A collection 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 was abortion at SCOTUS, former President Trump, the January 6 riot, voting rights, and FISA surveillance.
The Supreme Court grabbed national headlines yesterday. It decided two cases about a Texas law that bans abortions after six weeks of pregnancy. One case was brought by private abortion providers. The Court ruled that the providers’ suit can move forward against state medical licensing officials. But a majority declined to put the law on hold while litigation continues. The Court dismissed the other case, which the Biden administration had brought.
At this stage the Court was not tasked with deciding whether to uphold or invalidate the law, but rather whom the parties could sue. That question was especially important because the Texas law is enforced in a unique (some would say dastardly) manner. Ordinarily state executive officials enforce state laws. Not so here. The law delegates enforcement to private persons: Neighbor Sally sues neighbor Sue if Sally suspects Sue broke the law. This is, if nothing else, a surefire way to destroy one’s trust in the community.
A paragraph may seem like short shrift for such a divisive topic. Don’t fret; we intend to publish a full analysis in its own post soon. For now, the basic facts will have to do. Now, on to the circuit courts:
1. D.C. Circuit allows release of some Trump administration records about January 6 riot.
On January 6, 2021, a mob ransacked the U.S. Capitol, professing support for then-President Trump and attempting to block certification of Joe Biden as the next president. The U.S. House of Representatives has set up a select committee to investigate the events of January 6th. As part of that investigation, the Committee requested documents and records of January 6th from the Trump administration. This occurred in August after President Biden had taken office. Trump, seeking to block release of the records, asserted executive privilege. Biden responded that he would not invoke executive privilege. Trump went to court and sought a preliminary injunction against the records’ release. The dispute boiled down to this: Can a court, on behalf of a former president, override the acting president’s decision not to invoke executive privilege? D.C. Circuit panel: No, insofar as this case is concerned. Trump has given us no persuasive reason to do so. Nor has he met his burden to obtain a preliminary injunction.
2. Ninth Circuit upholds Arizona election-day deadline for correcting mail-in ballots.
An Arizonan who wants to vote by mail must sign a form attesting that they are, in fact, the one mailing and casting their ballot. If the voter does not sign the form, their vote will not be counted unless they fill out a replacement ballot. The issue in this case is the deadline for receipt of the replacement ballot: election day. Democrats objected. The election-day deadline, they argued, violates the First and Fourteenth amendments, as well as principles of due process. Ninth Circuit panel: We disagree. It’s a small ask that voters sign their name and, if they don’t, correct it by election day. Plus, Arizona has a valid interest in reducing stress among poll workers when they’re busiest immediately after election day. Judge Tashima, dissenting: The majority overlooks something here. Arizona allows other signature issues to be corrected after election day. Suppose you signed your name but it’s illegible. You can correct it and submit a replacement ballot within five days after election day. Why should a missing signature be any different? Also, the “majority’s decision is particularly troubling in these times of unprecedented assaults on voting rights.”
3. Tenth Circuit panel affirms use of FISA surveillance for terrorism convictions.
The federal government was surveilling a suspected terrorist outside the U.S. when it became interested in the person with whom the suspect was communicating. That individual was an Uzbek national living in the United States. The government then began surveilling the Uzbek. It did so not with a warrant but under Section 702 of the Foreign Intelligence Surveillance Act, which generally allows the government to compel telecommunications providers to turn over emails and other digital communications from, to, or about the suspect. After months of surveillance the government arrested the Uzbek, charging him with attempting to aid a foreign terrorist organization. Six years passed before he was brought to trial and convicted. He raised a host of challenges on appeal. First, he did not receive a speedy trial. Second, the FISA surveillance violated the Fourth Amendment. Third, the Foreign Intelligence Surveillance Court, which reviews requests for FISA surveillance, violates the separation of powers. And fourth, he wasn’t allowed to see all the (classified) evidence the government used against him. Tenth Circuit panel (in 163 pages): Conviction affirmed. None of the defendant’s arguments has merit. Judge Lucero, dissenting: Speedy trial? Six years passed between his arrest and the start of his trial. The majority also puts too much faith in the government’s unsupported assertions and a classified record.
4. Eleventh Circuit won’t block COVID-19 vaccine requirement for Medicare, Medicaid providers.
The Department of Health and Human Services requires anyone who provides care to Medicare or Medicaid recipients to get vaccinated against COVID-19. There are exceptions for health and religious reasons. Half the nation’s 50 states filed suit. Led by Florida, which prohibits any form of COVID-19 vaccine mandate, the states sought a preliminary injunction against the requirement. Eleventh Circuit panel: As a preliminary matter, the case is not moot, even though other courts have put the rule on hold. We deny the request for an injunction. Judge Lagoa, dissenting: We should have granted an injunction.
