Last Week in Federal Appeals (No. 34)
Last Week in Federal Appeals (No. 34)
Appellate decisions from (mostly) the week of May 2-6, 2022
“When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say. That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.”
~Justice Breyer, Shurtleff v. City of Boston
My apologies for the unannounced hiatus; I can only blame trial prep and catching up on other matters after trial prep. I won’t be able to catch all of the Circuit decisions I’ve missed in the meantime, but I did include recaps of Supreme Court decisions since my last newsletter on March 19.
Decision Summaries
Supreme Court of the United States
Wisconsin Legislature v. Wisconsin Elections Commission
In a per curiam opinion (with Justices Sotomayor and Kagan noting dissents), the Supreme Court held that the Wisconsin Supreme Court had incorrectly applied federal Voting Rights Act and Equal Protection caselaw when selecting redistricting maps. It held that the Court did not sufficiently justify the use of race-based factors in drawing district lines.
Ramirez v. Collier
The Supreme Court, in an 8-1 decision, held that a federal prisoner was likely to succeed on his religious liberty claim challenging Texas’s execution procedures. The majority explained that the State’s prohibition on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering Texas’s interests.
Justice Thomas dissented.
Houston Community College System v. Wilson
The Supreme Court, in a unanimous opinion, held that a community college board of trustees did not violate a board member’s First Amendment rights when it publicly reprimanded him based on some of his earlier comments challenging the board’s actions. The Court explained that elected assemblies have long had power to censure their members and the other board members also had a First Amendment right to express their opinion of the wayward board member.
Badgerow v. Walters
The Supreme Court, in an 8-1 decision, held that under the Federal Arbitration Act federal courts need not “look through” an arbitration award to determine if it has jurisdiction to confirm or vacate the award. Thus, in deciding whether it has jurisdiction over an application to confirm or vacate an arbitration award, the federal court can look only to the application itself.
Justice Breyer dissented.
Thompson v. Clark
To prevail on a malicious prosecution claim under the Fourth Amendment and Section 1983, a plaintiff must demonstrate that the criminal case against him was resolved in his favor. The Supreme Court, in a 6-3 decision, held that a plaintiff shows a favorable resolution if he shows that he was not convicted, he need not prove that the criminal case resulted in an affirmative declaration that he is innocent.
Justice Alito, joined by Justices Thomas and Gorsuch, dissented.
City of Austin v. Reagan National Advertising of Austin
The Supreme Court, in a 5-4 decision, reversed the Fifth Circuit’s decision striking down a rule that prohibited the construction of signs that advertise things that are not located on the same premises as the sign. The majority held that the lower court erred in concluding that the on-/off-premises distinction was content-based and remanded the case to the Fifth Circuit for further consideration.
Justice Alito concurred in the judgment in part and dissented in part.
Justice Thomas, joined by Justices Gorsuch and Barrett, dissented.
Cassirer v. Thyssen-Bornemisza
The Supreme Court, in a unanimous opinion, held that federal courts should apply forum-state choice-of-law rules when deciding what State’s law applies in a state-law-based lawsuit filed against a foreign country, even though that case would fall under the Foreign Sovereign Immunities Act.
Brown v. Davenport
The Supreme Court, in a 6-3 decision, held that a federal court granting habeas relief must apply both the decisional rule related to harmless error articulated in Brecht v. Abrahamson and the rule Congress created in AEDPA. Because the Sixth Circuit applied only the Brecht rule, the majority reversed.
Justice Kagan, joined by Justices Breyer and Sotomayor, dissented.
United States v. Vaello Madero
The Supreme Court, in a 8-1 decision, held that the Constitution does not require Congress to extend Social Security benefits to residents of Puerto Rico.
Justices Thomas and Gorsuch concurred.
Justice Sotomayor dissented.
Boechler v. Commissioner of Internal Revenue
The Supreme Court, in a unanimous opinion, held that a statutory deadline to seek review of an IRS determination in the Tax Court was not jurisdictional and, thus, was subject to equitable tolling.
Cummings v. Premier Rehab Keller, PLLC
The Supreme Court, in a 6-3 decision, held that emotional distress damages are not recoverable in a private action to enforce the Rehabilitation Act’s or the Affordable Care Act’s disability discrimination provisions.
Justice Kavanaugh, joined by Justice Gorsuch, concurred.
Justice Breyer, joined by Justices Sotomayor and Kagan, dissented.
Shurtleff v. City of Boston
Boston flies three flags outside its City Hall: an American flag, a Massachusetts flag, and (usually) a Boston flag. But it has for years allowed groups to hold events in City Hall Plaza and, when they do, has allowed the group to temporarily replace the Boston flag with a flag of their choice. The Supreme Court, in a 9-0 decision, held that this flag-raising does not amount to government speech, such that Boston could refuse to fly a religious flag as part of this program.
Justices Alito, Thomas, and Gorsuch concurred only in the judgment.
First Circuit
In Re Brian W. Coughlin
The First Circuit held that the bankruptcy code strips Native American tribes of their tribal sovereign immunity, which would ordinarily protect them from litigation. In doing so, the panel deepens a Circuit split, siding with the Ninth Circuit and against the Sixth Circuit.
Second Circuit
Bissonnette v. LePage Bakeries Park St.
The Second Circuit held that, under the Federal Arbitration Act, employees who deliver baked goods in designated territories are not a “transportation workers.” As a result, they could not escape an arbitration clause in their employment agreement.
Third Circuit
United States v. Abreu
The Third Circuit held that conspiring to commit a crime of violence does not qualify as a crime of violence under the United States Sentencing Guidelines.
Fifth Circuit
Wearry v. Foster
The Fifth Circuit held that a prosecutor is not absolutely immune from liability in a Section 1983 lawsuit where he joins the police in their initial gathering of evidence in the field. The panel explained that, when a prosecutor does so, he acts in an investigatory role rather than a quasi-judicial one.
Sixth Circuit
United States v. Rife
The Sixth Circuit held that Congress’s power under the foreign commerce clause does not permit it to prosecute a U.S. citizen for sexual misconduct conducted overseas. But—because it was constrained by Supreme Court precedent—the panel went on to affirm the defendant’s conviction, explaining that Congress could criminalize overseas misconduct as part of its power to pass legislation implementing treaties.
United States v. McKenzie
Federal law makes it a crime to tell a gun seller that you are buying a gun for yourself when you are actually buying it for someone else; and the Sentencing Guidelines recommend a higher sentence if the defendant had “reason to believe” the true buyer could not lawfully own a gun. The Sixth Circuit held that a straw purchaser has reason to believe the true buyer could not own a gun where he knew “of facts creating a fair probability that the true buyer could not own a firearm.”
Eleventh Circuit
SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London
The Eleventh Circuit joined its sister circuits and State courts around the country in holding that general business insurance policies that cover “direct physical loss of or damage to” property do not cover losses caused by COVID-19.
In the News
Based on a leaked opinion, Politico reports that appears that the conservative majority of the Supreme Court is poised to overturn Roe v. Wade and allow States to decide whether and to what extent to outlaw abortions. Leaking an opinion before it is announced is a nearly unprecedented breach of the Supreme Court’s vaunted secrecy rules.
The Politico also reports that the leaked decision has prompted days of protests outside Justices’ homes.
The Washington Post reported that, ironically, the original Roe decision was also leaked to the press before the opinion was announced.
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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