Short Circuit: A Roundup of Recent Federal Court Decisions

Net neutrality, malingering mailmen, and procrastinating plaintiffs

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

October is finally here—the leaves are changing, everything is pumpkin spice, and the deadline is fast approaching for law students to apply for IJ's Legal Intensive, a one-day crash course in public interest litigation the IJ way to be held at UCLA School of Law this November. Get those apps in by October 11!

  • In 2018, the Trump administration repealed net neutrality rules implemented by the Obama administration, prompting a lawsuit by basically everyone who's ever used the word "telecommunication" in a sentence. D.C. Circuit: And here are three opinions spanning 186 pages explaining why that's allowed and what it means for similar efforts at the state level.
  • Mail carrier hurts his back lifting a heavy tray and applies for workers' comp, which he collects for more than a decade. Uh oh! Photos on his ex-wife's Facebook page show him engaged in a variety of activities that he shouldn't be capable of, like riding a motorcycle. Did the trial court err by admitting the photos without having the ex-wife confirm their authenticity? First Circuit: Nope. The jurors were perfectly capable of determining whether the defendant was in the photos.
  • Under the direction of former Attorney General Eric Holder, Department of Justice attorney investigates more than 100 allegations of abuse of detainees held overseas by the CIA, ultimately recommending formal investigation of only two incidents. The New York Times would very much like to see the memos detailing this investigation. DOJ: But they can't, because it's attorney work product. Second Circuit: That's mostly right, but Holder's public statements waived that privilege for some of the information.
  • Apropos of nothing: The mere fact that something is hearsay does not mean that it can't be used in some government proceedings. Second Circuit: Such as immigration removal proceedings. (Also, if you find yourself arguing that you slashed a guy's face with a box cutter—and not a machete, as the police report states—your case is not going well.)
  • This week, the Second Circuit taught your editor that when a multi-judge panel does something of its own accord, it may describe itself as acting nostra sponte (us lawyers would still use sua sponte to describe it). So tuck that one in the back of your brain if you think you may be an appellate court short-lister.
  • In 2017, the Environmental Protection Agency approves a Louisiana plan to control regional haze. Sierra Club: Louisiana's plan doesn't do enough! Industry groups: Louisiana's plan does too much! Fifth Circuit: Like Baby Bear's porridge, Louisiana's plan is just right.
  • Everybody procrastinates in this lawsuit alleging police misconduct in Chicago. Plaintiffs filed after the statute of limitations. The trial court didn't issue an opinion until two years after it issued an order dismissing the case, leading plaintiffs to appeal long after the deadline for doing so. But the city doesn't object until six months after the appeal is filed. Seventh Circuit: The city's untimely objection means we can hear the appeal, but the trial court got it right.
  • In 2015, Santa Monica, Calif. banned short-term vacation rentals like Airbnb. They say it's to preserve the character of the community. Former Airbnb hostess claims it's to prop up declining revenue from the city's 14% hotel tax. A Dormant Commerce violation? Ninth Circuit: Even if the alleged benefits of the law "are all illusory or illegitimate," the plaintiff failed to show a significant burden on interstate commerce.
  • Employees at McDonald's franchises sue McDonald's for various state labor law violations. Ninth Circuit (over a dissent): Well it sounds like the employees should take that up with their employers—the franchises.
  • U.S. citizen wants to bring his wife from Vietnam to the U.S. under a program that allows sponsorship of close relatives. Problem: He has a child pornography conviction, which means he has to convince the government that he poses no risk to his wife. Citizenship and Immigration Services: We are not convinced. Eleventh Circuit: And the law gives the agency "sole and unreviewable" discretion to make that determination.

Speaking of autumn, next week is the First Monday in October, and SCOTUS nerds across the land are rejoicing the start of another Supreme Court term. This term, the Court will hear argument from IJ's educational choice team in Espinoza v. Montana Department of Revenue, a challenge to Montana's exclusion of religious private schools from a tax-credit scholarship program. Check out some of the more than 30 amicus briefs that groups—including the Department of Justice—have filed in support of our clients.

NEXT: A Mississippi County Has Agreed To Stop Using Illegal Roadblocks in Black Neighborhoods

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  1. Mail carrier hurts his back lifting a heavy tray and applies for workers’ comp, which he collects for more than a decade. Uh oh! Photos on his ex-wife’s Facebook page show him engaged in a variety of activities that he shouldn’t be capable of, like riding a motorcycle. Did the trial court err by admitting the photos without having the ex-wife confirm their authenticity? First Circuit: Nope. The jurors were perfectly capable of determining whether the defendant was in the photos.

