The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Vaccinated jurors, a parking monopoly, and plant-based meat.


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

The Fifth Amendment requires just compensation when the government takes property, and, for all of recorded human history that matters, this requirement has always been "self-executing." Meaning Congress doesn't need to pass a law saying the Fifth Amendment requires just compensation. But the Fifth Circuit recently held otherwise. Click here to read all about it in the Washington Examiner. Or click here for IJ's cert petition. Or perhaps click here for a podcast about the case.

  • Jan. 6 rioters challenge their indictment for violating 18 U.S.C. § 1512(c)(2), which makes it a crime to "corruptly . . . obstruct[], influence[], or impede[] any official proceeding." The district court tosses the indictment, reasoning that 18 U.S.C. § 1512(c)(1) is all about destroying evidence, so (c)(2) can't extend to hitting Capitol police officers. D.C. Circuit: Yes it can. Concurrence: It can, but only if we adopt a narrow interpretation of "corruptly"; otherwise, the law is breathtakingly broad. Dissent: "The conduct alleged here violates many criminal statutes, but section 1512(c) is not among them."
  • In September 2002, Yemeni man suspected of assisting al Qaeda "traveled to Cairo, Egypt on business and disappeared. He arrived at United States Naval Station Guantanamo Bay two years later." He tries to file a writ of habeas corpus. Gov't: Habeas isn't a thing if you're at Guantanamo Bay. Supreme Court (in a different detainee's case, 2008): Oh yes it is. District court (2008-2019): You lose anyway. Man: That took kind of a long time. Along the way a bunch of stuff violated due process. D.C. Circuit (en banc): We're not saying you even get due process, but even if you do everything's still cool. You might have this one statutory argument on remand, though. Dissents: Due process isn't a thing if you're at Guantanamo Bay.
  • To comport with the Appointments Clause, administrative law judges must be appointed by the head of an agency instead of staff. Acting commissioners count as heads of agencies, provided that they serve no more than 210 days or while a new commissioner's nomination is pending in the Senate. Fourth Circuit (aligning with the Eighth Circuit): That "or" is pretty important. Just as a waiter offering "coffee or dessert" means that a patron could have both, an acting commissioner may serve under the time limitation, while a nomination pends, or both.
  • A couple facing trial for drug-related crimes in the fall of 2021 were not vaccinated against COVID-19 due to their sincerely held beliefs. The court struck all unvaccinated prospective jurors. Did that violate the Sixth Amendment's requirement that a jury be composed of a fair cross section of the community? Fourth Circuit: It did not.
  • Fifth Circuit: The good news for the plaintiffs is that they have standing because, on one reading of this statute, it outlaws their speech. The bad news is that their First Amendment challenge fails on the merits because, on a totally different reading of this statute, it doesn't outlaw their speech.
  • Pseudonymous plaintiffs challenge Mississippi's "Unnatural Intercourse Act" which makes illegal, well, pretty much any sexual act not strictly involving genitalia. They're forced to register as sex offenders even though Lawrence v. Texas (2003) is a thing. But the state agrees to settle, so the district court doesn't rule on the statute's constitutionality. Plaintiffs: Hurray! Let's now move for attorney's fees. State: But not that much, and it was total overkill to use out-of-state counsel. District court: Plaintiffs get most of what they asked for. Fifth Circuit: Affirmed, do you have any idea how hard it is to find lawyers for sex offenders in Mississippi? Plus, even though the issue isn't before us, we'll say in a footnote that the statute is unconstitutional.
  • The Fifth Circuit's order partially staying a district court's order forbidding the sale of mifepristone will surely come in for withering criticism, but your editors choose to focus on one unambiguously praiseworthy sentence: "If that's confusing, we hope this chart helps[.]" (Editors' note: It was, and it did.)
  • Brownsburg, Ind. high school orchestra instructor believes his faith prohibits him from calling transgender students by their newly adopted names or preferred pronouns. He reaches an accommodation with the school, allowing him to call all students by their last name, but following complaints the school revokes the accommodation. Given the choice to use students' preferred names/pronouns, resign, or be fired, the teacher resigns and sues the school for failure to accommodate his sincerely held religious beliefs. Seventh Circuit: Allowing the teacher to continue using students' last names only would impose an undue burden on the school, because the practice upset so many people. Dissent: If that's grounds for denying an accommodation, it's not clear what Title VII does. In any event, this is a factually contested case that should go to a jury.
