60-Second Circuit Summaries

A roundup of salient, stimulating, and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: ten cases, ten minutes. On the docket this week: OSHA’s vaccine-or-test policy, the Green Party, Facebook (or is it Meta?), and defamation.

1. Fifth Circuit Stays Vaccine Mandate

Last week the Occupational Health and Safety Administration (OSHA) issued its much-anticipated COVID-19 vaccination policy for American businesses with 100 employees or more. The policy, which was to take effect immediately, told businesses that their employees must either get vaccinated, get tested weekly and wear masks, or walk. Enter this lawsuit. Last Saturday a Fifth Circuit panel put the policy on hold. The panel stated only that it had “cause to believe there are grave statutory and constitutional issues with” the policy. On Friday the panel reaffirmed its stay. This time it at least laid out its reasoning under the Supreme Court’s test in Nken v. Holder (2009). But even if the panel’s reasons are right, its stay is premature. Early next week the “Multicircuit Lottery” will commence, a bizarre bit of judicial procedure by which one of the circuits wherein a challenge to the OSHA policy is pending (the tally is ten when we published) will be selected at random to handle all challenges to the policy. (The exact process involves picking a ping-pong ball from a drum.) And even after the draw, parties can petition circuits to move the cases elsewhere. The Fifth Circuit thus should’ve waited to see whether it won the lottery before issuing any stay. Sean Marotta, an attorney and expert on the lottery, joked that the Fifth Circuit’s stay is more like an amicus brief for the eventual winner of the ping-pong picking. He’s not wrong. The upshot of all this? Litigation over OSHA’s vaccine mandate is just getting started.

2. Ninth Circuit Invalidates Montana Voting Law, Hands Green Party a Win

If a political party wants to hold a primary election in Montana, state law gives it two options: (1) get at least 5% of the votes in the most recent gubernatorial election or (2) submit a petition signed by the lesser of 5,000 people or 5% of the votes in the most recent gubernatorial election AND satisfy a geographical requirement for those signatures. The Montana Green Party, a minor party advocating environmental sustainability, met neither requirement. So it sued. The law, the party said, violates one’s rights to association and equal protection. Ninth Circuit panel: No to the first, yes to the second. Red light for the law, green light for the Greens.

3. D.C. Circuit Strikes Down EPA Emissions Rule for Trailers; “Trailers Aren’t Vehicles”

Consider a semi truck, also called a tractor-trailer. It has a “tractor” at the front and a “trailer” hitched at the back. In 2016 the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) jointly issued a rule regulating emissions and fuel efficiency standards for trailers. (These regulations apparently included things like side skirts and automatic tire pressure monitoring systems.) A trailer manufacturing association sued, arguing neither agency has the power to issue such a rule. D.C. Circuit panel: We agree. The EPA’s claim is easy to dismiss. It has power to set emissions standards for motor vehicles. Congress defined a “motor vehicle” as that which propels itself. A trailer does not propel itself. So, trailers aren’t vehicles and aren’t within the EPA’s power to regulate. The NHTSA’s claim is trickier. It has power to set fuel efficiency standards for vehicles, but this time Congress didn’t define “vehicle.” The solution? Context clues. Fuel efficiency standards apply to things that use fuel. Trailers don’t use fuel. Therefore, etc. Judge Millett, concurring/dissenting: EPA can always regulate the tractor or the assemblers of tractor-trailers. And the majority gets the NHTSA bit wrong.

4. Eighth Circuit Rejects Escaped Convict’s Textualism

Lonnel Porter served his prison sentence, but he didn’t have a housing plan prior to his supervised release. So, he agreed to stay for 120 days at a residential reentry center. One day, he left for work and never returned, violating the terms of his supervised release. He was caught and charged with escaping from custody. Porter: I wasn’t in the reentry center “by virtue of” my conviction. I was there because I was otherwise homeless. Eighth Circuit panel: Clever, but no. Your conviction need only be a cause of your custody or confinement.

5. Ninth Circuit Allows Police Officers’ Defamation Suit against Seattle Councilwoman to Proceed

In 2016 two Seattle police officers shot and killed Che Taylor while trying to arrest him. Taylor was black. The officers are white. Kshama Sawant, a Seattle City Councilwoman, told a crowd that the “brutal murder of Che Taylor, just a blatant murder at the hands of the police, show[s] how urgently we need to keep building our movement for basic human rights for black people and brown people.” The officers sued Sawant for defamation, arguing she falsely accused them of murder and racial profiling. District court: Suit dismissed. Based on the officers’ argument, it is implausible that Sawant’s statements were “of and concerning” the two officers. Ninth Circuit panel: It is plausible. Reversed and remanded. Officers: Will the panel assign the case to a different district judge? Panel: No.

