Tamarin Lindenberg, individually and as natural guardian of her minor children ZTL and SML, Plaintiff-Appellee/Cross-Appellant,
Jackson National Life Insurance Company, Defendant-Appellant/Cross-Appellee, State of Tennessee, Intervenor-Appellee.
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:13-cv-02657-Jon
Phipps McCalla, District Judge.
PETITIONS FOR REHEARING EN BANC:
Ahillen, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE,
Nashville, Tennessee, for Intervenor Appellee.
W.Van Horn, Gadson W. Perry, BUTLER SNOW LLP, Memphis,
Tennessee, for Appellant/Cross-Appellee.
RESPONSE IN OPPOSITION:
Glover, Charles S. Higgins, BURCH, PORTER & JOHNSON,
PLLC, Memphis, Tennessee, for Appellee/Cross-Appellant.
Silverman, SHOOK, HARDY & BACON L.L.P., Washington, D.C.,
for Amicus Curiae.
Before: CLAY, STRANCH, and LARSEN, Circuit Judges.
J. (pp. 3-5), delivered a separate opinion concurring in the
denial of rehearing en banc in which STRANCH, J., joined.
BUSH, J. (pp. 6-15), delivered a separate opinion dissenting
from the denial of rehearing en banc. NALBANDIAN, J. (pp.
16-18), delivered a separate statement regarding the denial
of rehearing en banc in which THAPAR, BUSH, and LARSEN, JJ.,
court received petitions for rehearing en banc. The original
panel has reviewed the petitions for rehearing and concludes
that the issues raised in the petitions were fully considered
upon the original submission and decision. The petitions then
were circulated to the full court. Less than a majority of
the judges voted in favor of rehearing en banc.
the petitions are denied.
Circuit Judge, concurring in the denial of rehearing en banc.
incredulous that some of my colleagues would have this Court
establish rigid, mechanical, and unflinching criteria for
certification to state courts in lieu of our established
practice of trusting panels to exercise their experience,
discretion, and best judgment to determine when certification
Supreme Court has recognized that the decision of whether to
certify "rests in the sound discretion of the federal
court." Lehman Bros. v. Schein, 416 U.S. 386,
391 (1974). This approach recognizes that federal courts
weigh numerous competing considerations when determining
whether to certify. Of course, certification "is most
appropriate when the question is new and state law is
unsettled." Transamerica Ins. Co. v. Duro Bag Mfg.
Co., 50 F.3d 370, 372 (6th Cir. 1995). But federal
courts may also consider factors such as comity, cooperative
federalism, and judicial economy. See Rutherford v.
Columbia Gas, 575 F.3d 616, 628 (6th Cir. 2009) (Clay,
J., dissenting). These multifarious considerations cannot be
reduced to a checklist or simple mathematical formula, as my
colleagues would have us believe.
the decision concerning whether to certify is not always
straightforward. Resolving requests for certification often
entails a difficult analysis of several competing
considerations. But the mere fact that ceding our discretion
would be easier, and perhaps even more expedient, is not an
adequate reason for us to shirk from our judicial
obligations. Rather than adopt a rigid formula that answers
the question for us of when to certify, we should trust
ourselves and our own judgment, and that of our capable
colleagues on this Court, to exercise our discretion wisely
after considering the unique circumstances and considerations
that may be present in a given case.
surface, my colleagues purport to take issue with this
Court's procedure for certification. But, on a more
fundamental level, they appear to challenge this Court's
very jurisdiction to decide matters of state law in diversity
cases, a power that emanates from Article III and which
Congress has codified in 28 U.S.C. § 1332. It is an
"undisputed constitutional principle that Congress, and
not the Judiciary, defines the scope of federal jurisdiction
within the constitutionally permissible bounds." New
Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 359 (1989). Federal courts have a
"virtually unflagging obligation . . . to exercise the
jurisdiction given them," Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817
(1976), and "have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is
not given," Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 404 (1821). Thus, when diversity jurisdiction is
properly invoked, federal courts have a "duty . . . to
decide questions of state law whenever necessary to the
rendition of a judgment." Meredith v. City of Winter
Haven, 320 U.S. 228, 234 (1943); see Burgess v.
Seligman, 107 U.S. 20, 33 (1883) (explaining that
"[t]he federal courts have an independent jurisdiction
in the administration of state laws, co-ordinate with, and
not subordinate to, that of the state courts"). And
"it is still the duty of the federal courts, where the
state law supplies the rule of decision, to ascertain and
apply that law even though it has not been expounded by the
highest court of the State." Fid. Union Tr. Co. v.
Field, 311 U.S. 169, 177 (1940) (call number omitted).
extent that my colleagues wish to circumvent Congress's
directive that we decide state law issues in diversity cases,
they ignore their constitutional obligation to exercise the
jurisdiction conferred by Congress. To the extent that they
would create new rules to infringe upon jurisdictional
prerequisites for referral of cases to state courts, they
engage in judicial activism in contravention of
Congress's prerogative to define the jurisdiction of
federal courts. Even if they doubt the wisdom of the scope of
federal court jurisdiction as it currently stands, that does
not justify their oblique attempt to circumscribe federal
jurisdiction by impeding or eliminating our discretion to
decide when certification is appropriate.
my colleagues' concerns are unfounded. When this Court
sits in diversity, we apply state law, see Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938), and therefore act
as "only another court of the State." Guar. Tr.
Co. v. York, 326 U.S. 99, 108 (1945). When required to
do so, we predict state law, but we do not devise it. In many
instances, federal courts are more than capable of correctly
deciding state law issues without certifying them to the
state's highest court. In those cases, certification
would serve little purpose other than to needlessly delay
resolution of the ultimate issues in the case. Some state
courts frequently take an extended period of time to decide
whether to address certified questions, only to ultimately
reject the certification request and refuse to answer the
questions for which we have sought guidance. I am personally
aware of multiple instances in which state courts in our
circuit have sat on certification requests for up to a year
or more, only to deny the requests without taking any action.
Of course, certification may be warranted in some cases. But
we should not create a mechanical rule that would require us
to certify issues in circumstances where our sound discretion
and judicial experience would not direct us to seek
in arguing for certification here, my colleagues have taken
my statements from Rutherford, 575 F.3d 616, out of
context. In Rutherford, this Court faced the
question of whether the equitable doctrines of estoppel,
laches, and waiver applied to an express easement under Ohio
law. Id. at 618. The majority declined to certify
the question, holding that the outcome was "largely
controlled," id., by our recent decision in
Andrews v. Columbia Gas Transmission Corp., 544 F.3d
618 (6th Cir. 2008). I dissented, arguing that stare
decisis did not preclude certification because
Andrews "relied almost exclusively" on a
single intermediate court case that was likely wrongly
decided, and because Andrews failed to discuss, much
less distinguish, several cases from the Ohio Supreme Court
that indicated that body would likely reach the opposite
conclusion as the Andrews panel.
Rutherford, 575 F.3d at 620-21. (Clay, J.,
dissenting). Rutherford is the inverse of this case.
There, the panel privileged federal precedent over state
decisions. Here, the panel stands accused of doing the
this panel properly considered the circumstances of the case.
A jury found in Plaintiff's favor in December 2014. Three
and a half years later, when this appeal was briefed and
argued, neither party moved for certification. The State as
intervenor did so only in a footnote, and only with regard to
"the constitutional questions." But of course, the
district court had already certified the constitutional
questions to the Tennessee Supreme Court. That body, after
waiting approximately seven ...