Last Week in Federal Appeals (No. 3)

Appellate decisions from the week of April 5-9, 2021

Credit to Ian Hutchinson

“The State cannot ‘assume the worst when people go to worship, but assume the best when people go to work’” ~ Per Curiam Decision, Tandon v. Newsom (quoting a per curiam Sixth-Circuit opinion)

“California need not, as the per curiam insists, treat at-home religious gathering the same as hardware stores and hair salons — and thus unlike at-home secular gatherings, the obvious comparator here. . . . [T]he law does not require that the State equally treat apples and watermelons.” ~ Justice Kagan, dissenting, Tandon v. Newsom

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With apologies for being a bit late this week, below are highlights from last week’s federal appellate court decisions:

United States Supreme Court

Google v. Oracle America

In an 8-1 decision written by Justice Breyer, the Supreme Court held that Google’s copying of 11,500 lines of code from Oracle’s Java SE Application Programming Interface was a fair use and thus did not violate copyright law. The Court emphasized that Google used the code in a transformative way to build its Android platform and that the copied code was only a small part of the millions of lines of code Google wrote for the program. Justice Thomas dissented.

Tandon v. Newsom

In a per curiam opinion, the Court issued an injunction forbidding California from enforcing its COVID-19-driven ban on at-home gatherings of three or more households against religious worship services. The Court noted that the state allowed hair salons and other commercial ventures involving more attendees to open with precautions and held that it could not treat religious gatherings differently without showing they were more dangerous.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, noting that California’s rule applied to all gatherings in homes and arguing that the state had shown why in-residence gatherings were more dangerous than commercial settings. Chief Justice Roberts did not join the dissent, but noted that he would have denied the injunction.

First Circuit

Cushing v. Packard

The First Circuit revived an Americans with Disabilities Act lawsuit filed by the Minority Leader and several other members of the New Hampshire House of Representatives against the Speaker of the House, challenging his refusal to allow them to appear at legislative sessions virtually in light of the COVID-19 pandemic. The Court held that the ADA overruled any claim to legislative immunity and that New Hampshire had waived that immunity by accepting federal funds.

Third Circuit

United States v. Morton

On plain error review, the Third Circuit vacated defendant Morton’s conviction for criminal contempt based on her assertion of her Fifth Amendment rights. It explained that the government has the burden of proving that it is “perfectly clear” a witness faces no criminal risk before a district court can force her to testify despite her invocation of the Fifth Amendment.

Sixth Circuit

Harden v. Hillman

The Sixth Circuit held that Rule 606(b) of the Federal Rules of Evidence (barring juror testimony impeaching a verdict) does not apply where, in a civil case, a juror claims that racial prejudice infected the verdict. In doing so, it extended the Supreme Court’s 2017 decision in Pena-Rodriguez (137 S. Ct. 855) to the civil context.

The panel held that the district court had erred in denying plaintiff Harden an evidentiary hearing to prove racial bias where a juror claimed that during deliberations jurors allegedly:

• repeatedly referred to Harden, an African-American man, as a crackhead, drawing on racial stereotypes surrounding drug use; and

• Referred to the plaintiff’s side of the case as the “Cosby show.”

Ninth Circuit

East Bay Sanctuary v. Garland

The Ninth Circuit struck down a Trump-administration rule categorically denying asylum to immigrants who travelled through a third country but failed to apply for asylum there. The Court held that the rule was contrary to law, because it contradicted provisions of the Immigration and Nationality Act. The panel also held that the rule was arbitrary and capricious, because DOJ and DHS had not justified their assumption that, just because an asylum-seeker had not applied for asylum in a third country, she was unlikely to have a meritorious claim.

Ocean Wholesale Grocery v. Bumble Bee Foods

The three largest domestic producers have been criminally charged with conspiring to engage in price fixing in violation of antitrust laws; two—Bumble Bee and Starkist—pleaded guilty, while the third—Chicken of the Sea—admitted price fixing and has been cooperating with the government. This revelation prompted a separate, civil class action.

In this appeal, the Ninth Circuit reversed the district court’s grant of class certification in the civil case. It held the use of statistical evidence to demonstrate that class-wide issues predominated over individual questions was appropriate. But it reversed because the district court had not resolved a factual dispute about the reliability of plaintiffs’ expert’s analysis, holding that the plaintiff has the burden of proving predominance by the preponderance of the evidence.

Eleventh Circuit

Hoever v. Marks (en banc)

Reversing more than 20 years of precedent, the en banc Eleventh Circuit held that federal law does permit prisoners to seek punitive damages even where they have not shown a physical injury. The court explained that its prior decisions failed to properly analyze the plain text of the statute and that no other circuit had agreed with its earlier interpretation.

Circuitronix v. Kinwong Electronic

The Eleventh Circuit held that, where a deadline for filing a court document falls on a date where the clerk’s office is physically closed, the deadline is tolled until the next date it is open for business. It rejected the counter-argument that the defendant could have filed its motion via the Court’s electronic filing system even though they physical office was closed the day after July 4.

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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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