A roundup of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: ten cases, ten minutes. On the docket this week: OSHA’s vaccine-or-test mandate, term limits, qualified immunity, and strip clubs.
Before we get into the decisions, a quick update about OSHA’s vaccine-or-test mandate. Last week we covered the Fifth Circuit’s (premature) stay of the mandate and the “Multicircuit Lottery,” in which one of the twelve regional circuit courts of appeals would be selected at random to decide all pending challenges to the OSHA mandate. The Lottery took place on Tuesday. The Sixth Circuit won it, so a panel of the Cincinnati-based court will now handle all challenges to the OSHA mandate (although they may go en banc immediately). Now to the cases:
1. En banc Fourth Circuit, equally divided, tosses death sentence by default.
James Bryant beat a South Carolina police officer with a flashlight before shooting him in the head, killing him. Bryant was convicted and sentenced to death. But one of the trial jurors was hearing impaired. A U.S. district court found that the juror missed key parts of the testimony, which deprived Bryant of his constitutional right to a competent jury. It vacated his death sentence. A Fourth Circuit panel reversed. That, in turn, was reconsidered en banc. On Monday the Fourth Circuit issued the results: 7 votes to 7. Deadlocked, the Fourth Circuit by rule vacated the panel’s decision and reinstated the district court’s decision, overturning Bryant’s death sentence.
2. Sixth Circuit rejects challenge to Michigan term limit law.
A 1992 amendment to the Michigan Constitution establishes term limits for state legislators and executives. (It also purported to set term limits for Michigan’s federal representatives, but the U.S. Supreme Court struck down that part of the law.) In 1998 the Sixth Circuit rejected arguments that the term limits violate the First and Fourteenth Amendments to the U.S. Constitution. This case, which was brought by a bipartisan group of veteran legislators, asked the Sixth Circuit to reconsider. Sixth Circuit panel: We won’t; we were right then and are right now. Plaintiffs: But we added state-law claims this time! Panel: Then state courts must decide them. Otherwise, “[i]f [you] want to change the law, [you’ll] have to do that at the ballot box.”
3. Fourth Circuit creates circuit split on ADEA causes of action.
The Age Discrimination in Employment Act of 1976 (ADEA) allows employees to file disparate-impact claims, which target a workplace policy whose purpose may be neutral or benign but whose effects are discriminatory. Question: Are federal employees included? That is, does the ADEA provide for a disparate-impact cause of action for federal employees? Fourth Circuit panel: No. Supreme Court interpretations of similar provisions indicate the ADEA does not. Judge Floyd, concurring/dissenting in part: Yes, it does, based on the ADEA’s text, history, and Supreme Court precedent. Also, the majority diverges from the Ninth and Tenth Circuits. Also also, it arguably overrules our own circuit precedent.
4. Ninth Circuit grants qualified immunity to police officers despite detained suspect’s coma and death.
Two San Diego police officers pull over a car for expired registration. Among the passengers is Aleah Jenkins, 24. Jenkins has an outstanding warrant for her arrest, so the officers handcuff her and put her in their cruiser. Jenkins vomits. The officers ask if she ate anything, is in withdrawal, etc. One tells the other to call paramedics. But Jenkins says no, offering instead that she’s pregnant and feels sick. The call is canceled. They begin the drive to the police station (an hour away). Twenty minutes in, Jenkins begins breathing heavily, groaning, and periodically screaming. An officer asks what’s wrong. After a few minutes of silence, he pulls over. He checks on her. She asks for help, but he says “you’re okay” and gets back on the road. They arrive at the station. Jenkins appears unresponsive. The officers get her out of the cruiser, lay her on her side on the pavement, and fingerprint her. She manages to mumble that she needs help. The officers place her back in the cruiser and go inside. Eleven minutes later an officer returns to the cruiser to find Jenkins unconscious. They call paramedics and begin performing CPR. Paramedics respond, but Jenkins slips into a coma. She dies nine days later. Ninth Circuit panel: Qualified immunity; neither testimony nor bodycam indicates the officers’ actions were objectively unreasonable, and the officers did not violate clearly established law. Judge Watford, dissenting in part: The majority cherrypicks facts from the bodycam. We should reverse and remand.
