RV park leases, wrongful birth, and a major question.

John Ross · January 7, 2022

Friends, pandemic-permitting, there’s not much we’d like more than to see you in Atlanta on February 4th at our forum on Georgia’s constitution at Georgia State University College of Law. With a keynote by former Justice Keith R. Blackwell, it’s an event not to be missed! Click here to learn more.

  • Allegation: During the mid-2000s, the terrorist group Jaysh al-Mahdi openly controlled Iraq’s Ministry of Health and used it as a vehicle for terrorist activity. They were abetted in this by medical supply and manufacturing companies with U.S. ties, who provided kickbacks to the group in exchange for lucrative business opportunities in the country. Victims of Jaysh al-Mahdi’s terrorist attacks that were in part funded by those kickbacks sue the companies under the Anti-Terrorism Act. D.C. Circuit: Yeah, if that’s all true, it’s pretty bad. I mean, the Ministry of Health Headquarters is alleged to have had “Death to America” signs hanging all around it. So the case goes forward.
  • Woman attending her boyfriend’s plea hearing (attempted murder of the mailman) exclaims “piece of shit!” as she leaves the courtroom. The judge calls her to the bench, holds a two-minute hearing, declares her guilty of criminal contempt, and sentences her to ten days behind bars, to begin immediately. (She’s ultimately confined for 13 days due to “an error.”) Fourth Circuit: There’s not a lick of evidence the woman had the criminal intent necessary for a contempt conviction. Overturned. And lay off these summary hearings.
  • Medicare administrative contractor concludes that a Medicare service provider for nursing homes received $8.3 mil in excess reimbursements and begins recouping payments. The service provider seeks redetermination from the administrative contractor and loses. So it takes the next step, seeks reconsideration by an independent contractor and loses. So it takes the next step and seeks review by an ALJ and loses. Finally it takes the next step and seeks review by the Medicare Appeals Council, wins, and sues HHS for repayment of the recouped funds (meanwhile, during this years-long process, the company has gone out of business). District Court: No jurisdiction. Your grievance about not getting repaid is a separate agency action that hasn’t been administratively exhausted. Fifth Circuit: No, it’s a continuation of the same agency action—and the administrative contractor’s sneaky, eleventh-hour attempt to drag the case back into administrative hell was ultra vires.
  • Man is sent back to jail for attending his plea hearing drunk. Were Crawford County, Mich. jail officials who saw his delirium tremens symptoms—hallucinations, agitation, and disorientation brought on by alcohol withdrawal—deliberately indifferent for not seeking medical treatment until it was too late? Sixth Circuit: A jury might think so. No to qualified immunity; yes to trial.
  • Is whether the president can require federal contractors to employ vaccinated workers a “major question?” Sixth Circuit: Yep. So the relevant statute likely does not give him that authority.
  • Michigan man: No, I wasn’t super drunk at the airport. My daughter (in tears, afraid to leave with me), a bystander, and several police officers were all wrong about that. I can sue the officers for arresting me for disorderly conduct, yes? Sixth Circuit: No.
  • A handy rule of thumb in Fourth Amendment cases is that drivers always lose. So it is in this case out of the Eighth Circuit, in which police claim to have detected the smell of burning marijuana coming in through the back windows of their patrol car while 100 meters behind a suspect’s moving car on a windy day. Now that may seem unlikely, particularly because the suspect’s car contained less than a gram of unburnt marijuana in a closed container, but don’t worry, the plausibility of this was confirmed by a trainer for Desert Snow, a company run by cops that trains other cops on how to civilly forfeit as much property as possible. So anyway, this guy is going to jail for being a felon in possession.
  • Allegation: Motorist arrested for suspected DUI turns out to have a prescription for the only drug found in his system. He dies after going without medication, experiencing mental health crisis, and scuffling with Willcox, Ariz. jail officers. Ninth Circuit: Qualified immunity for punching, tasing, and pinning him down until he was restrained. No qualified immunity for tasing and choking him after he was restrained. Also Ninth Circuit: Where’s the video?
