Last Week in Federal Appeals (No. 9)
Appellate decisions from the week of May 17-21, 2021
“[We should not treat] judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. … Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.” ~ Justice Kagan (dissenting), Edwards v. Vannoy
Supreme Court of the United States
Edwards v. Vannoy
Last term, the Supreme Court held in Ramos v. Louisiana that a state-court jury must be unanimous to convict a criminal defendant of a serious offense. Last week, the Court held (6-3) that the Ramos rule is not retroactive—that is, it does not apply to defendants who exhausted their appeals before Ramos was decided.
Justice Kavanaugh, writing for the majority, rejected the idea that Ramos announced a so-called “watershed” rule that would defy the usual rule that new procedural rules are not retroactive. The majority then when on, in dicta,1 to declare that no procedural rule could ever be a “watershed” rule and thus apply retroactively—essentially explaining that Gideon’s right-to-counsel is unique in applying on collateral review.
Justice Gorsuch (joined by Justice Thomas) concurred to express his view that habeas relief should only be available where a state-court defendant was convicted by a court without jurisdiction, not to correct unconstitutional state-court convictions.
Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.
Caniglia v. Strom
The Supreme Court unanimously held that the “community caretaking” exception to the Fourth Amendment—which permits officers to take certain actions related to public safety on the roadways—does not permit a warrantless search of a suspect’s home. In this case, the police had conducted a “welfare check” at a home after Caniglia’s wife suggested he might be a threat to himself or others; in the course of that “check,” they confiscated his firearms.
BP v. Mayor and City of Baltimore
Generally, federal appellate courts may not review district court orders remanding removed cases to state courts for lack of jurisdiction. But Congress has created two exceptions for (1) cases against federal officers and (2) civil rights cases. What happens when a case is removed and then remanded on one or both of these special grounds as well as an ordinary ground that the court of appeals would ordinarily lack jurisdiction to review? The Supreme Court held that, in such a case, the court of appeals may review the district court’s ruling on every ground for removal (even those it would typically be barred from reviewing).
CIC Services v. IRS
The Anti-Injunction Act typically requires citizens challenging a tax’s legality to pay the tax first. The Supreme Court held that a lawsuit seeking to enjoin IRS Notice-2016-66—which required taxpayers to report information about certain insurance agreements called micro-captive transactions—is not barred by the Act even though failure to comply could result in tax consequences.
Third Circuit
Doe v. College of New Jersey
The Third Circuit held that, under the collateral order doctrine, it could hear an interlocutory appeal from the district court’s denial of Doe’s motion to proceed anonymously. Nonetheless, it held that the plaintiff in this case had not met her burden of showing she should be allowed to proceed anonymously.
Fifth Circuit
United States v. Thomas
Police in this case had information tying a car with a specific license plate to a recent robbery. Officers then observed several individuals sitting in or standing near that car on ten days later. The Fifth Circuit held that the decision to “stop and frisk” everyone in and around the car did not violate the Fourth Amendment, because the defendant’s close proximity to the vehicle and association with others near it, as well as the car’s location in a high-crime area, was sufficient to justify the search (notwithstanding contrary police department policy).
United States v. Torres
The Fifth Circuit held that a defendant was denied his right to counsel when he was barred from all communication with his attorney during an overnight recess at trial. The district court had prohibited communication because, at the time of the recess, the defendant was in the middle of his direct examination testimony.
Sixth Circuit
Clark v. Stone
After a child came to school with marks on his arm from being hit by a belt, Kentucky authorities began an investigation for child abuse, prompting the parents to sue. They argued that they had a substantive due process right under the Fourteenth Amendment to employ corporal punishment and that the investigation was therefore unconstitutional. The Court held that, while there is a general right to use reasonable corporal punishment at home, punishment sufficient to leave marks is not reasonable.
Ninth Circuit
United States v. Lopez
Section 3553(f) permits a district court to reduce a defendant’s sentence below a statutory mandatory minimum if a defendant, among other things, “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” The Ninth Circuit held that, because the statute uses the word and, a defendant must meet all three criteria to qualify for a below-minimum sentence. This creates a circuit split with the Eleventh Circuit, which reached the opposite conclusion three days before (see below).
Walsh v. Arizona Logistics, Inc.
The Ninth Circuit held that the Department of Labor cannot be compelled to arbitrate a Fair Labor Standards Act (“FLSA”) dispute where it is not a party to an arbitration agreement. This is so, the Court explained, even though DOL brought the case and sought monetary relief on behalf of workers who had signed such an agreement.
Boule v. Egbert
The Ninth Circuit held that the Supreme Court’s 1971 decision in Bivens permitted the plaintiff to sue boarder patrol agents for alleged violations of his First and Fourth Amendment rights, notwithstanding the Supreme Court’s recent resistance to expanding Bivens liability. The whole court denied rehearing en banc, with a number of judges dissenting.
Eleventh Circuit
United States v. Garcon
Considering the same issue the Ninth Circuit resolved in Lopez (above), the Eleventh Circuit held that, in this context, and is disjunctive (in other words, that and really means or). Thus, a defendant need not have fewer than four criminal history points, no prior three point offenses, and no prior violent two point offenses to qualify for a below-minimum sentence.
Ramirez v. Statewide Harvesting & Hauling
The Eleventh Circuit held that Statewide violated the FLSA by requiring crew leaders to transport field workers between company-provided housing and a grocery store but refusing to pay the leaders for that time. The panel explained that this work did not fall within the FLSA’s “agriculture” exception, which excludes from the statute’s overtime requirements “any employee employed in agriculture.”
DC Circuit
United States v. Long
Deepening a circuit split, the DC Circuit held that compassionate release motions filed by defendants (as opposed to those filed by the Bureau of Prisons) are not governed by a policy statement from the U.S. Sentencing Commission (U.S.S.G. Section 1B1.13(2)). The panel vacated and remanded the district court’s decision denying a COVID-19-vulnerable defendant’s motion for release in light of its holding.
Points of Interest
In appellate reporting news, Dan Epps (formerly co-host of the now-defunct Supreme Court Podcast First Mondays) has teamed up with University of Chicago Law Professor Will Baude to launch a new Supreme Court podcast called Divided Argument. It is off to a great start! And you can find it here.
If you’re looking for other great legal podcasts, Slate’s Amicus podcast hosted by Dahlia Lithwick and Strict Scrutiny hosted by University of Michigan Law Professor Leah Litman, NYU Law Professor Melissa Murray, and Cardozo Law Professor Kate Shaw are also excellent.
After an overwhelming majority of voters approved an initiative legalizing the medical use of marijuana in the state, the Mississippi Supreme Court invalided the amendment for failure to comply with the signature requirements necessary for it to be placed on the ballot. Indeed, it held that the state’s initiative process for amending the state constitution no longer functions after Mississippi lost a congressional seat.
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.
The Court does not treat its abolition of the “watershed” exception as dicta, but it was not necessary to the decision because the Ramos decision did not fall within the exception anyway (according to the majority). Indeed, two of the justices in the majority explained as much in a book they co-authored while they were on the Tenth and DC Circuits respectively: “The distinction between a holding and a dictum doesn’t depend on whether the point was argued by counsel and deliberately considered by the court, but instead on whether the solution of the particular point was more or less necessary to determining the issues involved in the case.” Garner et al., The Law of Judicial Precedent 51 (2016) (coauthored by then-Judges Gorsuch and Kavanaugh). Of course, as an indication of what the Court (as currently constituted) will do in future retroactivity cases, whether the abolition is dicta or not is probably irrelevant.