    Stories like this have been passed down by personal injury lawyers since time immemorial. Only the medium (Facebook) has changed. It used to be the guy would show up in a body cast at trial and testify how he could not move his extremities, only for the defense to produce a surreptitiously recorded videotape showing him out of the cast dancing at a house party. Or photographs would be produced of the wheelchair bound plaintiff standing up and having a normal conversation.

    So long as there is compensation for personal injury (and of course, there should be), there will be people who pull this kind of fraud.

    1. “So long as there is compensation for personal injury (and of course, there should be), there will be people who pull this kind of fraud.”

      And investigators making a living providing evidence of the fraud. It’s a good break from proving that husbands cheat on their wives (and vice versa).

    2. Maybe if I read the decision, I’d get more info. But wouldn’t the issue be more than just if it’s the guy in the photo? What if (for some reason) he was photo shopped in, in an effort to frame him?

      1. (((a point that Absaroka made right below, if I had bothered to read further)))

  2. “Did the trial court err by admitting the photos without having the ex-wife confirm their authenticity? First Circuit: Nope. The jurors were perfectly capable of determining whether the defendant was in the photos.”

    I would have agreed with that in years past, but with the rise of Photoshop I’m not sure I’d accept any photos without a vetted provenance. In this case the photos were ancillary; the police took video of him doing much the same activities as the photos, but I’d worry about a case where unvetted photos stood alone.

    (Bleg for the lawyers: another item in that case was the judge’s refusal to allow the jury to get transcripts of testimony, or an in-court readback. What’s the purpose of that? If we ask the jury to fact find, why object to them hearing something twice? The judge advises them to rely on their memory and notes. In my jury service we asked to review some evidence – video in our case – precisely because jurors had different memories of the details. Telling them to remember harder doesn’t seem helpful in that case.)

    1. The justification is that the verdict should be based on all the trial evidence, and that if the jurors hear (or read) part of the evidence out of its context, they may misunderstand it.

      I don’t find this very persuasive myself, and the judges who do seem to be getting scarcer.

      1. I don’t find this very persuasive myself,

        This very polite.

      2. “The justification is that the verdict should be based on all the trial evidence, and that if the jurors hear (or read) part of the evidence out of its context, they may misunderstand it.”

        Thanks, Noscitur. That seems quite wrong to me, for two reasons:
        1)The jury in its role as fact finder can consider the facts in any way it wishes, in any context it likes. If the judge wants to encourage one particular kind of understanding he should make that clear in his instructions, not deprive the jury of facts later.
        2)If, as in my case, the jury remembers the facts differently, then part of the jury browbeating the rest of the jury to adjust their memories seems quite inappropriate. The proper path would be to hang. That is in fact what we would have done, had we not been able to see the video again. N.b. – the detail that had become important during our deliberations wasn’t highlighted at the time the video was originally shown, so people remembering it differently later is hardly surprising.

        I’m glad to hear the practice is falling into disfavor (along with, I think, forbidding note taking).

    2. I agree that the long-term potential for “deep fakes” means could be troublesome to rely on visual evidence without corroboration, even if it’s not relevant in the case at hand.

      1. Presumably, the defense has the opportunity to talk about deepfakes… unless the photos are accurate depictions of defendant’s actual actions. (Thanks to the duty of candor to the tribunal) Of course, that same duty, applied to the other party, would prevent the knowing submission of faked photos as evidence.

        1. I also they can even discuss the possibility of fakes even if they know they are real.

          Let’s say an expert looks at the photos and finds something that looks like a seam that makes it 50 percent likely that it’s a photoshop. No reason they can’t put that testimony on, even if the client knows the photo is real.

          1. “Let’s say an expert looks at the photos and finds something that looks like a seam that makes it 50 percent likely that it’s a photoshop.”

            The client knows if they were or were not salsa dancing on the evening of Tuesday the 11th. Hiring an expert to claim that the photos were faked runs counter to the ethical rule of candor to the tribunal. I contend that this is true even if the expert honestly believes the photos are faked, and even if they are, factually, faked photos of actual conduct. (They could put the party on the stand to testify “that photo is faked, and I know this because I was salsa dancing with a different girl that day”).

            1. The expert wouldn’t be saying the photos were faked. She’d be saying there’s a possibility they were faked.

          2. To what James Pollock said, I would add that the judge has discretion to allow or disallow expert testimony, and a key factor the judge must consider is whether the expert’s testimony will be helpful to the finder of fact.

