Federal Circuits in Focus

The U.S. Supreme Court dominated headlines this term for a number of controversial decisions, but the federal appeals courts were also busy. While their decisions can often be lost in the noise, the U.S. Supreme Court takes up only 2% of petitions, meaning the word of appeals courts is often the final say. 

Over the past year, the 12 circuit courts of appeals were busy considering novel and emerging issues, federal administrative powers, constitutional protections and more. 

Administrative Powers 

It’s been more than two years since the COVID-19 pandemic impacted the U.S., and legal disputes created by the virus are still being decided by the courts. 

With the U.S. Food and Drug Administration’s first approval of a COVID-19 vaccine in August 2021, a bevy of labor and employment law questions arose over possible workplace requirements. 

The most famous case to make it into federal courts was a challenge to the Occupational Safety and Health Administration’s vaccine-or-test emergency temporary standard rule. The Nov. 4, 2021 rule required employers with more than 100 employees to roll out workplace vaccination requirements and implement weekly testing for unvaccinated employees. The ETS also required the 17 million workers at 76,000 health care facilities that participate in Medicare or Medicaid to get vaccinated. 

Just two days after the rule was announced, the New Orleans-based 5th Circuit Court of Appeals issued a stay that prevented the ETS from going into effect. In its Nov. 12, 2021 review of the initial stay, the panel of judges for the 5th Circuit upheld its decision and argued that under the commerce clause and nondelegation doctrine, OSHA doesn’t have the authority “to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” 

The 6th Circuit Court of Appeals, based out of Cincinnati, later lifted the stay in December 2021 and the rule went into effect for three days before the U.S. Supreme Court struck it down. The court agreed with the 5th Circuit that the ETS overstepped OSHA’s authority but it did allow the Medicare and Medicaid rule to go into effect. 

Again reigning in the power of federal administrations, the 5th Circuit in May ruled that by holding in-house trials presided over by administrative law judges, the U.S. Securities and Exchange Commission violated the constitutional right to a jury trial. 

After an investigation, the SEC accused hedge fund manager and conservative talk show radio host George Jarkesy of launching two hedge funds to raise $30 million while lying to investors about the funds and inflating the value of the assets. After two appeals in the D.C. Circuit Court and an order from the U.S. Supreme Court over the SEC’s administrative law judges, the SEC found Jarkesy and other defendants liable for securities fraud and issued fines. 

Appealing to the 5th Circuit, Jarkesy argued that the administrative trial deprived him of a right to a jury trial and Congress’ designation of power to the SEC was unconstitutional. The appeals court agreed, citing the common law nature of accusations of fraud and ruling that restrictions on how ALJs can be removed also violated the Constitution. 

In the opinion’s footnotes, the majority wrote “the fact that the modern administrative state is real and robust does not mean courts are never called to declare its limits.” 

COVID-19 Still on the Scene 

While federal agencies saw COVID-19 requirements head to court, a number of state laws around vaccines also made it to the circuit courts. 

In the years leading up to the pandemic and in response to outbreaks of vaccine-preventable diseases, a handful of states rolled back their religious or philosophical exemptions to vaccine requirements at schools and health care facilities. In the past year, a few cases have challenged not allowing exemptions for religious beliefs. 

While two appeals courts came to the same conclusion over the issue, several U.S. Supreme Court justices indicated that they’d be open to hearing the issue. 

A division of the 1st Circuit Court of Appeals in October 2021 upheld a longtime Maine law that requires health care workers to get vaccinated against certain contagious diseases. The state amended the law in 2019 to only allow the medical exemption. 

After Maine’s Center for Disease Control implemented an Aug. 12, 2021 rule requiring all employees at licensed health care facilities get vaccinated against COVID-19, nine healthcare workers filed a suit claiming the law violated constitutional protections under the free exercise clause, supremacy clause and equal protection clause. Specifically, the workers claimed cells from aborted fetuses were used by vaccine manufacturers to develop or create COVID-19 vaccines and their religious views prevent them from using any product connected to abortions. A district court denied the workers’ request for an injunction against the rule, which the 1st Circuit upheld, finding that the state law was religiously neutral and applies across the board. 