  • Washington state woman goes to a federally qualified community health center for her regularly scheduled injection of the birth-control drug Depo-Provera. Oops! They give her the flu shot instead. When she goes back for her next birth-control injection, they explain their whoopsie-doodle and suggest she take a pregnancy test. She’s pregnant, and later gives birth to a child who suffers from epilepsy and bilateral perisylvian polymicrogyria, a birth defect of the brain’s cortex that causes neurological delays. She brings a “wrongful birth” claim under the Federal Tort Claims Act, and she, her partner, and her child receive over $10 mil in damages. Ninth Circuit: We’re going to ask the Washington Supreme Court to clarify whether you can have a wrongful birth claim when there’s no reason to suspect a birth defect. We are also—INEXPLICABLY!—going to use a “(simplified)” parenthetical instead of @SCOTUSPlaces now-standard “(cleaned up)” parenthetical.
  • Decades ago, a group of RV owners purchased 50-year memberships to an RV park on the banks of Lake Chelan, Wash. Yikes! The RV park only had a 25-year lease. Can the RV owners stay? Ninth Circuit: Well, it’s complicated—this is American Indian land currently held in (disputed) trust by the Bureau of Indian Affairs, and resolving the question requires our delving into 19th century land ownership, 20th century executive orders and treaties, and 21st century estate statutes. The short answer is the RV owners are going to have to find somewhere else to vacation.
  • Is it cool for a district court to impose a longer sentence on a defendant for having pleaded guilty without a plea agreement? Tenth Circuit: What? Decidedly not cool. And more to the point, inconsistent with 18 U.S.C. § 3553(a) and hence procedurally unreasonable. Case remanded for resentencing.
  • Allegation: On learning one of her dancers, a high school senior, had been selected to be on a major university’s dance team, Overland Park, Kans. dance coach texts her disappointment to a colleague (cleaned up): “It actually makes my stomach hurt. Bc she’s f*****g black. I hate that.” The principal fires the coach, but the coach, among other things, encourages the dancer’s teammates to be unkind to her. (They oblige.) Tenth Circuit: There may not be a case right on point, but it’s been obvious since the 1950s that treating African-American students differently because of their race is unconstitutional. No qualified immunity for the coach.
  • Tenth Circuit: Though some states allow it, there’s nothing in the U.S. Constitution or federal law that requires courts to grant defendants access to a crime scene that is in the control of a third party. So no need to disturb man’s convictions for, among other things, murdering his ex-girlfriend in her trailer (now in the control of relatives) on tribal land in Oklahoma.
  • Does the State of Florida have standing to appeal a federal district court’s order making federal funds available for a federal public defender to appear in state post-conviction proceedings on behalf of a death-row inmate? (Confused? Welcome to habeas.) Eleventh Circuit: No. Two-judge special concurrence: Here’s an advisory opinion on why we’d reverse the district court “if we had jurisdiction over this appeal.”
  • Plaintiff: In the 1940s, the City of New York contaminated land I eventually bought in 1986. That means they’re trespassing by leaving their contaminants behind, and they owe me damages, and also I shouldn’t have to pay the taxes I owe on the land! Eleventh Circuit: Sir, this is an Arby’s a bankruptcy proceeding. You can’t fight about your property taxes here, and your trespass claim is way, way time-barred. Concurrence: But, since you asked, your trespass thing is also just wrong.
  • And in en banc news, the First Circuit will reconsider its (2018, unpublished) decision granting qualified immunity to Massachusetts prison officials who allegedly kept an inmate in solitary confinement for 611 days without adequate justification or meaningful review.
  • And in more en banc news, the Eleventh Circuit will reconsider its decision allowing a lawsuit to go forward against Martin County, Fla. officers who arrested and jailed a man named David Sosa for three days even though he told them they were after a different man named David Sosa (which he knew because he’d previously been mistaken for the wanted Sosa).

The Institute for Justice is currently recruiting our next class of Litigation Fellows to join us in August 2023. We are looking for passionate and entrepreneurial attorneys with 0-2 years of experience to join our headquarters office inArlington, Va. This Fellowship is IJ’s preferred path for recent graduates or post-clerkship candidates with less than two years of experience. Upon completion, Fellows are considered for permanent employment. Outside the courtroom, Fellows have the opportunity to do media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Throughout the two-year fellowship, Fellows benefit from mentorship opportunities, expert media training, and a supportive and collegial legal work culture. Interviews and offers will be on a rolling basis. For more information, visit www.ij.org/jobs.