Last Week in Federal Appeals (No. 28)
Holiday Edition: Appellate decisions from the weeks of December 24, 2021 - January 14, 2022
In our representative democracy, the power rests at all times with the people. Their power is never more profound than when it is expressed through their vote at the ballot box. . . . [But w]hen the dealer stacks the deck in advance, the house usually wins. That perhaps explains how a party that generally musters no more than 55 percent of the statewide popular vote is positioned to reliably win anywhere from 75 percent to 80 percent of the seats in the Ohio congressional delegation. By any rational measure, that skewed result just does not add up.
The incontrovertible evidence in these cases establishes that the plan passed by the General Assembly fails to honor the constitutional process set out in Article XIX to reapportion Ohio’s congressional districts. The General Assembly produced a plan that is infused with undue partisan bias and that is incomprehensibly more extremely biased than the 2011 plan that it replaced. This is not what Ohio voters wanted or expected when they approved Article XIX as a means to end partisan gerrymandering in Ohio for good. The time has now come for the General Assembly to faithfully discharge the constitutional responsibilities imposed by Article XIX and by oath of office.
Justice Michael P. Donnelly, Adams v. DeWine (Ohio)
Happy New Year! After the holiday season and a two-week vacation, I’m back with a slightly longer edition to catch up with everything that has happened so far in the new year—including the activity at the Supreme Court last week.
I’d also like to mark another milestone for the newsletter: Appellate Happenings now has more than 200 subscribers! If you’re one of them, thank you for your support. If you’re not, please consider signing up below.
Now, with out further ado . . .
Decision Summaries:
Supreme Court of the United States
National Federation of Independent Business v. Department of Labor
The Supreme Court, apparently by a 6-3 vote,1 rejected the Biden administration’s rule requiring employers with more than 100 employees to either implement a COVID-19 vaccine mandate or a weekly COVID-19 testing regimes. The Court emphasized that the rule was issued by the Occupational Health and Safety Administration, which has authority to issue only workplace safety rules, not broad public-health mandates. Because COVID-19 is a general danger, not one restricted to the workplace, the Court explained, OSHA exceeded its authority in issuing the rule.
The majority left open the possibility that OSHA could mandate vaccines for jobs that magnify the risk of infection, such as those requiring work “in particularly crowded or cramped environments.” But OSHA may not impose a blanket mandate.
Justices Breyer, Kagan, and Sotomayor noted dissents and filed a dissenting opinion.
Biden v. Missouri
The Supreme Court, by a vote of 5-4, voted to allow the Biden administration to enforce a rule requiring medical facilities that receive Medicare or Medicaid funding to implement COVID-19 vaccine mandates for their employees. The majority based this ruling on the Secretary of Health and Human Services’s statutory authority to promulgate “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”
Justices Thomas, Alito, Gorsuch, and Barrett dissented.
Babcock v. Kijakazi
The Supreme Court, by an 8-1 vote, held that so-called “dual status” positions with the National Guard—which are civilian jobs that, nonetheless, require the employee to be an active member of the guard—do not qualify as “service as a member of a uniformed service” for Social Security purposes. Thus, any social security benefits a retired dual-status employee receives should be offset by the amount of his or her civilian pension, if any. (Social Security benefits are not offset in the same way based on military pensions.)
Justice Gorsuch dissented.
First Circuit
Ortiz v. Garland
The First Circuit granted an asylum applicant’s petition for review of an Immigration Judge’s deportation decision. It found that the immigration judge’s adverse credibility finding was not supported by substantial evidence, because it was based on a flawed and “erratic” law enforcement database that purportedly showed the applicant was a gang member.
Second Circuit
10012 Holdings Inc. v. Sentinel Insurance Co.
The Second Circuit joined an expanding list of federal courts in holding that business property insurance does not cover losses or expenses caused by COVID-19 shutdown orders. The panel held that coverage was limited to suspensions of operations caused by physical property damage.
In Re LIBOR-Based Financial Instruments Antitrust Litigation
The Second Circuit upheld a district court decision dismissing antitrust claims in 23 cases against some of the worlds biggest banks as part of an ongoing multi-district litigation. The panel held that the plaintiffs in those cases lacked antitrust standing because they purchased LIBOR-indexed bonds from third parties rather than directly from the defendant banks or their affiliates.
