Short Circuit: A Roundup of Recent Federal Court Decisions

Sovereign neighbors, voting particulars, and a qualified baptism.

New on the Short Circuit podcast: A dive into IJ's research report Unaccountable, which examines how qualified immunity really works in the federal circuit courts of appeals. The interview with its authors includes a special look at the methodology used by the team to comb through over 7,000 opinions issued over 11 years.

• USPS products include those over which it has a monopoly, like first-class mail, and competitive products, like package delivery. The rates it charges for competitive products are supposed to be high enough to cover the costs attributable to those products, though its brown-attired competitor takes issue with its package-delivery ratemaking. D.C. Circuit: The ratemaking gets our stamp of approval.
• If you ever wanted to read a "bench slap" of the National Labor Relations Board, this humdinger from the D.C. Circuit would be the place to go. Number of times the court calls NLRB's arguments "nonsense": 2. Number of unfair labor practices found: zero.
• Man is seized as an unlawful immigrant and charged criminally with "illegal re-entry." District court: You can be released on bail. ICE: Great, but we also have power to detain him pending his removal, so we're going to go ahead and keep him in custody. District court (2017): You can't do that. ICE: Yes we can. Second Circuit (2018): As a general matter, ICE certainly has the authority to detain people pending removal, but it might not be OK if the detention is a pretext for circumventing the district court's bail decision in the criminal case. We remand for the district court to clarify if it thinks ICE is acting pretextually. District court (2023): Yeah, definitely pretextual. Second Circuit (2024): You … didn't conduct any evidentiary hearing or consider any facts. The ICE detention stands, and the criminal indictment for illegal re-entry is reinstated. Concurrence: But just to be clear, pretextual ICE detentions are not OK. It just so happens there's no reason to think this particular ICE detention was in fact pretextual.
• Allegation: Manhattanites' home is damaged due to faulty renovations in the building next door. Construction has been going on for years, and unresolved complaints to the city have led to tens of thousands of dollars in fines! Homeowners: Hey neighbors, pay us lots of damages. Neighbors: Too bad for you, we're the Permanent Mission of the Republic of Sierra Leone to the U.N. Sovereign immunity! Second Circuit: Often that is a get-out-of-jail-free card, but not here. The commercial activity and tortious activity exceptions apply. Case can move forward.
• Grocery store supervisor tells female subordinate that women are "too sensitive to be managers." Also says a lot of other jerky and sexist things. Subordinate is fired for allegedly falsifying food logs. She sues, claiming gender-based discrimination. But does she have what it takes to satisfy her third-stage burden under the McDonnell Douglas test? Second Circuit: She does, because while a plaintiff may satisfy Stage 3 by demonstrating that the employer's stated reason is a pretext, she can instead just prove that an impermissible purpose was a motivating factor.
• If you're a Pennsylvania voter and chose mail-in voting, you must sign and date the outside of the envelope before mailing your ballot in. Turns out, the date doesn't matter for establishing whether it's mailed on time. So if you forget to date it, does your vote still count? Pennsylvania Supreme Court (2023): The law's the law. Toss that vote away. Third Circuit (2024): And that's okeydokey under the Materiality Provision of the Voting Rights Act. Dissent: Really?
• Pennsylvania man is arrested following a drug deal gone bad. In exchange for a sentence of 20-40 years, he pleads guilty to third-degree murder, conspiracy, and carrying an unlicensed gun. But wait! He alleges that his lawyer told him he'd be eligible for parole after 10 years. He wouldn't have pleaded guilty if he'd known the truth: that he wouldn't be eligible for parole until he'd served 20 years. Ineffective assistance of counsel? Third Circuit: Possibly. He deserves at least an evidentiary hearing on whether his lawyer misadvised him.
• Are the latest lines for state senate districts in the North Carolina General Assembly gonna be redrawn again due to the latest Voting Rights Act opinion in the Fourth Circuit? Dozens of pages of language extolling judicial restraint (over an almost-as-long dissent) will tell you "no."
• Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex in educational programs receiving "Federal financial assistance." Does that include the tax benefits that come with being a 501(c)(3)? District Court: Yes. Fourth Circuit: So every private school in the country has been subject to Title IX for the last 50 years, and nobody realized it until now? Seems unlikely. (IJ did an amicus brief in this case, discussing the implications of the district court's ruling for educational-choice programs.)
• Texas prisoner gets at most 3.5 hours of sleep per night. For 10 years. Bedtime is 10:30 p.m., with breakfast at 2 a.m., plus a "bed count" that requires him to wake up at 1 a.m. Cruel and unusual punishment? District court: I'm not convinced your health problems are related to this sleep stuff. Fifth Circuit: How about you check that analysis again?
• Remember all the hubbub last week about temporary administrative stays vs. stays pending appeal? Well, the Fifth Circuit has now issued an actual opinion about the latter regarding Texas' S.B. 4 immigration law.
• Michigan man is charged with robbing a gas station. At his arraignment, his attorney fails to appear. Later, he tells that attorney about three alibi witnesses who could testify that he was home at the exact time of the robbery. That attorney never talks to them. After firing the attorney for more failures to appear, he tells the next attorney about the same witnesses. That attorney also never talks to them. He's convicted, and the state courts uphold the conviction on appeal. Sixth Circuit: Ineffective counsel and effective habeas.
