A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: fifteen cases, fifteen minutes. On the docket this week: guns, vaccine and mask mandates, free speech, the NFL, Egyptian arbitration, and nautical nightmares in Greece.
1. Evenly split Sixth Circuit upholds federal ban on bump stocks.
It is a federal crime to possess a machinegun, which Congress defines as a weapon that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” In the wake of the 2017 Las Vegas mass shooting, the Trump administration banned bump stocks, reasoning that the definition of “machinegun” includes a gun stock that mimics the firing motion of a fully automatic weapon. Gun owners and gun rights organizations sued. A district court upheld the bump stock ban. A three-judge panel of the Sixth Circuit reversed. That decision was reheard en banc. The result: tied, 8:8. By rule, the district court’s holding is affirmed, and the federal ban on bump stocks remains in place.
2. Bitterly divided Ninth Circuit upholds California’s ban on large capacity magazines.
“Bitterly divided” is an understatement. This case elicited six different opinions. One is a needlessly vitriolic dissent in which Judge VanDyke blasts the majority for its supposed bias against gun owners. Judge Hurwitz responds, chiding VanDyke for his unprofessionalism. Regrettably, such is the “discourse” of the day—even among our federal judges, apparently.
California law prohibits gun owners from having magazines with more than ten rounds of ammunition (with some exceptions, mostly for security personnel). The en banc Ninth Circuit, voting 7:4, upheld the law. The majority found that the law imposes a minimal burden on Second Amendment rights, applied intermediate scrutiny, and concluded the ban is reasonably related to California’s important interest in reducing gun violence. Judge Graber, concurring, defended the use of intermediate scrutiny. Judge Berzon, concurring, responded to Judge Bumatay’s dissent, which advocated a “text, history, and tradition” approach under D.C. v. Heller (2008). And we’ve already discussed the VanDyke-Hurwitz opinions. In a better world, the former is an opinion no judge should ever write, and the latter is an opinion no judge should ever have to write. Judge VanDyke would do better to stick to the case’s merits in his dissent like his dissenting colleague, Judge Bumatay.
3. Second Circuit says it is bound by D.C. Circuit precedent in reviewing an agency action.
Buckle up; this one’s complicated. Back when fax machines were in vogue, companies would send fax advertisements to potential customers. At the time the Federal Communications Commission (FCC) required fax ads to include opt-out instructions. It didn’t matter whether the ad was “solicited,” meaning the recipient had consented to receipt, or unsolicited. Communications providers challenged this requirement in several circuit courts across the country. FCC rules are subject to the Hobbs Act, under which a circuit is selected at random and all challenges are redirected to that court. (This may sound familiar to readers; it’s the Multicircuit Lottery.) The D.C. Circuit was selected, and in 2017 it said the FCC had the authority to require opt-out instructions on only unsolicited ads. The next year the FCC published a new rule repealing the opt-out requirement for solicited ads.
That rule—the “Repeal Order”—brings us to this case. Plaintiffs sought to invalidate the Repeal Order. So, they switched to the Second Circuit and argued the Second Circuit isn’t bound by the D.C. Circuit’s ruling in 2017. Second Circuit panel: Ordinarily circuits do not have to follow precedent in other circuits. But they do when, as here, that circuit invalidated an agency rule under the Hobbs Act. “[W]hen the [pre-2017 cases] wound up in the D.C. Circuit via [the Multicircuit Lottery], that court’s adverse decision was a ruling on all of the facial challenges that could ever arise,” including this one. Petition denied. Judge Menashi, dissenting: Nonsense. The majority overlooks the principle that a court’s decision binds only the parties before it. And when an agency rule is subject to a Hobbs Act review, the parties are bound only with respect to that rule in that court.
4. Fifth Circuit allows Texas to enforce ban on local mask mandates temporarily.
Last summer Greg Abbott, Governor of Texas, decreed that state and local governments cannot pass or enforce a COVID-19 mask mandate. This included school districts. Parents of immunocompromised children sued. They sought to allow school districts to enforce mask mandates, if they so choose. District court: Federal law preempts the ban on mask mandates. Fifth Circuit panel: We think not. Governor Abbott can enforce the ban while we think about it more.
