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: ten cases, ten minutes. On the docket this week was criminal law and voting rights at SCOTUS, Medicaid funding, immigration, conflicts of interest, and Katy Perry.

1. A lawyer, a burglar, and a Supreme Court Justice walk into a bar.

One night William Wooden busted into a storage facility. He moved from unit to unit in search of valuables, hitting ten units in total. He was later found out, convicted of ten counts of burglary, and sent to prison. Years after Mr. Wooden completed his sentence, the federal government charged him under the Armed Career Criminal Act, which carries at least a fifteen-year sentence. The government argued that Mr. Wooden committed his ten burglaries “on occasions different from one another,” thereby making him a “career” criminal. (Roll credits.) Mr. Wooden: That’s preposterous. I committed ten burglaries on one occasion, not one burglary on ten different occasions.

Justice Kagan (for a unanimous Court): Mr. Wooden has it right. Here’s a hypothetical: Suppose a man gets into a bar fight and punches three people around him in quick succession. How would an ordinary person describe what happened? A man punched three different people on one occasion, or a man punched one person on three different occasions? The former, obviously. There’s just one “occasion”—the bar fight—and on that occasion the man punched three people. The same goes for Mr. Wooden’s burglaries. The history and purpose of the ACCA support this conclusion.

Justice Gorsuch (with Justice Sotomayor in part, concurring): These hypotheticals get tricky, though. What if our bar brawler punches one person inside the bar and, twenty minutes later, punches a second person outside on the street because the second person called the police? Is this really still one occasion? Rather than decide this case based on when and where what parts of the act occurred, we should look to the Rule of Lenity.

Justice Sotomayor (concurring): Justice Gorsuch makes a good point.

Justice Kavanaugh (concurring): Yeah, but the Rule of Lenity gets tricky too.

Justice Barrett (with Justice Thomas, concurring): While you all debate that, I’ll point out that the majority gets part of the history-and-purpose bit wrong—but everything else looks good.

2. SCOTUS rejects GOP bid to use its midterm election maps in North Carolina, Pennsylvania.

The Supreme Court’s emergency docket keeps moving right along. A majority of the Court voted not to block lower court orders requiring North Carolina and Pennsylvania to use maps for the 2022 Congressional election districts that were drawn by independent experts instead of maps drawn by the states’ Republican-controlled legislatures. Justice Alito (with Justices Thomas and Gorsuch, dissenting): We should’ve stayed those lower court orders. These cases ask an important question, which we should decide: Can a state court invalidate a state legislature’s rules governing federal election procedures? Justice Kavanaugh (concurring): That is an important question, but the majority is right not to issue stays; it’s too close to the election.

3. Flame, Katy Perry, and musical plagiarism walk into the Ninth Circuit.

Flame, a Christian rapper, sued Katy Perry, a pop artist. Flame claimed that when Ms. Perry wrote “Dark Horse” (yes, that song) in 2013, she copied a sequence of notes—or “ostinato”—in Flame’s 2007 song “Joyful Noise.” Here’s the problem: That ostinato contains just seven quarter notes and three pitches, and it loops throughout the song. (The harmonic progression is C-C-C-C-B-B-A on the minor scale. The eighth pitch differs between the two songs, but both then revert to the C and repeat.) In other words, it’s not hard to come up with that melody when writing a song. In fact, if we at Benchwarmers could’ve done it, we’d hesitate to call it music. A jury initially ruled for Flame and awarded $2.8 million in damages, but a federal district court threw out the verdict. Ninth Circuit panel: Affirmed. Flame hasn’t shown that any part of his ostinato is original melody-writing and, therefore, copyrightable.

As an aside, this case raises a question: Is it easier to “copy” another’s music than another’s writing? After all, there are far fewer combinations of notes on a piano than words in the English language. And if it is easier, should that factor into one’s calculus of plagiarism? We’ll leave that for smarter minds—and actual musicians.

4. Fraud is bad, notes Eleventh Circuit.

An Eleventh Circuit panel explains in 96 pages why it is Very Bad if you defraud, try to defraud, or get kickbacks from someone who defrauds Tricare, a government health care program for veterans and active servicemembers. That goes for other large government programs too. And if you still don’t know whether fraud is bad, here’s an easy rule to remember: A simple swindle your liberties will dwindle.

