Last Week in Federal Appeals (No. 57)
Last Week in Federal Appeals (No. 57)
Appellate decisions from the weeks of November 13 and November 20
“If a bar association may tout the health benefits of broccoli, may it also advise attorneys to practice Vinyasa yoga, adhere to a particular workout regimen, or get married and have children, if it believes that those activities improved attorney wellness and therefore the quality of legal services in the state? How remote or indirect can the purported benefit to legal services be?. . . If a bar association provides advice, that advice must inherently relate to the legal profession or the practice of law. Advice is not germane just because, in the association’s view, it improves ‘wellness’ and therefore the practice of law indirectly. Although walnuts, exercise, and Vitamin D may be beneficial, they fall outside the LSBA’s purview, at least when they are the basis of generic advice to attorneys about health and fitness.”
Judge Smith, Boudreaux v. LA State Bar Association
Decision Summaries
First Circuit
Castro v. Scanlan
The First Circuit affirmed a district court decision dismissing a lawsuit that argued Former President Trump is inillegible to run for President under Section 3 of the Fourteenth Amendment, which bars anyone who has engaged in insurrection from holding federal office. The panel concluded that, even though the plaintiff is a registered presidential candidate, he lacked standing to enforce the ban.
Second Circuit
Giron-Molina v. Garland
Second Circuit vacated the Board of Immigration Appeals’ decision ordering the plaintiff’s removal after determining she had been convicted of a crime involving moral turpitude. The panel held that abuse of a corpse is not categorically a crime involving moral turpitude, and thus remanded the decision.
Wiggins v. Griffin
The Second Circuit held that prison officials were not entitled to qualified immunity under Section 1983 where they left a prisoner off a list of those desiring to attend religious services for several months.
Gomez v. United States
The Second Circuit held that, notwithstanding a 2019 Supreme Court decision finding the residual clause of the federal statute prohibiting prosessing firearms in connection with a crime of violence unconstitutionally vague, a prisoner convicted under a Pinkerton theory of liability was not entitled to habeas relief. The panel explained that, because a defendant convicted under that theory is convicted of the substantive underlying crime rather than conspiracy, this defendant’s crime qualified as a crime of violence under the statute.
Rosa v. Doe
The Second Circuit reversed a district court’s decision holding that, because a prisoner used funds to support his child and mother rather than pay a civil filing fee, he was not entitled to proceed in forma paupris. The panel explained that, under the relevant statute, the needs of a prisoner’s dependents should be considered in determining whether the prisoner has the resources to pay court filing fees.
Third Circuit
Port Hamilton Refining and Transportation v. EPA
The Third Circuit held that the EPA exceeded its authority by ordering a petroleum refining facility that had been taken off line and then purchased by a new owner to obtain a new permit. The panel explained that the Clean Air Act required only new facilities to obtain such a permit and rejected the EPA’s effort to classify plants that had been “shut down” rather than “idled” as new facilities under the statute.
Fourth Circuit
Maryland Shall Issue, Inc. v. Moore
The Fourth Circuit struck down Maryland’s law regulating handgun purchases, which required citizens to seek a qualification license (involving a safety course and background investigation) before purchasing a handgun and then comply with registration requirements. The panel explained that this statute violated the Second Amendment under the Supreme Court’s new “historical analog” test.
Fifth Circuit
Tesla v. NLRB
The Fifth Circuit vacated a National Labor Relations Board decision that ruled Tesla had infringed on its’ employees’ rights to unionize by requiring employees to wear uniforms that covered union iconography on the employees’ t-shirts. The panel stated that the National Labor Relations Act, which protects such rights, does not give the Board the authority to “make all company uniforms presumptively unlawful.” Further, the panel determined that the Board did not properly balance Tesla’s interest in enforcing a neutral uniform policy against the employees’ right of self-organization.
Boudreaux v. LA State Bar Association
The Fifth Circuit held that the Louisiana State Bar Association engaged in advisory speech outside of its connection to the practice of law and thus violated plaintiff member’s First Amendment right not to associate with such speech. Specifically, the panel took issue with the bar association’s social media statements on wellness, local charity events, student loans, and LGBT Pride Month. The panel further declined to recognize a de minimis exception to the rule prohibiting bar associations from engaging in non-germane speech.
Seventh Circuit
Brown v. Kemp
The Seventh Circuit held that plaintiffs established standing to challenge Wisconsin’s hunter harassment law as a violation of their First and Fourteenth Amendment rights. The panel determined that the law, which criminalizes approaching, confronting, or recording a hunter, has been used to harass and intimidate the plaintiffs and has caused them to refrain from engaging in activity protected by the First Amendment. Further, the panel held that the law discriminates against speech and expressive activity based on viewpoint, and the state has not offered sufficient justification for such discrimination.
Eighth Circuit
Arkansas State Conference NAACP v. Arkansas Board of Apportionment
The Eighth Circuit held that Section 2 of the Voting Rights Act does not create a private right of action.
Ninth Circuit
Zuniga de la Cruz v. Garland
The Ninth Circuit upheld the assertion that Miranda warnings are inappropriate and not required by law in civil deportation proceedings. Concurring, Judge Mendoza recognized that noncitizens are entitled to due process under the Fifth Amendment, and he saw no reason not to inform noncitizens of their rights. Judge Mendoza pointed to precedent where the Ninth Circuit required immigration agents to inform noncitizens of their right to apply for political asylum and their right to counsel.
Tenth Circuit
Duran v. Budaj
The Tenth Circuit held that the defendant officers, who were sued for exercising excessive force during the protests in reaction to the murder of George Floyd, were not entitled to qualified immunity. The panel emphasized that “it had been clearly established for (at least) twelve years that the deployment of less-than-lethal munitions on an unthreatening protester who is neither committing a serious offense nor seeking to flee is unconstitutionally excessive force.”
Eleventh Circuit
US v. Perez
The Eleventh Circuit held that a person who commits a felony offense while on pretrial release may be sentenced to a term of imprisonment that exceed the maximum term prescribed for the underlying offense according to the increased statutory penalties. However, the panel noted that the issue of whether the person committed the felony offense while on pretrial release must be submitted to a jury and proven beyond a reasonable doubt to satisfy due process mandates.
Stone v. Commissioner of IRS
The Eleventh Circuit affirmed the district court’s dismissal of whistleblowers’ claim against the IRS for refusing to initiate enforcement proceedings on the whistleblowers’ credible information. The panel concluded that the IRS’ refusal to follow through on the information provided by these whistleblowers was and unreviewable discretionary decision under the Administrative Procedure Act.
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