Last Week in Federal Appeals (No. 33)
Last Week in Federal Appeals (No. 33)
Appellate Decisions from the weeks of February 28-March 11, 2022
“Our Founders knew from hard experience the “intolerable abuses” that flow from unchecked executive power. Nor is their experience an alien one. More recent history reveals that executive officials can sometimes be tempted to misuse claims of national security to shroud major abuses and even ordinary negligence from public view. . . .
Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.”
~Justice Gorsuch, United States v. Zubaydah (dissenting).
Decision Summaries
Supreme Court of the United States
United States v. Zubaydah
The Supreme Court, by a vote of 7-2, held that the Ninth Circuit erred in holding that the state secrets privilege did not bar a lawsuit seeking to information on a CIA detention site in Portland, Oregon.
Justices Gorsuch and Sotomayor dissented.
Cameron v. EMW Surgical Center
The Supreme Court, by a vote of 8-1, held that the Sixth Circuit abused its discretion when it refused to allow the Kentucky Attorney General to intervene on behalf of the State in a challenge to an abortion law. The Kentucky AG had been dismissed from the lawsuit while it was in the district court, but he moved to intervene when another State official declined to seek rehearing en banc.
Justice Sotomayor dissented.
United States v. Tsarnaev
The Supreme Court, by a vote of 6-3, reinstated the death sentence imposed on the younger of two Boston Marathon bombers. The Supreme Court rejected the defense’s claims of bias and its challenges to evidentiary rulings.
Justices Breyer, Sotomayor, and Kagan dissented.
FBI v. Fazaga
The Supreme Court, in a unanimous opinion, held that the Foreign Intelligence Surveillance Act—which establishes special procedures the government must follow if it wants to engage in foreign surveillance—does not displace the common-law state secrets privilege, which allows the government to prevent the disclosure of sensitive information.
Wooden v. United States
The Supreme Court held, in a 9-0 vote, that a defendant did not commit 10 different crimes of violence for purposes of enhanced sentencing under the Armed Career Criminal Act when he burglarized 10 different storage units in a single facility. The Court held that Wooden’s ten burglary offenses arising from a single criminal episode did not occur on different “occasions” and thus counted as only one prior conviction for purposes of Act.
First Circuit
Lepore v. United States
The First Circuit held that the district court erred in ordering the release of grand jury transcripts from the 1970s related to the publication of the Pentagon Papers. The original lawsuit was brought by historian Jill Lepore.
Monsarrat v. Newman
The First Circuit held that Section 230 of the Communications Decency Act (which, among other things, protects online platforms from liability for things posted on their sites) protected the moderator of an online community bulletin board. The panel explained that, even though the moderator had copied and pasted all the comments on the forum to a new platform, the liability shield still applied.
Fourth Circuit
Uncork and Create LLC v. Cincinnati Insurance Co.
Joining a long list of its sister Circuits, the Fourth Circuit held that business losses that result from state-mandated COVID-19 closures do not qualify as “physical losses” or “physical damage.”
Fifth Circuit
United States v. Sheperd
The Fifth Circuit remanded a case for an evidentiary hearing on whether her pretrial counsel’s conflict of interest adversely affected his representation. Although the defendant had an unconflicted lawyer at trial, pretrial counsel had represented the defendant until days before trial and also represented one of the government’s star witnesses. The panel emphasized that pretrial conflicts could be significant since nearly 98% of cases end in guilty pleas.
U.S. Navy Seals 1-26 v. Biden
The Fifth Circuit refused to stay a district-court order that precludes the Navy from enforcing a vaccine mandate against certain sailors and officers who have sought a religious exemption, even though that order is preventing a warship from being deployed. (NOTE: The government has now asked the Supreme Court to stay the district court’s order.)
Sixth Circuit
Schuler v. Adams
The Sixth Circuit held that, where a State court grants a preliminary injunction before a defendant removes a case to federal court, the defendant cannot then appeal the injunction to the federal court of appeals. Though federal courts of appeals generally have jurisdiction over appeals from preliminary injunctions, that jurisdiction only applies to injunctions issued by federal district courts.
Eighth Circuit
United States v. Mattox
The Eighth Circuit held that, because an officer may enter a hospital room to question a potential crime victim, a patient does not have a reasonable expectation of privacy in their room. The panel thus affirmed the district court’s denial of the defendant’s motion to suppress.
Ninth Circuit
Hoffman v. Preston
A divided panel of the Ninth Circuit held that a federal prisoner could bring a Bivens claim against a federal corrections officer who allegedly labeled the prisoner as a snitch and offered a bounty to other prisoners to assault him. The panel held that this modest extension of Bivens was permitted despite recent Supreme Court cases casting doubt on the remedy.
D.C. Circuit
Shaffer v. George Washington University
The D.C. Circuit revived lawsuits brought by several students claiming that GW breached implied contracts by transitioning to online instruction during the COVID-19 pandemic. The panel recognized, however, that the University will likely have strong defenses to the claims.
In the News
The U.S. Supreme Court refused to review several State supreme court decisions rejecting partisan redistricting maps.
Substack App
You can now read Appellate Happenings in the new Substack app for iPhone.
With the app, you’ll have a dedicated Inbox for my Substack and any others you subscribe to. New posts will never get lost in your email filters, or stuck in spam.
The Substack app is currently available for iOS. If you don’t have an Apple device, you can join the Android waitlist here. Get the app here:
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.
