Vol. 32, No. 1, February 2020
West Michigan Chapter of the Federal Bar Association

Bar & Bench

In this issue:
  • Why is the FBA Important? Reason #2: Service to the Court
  • Magistrate Judge Ellen Carmody Retires
  • Judge Sally Berens' Investiture
  • Become a Historical Society Trustee
  • Get Connected With the Young Lawyers Section
  • Looking for Past Issues of Our Newsletter?
  • Appellate Roundup
  • Upcoming Events
  • WMC FBA Officers
  • Thanks to Our Newsletter Sponsors

Why is the FBA Important?
Reason #2: Service to the Court 

By Brian Lennon, 2020 chapter president

Have you heard about our district’s Pro Se Prisoner Civil Rights Litigation Early Mediation Program?  If not, you'll learn more in the coming weeks. 
The program was created in 2018 by Administrative Order 18-RL-091.  Since its inception, the program has been operating successfully by using early mediation conferences to assist parties in settling pro se prisoner litigation cases without the need for further court action. 
A handful of dedicated mediators have been doing a terrific job successfully resolving a high percentage of cases.  The Court, however, needs more trained and dedicated mediators.  Recently Judge Green and Alan Soros of the Michigan Attorney General’s Office presented an overview of the program to our Executive Committee.  They asked for our membership’s assistance with the recruitment, screening, and training of 15 to 20 additional volunteer mediators to work with the Michigan Attorney General’s Office and prisoner litigants to successfully mediate the continually growing number of cases filed each year.  A working group was formed and we expect to have an application with training dates available for distribution very soon.   
Mediation sessions are held at the Federal Courthouse on Fridays at which time the parties and attorneys explain to the mediator the factual and legal issues involved in the case. Mediators meet jointly with all parties, and/or separately and confidentially with each party and counsel, to discuss the issues with the goal of obtaining and presenting settlement offers or proposals.
As in other mediations, the documents exchanged between the parties and their discussions and negotiations during the mediation conference are confidential, pursuant to Federal Rule of Evidence 408. And neither the mediator nor any party or attorney may inform the assigned judges what was discussed or what offers were made during the mediation conference.  The parties to the litigation are required to make a good faith effort to settle the case based on a fair and reasonable view of the facts and the law. What is needed, however, are more trained, independent, neutral, and impartial attorney mediators -- like you! 
Our chapter has a long history of stepping up when the Court needs assistance.  Please look for more information about the program and consider whether, as part of your pro bono commitment, service through this important program can be an addition to your federal practice in 2020 and beyond. 
Finally, as you know, membership renewal notices have been issued.  Please don’t forget to renew your FBA membership for 2020, and please tell a friend or colleague to consider joining the FBA this year.  Stay tuned!


Brian Lennon serves as 2020 president of the Western District of Michigan's FBA chapter. A former federal prosecutor in Michigan and Virginia and former trial attorney for the US. Department of Justice's Civil Division, Brian is with Warner Norcross + Judd and specializes in criminal defense, particularly healthcare fraud, white color crime, drug offenses, corporate internal investigations, and compliance matters.

Magistrate Judge Ellen Carmody Retires 

 By Britt Cobb

Chief Judge Robert Jonker addresses attendees at Judge Ellen Carmody's retirement reception.

On November 1, 2019, Magistrate Judge Ellen Carmody officially retired from her position after serving the Court for 19 years.

Among the things litigants will remember most about Judge Carmody is that she treated lawyers and parties with dignity and respect. She was empathetic and calm.  This is her way. And as Judge Carmody recalls it, she was treated in kind with dignity and respect from litigants.

Judge Carmody’s special way on the bench came from a diversity of life experiences. Her first role was not as lawyer, but as special education teacher in the Grand Rapids Public Schools. She taught for about five years before deciding to pursue her interest in the law.

She attended the University of Michigan Law School and graduated Magna Cum Laude in 1983.  Because many of her emotionally and developmentally challenged students had a tendency toward delinquency, Judge Carmody’s initial draw was to explore juvenile law, but during her law school course work she fell in love with the Uniform Commercial Code and gravitated toward commercial law.

Instead of heading into practice after completing law school, she clerked in the district for two years for the Honorable Douglas W. Hillman. She loved the work and the exposure to a wide range of cases and during her clerkship she realized that being a magistrate judge would be her dream job.

Carmody entered private practice at Law, Weathers and Richardson after her clerkship, working there from 1985 through 2000, primarily in employment and commercial litigation cases. While she was at Law Weathers, she worked with Cynthia Hosner who would become her long-time judicial assistant.

