Last Week in Federal Appeals (No. 11)
Last Week in Federal Appeals (No. 11)
Appellate decisions from the week of May 31 - June 4, 2021
“If the “exceeds authorized access” clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals. Take the workplace. Employers commonly state that computers and electronic devices can be used only for business purposes. So on the Government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA.”
~ Justice Amy Coney Barrett, Van Buren v. United States
“Both the common law and statutory law have long punished those who exceed the scope of consent when using property that belongs to others. A valet, for example, may take possession of a person’s car to park it, but he cannot take it for a joyride. The Computer Fraud and Abuse Act extends that principle to computers and information.”
~ Justice Clarence Thomas, Van Buren v. United States (dissenting)
Supreme Court of the United States
Van Buren v. United States
The Supreme Court held, in a 6-3 decision authored by Justice Barrett, that the Computer Fraud and Abuse Act does not criminalize using one’s computer access with an improper motive or purpose. The Defendant in this case used his access to a law enforcement database to collect information on someone in exchange for a bribe. The Court cited concerns about criminalizing “a breathtaking amount of common place computer activity.” But it left open the possibility (in footnote 8) that the Act might reach conduct that violates an explicit policy.
Justice Thomas, joined by Chief Justice Roberts and Justice Alito, dissented.
United States v. Cooley
The Supreme Court unanimously held that a tribal police officer has authority to stop and search non-Indian persons travelling on public roads inside an Indian reservation if they suspect potential violations of state or federal law. This represents an exception to the general rule that tribes lack authority over non-members.
Garland v. Ming Dai
The Supreme Court unanimously rejected the Ninth Circuit’s judge-made rule that, in immigration cases, a reviewing court must treat a noncitizen’s testimony as credible and true unless the immigration judge or Bureau of Immigration Appeals explicitly held otherwise. The Court found that this rule contradicted the Immigration and Nationality Act’s direction that administrative findings must be treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Second Circuit
United States v. Dawkins
The Second Circuit affirmed the convictions of two defendants who argued that the federal funds bribery statute (18 U.S.C. Section 666)—which makes it illegal to bribe someone in an organization that receives federal funds— did not criminalize their scheme to bribe college basketball coaches. The panel held that there need not be a nexus between the funds and the person bribed and that the federally-funded organization need not be associated in “business” that is commercial in nature.
Sixth Circuit
United States v. Jarvis
The Sixth Circuit held that non-retroactive changes in the law do not amount to “extraordinary and compelling reasons” to modify a prisoner’s sentence. It therefore affirmed the district court’s decision denying a defendant’s motion for sentence reduction under 18 U.S.C. Section 3582(c).
Ninth Circuit
United States v. Henderson
The Ninth Circuit rejected the defendant’s argument that a sentence imposed based on his violation of supervised-release conditions was unconstitutional, even though that sentence exceeded the maximum term of incarceration he faced for his underlying conviction. The panel rejected the argument that the Supreme Court’s recent plurality opinion (written by Justice Gorsuch) in United States v. Haymond compelled a different result, relying on Justice Breyer’s narrower concurrence in that case.
Tenth Circuit
United States v. Suggs
The Tenth Circuit vacated a district court’s decision denying Suggs’s motion to suppress, holding that the warrant leading to the search of Suggs’s home and SUV failed to meet the Fourth Amendment’s particularity requirement. The warrant was flawed, the panel explained, because it included a catch-all phrase authorizing agents to search and seize “any item identified as being involved in crime.” It rejected the argument that this phrase could be severed from the rest of the warrant and remanded the case so the district court could consider whether the officers acted in good faith.
D.C. Circuit
Cause of Action Institute v. DOJ
The D.C. Circuit held that DOJ violated the Freedom of Information Act after it removed or redacted “non-responsive” information from several documents containing questions from members of Congress. The panel explained that, once DOJ identified a document that contained responsive information, it could only redact information falling within a FOIA exception. It may not “segment” a unitary document to avoid disclosing unexempted, but nonresponsive information.
Trinity Services Group, Inc. v. NLRB
The D.C. Circuit held that the NLRB cannot penalize an employer for making statements of opinion connected with union activities, even if the Board concludes that the employer had “no objective basis” for the statements.
Judicial Watch, Inc. v. Schiff
The D.C. Circuit affirmed a district court’s decision denying Judicial Watch’s request for copies of subpoenas issued by the House Permanent Select Committee on Intelligence related to the impeachment of former President Trump. The panel held that the federal courts lacked jurisdiction to enforce such a request because doing so would violate the Speech and Debate Clause of the Constitution, which protects free and unrestricted debate in Congress.
Points of Interest
The Colorado Supreme Court held last week that the state legislature could not issue directions to the State’s independent redistricting commission related to how to go about its job. By passing a constitutional amendment removing politicians from the redistricting process, the Supreme Court said, citizens deprived the legislature of the right to pass laws instructing the commission to take certain steps.
Post Script
A quick update: In order to give a bit more time to compile the weekly summary, I am slightly amending my publication schedule.
Last Week in Federal Appeals will now appear on Tuesdays.
Longer articles will appear on Fridays and/or Sundays from this point on, and they may continue to skip a week here or there.
Thank you all again for reading!
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
