60-Second Circuit Summaries

A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: 10 cases, 10 minutes. On the docket this week was COVID-19 vaccine requirements at the Supreme Court, education, wrongful deaths, and trains.

1. Supreme Court blocks Biden administration’s COVID-19 vaccine-or-test requirement for American businesses.

In November 2021 the Biden administration announced its vaccine-or-test requirement for businesses with 100+ employees. The policy encountered obstacles immediately. States and dozens of businesses sued to prevent it from taking effect. First a Fifth Circuit panel issued a pre-enforcement stay. Then it reaffirmed the stay. Next a divided Sixth Circuit, sitting en banclifted the stay.* Then the Supreme Court weighed in. The Court, voting 6:3, reimposed the stay, blocking enforcement of the requirement while litigation over the policy’s merits continues. That means the government cannot enforce the vaccine-or-test requirement unless the Sixth Circuit rules that the Secretary of Labor had the power to make the policy. 

That is unlikely. The majority, in a per curiam opinion, wrote that the Secretary probably “lack[s] authority to impose” the requirement. It reasoned thus: First, whatever rulemaking power the Secretary of Labor—an executive branch official—has comes from Congress. Next, Congress must “speak clearly” if it confers powers of major “economic and political significance.” Scholars dub this idea the “major questions doctrine,” made famous by Justice Scalia’s quip that Congress “does not hide elephants in mouseholes.” Third, the vaccine-or-test requirement is an exercise of such power. But Congress gave the Labor secretary the power to set “occupational safety and health standards,” not “broad public health measures,” as the majority puts it. Thus, the vaccine-or-test requirement is likely ultra vires. The majority’s argument is straightforward: (1) nondelegation doctrine; (2) major questions doctrine; (3) deficient instance of (2); Secretary lacks power, Q.E.D. Whether the premises are true is a different question. Justice Gorsuch, concurring, offered a doctrinal defense of the first two premises. The dissent, jointly written by Justices Breyer, Kagan, and Sotomayor, objected to the third premise. It noted that Congress has instructed the Secretary of Labor to prevent “grave danger[s]” in the workplace due to “substances or agents” that are “toxic or physically harmful or from new hazards.” If COVID-19 doesn’t fit these criteria, what does?

*For more scholarly debate, see here and here. And if you’re wondering how the case changed circuits, allow us to introduce you to the Multicircuit Lottery.

2. Supreme Court says Biden administration can enforce vaccine requirement for Medicare, Medicaid facilities.

One vaccine case down, one to go. Last November the Biden administration also said that healthcare workers at any facility that provides Medicare and Medicaid services must get vaccinated against COVID-19. (There are exemptions for medical and religious reasons.) Enter more lawsuits. Again the Supreme Court was tasked with one question: May the Biden administration enforce the requirement while litigation over the policy’s merits continues? This time the Court, voting 5:4, said yes. The majority—Chief Justice Roberts and Justices Breyer, Kagan, Sotomayor, and Kavanaugh—argued that here Congress spoke clearly in authorizing the Secretary of Health and Human Services (HHS) to impose the vaccine requirement. Justice Thomas was skeptical, taking a narrower view of the statutory language in his dissent. Justice Alito, also dissenting, argued that even if Congress did grant the HHS Secretary such power, the manner in which the Secretary imposed the vaccine requirement violated the Administrative Procedure Act.

3. Supreme Court resolves circuit split over pensions for National Guard technicians.

The Supreme Court’s third decision this week had nothing to do with COVID-19 vaccines. Instead, it resolved a circuit split on the question whether the Social Security Administration (SSA) may reduce certain National Guard members’ pension benefits. Some context would be appropriate. Some National Guard personnel are “dual status technicians”. As their title suggests, they have two roles. They perform military service in the Guard, and they work technical jobs in the form of maintenance and repair of Guard supplies. Because they have two roles, dual status technicians get two pensions: a military pension for their Guard service and a civil-service pension for their technical work. Only the civil-service pension is at issue here. David Babcock, a dual status technician who served in Iraq, applied for benefits. But the SSA reduced the benefits in Babcock’s civil-service pension. The SSA pointed to the “windfall elimination provision” (WEP), which allows the SSA to reduce pension benefits of retirees who worked a job that is exempt from Social Security taxes. Babcock: The WEP has an exception for pension payments “based wholly on service as a member of a uniformed service.” Does my civil-service pension trigger this exception? Justice Barrett (for an 8:1 majority): It does not. You performed your technician work not as a Guard member but as a civilian. After all, that’s what the phrase “dual status” suggests. Of course, your military pension triggers the WEP exception; the SSA can’t touch that. But it may reduce the benefits from your civil-service pension. Justice Gorsuch, dissenting: I find Mr. Babcock’s textual arguments persuasive. Yet I do so with “trepidation,” given that I’m the lone dissenter “on this narrow question of statutory interpretation.”

