CLAY, Circuit Judge. Plaintiff Richard Wershe, Jr., appeals the district court’s dismissal of his complaints in two lawsuits pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 20, 2021, Wershe sued the City of Detroit and federal and state law enforcement officials for violations of his constitutional rights under 42 U.S.C. § 1983 and Bivens, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Based on the same underlying facts, on October 28, 2022, Wershe also sued the United States for violations of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. In a consolidated order, the district court dismissed Wershe’s complaints with prejudice because Wershe’s claims were time-barred. For the reasons set forth below, we AFFIRM the district court’s order.

Tennessee Attorney General Jonathan Skrmetti, along with a coalition of 14 other state attorneys general led by Kansas, have filed a federal lawsuit to halt the Biden administration's plan to extend Affordable Care Act benefits to undocumented immigrants, includin 100,000 so-called "Dreamers," who were brought into the country as children. The final rule, scheduled to go into effect on Nov. 1, would grant taxpayer-subsidized health plans to more than 200,000 immigrants, including thousands in Tennessee. The suit argues that the plan violates the provisions of the law, which limit eligibility to U.S. citizens, nationals and individuals "lawfully present" in the country. Read more in a release. 

The Tennessee Supreme Court has referred the case of Jefferson County attorney James Richard Scroggins to the Board of Professional Responsibility for “whatever action” it “may deem warranted.” The court took the action after Scroggins “pled guilty to and was adjudged guilty of Driving Under the Influence, a Class A misdemeanor, in violation of T.C.A. § 55-10-401” in the Jefferson County General Sessions Court.

After a jury trial, Appellant received a $500.00 award. She then moved for a judgment notwithstanding the verdict based on the exclusion of certain testimony, which the trial court denied. On appeal, Appellant again argues that the trial court erred in excluding the testimony. Because Appellant failed to properly raise these issues post-trial, the issues are waived, and the trial court’s judgment is affirmed.

This post-divorce appeal concerns the trial court’s classification, valuation, and equitable division of marital property. Following our review of the record, we affirm the trial court’s judgment.

The Petitioner, Lizandro Guevara, appeals the Davidson County Criminal Court’s dismissal of his petition requesting DNA analysis of evidence pursuant to the Post- Conviction DNA Analysis Act of 2001. Based upon our review, we affirm the judgment of the post-conviction court.

The Tennessee Supreme Court has imposed a one-year suspension on Connecticut lawyer Jason Russell Buckley based on imposition of the same discipline by the Maine Supreme Judicial Court in September 2023. Maine took the action after Buckley requested CLE credit for two webcast seminars that occurred simultaneously. On April 8, the Tennessee court asked Buckley to file an answer as to why it should not apply the same discipline. Buckley filed a response on May 6, arguing that identical discipline should not be imposed in Tennessee based on Tenn. Sup. Ct. R. 9, § 25.4. The Board of Professional Responsibility reviewed the claim and found that none of the elements in the rule apply to this case. The court agreed and imposed the suspension retroactive to Sept. 7, 2023.

Since January 2023 when the Federal Trade Commission (FTC) first announced its proposed rule effectively banning virtually all noncompetes nationwide (Noncompete Rule), prognostications on whether the rule would survive legal challenge have abounded. The FTC’s publication of the final Noncompete Rule on April 23 triggered those inevitable legal challenges. The same day the FTC announced the final Noncompete Rule, a Texas company filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the legality of the Rule and asked the court to stay the effectiveness of the Rule pending the outcome of the case. The court told the parties it would rule on the request for a preliminary injunction by July 3 and on that date, it entered a preliminary injunction order staying the effective date as to the plaintiff, and several intervening plaintiffs including the U.S. Chamber of Commerce. The court declined to enter a nationwide stay of the noncompete rule; however, it stated that it would enter a ruling on the merits of the case by Aug. 30, several days ahead of the noncompete rule’s Sept. 4, effective date. In the meantime, a similar challenge in the Eastern District of Pennsylvania resulted in the denial of preliminary injunctive relief on July 23, resulting in substantial angst among employers across the country trying to contingency plan for the legal landscape after Sept. 4. 

