Last Week in Federal Appeals (No. 14)
Last Week in Federal Appeals (No. 14)
Appellate decisions from the week of June 21-25, 2021
“The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that “customers prefer” to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law.” Hospitals cannot agree to cap nurses’ income in order to create a “purer” form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a “tradition” of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a “spirit of amateurism” in Hollywood. Price-fixing labor is price-fixing labor. … Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”
~ Justice Kavanaugh, NCAA v. Alston (concurring).
Supreme Court of the United States
Mahanoy Area School District v. B.L.
In the much-discussed Snapchating cheerleader case, the Supreme Court held that the School District violated a student’s First Amendment rights when it suspended her from the cheerleading squad for a year based on a profane social-media post she sent from a local restaurant. The majority opinion by Justice Breyer (and joined by seven other justices) announced a complex balancing test governing schools’ ability to regulate off-campus speech.
NCAA v. Alston
The Supreme Court unanimously held that the NCAA is subject to the same rule of reason analysis under the Sherman (Antitrust) Act as any other joint venture with monopoly power. The Court rejected the argument that the NCAA should receive special deference.
Cedar Point Nursery v. Hassid
In a major Takings Clause case, the Supreme Court considered a California regulation granting union organizers the right to access an agricultural employer’s property to solicit support for unionization. Divided 6-3 on party lines, the Court held that this regulation was unconstitutional because, by infringing on the employer’s right to exclude organizers from its private property, California had taken their property without just compensation.
Lange v. California
The Supreme Court held that the “hot pursuit” exception to the warrant requirement does not categorically allow police to pursue a fleeing misdemeanor suspect into a private home.
Collins v. Yellen
The Supreme Court struck down the 2008 Recovery Act’s provision forbidding the President to fire the Director of the Federal Housing Finance Agency (the conservator of Fannie Mae and Freddie Mac) except for cause. Nonetheless, the lawsuit here by Fannie and Freddie shareholders fizzled because the Court held this provision was severable from the rest of the statute. (President Biden promptly responded to the ruling by firing the current Director.)
TransUnion LLC v. Ramirez
The Supreme Court held that plaintiffs must suffer an injury in fact to create standing and that Congress cannot give them standing by creating a cause of action based on conduct that does not harm them. Justice Thomas joined the more liberal justices in dissent. (This case could have interesting implications for a recent Texas law giving third parties the right to sue anyone involved with abortions.)
United States v. Arthrex, Inc.
The Supreme Court held that Administrative Patent Judges (administrative hearing officers who review challenges to patents) cannot, consistent with the Appointments Clause, be the final arbiter of a patent’s validity. Instead, the Patent Trial and Appeal Board’s decisions must be reviewable by the Director of the Patent and Trademark Office.
Goldman Sachs v. Arkansas Teacher Retirement System
The Supreme Court held that the Second Circuit did not err in requiring Goldman—in order to defeat class certification—to demonstrate, by a preponderance of the evidence, that its alleged misrepresentations did not impact the price of its stock.
Yellen v. Confederated Tribes of the Chehalis Reservation
The Supreme Court held that Alaska Native Corporations (complex organizations authorized by Congress in 1971 rather than replicating the reservation system in Alaska that prevails in the lower 48 states) are Indian Tribes eligible to receive funding under the CARES Act.
HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association
When it created the Renewable Fuel Program, Congress exempted small refineries from the requirement that they blend renewable fuels into transportation fuels until 2011. It also allowed the EPA to give two year exemptions after that where compliance would impose a disproportionate economic hardship. HollyFrontier had an exemption, let it lapse for a period, then applied for a new one—which the EPA granted. The Supreme Court rejected renewable fuel groups’ argument that HollyFrontier was ineligible because it had let its exemption lapse for a while.
Fourth Circuit
Edgar v. Haines
The Fourth Circuit upheld CIA, NDA, and ODNI rules requiring current and former employees to submit certain materials to them for review before they are published. This is meant to allow the agencies to redact or otherwise object to the inclusion of classified or sensitive information in, among other things, memoirs. The panel held that the agencies’ restrictions were reasonable.
Seventh Circuit
Avila de la Rosa v. Garland
The Seventh Circuit held that an immigrant who receives a defective Notice to Appear for immigration removal proceedings need not show that he suffered prejudice from the defective notice before the case is dismissed.
Ninth Circuit
Gonzales v. Google
The Ninth Circuit reinstated a claim against Google, Facebook, and Twitter alleging that they are liable under the Justice Against Sponsors of International Terrorism Act for aiding and abetting terrorist activity by allowing ISIS to use their platform. The Plaintiffs sued alleging that ISIS used the social media platform to recruit members, which led to a nightclub attack. Nonetheless, the panel dismissed the other claims involved in the appeal based, in part, on Section 230 of the Communications Decency Act.
Eleventh Circuit
In re: Grand Jury Subpoena
The Eleventh Circuit upheld a district court’s order compelling an attorney who worked for a former federal candidate’s campaign to testify before a grand jury regarding the candidate’s personal use of campaign funds. The panel held that the attorney’s involvement fell within the crime-fraud exception to attorney-client privilege.
Points of Interest
The Ohio Supreme Court held that school teachers, administrators, and staff members are not permitted—under state statutes governing carrying firearms on school property—to carry firearms while on duty if they have not completed basic peace officer training or spent 20 years as a peace officer. The Court thus struck down a 2018 local school board policy allowing certain employees to carry guns on campus.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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