The U.S. Supreme Court declined to grant injunctive relief after the 1st Circuit’s decision and declined to hear the case earlier this year. In its denial of relief, three of the court’s justices — Justice Neil Gorsuch, Justice Clarence Thomas and Justice Samuel Alito — dissented, calling the case “an important constitutional question, a serious error, and an irreparable injury.”

A similar New York law was also upheld by the 2nd Circuit Court of Appeals in November 2021. 

Like the Maine case, a number of medical workers asked for injunctive relief from a New York rule that required COVID-19 vaccines and didn’t carve out religious exemptions. They claimed the COVID-19 vaccines were developed with cell lines connected to aborted fetuses and their religious beliefs prevented them from receiving the vaccines. 

The 2nd Circuit upheld denial of relief against the rule, finding that claims the rule violated the free exercise clause probably wouldn’t succeed as the rule was neutral and generally applicable. 

The U.S. Supreme Court denied injunctive relief and certiorari review with the same three justices dissenting. Justice Thomas wrote he would’ve “address[ed] this issue now in the ordinary course, before the next crisis forces us again to decide complex legal issues in an emergency posture.” 

Another COVID-19 matter that the circuits are in agreement about is insurance coverage. 

According to Penn Law’s Covid Coverage Litigation Tracker, more than 2,000 insurance coverage dispute claims have been filed in federal courts since the onset of the pandemic. Most have centered around lost business income and additional expenses incurred by businesses as a result of COVID, with restaurants and bars filing the most claims. 

Most states haven’t considered coverage disputes, but circuit courts have been in agreement, generally siding with insurers on the disputes. 

To name a few, the 1st Circuit Court of Appeals in June ruled pandemic losses don’t trigger business interruption coverage of a commercial property insurance policy. The 4th Circuit took a similar stance in March, ruling that event restrictions resulting in income loss don’t fall under property coverage. And last August, the 3rd Circuit sent a pair of coverage disputes back to state courts to consider the novel questions. 

The Weird, the New and the Complicated 

While they might not have sweeping implications, several circuit court decisions deserve honorable mentions for weighing in on new, unusual and emerging issues. 

In January 2021, a panel of the 3rd Circuit Court of Appeals ruled that a proposed Philadelphia safe injection facility was in violation of federal law. 

Safehouse, a harm reduction nonprofit, was hoping to open the country’s first safe injection site where medical staff could oversee people taking illegal substances to reduce overdoses and connect them to treatment programs. By opening the property to others for use of illegal drugs, the 3rd Circuit found, the nonprofit would’ve broken federal law. “Although Congress passed [21 U.S. Code] 856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference,” wrote the court majority. 

The 4th Circuit Court of Appeals in May ruled on a new question: does participation in a modern insurrection or rebellion against the U.S. prevent someone from running for office? 

The question came to court after a group of North Carolina voters filed a challenge against state representative Madison Cawthorn, who was running for Congress, arguing that he played an active role in encouraging the Jan. 6, 2021 attack on the U.S. Capitol. They argued his encouragement was an insurrection against the U.S. and under law enacted after the Civil War, he was disqualified from serving in Congress. 

Suing the voters, Cawthorne argued that the 1872 Amnesty Act, which lifted most penalties on former Confederate soldiers, applied to future rebellions and insurrections. The 4th Circuit wasn’t convinced and wrote that the law “does not categorically exempt all future rebels and insurrectionists from the political disabilities that otherwise would be created by Section 3 of the [14th] Amendment.”

Answering another novel question, the 9th Circuit Court of Appeals found federal copyright protections apply to products with certain types of THC. The case came up after a California e-cigarette brand accused a competitor of making a replica of its product which was trademarked. The e-cigarette included delta-8 THC, which is derived from cannabis and can have intoxicating effects similar to those created by the main psychoactive component of marijuana, delta-9 THC. The competitor argued that the delta-8 THC is illegal under federal law, and therefore federal trademark protections couldn’t apply to the product. 