            Having an expert testify that photos can be faked and that this photo could be faked might be helpful, particularly when a party takes the position the photo was faked and what it portrays did not actually occur. But if the party admits what the photo portrays did occur and does not take a position on whether the photo was faked, the expert’s testimony isn’t helpful and should not be allowed.

        2. I work in an industry with higher than average soft tissue injuries and have seen my share of false claims. The average pay is quite good, weekly disability payments can reach $2,000. Investigators producing proof of falsity are also well paid. I would be leery of depending on the “duty of candor” to protect either sides’ interests.

          My favorite was a guy judged fully and permanently disabled due to a lower back injury who was filmed lifting double-height commercial clothes dryers out of the back of his truck and carrying them into his laundromat. (He was a very big guy).

          1. ” I would be leery of depending on the ‘duty of candor’ to protect either sides’ interests.”

            I wouldn’t recommend relying on it in any case.

  3. Goodness! An entire ‘Short Circuit’ without a ‘qualified immunity’?

    Hopefully the beginning of a return to sanity.

  4. “when a multi-judge panel does something of its own accord, it may describe itself as acting nostra sponte…”

    Wait a minute. The panel may not describe itself as acting “nostra sponte.” The panel acts sua sponte. The judges may describe themselves as acting “nostra sponte.”

    1. I don’t follow.

      1. The phrase in question consists of a possessive adjective followed by “will”, both in the ablative case. nostra sponte means “by our accord, will”. nostra is the first person plural possessive adjective in the ablative singular of the feminine gender (since it agrees with spons, which is a feminine noun). So, nostra sponte is appropriate for the judges referring to themselves as a set of individuals. sua sponte means “by its will” and is appropriate when referring to a third person singular, such as the panel, a single entity though composed of multiple individuals). So one can write: “We have acted nostra sponte” or “the panel acted sua sponte”. A single judge could say “I have acted mea sponte”. A lawyer addressing that judge could say: “that you acted tua sponte”. If addressing the panel, he would say: “that you have acted vostra sponte”. Although length is not indicated in Latin spelling, the /a/s at the end of sua, nostra, tua, etc. are long.

        1. I know what the words mean. The usual convention is for the opinion of a multi-member court to be written in the first person plural, which is (I thought) the whole point of the original comment – for consistency, the correct Latin usage in a panel opinion would be “nostra sponte”. TwelveInchPianist’s comment appears to be drawing some sort of distinction between the panel and the judges on the panel as far as what usage is appropriate, but I cannot follow the point they’re trying to make at all.

          1. A panel is a single thing, so it would use singular forms of verbs and whatnot. Several people speaking together would use a “we” type formulation.

            1. Disclaimer: I have no idea how this applies in Latin, or even if it does.

  5. Grammar Grinch. ???? I’ll wager that at least half the people under 30 have no idea of the reasoning behind what you wrote. (Not to mention no familiarity with the Oxford comma.)

  6. “it may describe itself as acting nostra sponte (us lawyers would still use sua sponte to describe it).”

    Shouldn’t that be “we lawyers….”??? (“Us would still use ___ to describe it.” does not sound correct, as compared to “We would still use…”.)

    1. That got 8 diaphramatic chuckle contracions out of me, which is probably more than necessary 🙂

  7. Does IJ contend that government should fund schools that teach that the moon of made of green cheese? Schools that teach that storks deliver babies? Schools that teach that thetan theory explains why people who eat (or do not eat) certain wafers (but not cheeseburgers or shrimp cocktail, and not on Thursdays) are fulfilling man’s purpose? Schools that teach that one plus one equals seven and one-half? Schools that teach that evolution is a demonic hoax? Schools that teach that killing (or hating) Jews, or Muslims, or Catholics, or left-handed people, or red-haired people, or people who eat lobster bisque or meat on Fridays, is the right idea?

    How much, and which, nonsense, should taxpayer-funded schools teach at the expense of children and reason, in IJ’s judgment — and why?

    1. “Does IJ contend that government should fund schools that teach that the moon of made of green cheese?”

      Do you contend that the government should be allowed to refuse to fund schools that teach evolution?

      1. Good question, but what’s the answer?

        Should the government be required to fund anything that calls itself a school, and maybe meets certain “curriculum-neutral” requirements around safety, condition of physical plant, and so on?

        1. “Should the government be required to fund anything that calls itself a school, and maybe meets certain “curriculum-neutral” requirements around safety, condition of physical plant, and so on?”

          I suspect that the answer is approximately that the government can require certain subjects, but not viewpoints.

          So a school can say, “Well, scientists believe that the moon is a big rock, but faith tells us that it is made out of green cheese.” Government’s can’t say “no claiming that the moon is made out of green cheese”.