5. Second Circuit largely upholds New York City’s vaccine mandate for public school employees.
In August New York City said that all public school employees must get vaccinated against COVID-19. Originally the mandate did not allow for medical or religious accommodations. Some teachers objected, and the dispute went to arbitration. The parties agreed that the City would establish a process to review requests for religious accommodations. But after the teachers went through the review process, the City denied all of the requests. So the teachers sued, arguing the review process was deficient. During litigation the City admitted that it was. But the teachers sallied forth, claiming the vaccine mandate is unconstitutional on its face. Second Circuit panel: The mandate is constitutional on its face. But the review process is suspect, so the City cannot penalize the teachers who are involved in this litigation before it gives them a fair hearing.
6. Ninth Circuit won’t enjoin San Diego’s vaccine mandate for public school students.
Everything comes in threes, including COVID-19 lawsuits apparently. San Diego requires all public school students in the city school district to get vaccinated against COVID-19. Its policy does not allow for religious accommodations. Students with religious objections to vaccines made with fetal stem cell lines sued. Over the weekend they petitioned for emergency relief in the form of an injunction pending appeal. Ninth Circuit panel: Petition denied. The policy is subject to rational basis review, not strict scrutiny. Judge Ikuta, dissenting: We should apply strict scrutiny and grant the injunction.
7. First Circuit affirms out-of-school suspensions for high school bullies, rejects First Amendment defense.
At a public high school outside Boston, members of the school hockey team bullied a freshman teammate for months. Team members would record and take pictures of the freshman without his consent; circulate the media in a group text, which included eight students on the team but not the freshman; and insult his appearance. Team members would also circulate pictures of the freshman’s family members and demean them. Team members would exclude the freshman from activities and conversation at team dinners and on bus rides to games. The school investigated, discovered the group text, and issued punishments. Two of the students punished were quite active in the group text. One was given an out-of-school suspension for three days, and the other was given five days. Those two students sued (as one does). They claimed their conduct was protected speech, and thus the time off at home violates their First Amendment rights. First Circuit panel: We disagree. Students have a right not to be bullied or harassed, and schools have a significant interest in protecting that right. The two teammates’ conduct, even if per se insufficient to violate the freshman’s right, encouraged the other teammates’ bullying.
8. First Circuit affirms inmate’s convictions for mailing threatening letters to his family.
From his cell in a New York jail, a man claiming to be Satan mailed threatening letters to his stepmother and her adult daughter. He told his stepmother that when he was “done with [her]” she wouldn’t be able to “walk let alone breathe until [she] die[s]” on the “day of [his] choice”—among other things. His letter to his stepsister added threats of sexual violence. He was convicted under federal law. Inmate: The jury had insufficient evidence. I never actually intended to cause physical harm. I was merely “wag[ing] psychological warfare.” First Circuit panel: Negative, threat-writer. Convictions affirmed.
9. Sixth Circuit sends to trial an Ohio police officer accused of fabricating evidence.
Roger Gillispie was convicted in 1991 of raping twin girls. He spent over twenty years in an Ohio prison. One problem: Gillispie is innocent, and he was proved innocent in 2011. He compelled discovery of the state’s investigation, which revealed troubling information. When the investigation began in 1988, Gillispie’s work supervisor, who disliked Gillispie and had ties to the police department, referred him to the lead detectives. The detectives eventually ruled out Gillispie as a suspect. Two years passed. The detectives moved on, and a police officer was reassigned to the case. That police officer, Gillispie alleges, suppressed Gillispie’s alibi and the previous detectives’ reports, destroyed exculpatory evidence, and fabricated inculpatory evidence. Gillispie is now suing the officer for damages. Officer: Qualified immunity? Sixth Circuit panel: We lack jurisdiction. Judge Bush, concurring/dissenting in part: The officer makes arguments based on fact and law. We have jurisdiction over some of the latter, but they fail anyway.
