The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Short Circuit: A Roundup of Recent Federal Court Decisions

Alaskan Natives, Alaska Airlines, and Alaskan students.


Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Alaska's sparse population creates unique educational challenges. To address these, the state created "correspondence programs," in which a student's public school uses the post office or float planes to deliver lessons and then pick up and grade assignments. In 1997 and again in 2014, the law was broadened to allow parents more freedom to design their children's curriculum and receive reimbursement for certain educational expenses, including tuition at nonpublic schools. But now the program is under attack, and IJ has teamed up with a group of Alaska families who benefit from the program to defend it in court.

  • FOIA allows agencies to withhold "confidential" and "commercial" information, but could that category possibly include the bare names of the contractors that sell execution drugs to the Bureau of Prisons? D.C. Circuit: Maybe, but not on this record. (Concurrence: But remember that "maybe" doesn't mean "yes.")
  • Pro tip from the Second Circuit: The George Costanza defense ("Was that wrong? Should I not have done that?") is a poor basis on which to withdraw your guilty plea to extortion for threatening to nonconsensually publish nude photos of your ex-girlfriend unless she takes you back.
  • Third Circuit: "Statutory silences, like awkward silences, tempt speech." But, we are reminded, silence from Congress demands a different response than does silence from one's Tinder dates.
  • In a scheme clearly designed to frustrate writers of pithy summaries of appellate decisions, Johnson & Johnson, facing tens of thousands of lawsuits over the (possible) negative health effects of its baby powder, creates a new corporation to which it gives its baby-powder business, all the liability from the baby-powder lawsuits, and also a promise to pay the damages from those lawsuits. Then, the new corporation files for bankruptcy to facilitate the orderly distribution of money to claimants. Can they do that? Third Circuit: This is bankruptcy, and that giant promise to pay for damages seems like it stops the new corporation's bank from being rupt. Petition dismissed.
  • In which the Third Circuit resorts to Webster's for the definition of the word "if," if that's the sort of thing you're into.
  • There are probably lawyers who have been champing at the bit to see what the Third Circuit was going to say about how issue preclusion and law of the case apply to multidistrict litigation about price-fixing in the drywall industry. If you're one of them, we're happy for you.
  • If there's anyone who loves precision in English usage, it's Bryan Garner. But if there's anyone else, it's your Short Circuit editors. So kudos to this Fourth Circuit panel for holding that the statement that a doctor "misread" a test result could be defamatory when all agree that she actually did not read the test result (and might have been medically justified in not doing so). SNOOTs of the world, unite!
  • Does insurance that covers "direct physical loss of or damage" to property cover business interruptions caused by COVID-19, since, you know, COVID virions are physical things that can touch stuff? The Fifth Circuit once again holds "no."
  • Normally a case like this would fly under the radar, but when you subscribe to Short Circuit, you can be sure you'll hear about it when the Fifth Circuit holds that the Second Amendment protects the right of people subject to domestic violence restraining orders to keep and bear arms.
  • Sixth Circuit: Government employees have a First Amendment right to speak on matters of public concern. But depending on the speech—"Let me be the first on record to have the balls to say Tamir Rice should have been shot and I am glad he is dead"—they don't necessarily get to stay government employees.
  • Forklift driver hits a bump in a warehouse. She falls onto the floor and stops. Forklift does not. Now short one leg, she sues the forklift manufacturer. Her expert wants to testify that the accident could have been prevented through this safety device called a "door." District court: Sorry, under the Daubert test that expert's excluded. Seventh Circuit: Yeah, but that's literally all the district court said, which is not enough of a reason to exclude.
  • DEA seizes $146,000 in cash from a man's vehicle. After receiving a notice of forfeiture, the man's attorney sends in paperwork. But, oops! It was the wrong paperwork to force the government to go to court, a "petition for remission" instead of a "claim." After the time limit has run he files a lawsuit anyway. District court: I lack subject matter jurisdiction. Seventh Circuit: Actually, the court probably had jurisdiction. But the government wins anyway.
