Herbert Theodore Milburn
How Judge Milburn rules, drawn from 25 signed orders. Every observation links to the order it came from.
Judge Milburn no longer hears cases. This profile is preserved as a historical record of how they ruled here.
About Judge Milburn
Herbert Theodore Milburn was a judge of the United States Court of Appeals for the Sixth Circuit. Appointed by President Ronald Reagan, Judge Milburn received a commission on October 4, 1984. Judge Milburn previously served on the United States District Court for the Eastern District of Tennessee, commissioned there on June 7, 1983. Judge Milburn assumed senior status on July 1, 1996 and served until death on April 1, 2016.
How Judge Milburn decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
In Overbee's diversity appeal, he ordered a new trial after the Ohio Supreme Court reversed its intervening interpretation of state comparative-negligence law.
“In our opinion justice would not be served by penalizing plaintiffs for the actions of the Ohio Supreme Court.”
In Elbo Coals' tax-refund case, he upheld equitable estoppel against the taxpayer after it reneged on a noncontractual settlement on which the government had relied.
“The estoppel doctrine does not convert the Form 870-AD into a binding contract, but merely operates to avoid injustice.”
In Wulff's migratory-bird prosecution, he affirmed dismissal of a felony indictment because imposing that penalty without proof of scienter would violate due process.
“We are of the opinion that in order for one to be convicted of a felony under the MBTA, a crime unknown to the common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter.”
Procedural preferences
In an NLRB superseniority dispute, he stressed the limited scope of appellate review of the Board's construction of the National Labor Relations Act.
“it is important to stress that the scope of our review is quite limited.”
In Allen's EAJA fee appeal, he held the 30-day filing period began when the appeals court entered its merits opinion and dismissed the petition filed over two years later.
“In our view, the thirty (30) day filing period began to run upon the entry of this court’s opinion on July 15, 1981.”
In Wright's police-employment appeal, he declined to consider theories first raised on appeal and affirmed summary judgment on the theory preserved below.
“In summary, we hold that only one of plaintiff’s theories for recovery is properly before this court. Since we find no error in the district court’s conclusion on that theory, the judgment of the district court is AFFIRMED.”
Cautions
In Landsaw's disability-benefits appeal, he affirmed the agency's denial after reviewing the full record and finding substantial objective medical evidence supported it.
“The determination of whether there is substantial evidence to support the Secretary’s findings must be based on the record as a whole.”
In Raypole's veterans-benefits appeal, he held discretionary employer contributions to a profit-sharing plan were not benefits the veterans would have received with reasonable certainty during service.
“It follows from these cases that the discretion vested in defendant’s board of directors as to whether to award contributions prohibits a finding that the contributions would have occurred with reasonable certainty.”
In Banks's First Amendment employment case, he reversed denial of reinstatement because the district court's reasons did not overcome that remedy for the proven violation.
“Against this background, we find the reasons advanced by the district court for denying reinstatement to be insufficient to overcome the appellant’s entitlement to reinstatement as an appropriate remedy.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“For the reasons stated herein, the decision of the district court is Reversed and the case is remanded with instructions to grant the plaintiffs a new trial.”
“Accordingly, we Affirm the decision of the district court.”
“For the reasons stated herein, the decision of the district court is AFFIRMED.”
“Accordingly, the judgment of the district court is Affirmed.”
“Accordingly, the judgment of the Tax Court is Affirmed.”
“For the reasons stated herein, the judgment of the district court is AFFIRMED.”
“Accordingly, we hold that plaintiff's Pell Grant funds have not been specifically earmarked for education expenses by a grantor of the funds and, therefore, AFFIRM the decision of the district court.”
“Accordingly, the judgment of the district court entered on the jury verdict in favor of plaintiffs’ equal protection and loss of consortium claims is REVERSED, and the court’s grant of summary judgment in favor of defendants on plaintiff’s remaining claims is AFFIRMED.”
“The judgment of the district court dismissing the petition for habeas corpus is Affirmed.”
“Furthermore, having reviewed the district court’s decision to grant the plaintiffs’ motion for a judgment notwithstanding the verdict, along with the other issues raised by the appellant, we Affirm the decision of the district court in all respects.”
“Accordingly, the judgment of the tax court is Affirmed.”
“The judgment of the district court dismissing the petition for habeas corpus is Affirmed.”
A historical record
Judge Milburn no longer hears cases. This profile stays available as a record of how they ruled here. If you're preparing for a matter, start from the court's current bench.