4. First Circuit declines to recognize Constitutional right to education.

Trivia question of the day: Does the U.S. Constitution give Americans the right to a basic education? Answer: No. That may surprise you. Yet in 1972 the Supreme Court held that K-12 education is “not among the rights afforded . . . protection under the Federal Constitution.” Sure, education is a right under all 50 state constitutions. And yes, federal courts have recognized the importance of education. But none has said children have a federal Constitutional right to the classroom.* This isn’t for lack of opportunity. Litigants have tried several paths, arguing the right exists in myriad provisions including those that protect free speech, equal protection, substantive due process, and unenumerated rights. None reached its destination. The most recent attempt took the civics route. Until 2021 Rhode Island did not require any of its K-12 public schools to teach a civics course or test students’ knowledge of their own government. Students and parents sued. Without sufficient instruction in civics, they argued, students will be incapable of making informed decisions about “voting, serving on a jury,” and “participat[ing] effectively in civic activities.” But this week a First Circuit panel dismissed the suit, pointing out that the civics argument butts heads with the Supreme Court’s 1972 decision. The Supreme Court granted that civics education and, say, informed voting are linked. But such a nexus doesn’t mean there’s a constitutional right to general education, it concluded. So, the civics argument fails. Is there still hope? Perhaps. Litigants can bring cases under other provisions of the Constitution. Or, the Constitution could be amended to simply add education as a right. But in today’s political climate a Constitutional amendment is a chimera. And litigation has already tried the provisions that would seem related to education; litigation under other provisions would require some serious mental gymnastics. A fallback would be to ditch the constitutional right, head to Congress, and seek passage of a federal law creating a statutory right. But no matter what one does, there’s a twinge of irony: These options all require a basic understanding of how our government works—of civics. At least Rhode Island says it will now teach it.

*A Sixth Circuit panel in 2020 concluded the Constitution does contain a right to a basic education. That decision was vacated en banc, and the parties later settled.

5. Third Circuit allows Title IX suit against university for non-student conduct.

Karlie Hall was a freshman at Millersville University in Pennsylvania. She had been dating a high school classmate, Gregorio Orrostieta, for a few months. Mr. Orrostieta did not enroll at Millersville, but he would visit Ms. Hall often and sometimes stay the night in her dorm room. Their relationship was volatile. One night an argument culminated in Mr. Orrostieta’s tearing the head off one of Ms. Hall’s stuffed animals. A few weeks later the couple returned from a night out of celebrating Ms. Hall’s eighteenth birthday. Ms. Hall was crying. Her roommate and an R.A. noticed and, while conversing in the hallway, heard thuds and an “ow!” from behind Ms. Hall’s closed door. Police would later escort Mr. Orrostieta off campus, who proclaimed he hadn’t hit Ms. Hall; she had a red, puffy face and a black eye by morning. For the next few months their relationship would be on again, off again, including over the winter break. Then Ms. Hall returned to campus. She and Mr. Orrostieta attended a fraternity party, fought, and went back to her room. Floormates would later testify that they heard bangs, sounds of furniture moving, and a female voice screaming for help. That night Mr. Orrostieta murdered Ms. Hall by “strangulation and multiple traumatic injuries.” He may have sexually assaulted her too. He was convicted of third-degree murder a year later.

Ms. Hall’s parents sued Millersville University. They argued Millersville deliberately ignored Mr. Orrostieta’s sexual harassment of their daughter and therefore violated Title IX. Millersville replied that Mr. Orrostieta was not a student and the university lacked notice that it could be liable for deliberate indifference of a third-party’s sexual harassment. Third Circuit panel: No, Millersville. The text of Title IX sufficiently notified you of liability. The Halls’ case may proceed to factfinding.

6. Fifth Circuit dismisses wrongful death suit against bus manufacturer.

Gabriel Miranda, Jr., a thirteen-year-old from Texas, was on a field trip with his eighth-grade class when he opened the rear emergency door of a school bus while on the interstate. Tragically, he fell out of the bus and died. His parents brought a wrongful death suit against the bus’ manufacturer. They asserted that Texas law imposes a duty on bus manufacturers to include child-safety locks on rear doors. Fifth Circuit panel: “This is a sad case.” Nevertheless, it must be dismissed because a federal rule preempts the asserted Texas duty.