• During a traffic stop in Hamilton County, Tenn. a driver admits she has pot in the car. After her arrest, the cop and her discuss religion. Cop asks woman if she wants to be baptized and, as she later recalled, promises that he will let her off with just a citation if she lets him submerge her in a nearby lake. She reluctantly agrees. You don't have to be a connoisseur of locusts and wild honey to surmise that the next stop on this spiritual journey is federal court. District court: Qualified immunity biblically denied. Sixth Circuit: Appeal is cast into the wilderness for failing to concede plaintiff's version of the facts.
• Deaf Michigander sues his former employer for disability discrimination. After months of discovery, the employer's counsel realizes that the employment agreement contained an arbitration clause. The employer moves to dismiss and compel arbitration. Sixth Circuit: There was a time when we might have agreed with you, but that was before the Supreme Court clarified that arbitration clauses can be waived through litigation conduct, even if there's no prejudice to the other party, which is what happened here.
• Chicago-area computer science undergrad becomes obsessed with ISIS and develops computer code to help make and distribute ISIS propaganda on social media. He's taken down by the FBI and convicted of lending material support to foreign terrorists. Defendant: Code is speech! Seventh Circuit: Let's assume it is and is covered by the First Amendment. You still lose.
• In your summarist's former life, he litigated a little something for collectively bargained pension plans called withdrawal liability. What is that, you ask? Well, for an employer, it's a massive amount of cash if it ever leaves a collective-bargaining agreement. Trucking company makes payments to pension fund in line with a CBA but doesn't actually enter into the agreement. Then ceases to perform work under the CBA, triggering a withdrawal liability demand. Seventh Circuit: A written agreement was needed, and conduct isn't enough to be bound by it. No withdrawal liability and no $2 million payment.
• Following a car accident in Los Angeles, LAPD officers approach one of the vehicles. Out of it crawls a man with what officers think is a knife. Shouting, the man approaches one of the officers, ignoring commands to stop. Officer shoots the man six times, killing him. (Turns out the knife was a boxcutter.) Ninth Circuit: And while the initial shots were clearly reasonable, the last couple were a closer call. And you know what we do with close calls? Apply qualified immunity. The estate's (and man's child's) federal claims were rightly rejected. But a state-law claim might survive, which the district court can sort out on remand.
• Practice tip: When briefing, do not cite cases that don't exist (even if cleverly named Smith and Jones) and, for cases that do exist, do not misrepresent their facts and holdings. If you do, you might face a difficult oral argument followed by the court striking your brief from the record and dismissing your appeal, as the Ninth Circuit demonstrates.
• At the height of the COVID-19 pandemic, a California biopharmaceutical company announces the development of an antibody, which the CEO characterizes in a statement to Fox News as "a cure" that "works 100%." The company's stock price surges before reality sets in about a week later. Disappointed investors sue. Ninth Circuit: In context, the statements were corporate puffery about in vitro results; no reasonable person would think they were an actual claim of an immediate 100% cure.
• A rule of thumb in civil rights litigation is cases are hard to win. Another rule of thumb is they're even harder to win if you're a prisoner. And a further rule of thumb is if you're a prisoner and you win a case, getting attorneys' fees is still pretty hard. But what if you're a prisoner who makes an offer of judgment for $60,000 "plus reasonable attorneys' fees and costs allowed by law, if any" and it's accepted? Tenth Circuit: Hard, but prisoner wins.
• Netflix's Tiger King tells the story of Joe Exotic, the former proprietor of an exotic animal park who—spoiler alert—was convicted and sentenced to 22 years in prison for attempting to hire hitmen to kill animal-sanctuary operator Carole Baskin, with whom he had a long-running feud. The docu-series also features eight video clips recorded by Timothy Sepi, a former employee of Mr. Exotic's. Sepi contends that Netflix infringed his copyright when it used the clips in the series. Tenth Circuit: His claims regarding seven of the videos fail. But the claims about the eighth video—featuring footage of Mr. Exotic's late husband's funeral—need a closer look.
• Miami man scares his girlfriend so badly she dials 911 and screams "emergency, emergency!" and "get off me!" before he ends the calls. When police arrive, he flees through the neighborhood. Officers catch and tase him, at which point he drops and doesn't move. They repeatedly kick him anyway. And he dies. District court: Qualified immunity! Eleventh Circuit: To a jury this goes.
• Black speech pathologist in an Army hospital claims superiors shuttle white patients away from her and gin up reasons to make her look bad. She goes to the EEOC. She's then written up for a number of HIPAA violations. And fired. District court: Case dismissed. Eleventh Circuit: She might have hostile-work-environment and race-based-disparate-treatment claims. But affirmed on the rest.
• And in en banc news, the Third Circuit, over six judges' "dissent sur denial of rehearing en banc," will not rehear its panel decision that Pennsylvania's prohibition on 18- to 20-year-olds carrying firearms is unconstitutional.