The 9th Circuit disagreed and looked at 2018’s Farm Act which removed hemp, or cannabis with low levels of delta-9 THC, from the Controlled Substances Act’s definition of marijuana. While delta-8 THC can have psychoactive effects, the 9th Circuit ruled Congress in 2018 removed it from the CSA. “The record on appeal convinces us that AK Futures’ delta-8 THC products are lawful under the plain text of the Farm Act and may receive trademark protection,” the court wrote. 

Climate Issues

As the effects of climate change become more pronounced, two circuit courts answered questions about where lawsuits over its impacts of it belong. The U.S. Supreme Court’s 2021 decision in BP v. Baltimore clarified the jurisdiction of various climate change lawsuits and the court remanded a handful of cases back to federal circuits to consider proper jurisdiction. 

The 9th Circuit Court of Appeals in April ruled that a lawsuit filed by several California cities belonged in state courts, not federal courts. 

A series of lawsuits in 2017 named a long list of gas and energy companies and claimed that their activities had contributed to climate change, resulting in damages like loss of beach shores, public health impacts and more. While the energy companies argued the claims should be in federal courts, the 9th Circuit disagreed, finding that the “novel and sweeping causes of action” raised by the plaintiffs didn’t override its deep-rooted rule to protect the jurisdiction of state courts. 

Similarly, the 10th Circuit Court of Appeals in March decided a lawsuit by Boulder against Suncor Energy and Exxon Mobil shouldn’t be heard in federal courts. The energy companies didn’t assert sufficient claims to establish federal jurisdiction over the state-law claims, according to the court.

