Last Week in Federal Appeals (No. 62)
Last Week in Federal Appeals (No. 62)
Appellate decisions from the week of January 1, 2024
“Worse, after telling manufacturers that their marketing plans were “critical” to their applications, FDA candidly admitted that it did not read a single word of the one million plans. Then FDA denied that its voluminous guidance documents and years-long instructional processes meant anything. . . . It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase. . . . As the Supreme Court recently reminded us: “If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” . . . And FDA’s regulatory switcheroos in this case bear no resemblance to square corners.
~ Judge Oldham, Wages & White Lion Investments, LLC v. FDA
Decision Summaries
First Circuit
Pitta v. Medeiros
The First Circuit held that a parent did not have a First Amendment right to record a meeting with public school officials concerning his child’s special needs. The panel distinguished earlier cases finding a constitutional right to record police officers, concluding that they did not stand for the proposition that citizens have a right to record any public officer whenever they are acting in any public place.
Fourth Circuit
Morgan v. Tincher
The Fourth Circuit held that a district erred by not granting relief from judgment under Rule 60 of the Federal Rules of Civil Procedure where an officer accused of excessive force failed to update his discovery responses to disclose another, similar lawsuit had been filed against him.
Fifth Circuit
State of Texas v. Becerra
The Fifth Circuit affirmed a district court decision enjoining enforcement of federal guidance that requires hospitals receiving Medicare funds to perform abortions “when that care is necessary stabilizing treatment for an emergency medical condition.” The panel concluded that the federal guidance went beyond the authority gratned by the statute in question.
Wages & White Lion Investments, LLC v. FDA
The Fifth Circuit, sitting en banc, held that the FDA acted unlawfully when it required e-cigarette manufacturers to take onerous steps to apply for FDA approval before abruptly changing its process and largely ignoring most of what they required the manufacturers to submit. The panel held that this “regulatory switcheroo” was arbitrary and capricious because, among other things, it failed to give fair notice and departed from its prior policy sub silentio and disregarded its own existing rules.
Seventh Circuit
United States v. Johnson
The Seventh Circuit held that a district court erred in barring the goverment from presenting evidence that a weapon possessed by a felon had a laser sight as unduly prejudicial under Rule 403. The panel explained that the evidence was relevant to proving that the defendant possessed a particular gun, even if a feature of that gun suggested the weapon was particularly dangerous.
Ninth Circuit
California Restaurant Association v. City of Berkeley
The Ninth Circuit held that federal law preempts a Berkley, California, regulation prohibiting builders from installing natural gas piping in new buildings. The panel held that the federal statute’s preemption provisions extend not just to regulations about natural-gas-using products but also to building codes that restrict the use of natural gas for those appliances.
United States v. Gonzalez-Godinez
The Ninth Circuit held that a Border Patrol agent did not violate a suspect’s Miranda rights by both providing the required Miranda warnings and also warning the suspect that a post-arrest interview might bee his only chance to seek assignment. The panel explained that, while the two warnings might have presented the suspect with a difficult decision, they were not contradictory or confusing.
Eleventh Circuit
Nelson v. Tompkins
The Eleventh Circuit affirmed a district court decision denying qualified immunity to a jail intake officer who failed to inform other officers that a Black suspect had been arrested for committing a racially-motivated homicide. The panel held that a jury could find that this negligence amounted to a failure to protect in violation of the clearly-established constitutional rights of a white cellmate who was later killed by the suspect.
D.C. Circuit
United States v. Alford
The D.C. Circuit rejected an appeal from a January 6 rioter who argued that there was insufficient evidence that he engaged in “disruptive orderly conduct.” The panel explained that, even if the defendnat was not violent or destructive,his unaurthorized presence in the Capitol building as part of an unruly mob was sufficiently disruptive to warrant conviction.
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