Katz v. Focus Forward
The Second Circuit held that an unsolicited fax invitation to participate in a market-research survey in exchange for money is not an “unsolicited advertisement” under the Telephone Consumer Protection Act.
Fourth Circuit
United States v. Campbell
The Fourth Circuit held that an “attempted” crime cannot qualify as a controlled-substance offense under the United States Sentencing Guidelines.
Fifth Circuit
United States v. Meals
The Fifth Circuit rejected a defendant’s argument that Facebook was acting as a government agent when it reported his sexually-explicitly communications with a minor to the National Center for Missing and Exploited Children. The panel explained that a statutory obligation to report instance of exploitation Facebook discovers is not the same as a mandate to search for exploitation. Thus, Meals’ Fourth Amendment rights were not violated.
Texas v. Biden
The Fifth Circuit held that the Biden administration violated the Administrative Procedure Act when it attempted to terminate former-President Trump’s Migrant Protection Protocol. Under this protocol, undocumented immigrants are returned to Mexico while their removal cases are pending rather than being released on bond in the United States.
Terry Black’s Barbecue LLC v. State Automobile Insurance Co.
The Fifth Circuit joined an expanding list of federal courts in holding that business property insurance does not cover losses or expenses caused by COVID-19 shutdown orders. The panel held that coverage was limited to suspensions of operations caused by physical property damage.
Sixth Circuit
Kentucky v. Biden
The Sixth Circuit upheld an injunction against a Biden administration rule under the Federal Property and Administrative Services Act which requires certain government contractors to implement COVID-19 vaccination mandates.
Eighth Circuit
Cross v. Fox
The Eighth Circuit found it did not have jurisdiction to review a provision of a tribal constitution requiring nonresident tribe members to return to the reservation in order to vote in tribal elections and prohibiting nonresidents from holding tribal office. The panel based this decision in part on longstanding circuit precedent holding that the Voting Rights Act does not apply to Native American tribes.
Ninth Circuit
Carmona v. Dominos Pizza
The Ninth Circuit held that Dominos delivery drivers were a “class of workers engaged in foreign or interstate commerce” under the Federal Arbitration Act. It therefore denied Dominos’s motion to compel arbitration.
Tenth Circuit
Goodwill Industries of Central Oklahoma v. Philadelphia Indemnity Insurance Co.
The Tenth Circuit joined an expanding list of federal courts in holding that business property insurance does not cover losses or expenses caused by COVID-19 shutdown orders. The panel held that coverage was limited to suspensions of operations caused by physical property damage.
United States v. Cozad
The Tenth Circuit held that it is unreasonable for a district court judge to impose a harsher sentence on a defendant merely because she choose to plead guilty without agreeing to a plea agreement.
D.C. Circuit
Atchley v. AstraZeneca UK Ltd
The D.C. Circuit revived a lawsuit against various large medical supply companies alleging that they provided material support to a terrorist organization in Iraq that injured or killed hundreds of U.S. service members and civilians. The plaintiffs allege that AstraZeneca and others used bribes and entered off-the-books arrangements to provide medical supplies through a ministry controlled by the terrorist organization..
State Decisions of Interest:
The Ohio Supreme Court released two decisions rejecting state and federal redistricting maps as unduly partisan:
In Adams v. DeWine, the Court held that the Ohio Constitution prohibits the state legislature from drawing U.S. House districts to favor one party or another except to the extent justified by “legitimate, neutral criteria,” such as county lines. It also held that the legislature unjustifiably split Cuyahoga (Cleveland), Franklin (Columbus), and Hamilton (Cincinnati) counties to dilute the Democratic vote.
In League of Women Voters v. Ohio Redistricting Commission, the Court struck down the district maps for Ohio’s state legislature, holding that they failed to meet the Ohio Constitution’s proportionality requirement.
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.
The Court’s decision was announced “per curiam” (or “by the court”), which means no author was identified and a vote breakdown was not provided. There were only three noted dissents, but a Justice is not required to note his or her dissent or write separately.
Good informative report. Keep them coming.