6. Ninth Circuit Wades into Foreign Sovereign Immunity Law

WhatsApp and Facebook sued the Israeli-based private corporation responsible for putting Pegasus, a malware/spyware program, on 1,400 mobile phones. The corporation: You can’t sue us; we were operating on behalf of the Israeli government, so we’re entitled to sovereign immunity. Ninth Circuit panel: Yes, they can sue you. You don’t get immunity under the Foreign Sovereignty Immunity Act (FSIA), because it applies only to a country for its public actions. Nor do you get immunity from the common law since the FSIA overwrote any common law sovereign immunity for entities. (Common law sovereign immunity may still exist for foreign officials, though. Someone should decide that.)

7. Sixth Circuit Puts Inmate’s Religious Liberty Claims Back on Docket

Robert Byrd, an inmate, asked the Michigan Department of Corrections if he could practice his Ifa faith. A few months passed, and no response came. So he tried again. Another month; nothing. Rinse and repeat. Several requests and six years later? Still no response. So Byrd sued. The district court granted summary judgment for the Department officials. Sixth Circuit panel: Reversed and remanded. “[S]uch a long delay is tantamount to a denial.”

8. D.C. Circuit Labors over Technicalities in the Federal Rules of Civil Procedure

If you want to sue a federal agency, the instructions are located in FRCP 4. As relevant here, you must serve both the agency and the U.S., that is, send the complaint and summons to a few folks in the Justice Department (see FRCP 4(i)(1) if you’re that curious). If, say, you serve the complaint but not the summons, you have 90 days until the district court either dismisses your complaint or orders you to file the summons by a specific date. In these consolidated cases, both plaintiffs failed to do at least one thing FRCP 4 requires, and the district courts dismissed the complaints without prejudice. The snag? The statutes of limitations had already run out. Plaintiffs: The district courts abused their discretion; they should’ve granted an extension of time in which to serve the summons. Also, the dismissal “without prejudice” acts like a dismissal with prejudice here, so heightened scrutiny is appropriate. D.C. Circuit panel: The district courts did not abuse their discretion. If a plaintiff hasn’t shown good cause for their failure to serve properly—and plaintiffs here have not—the district court may dismiss the complaint even if the statute of limitations has expired. Also, no heightened standard of review. Judge Millett, dissenting: That’s contrary to our own circuit precedent. It’s also contrary to Fifth Circuit precedent.

9. Sixth Circuit Affirms Felony on a Key Fob

William Elmore of Kentucky has a history of possessing child sexual abuse material (CSAM). When Louisville police were investigating whether Elmore had sexually abused a seven-year-old girl, Elmore’s stepmother voluntarily gave police key fobs to Elmore’s car; she suspected, based on Elmore’s behavior, that the fobs contained CSAM and asked police to “check . . . and see.” Police did, pursuant to a warrant. One of the fobs contained a memory card, and that card contained videos of CSAM. Elmore was arrested and charged. At trial Elmore moved to suppress the evidence from the fob and sought a Franks hearing. District court: Motion denied. Sixth Circuit panel: Affirmed.

10. Internal Bickering at the Fifth Circuit

We close this week by highlighting a rather remarkable concurrence in an otherwise innocuous matter. United States v. De La Cruz is a straightforward sentence-enhancement case. A noncitizen pleaded guilty to illegal reentry. The sentencing judge enhanced the noncitizen’s sentence because of a prior conviction. And the noncitizen’s appeal on the enhancement front was foreclosed by Supreme Court precedent (and related Fifth Circuit caselaw). Specifically, cases like De La Cruz—of which there are many—follow from Almendarez-Torres v. United States (1998), in which the U.S. Supreme Court held, 5:4, that where a defendant has a prior conviction, the sentencing judge may enhance the defendant’s sentence without sending the prior conviction to a jury. Almendarez-Torres has drawn scrutiny. Even one of the Justices in the majority (Clarence Thomas) later recanted and called for its overruling. But the Court has yet to overturn Almendarez-Torres formally. So, many defendants facing sentence enhancements will still raise their constitutional objection in the circuit court in the hopes that theirs will be the case in which the Court overrules Almendarez-Torres. Though the defendants will inevitably lose in the circuit court, which is bound by Supreme Court precedent, they must present the constitutional objection if they want to preserve it on appeal. Even so, this practice has drawn the ire of some Fifth Circuit judges. For instance, in 2007 a three-judge panel warned appellants and defense counsel “not to damage their credibility with this court” by preserving such claims.

But in De La Cruz, the entire panel chided their colleagues on the Fifth Circuit who have levied such a criticism. Judges Costa, Ho, and King, in a concurrence to their own summary order, wrote that “we do not join in these admonitions.” They concluded: “We see nothing wrong with litigants diligently taking whatever steps they deem necessary to preserve their legal rights. We express no frustration with lawyers zealously defending the interests of their clients.”


Image Credits: Jim Watson, Getty Media

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