In 2000, Judge Carmody was appointed as Magistrate Judge.  For the first year or so, she assumed Magistrate Judge Doyle A. Rowland’s courtroom and chambers in the Kalamazoo courthouse, requiring she and Cynthia to commute to Kalamazoo every day, which was sometimes a challenge! They both had on-the-job training, so to speak, and learned much from the Honorable Richard Enslen and his experienced staff.

After her year in Kalamazoo, Carmody moved to the Grand Rapids location of the Court, and there she and Cynthia have remained. Russ Ambrose joined their staff a year later and Julie Lennon joined them in approximately 2006, creating a fabulous team. 

During her time as a Magistrate Judge, Carmody presided over several jury trials and civil and misdemeanor criminal trials and despite her lack of prior exposure, came to enjoy the criminal cases. But her favorite work was conducting settlement conferences in civil cases.

Blending her lifelong interests in teaching and the law, Judge Carmody taught criminal justice at Grand Valley State University, as well as federal jurisdiction and ADR at the Michigan State University College of Law while serving as a magistrate judge. She loved working with her students. 

Judge Carmody is still called to Court to handle miscellaneous matters, primarily settlement conferences. She enjoys the opportunity to continue to serve and considers it a nice transition to full-time retirement. Her husband retired in 2019 from a long career in ophthalmology and together they have interesting travels planned.  Her daughter recently obtained her master’s degree in social work and is working in Massachusetts. Today, Judge Carmody finds herself content and looking forward to this next chapter of her life. 

In November, The Court and the FBA sponsored a reception recognizing the retirement of Judge Carmody in the jury assembly room at the Grand Rapids location of the Court, which was attended by a standing-room-only crowd of well wishers. 

Among the retirement gifts presented to Judge Carmody was a beautiful crystal vase, presented by Federal Public Defender Sharon Turek on behalf of the federal criminal defense bar. It was inscribed with a portion of the following quote from Charles Swindoll on attitude:

The longer I live, the more I realize the impact of attitude on life. Attitude, to me, is more important than facts. It is more important than the past, than education, than money, than circumstances, than failures, than successes, than what other people think, say or do. It is more important than appearance, giftedness or skill.  It will make or break a company... a church... a home. The remarkable thing is we have a choice every day regarding the attitude we embrace for that day. We cannot change our past... we cannot change the fact that people will act in a certain way. We cannot change the inevitable. The only thing we can do is play the one string we have, and that is our attitude... I am convinced that life is 10% what happens to me and 90% how I react to it. And so it is with you... we are in charge of our attitudes

Judge Carmody approached every day of the administration of justice with a great attitude and the effects of that make her time on the bench unforgettable.  She will be missed. 

Britt Cobb is the editor of the FBA newsletter and a partner at Willey & Chamberlain, LLP in Grand Rapids, a firm specializing in state and federal criminal defense at both the trial and appellate levels.

Magistrate Judge Sally J. Berens Invested

 By Britt Cobb

Raymond Beckering, Judge Sally Berens, and Russ Kavalhuna at Judge Berens' investiture.

