Case: 12-1984

Document: 55

Filed: 03/09/2015

Page: 1

No. 12-1984
In the United States Court of Appeals
for the Sixth Circuit

FLYING DOG BREWERY, LLLP,

Plaintiff-Appellant,
v.
MICHIGAN LIQUOR CONTROL COMMISSION, ET AL.,
Defendants-Appellees.

Appeal from a Judgment of the

United States District Court for the Western District of Michigan
The Hon. Robert J. Jonkers, District Judge
(Dist. Ct. No. 1:11-cv-00307-RJJ)

MOTION TO PUBLISH OPINION

Pursuant to 6 Cir. I.O.P. 32.1(b)(2), Appellant Flying Dog

Brewery, LLLP respectfully moves that the Courts opinions in this
case issued March 5, 2015, be published.
The panel dedicated significant judicial resources to the task of
deciding this case, and addressed a variety of critically important
issues in so doing. The courts and the public at large should have the

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full benefit of this Courts guidance. Indeed, the Courts decision fulfills
six of the seven criteria examined in considering publication, lacking
only previous review by the Supreme Court (6 Cir. I.O.P. 32.1(b)(1)(F)).
1.

The Decision Establishes a new rule of law, modifies an

existing rule of law, or applies an established rule to a novel
factual situation. 6 Cir. I.O.P. 32.1(b)(1)(A).

The majority acknowledged that We lack the benefit of a

Supreme Court or Sixth Circuit opinion on whether members of a
state administrative body who initially grant or deny beer label
registration are entitled to absolute immunity. Opinion at 9.
Considering that alcohol labels are commonly regulated, and the wide
array of state administrative bodies which could draw guidance from
this Courts opinion, the first criteria for publication is satisfied. While
the decision with respect to quasi-judicial immunity is limit[ed] . . . to
the specific factual and legal circumstances presented by this case,
Opinion at 17, the extensive discussion of each factor utilized in making
this determination, in both opinions, would supply useful guidance.
The fact that this Court resolved a contested issue of qualified
immunity also points toward publication. The essential question in a
qualified immunity inquiry is whether government officials are on
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notice to refrain from certain conduct. In the interest of government

officials and of the public that they serve, to minimize constitutional
violations and the liability arising therefrom, courts should publish
such notices prominentlyespecially where the immunity is lacking.
2.

The Decision Creates or resolves a conflict of authority

within this circuit or between this circuit and another. 6
Cir. I.O.P. 32.1(b)(1)(B).

The Appellees, and the District Court, took guidance on the

qualified immunity question from Bad Frog Brewery, Inc. v. N.Y. State
Liquor Auth., 134 F.3d 87 (2d Cir. 1998). This Court departed from Bad
Frog on the qualified immunity question, creating a clear circuit
conflict. Opinion at 21-22; see also Moore, J., dissenting in part and
concurring in judgment in part, at 62. Future Sixth Circuit litigants,
and courts, should know not to rely upon Bad Frog on the question of
qualified immunity.
3.

The Decision Discusses a legal or factual issue of continuing

public interest. 6 Cir. I.O.P. 32.1(b)(1)(C).

First Amendment speech rights, the regulation of alcohol, quasijudicial immunity, and qualified immunity are all subjects of pervasive
public interest. This was not a case concerning obscure legal doctrines
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or private facts of interest to no one beyond the parties. The Courts

decision immediately generated national news coverage, both in the
legal and popular press. See, e.g., Zoe Tillman, Craft Beer Makers
First Amendment Suit Over Raging Bitch Label is Revived, National
Law Journal, March 6, 2015;1 Associated Press, Michigan regulators
ordered back to court on beer label, Bellingham (Washington) Herald,
March 6, 2015.2
4.

The Decision Is accompanied by a concurring or dissenting

opinion. 6 Cir. I.O.P. 32.1(b)(1)(D).

This criteria is satisfied.

5.

The Decision Reverses the decision below within the

requisite parameters. 6 Cir. I.O.P. 32.1(b)(1)(E).

This criteria is satisfied.

Available at http://www.nationallawjournal.com/id=
1202719888209/ Craft-Beer-Makers-First-Amendment-SuitOver-Raging-Bitch-Label-is-Revived#ixzz3Tevr84JW
1

Available at http://www.bellinghamherald.com/2015/03/06/
4169257_michigan-regulators-ordered-back.html?rh=1
2

Case: 12-1984

6.

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The Decision Addresses a published lower court or agency

decision. 6 Cir. I.O.P. 32.1(b)(1)(F).

This Court reversed the published decision of Flying Dog

Brewery, LLLP v. Mich. Liquor Control Commn, 870 F. Supp. 2d 477
(W.D. Mich. 2012).
WHEREFORE, Flying Dog Brewery, LLLP respectfully requests
that the opinion be published.
Dated: March 9, 2015

Respectfully submitted,
Alan Gura
GURA & POSSESSKY, PLLC
105 Oronoco Street, Suite 305
Alexandria, VA 22314
703.835.9085/703.997.7665
By:

/s/ Alan Gura

Alan Gura
Counsel for Plaintiff-Appellant

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CERTIFICATE OF SERVICE
I certify that on this 9th day of March, 2015, I filed the foregoing
Motion electronically with the Clerk of the Court using the CM/ECF
System, which will effect electronic service on all counsel.
I declare under penalty of perjury that the foregoing is true and
correct.
Executed this the 9th day of March, 2015.
/s/ Alan Gura
Alan Gura
Counsel for Plaintiff-Appellant