A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: fifteen cases, fifteen minutes. On the docket this week was COVID-19 vaccines, election law, nuclear waste, criminal sentencing, and an historic bridge in Maine.
1. Sixth Circuit keeps COVID-19 vaccine requirement for federal contractors on hold.
In September 2021 the Biden administration announced that all federal contractors—who account for about 20% of the U.S. workforce, per the U.S. Department of Labor—must get vaccinated against COVID-19. (Exceptions are granted only if a contractor is “legally entitled to an accommodation”.) President Biden says he has the power to issue the requirement under a 1949 act of Congress: the Federal Property and Administrative Services Act, better known for creating the General Services Administration. The President’s announcement spawned a host of lawsuits. One comes from the states of Kentucky, Ohio, and Tennessee on behalf of federal contractors within their borders. A district court granted the states’ request for a preliminary injunction, finding that the 1949 law does not give the President the power he claims. On appeal a divided panel of the Sixth Circuit affirmed. The panel was not swayed by the President’s assertions. The 1949 law’s purpose, the panel stressed, is to “provide the Federal Government with an economical and efficient system for” supplying, using, and managing property and contractual services—not requiring vaccinations. Judge Cole, who would’ve granted a stay, dissented. The majority’s decision accords with that of an Eleventh Circuit panel, which upheld a nationwide injunction against the requirement and scheduled expedited briefing on the merits.
2. Eleventh Circuit upholds Georgia election laws for third-party candidates.
Georgia law says that if a third-party candidate wants to appear on the ballot for a seat in the U.S. House of Representatives, the candidate must submit a petition signed by 5% of the number of registered, eligible voters in the last election. If a third-party candidate wants to run in a state election, they face a lower bar: 1% of such voters. Four times political groups have challenged these ballot-access laws in court. Four times they have lost. Undeterred, the Georgia Libertarian Party tried its hand, claiming the ballot-access laws violate the First and Fourteenth Amendments. Eleventh Circuit panel: Five up, five down; Georgia’s laws are constitutional.
3. D.C. Circuit revives terrorist victims’ lawsuit against pharmaceutical companies.
Jaysh al-Mahdi, a terrorist group under the aegis of Hezbollah, controlled Iraq’s Ministry of Health during the American war in Iraq. Jaysh al-Mahdi’s attacks killed or injured hundreds of U.S. troops and civilians. Victims of the attacks and their relatives sued five pharmaceutical corporations (AstraZeneca, GE Healthcare, Johnson & Johnson, Pfizer, and Roche), alleging the corporations knowingly supported the terrorist attacks because they gave financial contracts and medical supplies to the Iraq Ministry of Health during the war. A district court dismissed the suit in 2020. D.C. Circuit panel: Plaintiffs may have a case here. To trial their case shall go.
4. Fourth Circuit creates circuit split, recognizes overtime gap time claim under Fair Labor Standards Act.
We’re all familiar with the concept of working overtime to make a few more bucks. But for Sara Conner, an EMS worker in North Carolina, those additional wages didn’t seem “additional” at all. Ms. Conner claims her employer, Cleveland County, NC, used part of her regular salary to pay her for her overtime hours. That, she argues, violates the Fair Labor Standards Act. Fourth Circuit panel (applying Skidmore deference): Ms. Conner may have a claim here; to trial her case shall go. We thus disagree with the Second Circuit’s contrary holding, which eschewed deference under Skidmore.
5. Tenth Circuit vacates harsher sentence for defendant after open plea.
A criminal defendant declines the government’s plea deal, goes to trial, and is convicted. Sentencing judge: Because the defendant rejected the plea deal, he gets a longer prison sentence—longer, in fact, than even what the government wants. Tenth Circuit panel: That’s unreasonable. Courts cannot make the severity of punishment turn on whether the defendant accepts a plea deal. Resentence him appropriately.
6. First Circuit largely rejects objections to demolition of 1932 Maine bridge.
The Frank J. Wood bridge is an historic, steel truss bridge spanning the Androscoggin River between Topsham and Brunswick, Maine. When it received a poor safety report about the bridge, Maine’s transportation department debated whether to repair the bridge or to tear it down and build a new one. It opted for the latter, much to the chagrin of preservation groups, which advocated repairing the bridge. The Federal Highway Administration (FHWA) calculated projected costs of construction and gave Maine the go-ahead. The preservation groups sued to halt the project. District court: We see no issues here. First Circuit panel: We agree, for the most part; some of the FHWA’s calculations look weird. Could we get some clarification on that?
7. Eighth Circuit serves up procedural feast in nuclear waste suit.
Civil procedure nerds, this one’s for you! Mallinckrodt LLC produced nuclear material for the Manhattan Project. It stored radioactive waste at sites in St. Louis, Missouri, one of which is in the suburb of Hazelwood. In 1969 Cotter Corporation, a mining outfit, acquired the Hazelwood site. Fast forward to 2018. A group of homeowners alleges waste from the Hazelwood site leaked into an adjacent creek, damaging the homeowners’ downstream properties and jeopardizing their health. They sue Cotter—but not Mallinckrodt—in state court. Cotter tries to remove the suit to federal court under the Price-Anderson Act (PAA), a nuclear indemnity law. But the federal court concludes the PAA doesn’t apply and remands to state court. So, Cotter initiates plan B: Cotter adds Mallinckrodt and other entities as defendants in the lawsuit. (The legal lingo is, Cotter filed third-party actions for contribution against Mallinckrodt, et al.) On cue, Mallinckrodt removes the entire case to federal court under the PAA. The homeowners object. Perhaps Mallinckrodt’s case can stay in federal court, they say, but Cotter and the other defendants should go back to state court. Eighth Circuit panel: Everyone now belongs in federal court.
