circuit court did not err in upholding the arbitration award, the court affirmed the order granting the motion of plaintiff-Michigan AFSCME Council 25 and several affiliated locals to enforce the parties’ arbitration award. The case involved a health care benefits dispute. Defendant contended the arbitrator’s decision conflicted with the court’s “2014 decision in this case, thereby violating the doctrine of law of the case.” The issue before the court “in 2014 was whether the disputed issue was encompassed by the parties CBAs; if so, then the parties’ grievance procedure was the proper avenue to address plaintiff’s past-practice claim.” The court determined then “that the CBAs were unambiguous in that they were not silent on the issue, and therefore a remand for arbitration was the appropriate remedy to address the past-practice claim.” In addition, it “identified the remaining issue involving the past practice, and noted that it was left to the arbitrator to make the final determination on the issue.” The court only decided “that the matter should be remanded for arbitration and did not decide the merits of the underlying dispute regarding health care benefits; any extraneous discussion of law by the Court was obiter dictum lacking the force of an adjudication.” Thus, the arbitrator “did not violate the law of the case doctrine by finding ambiguity in certain provisions of the CBAs with respect to the underlying dispute.” Defendant contended “the trial court erred by enforcing the arbitrator’s award because the arbitrator failed to act within the scope of” the court’s remand order by failing to follow its “directive that on remand the arbitrator determine whether” a meeting of the minds was established. But the court’s “statement of the standard applicable to an unambiguous contract did not preclude the arbitrator finding ambiguity within the parties’ contract regarding the specific issue before the arbitrator. Thus, the arbitrator was not bound by this Court’s discussion anticipating the arbitrator’s treatment of the specific issue before the arbitrator.” Defendant also asserted “the arbitrator failed to adhere to the language of the CBAs and the relevant law.” It argued that the CBAs were “unambiguous, that there was no evidence of a meeting of the minds, that the arbitrator dispensed her own brand of ‘industrial justice,’ and that the zipper clause prevents enforcement of the award.” The court found that it could not “be said that the arbitrator made a material error of law. After finding ambiguity in the contract language, the arbitrator found no repudiation of the parties’ past practice. The arbitrator found that the parties’ conduct showed a ‘mutual intent to provide healthcare benefits to disability retirees upon their meeting age and service requirements for disability retirement pension.’” As to the zipper clause, the court held that the “arbitrator’s finding that the saving provision applied to the benefit in this case was not based on a clear error of law and must be upheld.”

The Michigan Medical Records Access Act; The Health Information Technology for Economic & Clinical Health Act (HITECH Act); Damages; Summary disposition under MCR 2.116(C)(10); Henry Ford Macomb Hospital Corporation (HFMH)

In this case arising from a medical records request, the court concluded defendants-HFMH and a medical records provider supported their summary disposition motion and that no genuine issue of material fact existed. Thus, it affirmed summary disposition for defendants under MCR 2.116(C)(10). Plaintiff-White was treated at HFMO after an auto accident. Seeking to pursue an auto negligence claim, he requested that his medical records be sent to his attorney (S). He later sued defendants, essentially claiming they “improperly withheld” his records. In a prior appeal, the court concluded they “failed to act on White’s request for his medical records within 30 days, as they were required to under the HITECH Act and related regulations,” and remanded the case “for a determination of the ‘appropriate fee based on the actual cost of preparing a duplicate record.’” In moving for summary disposition, “HFMH alleged that, at a status conference held following remand, White disclosed that his sole remaining issue was damages. Specifically, [he] asserted that if the medical records had been timely received from HFMH, he would have” obtained a higher settlement in his underlying case. Defendants contended “there was no genuine issue of material fact that White did not suffer his alleged damages—namely, that any delay in the provision of the HFMH medical records did not impact [his] $15,000 settlement because [he] used the HFMH medical records in his settlement demand letter—and therefore, defendants were entitled to judgment as a matter of law. In light of [their] challenge to the correlation between the timely provision of the medical records and White’s settlement acceptance,” the court found that summary disposition based “on MCR 2.116(C)(10) was the valid framework to analyze this dispute.” Further, defendants supported their motion with documentary evidence that days after receiving the medical records, S used them to negotiate a settlement of White’s claim. S’s affidavit did not create a genuine issue of material fact showing that the “claim would have settled for $30,000 more if the HFMH medical records had been received within 30 days. Although [S] may have experience as a processor of bodily injury claims, this affidavit offered a mere conclusion and failed to delineate an underlying foundation to support its position. Nor did White offer any other evidence to that effect[.]”