On January 28, 2020, the Honorable Sally J. Berens was formally invested as Magistrate Judge of the United States District Court for the Western District of Michigan.   
Judge Berens took over magistrate judge duties in the Southern Division in November 2019 upon the retirement of the Honorable Ellen S. Carmody. The investiture was sponsored by the Court and the Federal Bar Association. It was held in Chief Judge Robert J. Jonker’s courtroom at the Gerald R. Ford Federal Building in Grand Rapids. The courtroom was full and Judge Phillip Green’s courtroom across the hall was used for additional seating.
Chief Judge Jonker presided over the ceremony. Chief Judge Jonker’s opening remarks were well received and he acknowledged Magistrate Judge Berens’ colleagues and friends from the federal bench including:  District Court Judges Paul L. Maloney, Janet T. Neff and Gordon Quist; fellow Magistrate Judges Phillip J. Green and Raymond Kent and retired Magistrate Judges Ellen S. Carmody, Joseph Scoville and Hugh W. Brenneman; Chief Bankruptcy Judge Scott W. Dales and Bankruptcy Court Judges James Boyd and John Gregg, as well as Bankruptcy Clerk Michelle M. Wilson; and, Nicholas Ohanesian, Administrative Law Judge for the Social Security Administration.
Chief Judge Jonker also recognized state court colleagues in attendance, Judges Jane M. Beckering and James R. Redford of the Michigan Court of Appeals and Judge Jeffrey O’Hara of the 63rd District Court. Thomas Dorwin, Clerk of the District Court; Rebecca Howell, Chief United States Probation Officer for the Court; Sharon Turek, Federal Public Defender; and Andrew Byerly Birge, United States Attorney, were also acknowledged. 
Brian Lennon of Warner, Norcross and Judd and President of the Western District of Michigan Chapter of the Federal Bar Association was the master of ceremonies and introduced the afternoon’s speakers.  Judge Carmody spoke, wishing Judge Berens well.  Raymond E. Beckering, III, Assistant United States Attorney, also spoke, acknowledging Judge Berens’ family and reminded us all in heartfelt remarks about Judge Berens’ many accomplishments. Russell A. Kavalhuna, former Assistant United States Attorney and current President of Henry Ford College, spoke of his time as a colleague of Judge Berens and of her many fine qualities.  There were many laughs and also misty eyes as the speakers described Judge Berens.
Chief Judge Jonker administered the oath of office and Judge Berens’ young sons, Dries and Silas, robed their mom.  Judge Berens herself made remarks, expressing her gratitude, including her gratitude to her excellent staff, Julie Lennon, Cynthia Hosner and Phil Henderson. 
It was a lovely celebration and was followed by a well-attended reception at The University Club of Grand Rapids.  Stay tuned for subsequent editions of the Bench and Bar Newsletter for more on Judge Berens!


Become a Historical Society Trustee

The Historical Society has openings for new trustees.

The Historical Society was created to research, collect, and preserve the history of the lawyers, judges, and cases that comprise the federal court community in Western Michigan and the Upper Peninsula and to share this information with the public in an effort to promote a better understanding of the region, the court, and the rule of law.

Trustees meet several times a year and are responsible for advancing the mission of the Historical Society, including preserving court history and writing articles for the Stereoscope.

In 2013, the Historical Society was responsible for organization the 150th anniversary of the Western District and is currently in the process of completing a book on the history of the Western District, scheduled for publication in August.

Interested in getting more involved? Contact Historical Society president David J. Gass by email here.


Get Connected With the Young Lawyers Section of the FBA

Any member of the Federal Bar Association is welcome to become part of the Young Lawyers Section and attend their events. Despite the name, there is no age limit and the Young Lawyers encourage new members.

Earlier this year, the Young Lawyers Section of the FBA, in conjunction with Warner Norcross & Judd, hosted a basic trial skills workshop. Young lawyers practiced admitting exhibits, refreshing recollection, and making objections. The workshop was informative and fun, so we hope to repeat it next year!

Their next event is a Ladies Suit Swap on March 31, 2020 (See details below in our Upcoming Events section).

For more information about the Young Lawyers Section and how to get involved, please contact the co-chairs,  Rachel Frank (
 of Springstead, Bartish, Borgula and Lynch, PLLC or Amy Murphy ( of Miller Johnson. 

Rachel Frank is an associate attorney at Springstead, Bartish, Borgula and Lynch, PLLC.

Looking for Past Issues of Bar & Bench?

Back issues of the Bar & Bench newsletter, along with other news and events, are available on our website here.


Appellate Roundup 

Noteworthy cases from the Western District in the Sixth Circuit, and beyond
by Sarah Riley Howard
United States v. Sands
A divided panel reversed Judge Maloney last week, in a decision authored by Judge Griffin, on an issue of first impression in the Sixth Circuit: whether a four-level Sentencing Guidelines enhancement applies for possessing an illegal firearm with an obliterated serial number when the number is damaged but can still be read. 2020 WL 401685 (January 24, 2020). Judge Maloney relied on opinions from other Circuits to hold that the enhancement should be applied because it appeared the intent was to alter the number and mask the identity of the weapon. The Sixth Circuit panel majority, joined by Judge Daughtrey, disagreed, holding that if the number is still readable, it is not “altered or obliterated.” AUSA Sean Lewis argued and briefed the matter for the Government; AFPD Paul Nelson represented Mr. Sands on appeal, and AFPD Helen Nieuwenhuis represented him in the trial court.

Judge Gibbons dissented.

Van Hoven v. Buckles & Buckles, PLC
Another 2-1 panel reversed Chief Judge Jonker in an opinion dated January 16, 2020. An attorney filed a class action suit under Fair Debt Collection Practices Act, arguing a debt collection firm had made false statements in collecting a credit card debt judgment from state court, and demanded costs to which it was not entitled. After much litigation, Chief Judge Jonker entered judgment for the attorney represented by Michael Nelson, ordered class-wide damages of $3,662, and about $180,000 in attorney fees. 2020 WL 239290.

