Innovative orthodontics, cumulative explosions, and voting by proxy.
- Retired U.S. Army veteran suffers a stroke at age 46, which his physician believes was related to traumatic brain injury (TBI) from an explosion. He applies for the Purple Heart. Army: Because you served in more than 200 combat missions, we think your TBI was actually caused by the cumulative effect of many explosions, so you’re not eligible. D.C. Circuit: Thanks for your service, but we have to defer to the Army on this one.
- In response to the COVID-19 pandemic, the House of Representatives in 2020 adopted a resolution allowing members to vote by proxy. House Minority Leader Kevin McCarthy sues, alleging that the Constitution requires all House votes to occur in person. D.C. Circuit: Which is precisely the sort of internal legislative dispute that the Speech or Debate Clause prohibits us from considering.
- Federal officials may be sued for constitutional violations only in very narrow circumstances. Ignoring and failing to treat the many symptoms of a prisoner’s Crohn’s disease is one of those circumstances, holds the Fourth Circuit. So the prisoner’s Bivens claims (and, over a eulogizing dissent, his FTCA claim) will live another day.
- Federal prison official allegedly retaliates against inmate who filed a tort claim by, among other things, putting him in solitary. District court: That’s a thing you can sue a federal official over. The case can proceed. Officer: Qualified immunity? Sixth Circuit: Nope, you didn’t raise that below. And unlike with QI, there’s no interlocutory review of Bivens claims. We can give this another look after the district court issues a final order. (Ed.: Bivens remedies are much rarer than this week’s edition might lead one to believe.)
- The University of Iowa has a policy of nondiscrimination in leadership positions for student groups. Except when it gives groups an exemption. It denied an exemption for a Christian group that asked for leaders to affirm that same-sex relationships are against the Bible. But it granted them for many other groups, such as minority-focused groups, fraternities and sororities, and even a group with the exact-opposite affirmation on Christianity and same-sex relationships. Eighth Circuit: “We are hard-pressed to find a clearer example of viewpoint discrimination.” And not only that but denial of qualified immunity affirmed.
- After a jury convicts a Cali woman for resisting, obstructing, or delaying a peace officer, the woman sues the officer for excessive force. “Nuh uh,” says the Ninth Circuit. You were convicted for resisting the officer on the same facts underlying your excessive force claim, so your claim is barred by Heck v. Humphrey. Dissent: The jury was told it had to find just one of four factual scenarios true to convict, and three of those four scenarios involved different facts than the excessive force claim.
- California requires churches to make elective abortions available as part of their workers’ health coverage. Churches sue, and the case is dismissed. Meanwhile, the Supreme Court decides Fulton v. City of Philadelphia, holding that Philadelphia could not exclude Catholic adoption services from government contracts because of their refusal to place adoptees with same-sex couples. Ninth Circuit: Take another crack at it, district court. Dissent: Let’s not waste time. Strict scrutiny applies and the government should lose.
- Certain allegations lead the Arizona State House to overwhelmingly vote to expel a member. He sues, claiming it’s a fix I tell ya’! Ninth Circuit: No. There’s no equal protection violation, and even if there was a due process violation there’s no sufficiently similar prior caselaw on point, so qualified immunity.
- Would this court care to “reverse incorporate” the Privileges or Immunities Clause against the federal government, à la the Equal Protection Clause in Bolling v. Sharpe? Tenth Circuit: Are you serious? And the claim that the revocation of a passport when you’re behind on a lot of taxes is unconstitutional also fails under substantive due process.
- Is there a clearly established right under the First Amendment to use tobacco for a Native American religious service, thereby defeating qualified immunity? Yes, at least in the Tenth Circuit, even if you’re in prison.
- Innovative orthodontics company will scan your teeth, send the results to a state-licensed dentist, and send dental appliances right to your door. Georgia’s dental board—composed mostly of dentists—doesn’t like that one bit, and prohibits the practice. The company sues, alleging antitrust violations. Board: Can’t sue us, we have state-action immunity. District Court: Maybe. I’ll decide that later. Eleventh Circuit (en banc): And the Board can’t appeal that ruling either, because it isn’t a final order.
- Woman is told if she gives the property manager of an apartment she applies to live in a “kiss” she can live there. She reluctantly accedes. He then asks for more than a kiss after she moves in, which continues for over three years. She finally cuts the relationship off (the physical one). He cuts off the other one for nonpayment of rent, even though she owed no money. Can you bring a sexual harassment claim under the Fair Housing Act? Eleventh Circuit: Yes.
- And in en banc news, the Ninth Circuit (with one, two, three … NINE! … separate opinions accompanying its order) will not reconsider its decision that a public school district did not violate the constitutional rights of a football coach who led prayer sessions at midfield after games by suspending him. (We talked about the March 2021 panel opinion on the podcast.)
- Friends, last week’s en banc news contained a grievous error. In fact, the original Second Circuit panel granted a petition for rehearing, rather than the full Second Circuit granting a rehearing en banc. And this week, the panel issued an amended opinion that leaves the original panel opinion holding unchanged: Vimeo, which deleted the account of a church that promoted gay conversion therapy, is protected from the church’s suit by Section 230(c)(2). (We discussed the original panel decision on the podcast.)