Last Week in Federal Appeals (No. 18)
Appellate decisions from the week of July 19-23, 2021
“When Congress writes, context matters. Shorn of their surroundings, some words can mean many things. But context clarifies, and neighboring language often shows what each word must mean.”
~ Judge Bibas, Clear Air Council v. U.S. Steel Corp.
A Couple Announcements
Before I get to the good stuff, I wanted to announce a couple developments on the newsletter front:
First, Appellate Happenings now has its own, independent domain: www.appellatehappenings.com;
And second, thank you to all those who passed along the blog last week! The newsletter is now up to 187 subscribers. Please pass the newsletter along to anyone you think might be interested to help it reach 200 subscribers.
And now on to the decisions!
Second Circuit
Domen v. Vimeo, Inc.
The Second Circuit held that Section 230 of the Communications Decency Act immunized Vimeo from Dormen’s claim that the company discriminated him by removing his account from an online video hosting platform. Dormen and a church group he was affiliated with removed the account because it violated Vimeo’s prohibition on the promotion of sexual orientation change efforts.
Third Circuit
Clean Air Council v. U.S. Steel Corp
The Third Circuit held that U.S. Steel was not required to report emissions caused by two plant fires to the federal government in addition to local officials. CERCLA exempts “federally permitted” emissions released “subject to” a Clean Air Act permit from reporting. The panel held that emissions are subject to such a permit if they are governed by a permit, even if the amount of emissions exceed the permitted amount.
Randolph v. Secretary, Pennsylvania Department of Corrections
The Third Circuit affirmed a district court decision granting Randolph’s petition for a writ of habeas corpus. The panel explained that the State courts unreasonably applied U.S. Supreme Court decisions in concluding that Randolph’s trial violated his Sixth Amendment right to his counsel of choice. Randolph had hired a new lawyer a week before his state capital trial and the trial court denied motions to continue the trial by a month, a couple days, and even three hours. When hired counsel did not appear for trial, the trial court forced Randolph to proceed to trial with appointed counsel.
Fourth Circuit
Pledger v. Lynch
The Fourth Circuit held that state-law certification requirements—laws that require civil plaintiffs to obtain a certification from a medical expert before filing a tort claim—do not apply in federal court because they are preempted by the Federal Rules of Civil Procedure. In so holding, it followed earlier decisions from the Sixth and Seventh Circuits.
Sixth Circuit
Tiger Lily, LLC v. HUD
The Sixth Circuit held that the Public Health Service Act of 1944 does not permit the CDC to impose an eviction moratorium on rental properties across the country. Disagreeing with the D.C. Circuit, the panel held that the broad authority granted by the first sentence of 42 U.S.C. Section 264(a) is qualified by the next sentence describing authority to provide for “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles” that are infected or contaminated.
Seventh Circuit
League of Women Voters v. Sullivan
The Seventh Circuit held that parts of Indiana’s new law for maintaining its official list of registered voters violated the National Voter Registration Act, which requires states to follow certain procedures before removing a voter from the rolls. The panel explained that allowing a county official to “presume” that a resident authorized cancellation of his registration any time the county official receives notice from the Indiana Election Division was inconsistent with the NVRA.
Ninth Circuit
Whitewater Draw National Resource Conservation District v. Mayorkas
The Ninth Circuit rejected environmental challenges to several immigration policies, including DACA. The panel held that, as to all claims, the challenged regulations either were not final agency actions or the plaintiffs lacked standing to challenge them.
Brach v. Newsom
The Ninth Circuit held that California may have violated parents’ fundamental right to control their children’s education by banning in-person instruction in private (in addition to public) schools. The panel reversed the district court’s decision dismissing the claim and remanded for further proceedings to determine whether the State’s order survived strict scrutiny. The panel rejected substantive due process challenges to remote instruction in public schools.
Kennedy v. Bremerton School District
The Ninth Circuit denied rehearing en banc to a teacher who had been disciplined for insisting on the right to pray in the middle of the school football field after games, potentially surrounded by students and members of the Bremerton community.
Tenth Circuit
Williams v. Hansen
The Tenth Circuit affirmed a district court’s denial of qualified immunity to various prison officials. It held that the officials may have violated a clearly established constitutional right by banning (1) any Native American religious services for at least nine days and (2) the use of tobacco for Native American religious services for 30 days.
Eleventh Circuit
SmileDirectClub, LLC v. Battle
The en banc Eleventh Circuit held that defendants in antitrust actions may not take an interlocutory appeal from a district court order denying them “state action” immunity. This defense permits a defendant to escape antitrust liability if they are acting as an arm of the State government.
D.C. Circuit
McCarthy v. Pelosi
The D.C. Circuit rejected for lack of jurisdiction challenges brought by Senate Minority Leader Kevin McCarthy and others to House rules allowing members to cast votes and mark their presence by proxy in light of the COVID-19 pandemic. The panel held that the Constitution’s Speech or Debate Clause immunized the resolution from judicial review.
Points of Interest
The Pennsylvania Supreme Court held that the government violated the State’s Environmental Rights Amendment when it transferred money from gas leases in State forests to the general fund. Instead, the Court held, the State may only use those fees to conserve and maintain Pennsylvania’s natural resources.
The Pennsylvania Supreme Court also held that Amazon workers must be compensated for the time they spend undergoing mandatory security screenings.
The Missouri Supreme Court upheld a ballot initiative passed last year compelling the State government to expand Medicaid coverage.
The New Mexico Supreme Court held that gasoline stations may be held liable if they sell fuel to a driver they know or have reason to know is intoxicated.
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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