  • When Chicago officials found themselves $150 mil short of cash during the recession of 2008, it brokered a deal that granted a private company the right to operate and collect revenue from the city's 36k metered parking spaces for 75 years in exchange for more than a billion dollars. Parking rates soon doubled and Chicago now has the most expensive street parking in the country. An antitrust violation? Seventh Circuit: If there's a monopoly here, it's the city's, whose ongoing supervision of the private company overseeing its parking spaces creates state-action immunity from antitrust lawsuits.
  • Disabilities prevent a Dubuque, Iowa tenant from working full-time. Her landlord refuses to accept housing vouchers. Is the landlord illegally discriminating against her because of a handicap? Eighth Circuit: No. The landlord must provide reasonable accommodations, such as providing a preferred parking space for a tenant with difficulty walking, but that doesn't encompass an obligation to accommodate a tenant's shortage of money.
  • One power of a magistrate judge is to conduct an evidentiary hearing and submit to an Article III judge a recommendation on how to rule on a motion to suppress. If a party disagrees with the magistrate's proposal, the district court judge is to conduct de novo review. Does 4½ pages of boilerplate repeated in dozens of cases count as de novo review? Ninth Circuit: Sure does. Dissent: The only part of the order relating to the defendant here are the names of the magistrate, the party, and the docket number. It's a rubberstamp, which creates constitutional problems. (Unfortunately for the defendant, the Ninth Circuit also affirmed his conviction for transporting noncitizens.)
  • Honk if you think the First Amendment protects the right to honk your car horn as a form of political expression! Ninth Circuit (over a dissent):
  • Oklahoma prison classifies inmate as a member or associate of the Sureños prison gang, which has primarily Hispanic membership. As a result, he's placed with the gang in administrative segregation. Inmate: My name is Ong and I am a member of the Hmong people of Southeast Asia. Can I be moved back to my normal cell, because these people are trying to stab me? Prison: For now you stay, because we found your name on a list of gang associates that we will not show you. Tenth Circuit (unpublished): Prison sucks, man. What do you want us to do about it?
  • Oklahoma prison employee raises concerns with prison director that the deputy director is abusing inmates; director doesn't want to hear about it. When the abuse continues—including a prisoner being handcuffed in a "crucifixion-type pose" for no apparent reason—the employee takes her concerns to the Oklahoma State Bureau of Investigation. Following an investigation, the deputy director is fired. Two months later, the whistleblowing employee is fired. She sues, alleging unconstitutional retaliation for her exercise of her First Amendment rights. Trial court: The First Amendment doesn't apply to gov't employee speech that is part of their official duties. Because reports of misconduct were part of the employee's job as a compliance officer, she has no claim. Tenth Circuit (unpublished): Actually, her boss told her to stop working on all compliance issues after she discovered the deputy director's non-compliance. The First Amendment applies and the case moves forward.
  • Impoverished Oklahomans sue to challenge ruthless (and allegedly unconstitutional) scheme to collect "court debts." District court: A hat trick, friends! Your case is dismissed under Rooker-Feldman and Younger *and* Heck v. Humphrey. Tenth Circuit: Everything the district court said was wrong. The case may proceed. (Appetite whetted? Read the amicus brief IJ filed in support of the plaintiffs.)
  • In this corner, it's the lean, mean, the-text-the-whole-text-and-nothing-but-the-text, old-school pugilist Saaaaaaamuel Williston; and in the other corner, it's the wily, anything-goes, fight-with-whatever-extrinsic-evidence-ya-got brawler Arrrrrrrrrrrthur Corbin! If that lede didn't excite you, you may disagree with the Eleventh Circuit that this insurance case is "(as it turns out) interesting." But if it did, you'll enjoy knowing that Williston wins by knockout (at least for insurance contracts in Florida).
  • Unnamed class member in a multimillion-dollar class action suit regarding the defendants' "brain performance supplements" appeals settlement approved by the lower court on the basis that its value was falsely inflated so the attorneys could get more fees. Eleventh Circuit: Careful what you wish for; there are bigger issues here—the named representatives don't even have standing for the injunctive relief they asked for in the settlement. Poof goes the settlement and back to the drawing board go the parties.
  • In today's rendition of hot-button suit plays standing-ripeness-mootness roulette, it's [pause for wheel spin] a win for the house. (Eleventh Circuit: No standing for immigrants' rights nonprofits to challenge Florida law requiring that local law enforcement help implement federal immigration laws because the alleged harms are too speculative, and they sued the wrong officials.)

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