10. Fifth Circuit deals with arbitration case featuring Saudi oil and Egyptian chicanery.
Five Saudi Arabian citizens claim their ancestors struck an oil deal with what is now Saudi Aramco, a state-owned oil company. After striking out in Saudi court, the plaintiffs turned to Egypt. They found an entity calling itself the International Arbitration Centre (IAC) and started arbitration proceedings. Saudi Aramco immediately objected—and rightly so, for the arbitration was a farce. Several IAC arbitrators resigned in the middle of the proceedings. After the arbitration panel ruled it lacked jurisdiction, one panelist was suddenly removed, and the proceedings were reopened. A new ruling came down: Plaintiffs get $18 billion, and the IAC arbitrators get $23 million. An Egyptian prosecutor later charged the IAC arbitrators with fraud, and they were convicted. Undeterred, the plaintiffs sought to enforce the award in U.S. courts. Fifth Circuit panel: This case is simple. We have no jurisdiction since Saudi Aramco is immune from suit under the Foreign Sovereign Immunities Act. Also, that “arbitration” was a sham if we’ve ever seen one.
11. Ninth Circuit dismisses Oakland’s antitrust claims against the NFL, Raiders.
The NFL is a big business: 32 teams, 23 states, and $12.2 billion in revenue in 2020, which was a down year from COVID-19. So when the Raiders moved from Oakland to Las Vegas, Oakland lost considerable revenue. The City brought antitrust claims against the Raiders and the NFL itself. Ninth Circuit panel: Claims dismissed. Defendants did not engage in a group boycott or price fixing. Judge Bumatay, concurring (with a surfeit of football puns): Oakland doesn’t even have standing on the price-fixing claim.
12. Fifth Circuit holds construction company liable for foreman’s OSHA violation.
Angel Brothers Enterprises is a local construction outfit in Texas. It was digging a roadside trench to install a drainpipe. Under guidelines from the Occupational Safety and Health Administration (OSHA), Angel Bros had to take precautions to prevent the trench from caving in. An Angel Bros safety manager informed the foreman of construction of this requirement. But the foreman did not follow the instructions. An OSHA inspector saw the violation and issued a citation. Important here, OSHA held the company—not just the foreman—liable, saying Angel Bros “willfully” flouted the agency’s regulations. Angel Bros: There was nothing “willful” about this. We knew about the agency requirement and told the foreman to follow it, but he ignored it. Fifth Circuit panel: It’s a close call, but we agree with OSHA. Judge Jones, dissenting: It’s a “deranged” call, not a close one. Angel Bros should not be liable.
13. First Circuit charts new course for case of Greek boating blunder.
A married couple were on holiday in Greece, enjoying the Mediterranean on a small boat. Their joy ended abruptly; a larger boat allided with theirs. Their boat promptly sunk. One of them sustained serious injuries, requiring surgery and a stint in intensive care. The couple sued the other boat’s owner, who is a U.S. citizen, in federal court. The owner countered that Greek courts are better suited to hear the case. The district court surprisingly agreed. The couple appealed. First Circuit panel: Appellant has a lot to prove to move the case, and he hasn’t done so. Reversed. Also, costs to appellant.
And in en banc news:
14. En banc Sixth Circuit will review Tennessee abortion laws.
In 2020 Tennessee enacted new abortion regulations. One law prohibits a physician from performing an abortion if the physician knows the impetus for the abortion is the fetus’ sex, race, or Down Syndrome diagnosis. Another law places restrictions on abortion depending on when a fetal heartbeat is detected. A district court held the laws in abeyance, and a divided Sixth Circuit panel affirmed. The full Sixth Circuit will now review whether to uphold the injunction.
15. En banc Fifth Circuit reimposes stay of Biden administration’s immigration policy.
Earlier this year the Biden administration enacted new immigration policy. Dubbed the “immigration enforcement priorities,” the policy authorizes the Department of Homeland Security to prioritize enforcement of immigration law against noncitizens who pose threats to national security or public safety. A district court issued a preliminary injunction, which applied nationwide. In September a Fifth Circuit panel largely stayed the injunction. But this week the full Fifth Circuit vacated the stay. It noted that the Biden administration’s appeal will be assigned to a merits panel “in the regular course.”
Image Credits: Jake Neher, WDET
Editor’s note: This post was updated on December 16, 2021 to correct a typo. A sentence in (5) read, “So the teachers sued, arguing the review process was defunct.” It now reads, “So the teachers sued, arguing the review process was deficient.”
Benchwarmers 