7. Seventh Circuit questions use of acquitted conduct in sentencing.

Dayonta McClinton and five accomplices robbed a pharmacy. But before they could divvy up the haul one of the accomplices, Malik Perry, seized it all and tried to run. Mr. McClinton shot and killed him. A jury convicted Mr. McClinton of the charges relating to the robbery but acquitted him of the charges relating to Mr. Perry’s death. Even so, the sentencing judge ruled Mr. McClinton caused Mr. Perry’s death and handed down a nineteen-year prison sentence. Mr. McClinton appealed his sentence, citing the reliance on conduct of which he was acquitted. Seventh Circuit panel: Supreme Court precedent forecloses Mr. McClinton’s appeal. In 1997 the Court held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” That said, we’ll join several of our sister courts in questioning the fairness of this practice. We’ll also note that five Justices—Scalia, Ginsburg, ThomasKennedy, and Kavanaugh—have the same concerns.

8. Tenth Circuit invalidates Oklahoma law fining train operators who block crossings for too long.

Folks who grew up in small, midwestern towns have probably encountered trains—lots of trains. Imagine: Train tracks traverse your downtown area. Your car approaches one such crossing just as a train rumbles across the road. The train slows, inches to a halt, and stops. It blocks the road, its cars stretching left and right beyond your eyesight. The train sits there, and sits there, and sits there until you finally decide to double back, now twenty minutes late to wherever it is you’re going. This story may sound all too familiar to some. It undoubtedly does for some residents in Oklahoma, which in 2019 passed a law fining railroad operators if they block crossings for more than ten minutes. But alas, Oklahoma’s law can’t stand. As a Tenth Circuit panel held, a federal law already vests a federal agency with the power to regulate rail transportation and the operation of tracks and crossings. Said agency has exercised said power in Oklahoma, and therefore Oklahoma’s law is preempted.

9. Ninth Circuit navigates knotty precedent on supervised release.

Freddy Ponce served his time for his criminal conviction. He then asked a district court to end his release period early because of his good behavior. The district court agreed that Mr. Ponce behaved “exceedingly well” while carrying out his sentence. Yet it denied his request, saying only that good behavior “is not enough to justify early termination.” Mr. Ponce appealed. Ponce: The district court used the wrong standard of review. It relied on precedent that misread a Ninth Circuit opinion, which in turn wasn’t even published. Ninth Circuit panel: Well, that unpublished opinion itself misread a Second Circuit opinion. Whoopsie. Anyway, we really can’t tell what standard of review the district court applied, so we’ll vacate and remand for take two.

10. First Circuit creates circuit split, rejects personal jurisdiction defense to mass actions.

A mass tort action is similar to a class action in many respects. One difference, however, is that individuals must consent to join, or “opt in” to, mass actions. (In class actions individuals are automatically included in the class and may choose only to opt out.) Mass actions can cause geographical headaches for courts. Suppose you bring a mass action in one state—the forum state—but individuals from other states, and with no connection to the forum state, opt in to your action. Can the defendant dismiss the opt-ins who have no connection to the forum state? That depends. If you filed in state court, the answer is yes. The Supreme Court held in Bristol-Myers Squibb v. Superior Court of California (2017) that state courts lack personal jurisdiction over such opt-ins. But the Court didn’t say whether the same is true for mass actions filed in federal court. Since then scholars have debated whether Bristol-Myers Squibb applies to federal mass actions. Their focus is on Federal Rule of Civil Procedure 4(k)(1), which ostensibly limits where a plaintiff may serve the defendant. But the debate isn’t just academic. Since 2017 federal courts have seen a rise in the number of mass actions. Many are brought under the Fair Labor Standards Act; an employee, say, alleges they weren’t paid extra for overtime. If the company has offices in several states, folks who didn’t work in the forum state may join the mass action. Invariably, the company seeks to dismiss them from the suit, claiming the court lacks personal jurisdiction over them. So, courts are faced with this question—and it’s a mouthful: Does Bristol-Myers Squibb, under Rule 4(k)(1), deprive federal courts of personal jurisdiction over opt-ins to mass actions? The Sixth and Eighth Circuits have answered yes, reasoning that Rule 4(k)(1) concerns not just service specifically but personal jurisdiction in general. But this week the First Circuit (over a dissent) said no, teeing up a circuit split which, hopefully, the Supreme Court will resolve.

And in en banc news:

The full Ninth Circuit won’t reconsider its decision to greenlight San Diego’s requirement that public school students get vaccinated against COVID-19. The mandate, which takes effect January 24, does not allow for religious exemptions. Hence the current suit, which was brought by a Christian student and her family. The Ninth Circuit’s order on Friday afternoon was accompanied by a concurrence, a statement, and two dissents, which we did not have time to read before we published. Meanwhile, an emergency petition to put the mandate on hold remains pending before the Supreme Court.

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