Melissa Brown made some mistakes while struggling with addiction during her younger years. But she turned her life around more than 20 years ago and became a state-certified counselor, helping others suffering from the same challenges she has overcome. However, in 2018 she found out that a Virginia law bans her from working in that occupation because she has a decades-old conviction on the books. This week, she joined with IJ in federal court to fight for her—and everyone else's—right to earn an honest living and a second chance. Click here to learn more.

Comments

[John F. Carr]

What damages are available for a coerced baptism? Is it simply assault and battery with water, or does harm to her immortal soul count too?

Contrary to the court's comment "like no other" I have heard of other police officers using traffic stops to push their religion.

[Dr. Ed 2]

https://www.law.cornell.edu/wex/intentional_infliction_of_emotional_distress

"The defendant acts purposely or recklessly, causing the victim emotional distress so severe that it could be expected to adversely affect mental health."

[John F. Carr]

Emotional distress is a state law tort. It is incorporated into civil rights cases only to the extent that there is a constitutional right not to be severely upset without due process of law.

[John F. Carr]

The wording of the Tenth Circuit case is unclear. The prisoner accepted an offer of judgment drafted by the defendants. His attorneys got $576,242.28 for a $60,000 judgment, and the Court of Appeals suggested that was too low.

[Jett's Pop]

It was perfectly clear. "But what if you're a prisoner who makes an offer of judgment for $60,000 'plus reasonable attorneys' fees and costs allowed by law, if any' and it's accepted?"

And completely wrong. As you correctly point out, the prisoner accepted an offer of judgment; he did not make one. (Plaintiffs rarely do.) "To settle, the state officers made an offer of
judgment; and Mr. Dartez accepted the offer." (Op. 4).

[David Nieporent]

Plaintiffs rarely do.