The scope of the Noncompete Rule

The Noncompete Rule essentially bans all noncompete agreements with very few exceptions. And the definition of a prohibited “noncompete clause” is broad, covering any provision with a “worker” that “penalizes a worker for, or functions to prevent a worker from…[s]eeking or accepting work in the United States with a different person” after employment.[i] The coverage of “workers” indicates that the rule would apply to both employees and independent contractors, and the functional approach to what constitutes a noncompete suggests that it would encompass nonsolicitation provisions that, in the FTC’s view, would have the same preventative effect on a worker’s ability to work for a competitive company. The exceptions to the ban are limited to noncompetes entered into by “senior executives” prior to the Sept. 4, noncompetes entered into as part of a person’s sale of a business and causes of action that accrued prior to Sept. 4.[ii]

Legal challenges to the Noncompete Rule

The Noncompete Rule was adopted on April 23. That same day, Ryan LLC, a Texas-based tax services firm, filed the first legal challenge in the U.S. District Court for the Northern District of Texas.[iii] The next day, several associations, including the U.S. Chamber of Commerce, filed a similar lawsuit in the Eastern District of Texas.[iv] After the Eastern District of Texas granted the FTC’s motion to stay the second-filed case and the Chamber and other association plaintiff’s intervened in the Ryan case, the Chamber’s case in the Eastern District of Texas was dismissed without prejudice.[v]

 Ryan LLC and the intervening plaintiffs assert multiple challenges to the Noncompete Rule arising out of the Administrative Procedures Act (APA), notably including the following:

• The FTC lacks statutory authority to issue the Noncompete Rule. The FTCA does not provide the FTC with general rulemaking authority, and the only specific rulemaking authority in the FTCA is in the context of deceptive or unfair business practices, not unfair competition. And if the question is close, the Major Questions Doctrine dictates erring on the side of no authority. 
• Had Congress tried to give the FTC authority broad enough to adopt the Noncompete Rule, it would amount to an unconstitutional delegation of legislative power to the Executive Branch.
• The fact that the Noncompete Rule is retroactive raises Fifth Amendment concerns.
• The Noncompete Rule is arbitrary and capricious under the APA. 

The Texas District Court’s injunction analysis

In evaluating the injunction motion, the Texas district court conducted the familiar Rule 65 analysis for preliminary injunctive relief, evaluating (1) plaintiffs’ likelihood of success on the merits, (2) whether the plaintiffs would suffer irreparable harm absent an injunction, (3) the balance of the equities among the parties, and (4) the public interest. The court concluded that each factor favored entering an injunction and staying the noncompete rule as to the plaintiffs. 

The court spent most of its order addressing the first element. Ryan, LLC argued that the noncompete rule exceeds the FTC’s statutory authority, is unconstitutional, and is arbitrary and capricious. The court concluded Ryan LLC will likely succeed in its claims that the FTC law's authority to enact the noncompete rule and that the noncompete rule is arbitrary and capricious. The FTC’s statutory basis for its relevant rulemaking authority is Section 6(g) of the FTCA, which states:

(g)Classification of corporations; regulations

From time to time classify corporations and (except as provided in section 57a(a)(2) of this title) to make rules and regulations for the purpose of carrying out the provisions of this subchapter.[vi]

The court concluded that, while the FTC has “some authority to promulgate rules to preclude unfair methods of competition,” it “lacks the authority to create substantive rules through this method.”[vii] The court also concluded that the Noncompete Rule is likely arbitrary and capricious given its “expansive ban” and “one-size-fits-all” approach supported by a limited number of studies.[viii] The court also took the FTC to task for failing to consider less sweeping alternatives to a blanket noncompete ban.[ix]

Regarding the irreparable harm factor, the court disposed of it relatively quickly noting that “[u]nder Fifth Circuit precedent, the “nonrecoverable costs of complying with a putatively invalid regulation typically constitute irreparable harm.”[x]

No nationwide injunction … yet. 

Ryan and the intervening plaintiffs asked the court for a nationwide injunction to stay the effective date of the Noncompete Rule for all employers. The court, however, concluded that applying Fifth Circuit precedent, the circumstances before it did not merit nationwide relief.[xi] The court additionally noted that the Chamber of Commerce and the other association intervening plaintiffs asserted “associational standing on behalf of their respective member entities” that might justify an injunction applicable more broadly than just to the party plaintiffs.[xii] The court noted that the intervening plaintiffs had not offered briefing or record evidence to support a finding of associational standing as a justification for expanding the scope of its injunction order. 