          But the government certainly can’t discriminate, as they do here, simply due to affiliation with a religious entity.

          1. “So a school can say, “Well, scientists believe that the moon is a big rock, but faith tells us that it is made out of green cheese.” Government’s can’t say “no claiming that the moon is made out of green cheese”.”

            A government-funded or -operated, or reason-based school, should not tell students that the moon is made of green cheese, that storks deliver babies, that one plus one equals four, or that fairy tales are true. Such schools should not suppress science or warp history to flatter superstition, promote dogma, or favor stupidity.

            Private institutions should be entitled to speak as they wish, telling people that up is down, science is satanic, North Dakota is south of South Dakota, our planet is a few thousand years old, nine times four equals seven, or that evolution (a theory, much like gravity) is for fools. Mainstream, reasoning America should not accredit schools that are belligerent about teaching nonsense, however.

          2. “I suspect that the answer is approximately that the government can require certain subjects, but not viewpoints. ”

            So much for mandatory “abstinence-only” sex-ed, then. Good riddance.

      2. “Do you contend that the government should be allowed to refuse to fund schools that teach evolution?”

        I would. They would be stupid to do this, but that’s a WAY different question from “can they do this?”

    2. Far better to be a tolerant, scientifically literate graduate of one of the traditional public schools – no hatred or ignorance there.

      1. You are welcome to tell your children that Earth is a few thousand years old, that evolution is nonsense (just a theory, after all, much like gravity), that storks deliver babies, that fairy tales are true, that blacks are inferior, that standard English is overrated, and that the moon is made of cheddar dyed green. Why not go all-in?
        They’re likely to reject you, your politics, your intolerance, and most of what you have told them when they are exposed to the liberal-libertarian mainstream anyway.

    3. Yet you (probably) love laws that rip open religious people, forcing them to sin, because of “general applicability.”

      Hmmmm…maybe it’s a concern that laws should hurt religion wherever possible, forcing them to kowtow if so, or exempting them if the exemption hurts more.

      Nah, that’s be cheesy.

  8. In 2015, Santa Monica, Calif. banned short-term vacation rentals like Airbnb.
    the plaintiff failed to show a significant burden on interstate commerce.

    Not being able to use AirBnB is the sole reason I do not visit Santa Monica.
    Well, that and the fact it is in California – – – – – –

    1. It is interesting to me that a law restricting Airbnb doesn’t have a significant enough effect on interstate commerce to trigger the dormant Commerce Clause, but if Congress decided it wanted to pass the same law, it would almost certainly have the power to do so under the Commerce Clause. It seems to me that if a certain activity has so little effect on interstate commerce that there is no dormant issue, then it would also be too tenuously related to interstate commerce to bring it within the legislative purview of Congress.

      1. “It is interesting to me that a law restricting Airbnb doesn’t […]”

        This isn’t a law restricting Airbnb. Airbnb remains free to operate. This was a law restricting property owners within the city limits. By definition, limiting property owners within the city limits isn’t interstate commerce… all of the property remains in just the one state.

        1. “…… all of the property remains in just the one state.”

          Ahhh…so, for example, a farmer who grows wheat on his farm to feed cattle on the same farm, and his farm and cows never leave that state, isn’t engaging in interstate commerce?

          1. Nope. Unless there was a war on at the time.

            1. “Unless there was a war on at the time.”

              I guess that’s one of those details the court forgot to include in its decision at the time, and no one has thought to bring up in subsequent peacetime cases relying on Wickard. Now that you’ve pointed it out, everything changes!

              1. “I guess that’s one of those details the court forgot to include in its decision at the time”

                Maybe they figured that everybody already knew? The US entry into the war was in all the papers.

                1. Also note: The Supreme Court’s opinion is binding on lesser courts’ opinions. It is not binding on my opinion.

      2. This was my observation as well. There are a number of cases which helped grow the power of the clause to detailed single businesses with only tangential effect on interstate commerce, and bring them under the yoke of Congress.

        Hasn’t this thus been well-settled by this point?

  9. “Under the direction of former Attorney General Eric Holder, Department of Justice attorney investigates more than 100 allegations of abuse of detainees held overseas by the CIA, ultimately recommending formal investigation of only two incidents. The New York Times would very much like to see the memos detailing this investigation. DOJ: But they can’t, because it’s attorney work product. Second Circuit: That’s mostly right, but Holder’s public statements waived that privilege for some of the information.”

    OK, let’s say only the Justice Department’s client gets to see these documents.

    Who’s the Justice Department’s client?

    1. The DOJ is the client in this story.

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