Last Week in Federal Appeals (No. 42)
Appellate decisions from the weeks of December 12-23, 2022
“It turns out that “and” has more meanings than one might suppose. By way of background, grammatical rules are an archetype of rules of conduct with which we often comply without conscious awareness of doing so. Small children comply with any number of grammatical rules without awareness even of their existence; and adults comply with rules concerning the pluperfect and subjunctive tenses, for example, without consciously knowing what those rules are. We likewise understand language according to these same grammatical rules, again often without awareness of their existence. Thus, a particular grammatical rule might strike us as impossibly esoteric, and yet shape our understanding of language every day. The task of determining the ordinary meaning of a word or phrase, therefore, is sometimes one of excavating—and taking conscious account of—rules as to which our compliance is often unconscious.”
~ Judge Kethledge, Majority Opinion, United States v. Haynes
“The majority’s conclusion, though couched in other terms, is that “and” means “or” in this context. Because I conclude that “and” should indeed mean “and,” I respectfully dissent.”
Judge Griffin, Dissenting Opinion, United States v. Haynes
This will be the last post of 2022 (but don’t worry, I stuck this week’s opinions in here). Happy Holidays and a very Happy New Year to all of you! See you in 2023.
Decision Summaries
First Circuit
Murray v. Grocery Delivery E-Services USA Inc.
The First Circuit vacated a district court’s decision approving a class action settlement. The panel explained that, because distinct groups of class members did not have their own counsel, it was too difficult to tell whether class members were treated equitably in the settlement.
Second Circuit
Soule v. Connecticut Association of Schools, Inc.
The Second Circuit affirmed a district court’s order dismissing Title IX claims by four high school students challenging a high-school athletic conference’s policy allowing transgender students to participate in girls’ sports. The panel held that the students had not identified any injury in fact because their claimed injuries (essentially that the policy disadvantaged cisgender girls) were too speculative.
Fourth Circuit
Avail Vapor, LLC v. United States FDA
The Fourth Circuit upheld the FDA’s decision to preclude a tobacco company from marketing its flavored electronic cigarettes. The panel explained that the FDA was justified in concluding that the products posed a serious risk to youth without enough offsetting benefits to adults.
Fifth Circuit
State of Louisiana v. Biden
The Fifth Circuit affirmed a district court decision enjoining President Biden from requiring federal contractors to compel their employees to be vaccinated against COVID-19. The panel based this decision in large part on the “major questions doctrine” recently reaffirmed and strengthened by the Supreme Court.
Sixth Circuit
United States v. Sammons
The Sixth Circuit held that one-on-one conversations involving child pornography or sexual exploitation qualify as a notice seeking or offering pornography under 18 U.S.C. Section 2251(d)(1), a federal statute criminalizing that behavior. In so doing, the panel agreed with earlier decisions from the Ninth, Third, Tenth, and Seventh Circuits but split with the Eleventh Circuit, which reached the opposite conclusion.
United States v. Haynes
Deepening a circuit split about the meaning of the First Step Act’s safety-valve provision, the Sixth Circuit issued an opinion concluding that “and” in the statute’s list of requirements actually means “or.” In so doing, the panel disagreed with a recent opinion from the Eleventh Circuit, siding instead with Eighth Circuit.
Sisters for Life, Inc. v. Louisville-Jefferson County
The Sixth Circuit held that a Louisville-Jefferson County regulation preventing protestors from offering pro-life leaflets and “advice” to women in buffer zones near abortion clinics likely violate the First Amendment.
United States v. McCall
The Sixth Circuit, sitting en banc, held that a prisoner could not qualify for compassionate release under 18 U.S.C. Section 3582 based on a retroactive change in sentencing law. The fact that the prisoner woul dhave recieved a shorter sentence today than he recieved in 2015 was not an “extraordinary and compelling” reason for a sentencing reduction.
Ninth Circuit
Pino v. Cardone Capital, LLC
The Ninth Circuit held that, for purposes of the Securities Act, a person can solicit a purchase of securities even if a communication is not targetted to a specific person. Thus, a mass communication in the form of a social media post does qualify as a solicitation under the Act and such statements can be actionable.
Eleventh Circuit
North American Co. for Life & Health Ins. v. Caldwell
The Eleventh Circuit held that a life-insurance policy’s “suicide” exclusion covered an insured who committed “suicide by cop.” The panel rejected the district court’s rationale that a person who was “shot by another person,” even if it was as a result of provoking a police officcer to shoot him, did not commit suicide.
D.C. Circuit
Singh v. Berger
The D.C. Circuit reversed a district court’s order denying a preliminary injunction to several young Sikh men who sued the U.S. Marine Corps alleging violations of the Religious Freedom Restoration Act. The men’s religion required them to maintain beards and unshorn hair, which the Marine Corps was prepared to allow once they finished bootcamp but not during bootcamp itself.
In the News
The United States Supreme Court set a challenge to President Biden’s student-loan-forgiveness program for oral argument in February.
The Sixth Circuit refused to grant Ohio State University’s request for rehearing en banc in several cases related to atheltic-team doctor Richard Strauss’s abuse of hundreds of young men between 1978 and 1998.
State Decisions of Interest
The North Carolina Supreme Court struck down both a revised State-Sentate map as unduly partisan and a State voter-ID law as racially discriminatory. Both decisions were along partisan lines, making their fate uncertain given Republican victories in recent judicial elections.
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.