5. A defendant, a witness, and an attorney with a conflict of interest walk into the Fifth Circuit.

(Speaking of fraud.) Counsel is representing a woman accused of Medicare fraud. Turns out he’s also representing the prosecution’s star witness, unbeknownst to the defendant. “Oops,” writes Judge Don Willett for a Fifth Circuit panel; that is a conflict of interest. Lower court should decide whether counsel’s error deprived defendant of her Sixth Amendment right to effective assistance of counsel.

6. Sixth Circuit sifts through arcane CivPro case.

Civil procedure wonks, this one’s for you. The Schuler and Adams families are neighbors in Michigan. The Schulers have a house. The Adamses don’t. The families are squabbling over whether the Adamses can build a house on their own property, which has a restrictive covenant. They head to state court, where the Schulers get a preliminary injunction blocking the Adamses from building the house. The Adamses file a third-party claim against the Army Corps of Engineers. The Corps promptly removes the case to federal court, and the Adamses ask to vacate the preliminary injunction. Sixth Circuit panel: No can do. Congress gave us jurisdiction over interlocutory appeals “of the district courts of the United States,” not of state courts.

7. Fourth Circuit blocks South Carolina’s attempt to strip Planned Parenthood of its Medicaid agreement.

Of the many kinds of healthcare services Planned Parenthood South Atlantic offers, one of them is abortion. That induced South Carolina to try to terminate the agreement by which Planned Parenthood receives funding from Medicaid. Fourth Circuit panel: Can’t do that. The Medicaid program expresses Congress’ intent to let the less fortunate choose their healthcare provider. As long as a provider is qualified, it matters not whether the provider includes abortion among its services. 

8. Ninth Circuit rules against transgender girl seeking state-funded gender reassignment surgery.

A transgender girl argues that an Arizona law, which prohibits the state’s Medicaid program from paying for gender reassignment surgery, violates the Equal Protection Clause. She says she has gender dysphoria and, as treatment, needs male chest reconstruction surgery. She asks a federal court to order the Arizona Medicaid program to pay for her operation. District court: Request denied. She hasn’t shown that the surgery is medically necessary, safe, and effective. Ninth Circuit panel: We see no issues here.

9. Seventh Circuit rebukes Board of Immigration Appeals.

Olawole Oluwajana is a Nigerian immigrant. The government orders that he be deported. Mr. Oluwajana hires an attorney and appeals. The attorney asks the Executive Office for Immigration Review, a division of the U.S. Department of Justice, for Mr. Oluwajana’s immigration file, which the attorney needs to write his brief. But the EOIR drags its feet. So, the attorney asks the immigration court—also part of the DOJ—for an extension of the brief’s deadline. The court grants one. The attorney heads back to the EOIR and renews his request for his client’s file. But the EOIR continues to drag its feet. So, the attorney returns to the immigration court and requests a second extension. While that request is pending, he at last receives his client’s file from the EOIR, but there isn’t enough time for him to look through the materials and write a coherent brief. Even so, the immigration court denies a second extension, suggesting instead that the attorney just file his brief late along with a motion for leave to file it late. So, the attorney does just that.

It proves to be of little use. The immigration court rejects the brief in a mere footnote—the brief was late, you see—and affirmed that Mr. Oluwajana must be deported. Seventh Circuit panel: That is an obvious abuse of discretion, immigration court. Vacated and remanded; the court must consider the brief.

And in en banc news:

10. Ninth Circuit will review Second Amendment challenge to California county’s COVID-19 shutdown orders.

The full Ninth Circuit will review a panel’s decision that Ventura County, California violated the Second Amendment when it ordered gun shops and firing ranges to close temporarily due to COVID-19. Readers may remember the panel decision, which was written by Judge VanDyke. We covered the decision. We also wrote about a unique—some would say unprofessional—concurrence by Judge VanDyke (yes, he concurred in his own majority opinion), in which he purported to write the en banc court’s opinion for it with strawmen and adverbs aplenty.

Image credits: Katheryn Hudson / Capitol Records

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