  • Man standing outside a Los Angeles housing complex is stopped by police, who frisk him, find car key, go to nearby parking lot, and click the key until they locate the car—complete with a handgun under the front seat. A Fourth Amendment violation? Ninth Circuit: Yes, but a harmless one as to the man's most serious convictions (Hobbs Act robbery and conspiracy). But his other conviction (brandishing the weapon) should be set aside.
  • In which the Ninth Circuit does a deep dive into the traditional fishing practices of the Metlakatkan Indian Community and concludes that an 1891 statute secures the Metlakatkans' right to non-exclusive off-reservation fishing in areas where they have fished since time immemorial. So does Alaska's effort to limit the Metlakatkans' fishing in certain areas violate that right? The district court should figure that out on remand.
  • Alaska Airlines and Horizon Air Industries provide paid leave for jury duty, bereavement, and sick leave, but not for short-term military leave. A violation of the Uniformed Services Employment and Reemployment Rights Act? Ninth Circuit: Yeah, maybe. This pilots' class action should go to trial.
  • A macabre facet of Eighth Amendment death penalty litigation is that a prisoner challenging his method of execution must propose an alternative he prefers. Here, a convicted murderer on Georgia death row proposes a firing squad in lieu of lethal injection because, he says, he's taking medicine that will render the sedative ineffective and has a vein condition that will make the injection procedure inhumane. Eleventh Circuit (after being reversed by the Supreme Court on a procedural issue): Firing squad is a valid alternative, and the medication-related claim is both timely and viable. But the vein-related claim needs more facts to support it.
  • Indigent prisoners can generally file federal civil-rights suits without having to pay court fees up front. But the Prison Litigation Reform Act deters repeat vexatious lawsuits by taking away that privilege after "three strikes" for cases dismissed as frivolous, malicious, or failing to state a claim. If a case is dismissed for failure to exhaust administrative remedies, is that a "strike"? Eleventh Circuit (en banc): Only if the case is dismissed because failure to exhaust was apparent on the face of the complaint, not if the defendant had to introduce evidence. Concurrence to district courts: Stop having prisoners fill out a check-box about exhaustion because that's not how litigation normally works and exhaustion is more complicated than a yes/no answer.
  • And in en banc news, the Ninth Circuit will not reconsider its opinion that "and" does not mean "or" in a case about the First Step Act of 2018.
  • And in further en banc news, the Fifth Circuit will not reconsider its opinion affirming a denial of qualified immunity when Louisiana prisoners were kept in custody months after serving their sentences. Seven judges voted in favor of rehearing, but none of them wrote to explain why.
  • And in still more en banc news, the D.C. Circuit will not reconsider its opinion upholding a rule allowing nonimmigrant students to work in the U.S. post-graduation. Two judges think the rule can't be squared with the text of the Immigration and Nationality Act, but the case needed five for a grant. (Ed.: Why weren't six votes required when there are ten active judges on the D.C. Circuit? Two of the judges did not participate, so petitioners needed only five of eight.)
  • And in amicus brief news, IJ is urging the Supreme Court to reverse a Sixth Circuit decision that interpreted a federal statute to allow the IRS to summons—without notice or opportunity to object—financial records from any innocent third party that the IRS believes might assist them in collecting someone else's unpaid taxes. We think the Fourth Amendment might have something to say about that.

Friends, do you like donuts? Well, if you pass through Conway, New Hampshire, you can stop at Leavitt's Country Bakery to sample what local news called the best donuts in the state. You'll be able to spot it by the mural painted on its façade by local art students … unless town zoning officials get their way. They've decided that the mural is no mural at all, but rather an illegal sign. Why? Because the mural depicts baked goods—if it depicted anything else, it would be perfectly legal. But government officials don't get to tell people what they can and can't paint, which is why IJ has teamed up with bakery owner Sean Young to defend his First Amendment rights.