Whether the Sixth Circuit lacked jurisdiction under 28 USCS § 1291 and Johnson v. Jones and its progeny to hear Defendants' appeal

QUESTIONS PRESENTED Whether a Court fails to follow the law, is a legal question. Whether a Court’s holding expands jurisdiction is a matter of law. Where the only issue presented by a party throughout the entire case (until the appeal) is the same disputed fact, is an evidence sufficiency claim recast as a legal argument, and it should fail as a matter of law. See McGraw v. Madison Twp, 231 F. App'x 419; 422 (CA 6, 2007) (The defendants' efforts to recast their evidence sufficiency claims as a legal argument are without merit. The defendants argue that the district court failed to consider each officer's individual liability and that the process by which the district court decided the motion for summary judgment was flawed). “§ 1291 requires courts of appeals to view claims of a right not to be tried' with skepticism, if not a jaundiced eye, for virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a right not to stand trial.” Swint v. Chambers Co. Comm., 514 US 35, 43 (1995) (cleaned up). The Sixth Circuit’s opinion in Bambach must be vacated lest it become the wild west at the expense of families who will be at the mercy of the court and the luck of the draw. It’s been 10 years since this Court sent a very specific and clear message in Tolan v. Cotton. If we must be stuck with the ever-growing umbrella granting the states untethered power to violate rights without punishment, they should at least have to comply with the required application of iii law allowing what little protection it offers. As a matter of law, this Court should vacate Bambach for lack of jurisdiction under 28 USCS § 1291, Johnson v. Jones, and Tolan v. Cotton, and remand the matter to the District Court. I. Whether the Sixth Circuit lacked jurisdiction under 28 USCS § 1291 and Johnson v. Jones and its progeny to hear Defendants’ appeal after the District Court denied summary judgment expressly stating its reasoning; “they [Defendant’s] frame the primary issue as whether Bambach revoked his initial consent” [to the voluntary safety plan] and “the key issue is if/when the Children were ‘removed’ from Bambach’s home/custody; it is an issue that permeates the claims and defenses” which are disputed facts in this case. II. Whether Defendants waived their defense, when in their brief on appeal, Defendants argue for the first time ever that it was not clearly established that Bambach’s statements to Moegle revoked his consent to the seizure of the children. III. Whether the Sixth Circuit superseded this Courts precedent and the very specific holding in Tolan v. Cotton when, despite the binding precedent of both Johnson and Tolan as well as the denial of Plaintiffs petition for en banc rehearing, pointing out the improper iv application, the Sixth Circuit took the facts in a light most favorable to the moving party defendants and attempt to recast their evidence sufficiency claim into a legal argument to be able to reach the clearly established prong making it much less likely a Plaintiff can prevail against a state actor to obtain a remedy for constitutional violations under Section 1983. IV. Whether, if Bambach remains binding precedent, the Sixth Circuit’s application of the qualified immunity doctrine used in Bambach (finding favorable facts and crediting all inferences to the moving party and broadening jurisdiction to allow state actors a second bite at the apple by having the circuit courts review the factual determinations of the district courts) will significantly violate due process making any real remedy a plaintiff may have illusory. v LIST OF ALL