Federal Circuits in Focus. The U.S. Supreme Court attracted attention for high profile and controversial decisions this session, but the federal appellate courts were busy too. Law Week looked at some of the recent noteworthy decisions by federal circuit courts. A map of the U.S. with numbers on each region where a circuit court is located. Two columns of text. From the top, District of Columbia Circuit, Washington D.C. Circuit population in 2020 was 689,545 according to the U.S. Census. Notable decisions. December 9, 2021. Trump v. Thompson. Former President Donald Trump is not still covered by executive privilege to not comply with investigation requests. March 8, 2022. de Csepel v. Hungary. A family trying to recover art stolen by Nazis didn’t need to exhaust remedies in Hungary under the Foreign Service Immunities Act to purse a U.S. lawsuit. 1st Circuit Court of Appeals. Boston. Circuit population in 2020 was 14.1 million. States are Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. Notable decisions. May 6, 2022. Coughlin v. The Lac du Flambeau Band of Lake Superior Chippewa. U.S. Bankruptcy Code overrides Tribal sovereignty. October 19, 2021. Doe v. Mills. Maine COVID-19 vaccination requirement for health care workers upheld. April 28, 2022. Blackstone Headwaters Coalition v. Gallo Builders. Clean Water Act civil lawsuits after a criminal settlement for injunctive but not monetary relief allowed. 2nd Circuit Court of Appeals. New York City. Circuit population in 2020 was 24.4 million. States are Connecticut, New York and Vermont. Notable decisions. August 24, 2021. Andy Warhol Foundation v. Lynn Goldsmith. Photograph used in Andy Warhol series wasn’t fair use. September 27, 2021. SEC v. Romeril. A 16-year-old judgment with a “gag order” didn’t violate First Amendment rights or due process. November 4, 2021. We the Patriots USA v. Hochul. New York vaccination requirement for health care workers without religious exemption upheld. 3rd Circuit Court of Appeals. Philadelphia. Circuit population in 2020 was 23.3 million. States are Delaware, New Jersey, Pennsylvania and Virgin Islands. Notable decisions. January 12, 2021. United States v. Safehouse Inc. Opening a safe-injection site to curb overdoses is illegal under federal law. September 23, 2021. Hepp v. Facebook. State law IP claims against Facebook over a photo used without consent aren’t barred by federal law. 4th Circuit Court of Appeals. Richmond. Circuit population in 2020 was 32.1 million. States are Maryland, North Carolina, South Carolina, Virginia and West Virginia. Notable decisions. May 24, 2022. Cawthorn v. Amalfi. A 19th century constitutional amendment bars people involved in future rebellions and insurrections from running for office. June 14, 2022. Peltier v. Charter Day School. A school dress code that required girls to only wear skirts violated the equal protection clause. 5th Circuit Court of Appeals. New Orleans. Circuit population in 2020 was 36.7 million. States are Louisiana, Mississippi and Texas. Notable decisions. May 18, 2022. Jarkesy v. Securities and Exchange Commission. The SEC’s use of an administrative law judge violated a defendant’s right to a jury trial. November 12, 2021. BST Holding v. Occupational Safety and Health Administration. OSHA’s vaccine-or-test rule was stayed. July 2, 2021. McDonald v. Longley. Texas mandatory bar association upheld despite objections to association activities. 6th Circuit Court of Appeals. Cincinnati. Circuit population in 2020 was 33.2 million. States are Kentucky, Michigan, Ohio and Tennessee. Notable decisions. December 17, 2021. In re. OSHA COVID-19 Emergency Temporary Standard. Stay on OSHA’s vaccine-or-test rule lifted. July 15, 202. Taylor v. Buchanan. SCOTUS decision in Janus v. AFSCME didn’t invalidate mandatory bar association membership. 7th Circuit Court of Appeals. Chicago. Circuit population in 2020 was 25.4 million. States are Illinois, Indiana and Wisconsin. Notable decisions. June 1, 2022. Ziccarelli v. Dart. The implied denial of FMLA leave is enough for a complaint that an employer broke FMLA rights. January 28, 2022. Law Offices of David Freydin v. Chamara. Negative reviews of a lawyer posted by non-clients online weren’t libelous. July 14, 2021. U.S. v. Tuggle. Long term video surveillance of a defendant’s house was not a warrantless search. 8th Circuit Court of Appeals. St. Louis. Circuit population in 2020 was 21.6 million. States are Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. Notable decisions. July 7, 2022. Bader Farms v. Monsanto. The pesticide manufacturer is liable for damage caused by herbicide to a farmer’s orchard. September 15, 2021. Nunes v. Lizza. A reporter who retweeted a disputed article is liable for defamation. 9th Circuit Court of Appeals. San Francisco. Circuit population in 2020 was 66.8 million. States are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and Northern Mariana Islands. Notable decisions. May 19, 2022. AK Futures vs. Boyd Street Distro. Federal trademark protection include products with delta-8 THC. April 19, 2022. San Mateo v. Chevron. Climate change lawsuits against companies belong in California, not federal, courts. August 16, 2021. Sackett v. Environmental Protection Agency. The Clean Water Act gives EPA authority over wetlands near bodies of water. 10th Circuit Court of Appeals. Denver. Circuit population in 2020 was 18.6 million. States are Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Notable decisions. July 11, 2022. Irizarry v. Yehia. The First Amendment includes a right to film law enforcement officers in public. February 8, 2022. Boulder v. Suncor Energy. Climate change lawsuits against companies belong in Colorado, not federal, courts. 11th Circuit Court of Appeals. Atlanta. Circuit population in 2020 37.2 million. States are Alabama, Florida and Georgia. December 27, 2021. Ebner v. Cobb County. People arrested on suspicion of marijuana DUI with no THC in blood system didn’t have their constitutional rights violated. July 28, 2021. Coal Ridge Ministries Media v. Amazon. A religious group’s claims of discrimination and defamation based on a “hate group” designation weren’t supported.
This year saw new and interesting legal questions at federal appeals courts across the country. / Infographic designed by Hannah Blatter for Law Week Colorado.
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