5. Ninth Circuit reaffirms absence of federal right to medical marijuana.
A California inmate on supervised release wanted to use medical marijuana. One problem: The terms of his release prevent him from doing so. So, he moved to amend the terms of his release by arguing there’s a federal right to use medical marijuana. Next problem: There is no such right, per the Ninth Circuit’s decision in Raich v. Gonzales (2007). So, he asked the Ninth Circuit to reconsider Raich. Ninth Circuit panel: No can do. We’re bound by it unless a higher authority overturns it.
6. Ohio strip club learns nothing good happens past midnight.
Cheeks Gentlemen’s Club is a self-explanatory establishment in Ohio. Ohio law prohibits nude dancing at any place that serves liquor. But Cheeks offered drink and dance. One night a nude dancer invited a customer to a private room. Turns out the customer was an undercover agent investigating for the Ohio Department of Public Safety. Oops. The tip came in the form of a $25,000 fine and a revocation of Cheeks’ liquor license. Cheeks’ parent company: That violates the Due Process and Excessive Fines Clauses. Sixth Circuit panel: No, it doesn’t. Appeal dismissed.
7. Eighth Circuit denies qualified immunity for police officer who shot service dogs.
Two Minneapolis police officers respond to a home’s security alarm, which the homeowners tripped accidentally. One officer goes to the front door, and the other officer heads to the back. The homeowner meets the officer at the front door and informs him it was an accident. The officer does not tell his colleague in the back. At the homeowner’s side is Rocko, one of the family’s two pit bull service dogs. Ciroc, the other dog, is in the backyard. Ciroc approaches the officer in the yard in, allegedly, a friendly manner. The officer shoots Ciroc in the face. The officer then shoots Rocko, who went to the back to investigate. Both dogs would survive. Eighth Circuit panel: No qualified immunity. Officers cannot shoot nonthreatening dogs.
8. D.C. Circuit Moots Alaska challenge to USDA rule.
The Tongass National Forest is a 26,000-square-mile tract of protected wilderness in southeast Alaska. A few years ago Alaska sued the U.S. Department of Agriculture (USDA) to block enforcement of the “Roadless Rule,” which generally bars road construction and tree harvesting in roadless areas of national forests. After some back-and-forths in federal court, the USDA exempted the Tongass National Forest from the Rule. This, one would think, would’ve mooted Alaska’s case. But Alaska sallied forth, pressing two arguments that its case is still live. D.C. Circuit panel: Alaska’s case is moot. The Tongass is exempt, which Alaska sought all along. As for its two theories: One applies to private parties, not the federal government. The other is about Alaska’s other national forest; Alaska has never objected to the Rule’s application there, and the state can’t perform a forest switcheroo at this stage in the proceedings.
9. Eighth Circuit upholds most North Dakota pharmacy benefits manager laws.
This case involves several laws. At the state level, North Dakota has many provisions—thirteen in total—regulating pharmacy benefits managers, who oversee prescription drug benefits for health insurance plans. The relevant federal laws are the Employee Retirement Income Security Act of 1974 (ERISA) and Medicare Part D. The Pharmaceutical Care Management Association, which represents pharmacy benefits managers, sued to invalidate the North Dakota regulations. The Association argued the regulations conflict with, and are therefore preempted by, ERISA and Medicare Part D. Eighth Circuit panel: None of North Dakota’s provisions conflicts with ERISA. Five conflict with Medicare Part D, though, so they are preempted. The rest can remain. What are the decision’s potential effects? Limits to fees pharmacy benefits managers can charge pharmacies.
10. First Circuit greenlights retrial of defendant after successful mistrial.
In Oregon v. Kennedy (1982), the Supreme Court held that where the prosecution intentionally provokes a criminal defendant to move for a mistrial, the Double Jeopardy Clause protects the defendant from being tried again. What happens if the prosecution’s actions do not meet that standard? This case, the First Circuit says, is just such a scenario. Here, two operators of a fishing vessel were seen throwing objects overboard. U.S. Coast Guard personnel determined the objects were bales of marijuana. The operators were charged with possession with intent to distribute. They successfully moved for a mistrial because of comments the prosecution made during closing arguments. The operators were retried, prompting their Double Jeopardy defense. First Circuit panel: Since the prosecution during closing argument did not intentionally provoke the defendants to move for a mistrial, trying them again does not violate the Double Jeopardy Clause. Note, however, that the defendants appeal only the district court’s finding of fact on this point; they do not ask for a broader reconsideration of the Supreme Court’s standard in Kennedy.
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