5. D.C. Circuit rejects challenge to TSA’s mask requirement.
The Transportation Safety Administration requires Americans to wear a mask in airports and on airplanes, as well as on other forms of federal transportation like trains and buses. This pro se suit challenges TSA’s authority to issue the mask requirement. D.C. Circuit panel: This suit lacks merit.
6. Eighth Circuit handles insurance company’s failure to follow remand order.
A class action won a $34.3 million jury verdict against State Farm. The class sought interest on the award. State Farm opposed the motion. A district court denied the request, but an Eighth Circuit panel reversed. It remanded the case to the district court, writing expressly that the class “is entitled to prejudgment interest at [a] 4% rate.” The district court held a hearing with all parties and, after some calculations, awarded the class the interest sought. State Farm: But the class is not entitled to interest! Eighth Circuit panel: Um. We’ve already said it is.
7. D.C. Circuit straddles fence in case seeking emails about Sally Yates, Trump administration.
When then-President Trump issued Executive Order 13769, which forbade citizens of seven predominantly Muslim countries to enter the U.S., Sally Yates, Trump’s then-Attorney General, publicly condemned it. Trump fired her the same day. Judicial Watch, an advocacy group, filed a Freedom of Information Act request, seeking attachments to four emails sent to and from Yates’ official email account on the day she was fired. The Department of Justice refused to release the emails. It argued the emails were covered by the “deliberative process privilege,” an exception to FOIA. A district court granted summary judgment to DOJ. D.C. Circuit panel: Summary judgment is inappropriate. We’ll remand so the district judge can review the emails in camera and decide whether they really are deliberative.
8. First Circuit overrules circuit precedent, sets new Fourth Amendment caselaw.
In Michigan v. Long (1983) the Supreme Court held that when a police officer pulls over a suspect to perform an investigative stop, the officer does not need a warrant to search the suspect, as long as the officer “reasonabl[y] belie[ves]” the suspect is dangerous. This reasonable belief is crucial. The question is not whether police must prove that they themselves feared for their or another’s safety during the stop. Rather, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger” (emphasis mine). Thus, Long invokes an objective, not a subjective, test to determine whether the search is constitutional. Most federal courts adopted this interpretation. But the First Circuit did not. In United States v. Lott (1989), the First Circuit wrote that a subjective fear was still necessary for such a search. Since then courts under the First Circuit have struggled to reconcile Long and Lott. This task has gotten harder as the Supreme Court, over several cases, endorsed an objective test for the Fourth Amendment and rejected a subjective one. Aware of the conundrum and given a clean case, a First Circuit panel overruled Lott, endorsing an objective standard.
9. Sixth Circuit rejects request to add requirement for prosecuting federal crime of child molestation.
In general, prosecutors cannot argue a defendant is guilty of a crime simply because the defendant has committed the same crime in the past. An exception is the crime of child molestation, and federal prosecutors may make such an argument under Federal Rule of Evidence 414(a). In this child molestation case, the defendant confessed to prior acts of child molestation and was convicted with the help of Rule 414(a). He appealed, wanting to add a condition to Rule 414(a): If a defendant confesses to prior child molestation, the government must corroborate the confession before it can be admitted under Rule 414(a). Sixth Circuit panel: We will not adopt defendant’s suggestion. The rule’s text contains no such requirement. It would defeat the purpose of other Federal Rules of Evidence. And the Ninth Circuit has already rejected an identical argument.
And in en banc news:
10. Ninth Circuit will revisit California regulations on in-person education during COVID-19.
For a time California, like many states across the nation, suspended in-person K-12 education due to COVID-19. Notably, California’s remote schooling orders applied to both public and private schools. Parents challenged the orders on behalf of their children, some of whom attended public schools and some of whom attended private schools. In July a Ninth Circuit panel heard the case. It rejected the public school students’ arguments. But it agreed with the private school students, holding that California had violated the right of those students’ parents to choose their children’s education. The case had a snag, however. By the time the panel issued its decision, California had rescinded its school-closure orders. Judge Hurwitz seized on this point, saying the case is moot. The full Ninth Circuit will now reconsider the panel’s decision and will probably give great weight to Judge Hurwitz’s reasoning. As we went to press, California K-12 students are learning in person (with appropriate safety measures).
Benchwarmers 