Last Week in Federal Appeals (No. 37)
Last Week in Federal Appeals (No. 37)
Appellate decisions from the week of October 31-November 4, 2022
“The majority opinion holds that ‘and’ can have either a ‘distributive’ or a ‘joint’ sense and that only context can resolve the inherent ambiguity. Piercing the legalese, the idea is that ‘and’ can mean either ‘and’ or ‘or’ . . . The English language is never in stasis. Witness the off-definition misuse of “literally,” which has literally come to mean “figuratively.” But interchanging “and” and “or” is a mistake. We give our language, and our language-dependent legal system, a body blow when we hold that it is reasonable to read ‘or’ for ‘and’—or ‘and’ for ‘or.’”
~Judge Willett, United States v. Palomares (dissenting)
Decision Summaries
Supreme Court of the United States
The Supreme Court denied Senator Lindsay Graham’s application for a stay related to a subpoena issued by a Georgia grand jury in connection with a State prosecutor’s investigation into potential election interference by former President Donald Trump. There were no noted dissents.
Justice Barrett denied a petition to stay a lower court decision refusing to block President Biden’s student loan forgiveness program.
Chief Justice Roberts issued an order temporarily blocking the House of Representatives’ Committee on Ways and Means’ efforts to obtain former President Trumps tax returns, pending further order of the Court. The Committee was directed to file a response by this Thursday, November 10, to the former president’s application for a stay.
The Court heard extensive oral arguments in two cases concerning the constitutionality of affirmative action programs in higher education, one involving Harvard University and the other involving the University of North Carolina. Justice Jackson was recused from the Harvard case.
Fourth Circuit
United States v. Elbaz
The Fourth Circuit held that, while the federal wire-fraud statute does not apply extra-territorially, it can focus on frauds that are carried out overseas and target overseas victims but use U.S. “wires” in the form of electronic communications or otherwise. But, the panel went on to explain, the district court erred by awarding restitution based on harm to non-U.S. victims with no connection to the use of U.S. wires.
Henderson v. The Source for Public Data
The Fourth Circuit held that Section 230 of the Communications Decency Act—which immunizes certain online platforms from liability for content posted by or obtained from third parties—did not immunize an online background-check company from liability under the Fair Credit Reporting Act. The plaintiffs in this case had argued that the website failed to provide them with a copy of the data it had on them and failed to properly ensure its data was accurate.
Fifth Circuit
United States v. Palomares
The Fifth Circuit held that the First Step Act’s safety valve provision’s use of the word “and” when describing which offenses disqualify a prisoner for sentncing relief, in essence, means “or.” Thus, the panel explains, a defendant is ineligible for relief if she has more than four criminal history points, a prior “3-point offense”, or a prior “2-point violent offense.” Over a pointed dissent, the majority explained that the strange structure of the statute required this odd result.
Eighth Circuit
United States v. Lagenberg
The Eighth Circuit affirmed a district court’s order denying a defendant’s motion to suppress collected from his work-provided cell phone. The panel held that the defendant’s employer had apparent authority to consent to the search because he had possession of the phone, had its password, and professed ownership over the device. At the time, the officers were not aware of any facts to suggest the employer did not have authority.
Ninth Circuit
Greeen v. Miss United States of America
The Ninth Circuit held that an Oregon civil-rights law that required a beauty pageant to admit transgender women violated the pageant’s First Amendment’[s prohibition on compelled speech. The panel held that forcing the pageant to admit transgender women would “fundamentally alter” the pageant’s “expressive message.”
Judge Graber dissented.
State Decisions of Interest:
The North Carolina Supreme Court issued an order affirming a lower court’s decision finding the State’s public educaiton system unconstitutional under the North Carolina Constitution for failing to provide an adequate education and compelling the transfer of additional funds to the public school system.
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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