Judge Sutton wrote the decision holding that the law firm’s statements in its debt collection communications were not false or misleading under then-current understanding of the law, and that the trial court failed to permit the law firm a sufficient chance to prove that its inclusion of costs of garnishment in the debt was just a mistake under an otherwise sufficient procedure for including debt-totals calculations. The debt collection firm was represented by Farmington Hills lawyer Roger Premo. These rulings led to reversing and vacating orders on class certification in addition to the merits judgment and judgment for attorney fees.  Judge Sutton’s opinion also included flippant comments at its beginning about lawyers suing other lawyers and the proportion of attorney fees to actual damages, which are, of course, common in FCPA cases.

Judge Stranch dissented, holding that Chief Jonker indeed asked the correct question under FCPA precedent, i.e., whether the law firm’s practice resulting in it demanding debt costs to which it was not entitled was reasonable, instead of whether it was lawful. Since FCPA is a strict liability statute,
Judge Stranch said, it made Buckles & Buckles’ practice of frontloading postjudgment garnishment costs onto consumer judgments before it knew if those costs could be passed along “not entirely lawful.” Judge Stranch also criticized the majority’s reliance on later changes to Michigan law as indicating an interpretation of prior meaning, instead of an actual amendment to the prior meaning.


Lopez v. Foerster
One panel of the Sixth Circuit indirectly addressed Judge Neff’s infamous pre-motion conference procedure in November 2019. When a defendant sought to file a dispositive motion based on qualified immunity, Judge Neff denied the request at the conference based on the abbreviated briefs filed, and discovery proceeded. The Sixth Circuit held it had jurisdiction to review what was essentially a denial of the motion based on qualified immunity, even though Judge Neff did not officially permit the motion to be filed or consider the merits after full briefing. The appeals court remanded for Judge Neff to consider on the merits after permitting a formal filing of the motion and briefing. Notably, though, the decision says that the trial court should not “in most circumstances prevent parties from filing motions authorized by the Federal Rules.”

That statement, of course, begs the question about the extent of Judge Neff’s power to deny requests under the Federal Rules. It also leaves unanswered whether Judge Neff can alter the procedure for considering those motions from what appears in the Federal Rules or the Local Rules – like whether other limits on the briefs could be imposed, etc. 


Sarah Riley Howard is a former FBA president and a civil rights attorney with Pinsky Smith Fayette & Kennedy LLP, where she vindicates important constitutional claims of individuals in employment and other settings, as well as defends those charged with federal crimes. 

Upcoming Events

February 19

Annual Supreme Court Review
Please join the West Michigan Chapter of the FBA for an Annual Supreme Court Review. John Bursch of Bursch Law PLLC and Donald Davis of Springstead 
Brattish Borgula & Lynch PLLC will discuss the notable civil and criminal decision from the last term. Additionally, both attorneys will preview a few significant pending cases on the docket this term.

Jury Assembly Room
Grand Rapids Federal Courthouse

Brown bag lunch available for $10 by emailing  Melissa Rabidoux by end of business day Friday, February 14.
Want to connect remotely? Reach out to Susan McGregor for instructions.


March 13

Lunch & Learn
Learn about the Opera Grand Rapids performances of Scalia/Ginsburg in a presentation by Opera Grand Rapids panelists Maestro James Meena, director of the opera; Derrick Want, composer and librettist; and Peter Darkly, the vocalist playing "Scalia." 

Jury Assembly Room
Grand Rapids Federal Courthouse

March 31

Ladies Suit Swap
Do you have a business suit to swap or donate? Join us for the Ladies Suit Swap organized by Warner, Norcross and Judd, the West Michigan Chapter of the Federal Bar Association--Young Lawyers Division, and the Women's Resource Center.

Please bring a suit to swap or donate. Light refreshments will be provided. All pieces left at the end of the event will be donated to the Women's Resource Center.

5:00 pm
The Warner Building, 15th Floor
150 Ottawa Avenue NW

2020 Officers
Western Michigan Chapter Federal Bar Association

Brian Lennon

President Elect
Rebecca Strauss

Vice President Operations
Gary Mouw

Vice President  Programs
Christopher O'Connor

Britt Cobb

Jasna Tosic

National Delegate
Sharon Turek

Immediate Past President
Matt Borgula

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