8. First Circuit upholds Maine cable TV-rebate law.
A Maine law requires cable television providers to give pro rata rebates to customers who cancel their subscriptions more than two days before the end of the billing period. Two cable companies sued to invalidate the law. They cited a provision of the 1984 Cable Communications Act, which preempts laws that regulate “rates for the provision of cable services” in certain states. First Circuit panel: Maine’s law is not preempted. It’s really a consumer protection law, and it applies after the provision of cable service. It doesn’t govern rates for ongoing provision of cable service.
9. Fifth Circuit joins sister courts, rejects small business suit against insurer after lost profits.
The COVID-19 pandemic has hit small businesses hard. Many moved to online-only sales and watched, despondent, as profits slid. To recoup the losses some businesses turned to their insurance policies. Asserting lost profits are “physical damage to property,” businesses have sued after their insurers declined to provide coverage. The “physical damage” argument hasn’t had much sway in the courtroom. To date, businesses are 0-7 in such suits before federal circuit courts. Last week a New York City art gallery lost in the Second Circuit. The same was true this week for a Texas barbecue restaurant in the Fifth Circuit.
10. Tenth Circuit dismisses “tester” suit under Americans with Disabilities Act.
Deborah Laufer, a Florida resident, suffers from a disability as defined by the Americans with Disabilities Act (ADA). Ms. Laufer advocates protections for those similarly burdened. She calls herself an ADA “tester,” someone who scrutinizes the websites of places of public accommodation to make sure they comply with the ADA. One website she tested was that of the Elk Run Inn, a mom-and-pop motel in northwest Colorado. She found its compliance lacking, so she sued the inn’s owners. Tenth Circuit panel: Suit dismissed. Ms. Laufer has no intention of booking a room, hence has not suffered an injury under the ADA, hence lacks standing.
11. Fourth Circuit unites all circuit courts on certain supervised release sentences.
A federal law forbids anyone to, in short, distribute a controlled substance or possess one with the intent to distribute it. Violators face jail time and a period of supervised release. A word for the wise: If you break this law, don’t violate the terms of your supervised release program. You’ll face an extension of that program, not to mention more jail time. How long an extension, you ask? One to four years. But wait! A different law sets limits on supervised release periods. For some crimes the law caps the period of supervised release at three years; for lesser crimes, at just one year. Do these limits overwrite the extensions under the controlled substance law? No, says a Fourth Circuit panel. According to the plain text of the controlled substance law, the extensions apply “notwithstanding 18 U.S.C. §3583,” the limits law. In so holding, the Fourth Circuit—the last of all the federal circuit courts to adopt such reasoning—eliminated any chance of a circuit split on the issue. (Here are the decisions of all the other circuits, if you’re that curious: First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C.)
12. D.C. Circuit labors over text of U.S. Sentencing Guidelines.
Lorenzo Turner served his sentence for two criminal convictions, but he violated the terms of his supervised release. That carries a penalty. For his case, it means between six- and twelve-months’ imprisonment, based on the U.S. Sentencing Guidelines. Mr. Turner and the government agreed on nine months. But they disagreed as to whether a nine-month term applies for each of Mr. Turner’s two underlying criminal counts. The government, thinking it does, sought a composite eighteen-month term, or nine months times two. Mr. Turner, thinking it does not, sought a single nine-month term. D.C. Circuit panel (over a dissent): Mr. Turner’s interpretation of the Guidelines is persuasive. Nine months it shall be.
And in en banc news:
13. First Circuit won’t reconsider dismissal of Equal Rights Amendment case.
The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution. It would forbid the government to undermine any right of any person “on account of sex” or, presumably, gender. The ERA was drafted in 1923 during the women’s rights movement, and it passed the U.S. House and Senate in the 1970s. But to become our Constitution’s 28th Amendment, the ERA must be ratified by the legislatures of 38 states (three-fourths). Officially, this has not happened. When Congress’ original deadline for ratification expired in 1979, only 35 states had approved the amendment. Five of those states (some say four) then rescinded their ratifications during Congress’ extension of the deadline to 1982. Even so, scholars debate whether the ERA has since achieved Amendment status. ERA supporters got fuel for their fire when Nevada, Illinois, and Virginia ratified the ERA between 2017 and 2020. ERA supporters then went to court, seeking formal recognition of a 28th Amendment. But they haven’t met with success. Last June a First Circuit panel dismissed one such suit for lack of standing, and the full court denied review this week. Another suit, which was filed by the attorneys general of Nevada, Illinois, and Virginia, remains pending before the D.C. Circuit.
And in more en banc news:
14. Eleventh Circuit will review denial of qualified immunity to police who arrested the wrong man—twice.
David Sosa, a resident of Martin County, Florida, was arrested in 2014. Turns out the county officers arrested the wrong David Sosa, and he was promptly released from custody. Three years later it happened to Mr. Sosa again! This time he spent three days and nights in jail. He sued the county, bringing claims of false arrest, wrongful detention, and failure to train officers sufficiently. Last September an Eleventh Circuit panel (over a dissent) said Mr. Sosa can pursue his wrongful detention claim. It denied qualified immunity to the county and sent the case to trial. However, the full Eleventh Circuit will now review the panel’s decision.
And in even more en banc news:
15. First Circuit will review grant of qualified immunity to prison officers in solitary confinement case.
The full First Circuit will review a panel’s grant of qualified immunity to prison officers who kept an inmate in solitary confinement for 611 days. The officers say they were looking into the inmate’s alleged threats of gang-related violence. The inmate denies that he’s even in a gang, much less threatened gang violence.
Image credits: MainePreservation.org
Editor’s note (Jan. 8, 2022): This article has been updated to correct a missing hyperlink. No substantive changes made.