The court’s limitation of its injunction to the named parties, however, does not mean that the Noncompete Rule will go into effect for other employees as scheduled on Sept. 4. The court’s injunction order states that the court “intends to enter a merits disposition on this action on or before Aug. 30.”[xiii] Unless the court dramatically changes its view of the case, the most likely result will be a merits ruling invalidating the Noncompete Rule and staying its implementation while the case works its way through appellate review. 

A Pennsylvania District Court reaches a contrary result

The legal landscape surrounding the Noncompete Rule became more complicated on July 23 when the District Court for the Eastern District of Pennsylvania reached a result contrary to the Northern District of Texas and denied a motion to temporarily enjoin the Noncompete Rule.[xiv] A Pennsylvania company named ATS Tree Services LLC filed its own challenge to the Noncompete Rule on April 25[xv] and on May 14 filed a motion preliminary injunction.[xvi] ATS Tree Services’ legal challenges to the Noncompete Rule are the same challenges asserted by Ryan and the Chamber of Commerce in the Ryan case in Texas.[xvii] As in the Ryan case, a large number of amici filed briefs related to the preliminary injunction motion.[xviii]

On July 23, the court denied the motion to enjoin the effective date of the Noncompete Rule.[xix] The court first addressed the irreparable harm factor, found irreparable harm had not been established and stated that “on that finding alone, the court must deny [the] motion.”[xx] The court distinguished Fifth Circuit law, which holds that the costs of complying with a government rule or regulation is a valid basis for finding irreparable harm, from Third Circuit authority which has held that compliance costs are typically insufficient to establish irreparable harm.[xxi] That distinction appears to be one way in which the District Court of Eastern Pennsylvania sought to explain its divergent ruling from the District Court for the Northern District of Texas. While the court concluded that the irreparable harm factor dictated denial of the motion, the court nevertheless analyzed the likelihood of success on the merits element as well, reaching the opposite conclusion from the Ryan court that ATS is unlikely to succeed on the merits. At a basic level, the court sided with the FTC and concluded that the FTCA authorizes the FTC to engage in substantive rulemaking regarding unfair competition. Interestingly, ATS did not move for a preliminary injunction based on its claim that the Noncompete Rule was arbitrary and capricious, so the court did not analyze whether the Noncompete Rule was likely arbitrary and capricious under the APA.[xxii]

So, what’s next?

The District Court for the Northern District of Texas’ intention to provide a merits ruling by Aug. 30 means that employers will likely know whether the Noncompete Rule is stayed prior to its Sept. 4 effective date. In their merits briefing, Ryan and the Chamber of Commerce argue, with Fifth Circuit support, that vacating the Noncompete Rule completely — rather than permanently enjoining it as to the named parties (and the associational plaintiffs’ members) — is the correct remedy.[xxiii] While the case will likely be appealed, a ruling applicable to all employers would avoid the confusion that would no doubt result from a limited injunction applicable only to named parties or members of the association plaintiffs. One way or the other, we should know by the end of August. 

Jeb Gerth is a Member of the Firm in Epstein Becker Green’s Employment, Labor & Workforce Development practice.  Since 2005, Jeb has advised companies on employment compliance and represented them in employment disputes. In addition to his employment practice, Jeb regularly advises on benefits issues arising under ERISA and represents companies and plan fiduciaries in ERISA disputes. 

A $1 million gift made on behalf of Chattanooga-based law firm Summers, Rufolo & Rodgers will support students and faculty at the University of Tennessee College of Law. The school reports that the gift will fund scholarships for students interested in pursuing legal careers in advocacy as well as support for the College of Law Center for Advocacy and Dispute Resolution, Legal Clinic and Douglas A. Blaze Leadership Scholarship. The gift continues Summers, Rufolo & Rodgers longstanding support of the law school and students who intend to focus on advocacy, the school said in a release. Firm founder Jerry H. Summers, a 1966 graduate of the law school, also co-founded the school’s Center for Advocacy and Dispute Resolution.

Stephen Hatchett, who won a three-way race for district attorney for the 10th Judicial District in March, is asking the local chancery court to rule on whether he can occupy the office immediately. Hatchett says he should be allowed to do so since the March 5 primary election has been certified, Chattanoogan.com reports. Hatchett did not face Democratic opposition in the August election. Shari L. Tayloe, who was named to the post by Gov. Bill Lee after Steve Crump left, says she is not leaving until her term expires on Aug. 31. The district includes Bradley, McMinn, Monroe and Polk counties.