Last Week in Federal Appeals (No. 26)
Appellate decisions from the week of December 6-10, 2021
“On the merits, this petition for review is a slam dunk loser. Of course the Transportation Security Administration . . . , charged with “develop[ing] policies, strategies, and plans for dealing with threats to transportation security,” can require individuals in airports and on airplanes to wear the partial face masks we are all familiar with as a result of the coronavirus scourge. But I believe Corbett is so lacking in standing to sue that I would dispose of his petition without reaching the merits. . . . De minimis non curat lex, the “venerable maxim” that ensures the law does not concern itself with trifles . . . resolves Corbett’s annoying waste of judicial resources; as a lawyer and thus an officer of the court, he should know better.”
~Judge Henderson, Corbett v. Transportation Security Administration
Decision Summaries:
Supreme Court of the United States
Whole Woman’s Health v. Jackson
The Supreme Court ruled by a vote of 5-4 that abortion providers in Texas can pursue a pre-enforcement challenge to Texas’s SB8, which allowed private citizens to sue any person who assists another in obtaining an abortion but did not permit state prosecutors or the Attorney General to bring similar suits. The majority, in an opinion by Justice Gorsuch, held that providers may sue certain state licensing officials but not the Governor, Attorney General, or several other potential defendants. The Court declined to lift the Fifth Circuit’s decision refusing to stay enforcement of SB8 in the meantime.
Chief Justice Roberts, joined by the three liberal justices, filed an opinion concurring in part and dissenting in part. He would have allowed suits against a broader range of officials.
Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan.
First Circuit
United States v. Guerrero
The First Circuit, overruling circuit precedent, held that officers need not actually fear for their safety to perform a “protective frisk” for weapons on a driver during a traffic stop. It is enough that a reasonable officer under the circumstances would have a basis for the search.
Fourth Circuit
United States v. Blankenship
The Fourth Circuit held that, although federal prosecutors improperly suppressed evidence that some federal Mine Safety and Health Administration employees were hostile towards the defendant mine owner, the suppressed evidence was not sufficiently material to undermine confidence in the defendant’s convictions.
Fifth Circuit
Fletcher v. Louisiana Department of Transportation and Development
The Fifth Circuit held that the State of Louisiana has not waived its immunity against claims under the Americans with Disabilities Act. The panel refused to ask the Louisiana Supreme Court to opine as to whether a general waiver of immunity for “injury to person or property” in the Louisiana Constitution exposed the State to ADA claims.
Sixth Circuit
United States v. Hruby
The Sixth Circuit held that — when presenting evidence that a defendant molested a child in the past under Fed. R. Evid. 414(a) — the government need not present evidence corroborating a defendant’s confession in order to introduce that confession at trial.
Seventh Circuit
In a series of decisions, the Seventh Circuit rejected lawsuits brought by business owners seeking insurance coverage for losses suffered as a result of COVID-19 quarantine and stay-at-home orders:
First, in Sandy Point Dental v. Cincinnati Insurance Company, the Seventh Circuit held—in line with several other Circuits—that coverage for “direct physical loss” does not extend to losses caused by quarantine orders because the pandemic did not cause “any physical alteration” to the business owners’ property.
Second, in Bradley Hotel Corp. v. Aspen Specialty Insurance Company, the Seventh Circuit held that “loss of use” and “ordinance or law” exclusions in various policies also barred COVID-19 closure order coverage.
Third, in Crescent Plaza Hotel Owner v. Zurich American Insurance Company, the Seventh Circuit held that a microorganism exclusion in a business property insurance policy barred COVID-19 closure order coverage.
Finally, in Mashallah, Inc. v. West Bend Mutual Insurance Company, the Seventh Circuit held that a virus exclusion barred coverage for similar losses.
Ninth Circuit
Arizona Democratic Party v. Hobbs
The Ninth Circuit rejected a challenge to an Arizona voting law that requires voters who forget to sign their vote-by-mail ballot to correct the error by election day. The panel held that, even though Arizona allows voters to verify a “mismatched” signature for three to five days after the election, it is not constitutionally required to extend the same grace to those who do not sign their ballot at all.
Tenth Circuit
United States v. Muhtorov
In a 163-page decision, accompanied by a lengthy dissent, the Tenth Circuit upheld the conviction of a defendant charged with providing material support to a terrorist organization. The majority rejected challenges to a six-year detention, holding that it did not violate the defendant’s speedy-trial rights, and Article III and Fourth Amendment challenges to the government’s foreign intelligence surveillance programs.
Eleventh Circuit
Florida v. Department of Health and Human Services
The Eleventh Circuit refused to issue an injunction blocking a federal government regulation requiring facilities serving Medicare and Medicaid employees to ensure that their staff is vaccinated against COVID-19, rejecting the State of Florida’s effort to prevent the rule from going into effect.
Telcy v. United States
The Eleventh Circuit held that a sentence-reduction under the First Step Act does not count as a new conviction and, thus, does not restart the one-year period within which a defendant can file a habeas petition challenging his conviction.
D.C. Circuit
Corbett v. Transportation Security Administration
The D.C. Circuit rejected as meritless a pro se challenge to TSA rules requiring travelers and others to wear masks on commercial airplanes, in airports, and on surface transportation around airports.
Trump v. Thompson
A panel of the D.C. Circuit unanimously rejected former-President Donald Trump’s attempt to prevent the January 6th Committee from obtaining documents from the Archivist of the United States related to the siege of the U.S. Capitol earlier this year. The court refused to overrule President Biden’s decision not to claim executive privilege with respect to the requested documents.
In the News:
The Supreme Court agreed to hear four new cases this term: (1) a case considering whether a court must consider alternative measures to protect a child before simply refusing returning him or her to an abusive parent under the Hague Convention; (2) two consolidated cases considering whether a district court has discretion to order a person to provide discovery for use in a private international arbitration; and (3) a case concerning whether a ramp agent supervisor is a “transportation worker” whose contract falls outside the Federal Arbitration Act.
State Decisions of Interest:
The Pennsylvania Supreme Court upheld a lower-court decision holding that the State’s Governor lacked authority to impose a statewide mandate requiring children to wear masks in schools.
The Nevada Supreme Court unanimously held that gun manufacturers cannot be held responsible for the deaths in the 2017 mass shooting on the Las Vegas Strip.
The North Carolina Supreme Court ordered that primary elections scheduled for March 8 be postponed until May 17 to allow it to resolve several lawsuits related to the state’s newly drawn legislative districts.
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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