In federal court, in fact, they can't. (Unless they're doing so in their role as counterclaim defendants.) In some states — NJ, for instance — it works differently, and either side can serve one.

[SRG2]

"Michigan Man" - Upshaw - one of those cases where anyone not invested in the outcome can see very clearly that Upshaw was innocent, his counsel ineffective, and the jury challenges racist, but we have to go through an entire song and dance for years and years.

[SRG2]

The sleep-deprived prisoner in Texas - if Edith Brown Clement thinks he has a case, he assuredly has a case. There are times when the lower court's ruling is so obviously wrong on the law you have to think that it was due to malice, not accident.

[David Nieporent]

And Oldham! This was a very conservative draw — not that there are a lot of other scenarios in the 5th circuit! — and he prevailed easily.

District Judge was a guy named Sim[eon] Lake; don't know anything about him beyond the fact that he's a senior judge who was appointed by Reagan.

[LawTalkingGuy]

If there is a circuit reversal of a QI grant by a district court, especially in cases that aren’t about something like a “split-second” (to be charitable) police decision, the district court opinion is often shocking for its disconnection from reality/shocking callousness. Good examples include:

Grant of QI to cop who wanted to photograph a teen’s erection for a sexting investigation;

Grant of QI to a school conducting a fully nude strip search of a teen twice looking for drugs based on an anonymous tip.

[SRG2]

BTW Short Circuit and the daily CaptCrisis are the best parts of the site

[kotodama]

The baptism lady died while her suit was pending, which somehow is the chef's kiss on that case.

[John F. Carr]

The baptism came just in time. If God is a Christian.

[Rev. Arthur L. Kirkland]

God is not a Christian, so the baptism was disgusting, egregiously wrong bullshit, as any competent, reasoning adult would recognize.

This was Tennessee, though, so that dumbass officer will probably be a Republican candidate for governor someday.

[The Margrave of Azilia]

Wait, you're saying God exists?

[GKHoff]

God only exists if our betters let Him.

[MatthewSlyfield]

In the Seventh Circuit case of the Chicago-area computer science undergrad convicted of aiding ISIS, the court cited EV.

the First Amendment
has permitted restrictions upon the content of speech in a few
limited areas” (cleaned up)); see also Eugene Volokh, CrimeFacilitating Speech, 57 STAN. L. REV. 1095, 1132–36 (2005) (illustrating the difficulty of determining what categories of
expression should be subject to content-based restrictions
through the example of crime-facilitating speech).

[Commenter_XY]

ISIS is a designated foreign terror organization.

Suppose a freelance computer programmer wrote an app for a domestic terror group, like the Animal Liberation Front, Earth Liberation Front, or the May 19 Communist Coalition.

Is it the action or the designation that makes it run afoul of 1A?

[Dr. Ed 2]

The problem with the way that the USPS calculates package rates is that there really is no cost savings unless you have multiple packages being delivered to the same address.

It's essentially the same cost to scan in 100 packages dropped off by one person or 100 packages dropped off by 100 persons, it is the exact same cost to sort & transport them, and it's the same cost to deliver them to 100 different houses.

So what they are doing is shifting package costs so that Grandma is subsidizing Amazon. Parcel Post is slower and used to be cheaper but they have jacked up the rates to where it is only a few pennies less than First Class -- and THAT'S how they justify the subsidy to Amazon...

I don't know why UPS didn't raise this in their lawsuit because the USPS is losing money with each Amazon package it delivers, it's just where they are subsidizing it from.

[David Nieporent]

The Third Circuit case on dated ballots: the court came to the right conclusion as a matter of federal law, but the underlying state law is ludicrous. For mail-in ballots, the law requires that the outside envelope on ballots be signed and dated. The date is not used for anything. (You might wonder if it's used to check whether the ballot is timely, for instance. It's not. Nobody looks at it.) But… if you don't put the date, your ballot is tossed out, uncounted. In other words, hoop-jumping for the sake of hoop-jumping.

Now there are people (paging Brett Bellmore) who will say, "If that's what the law says you have to do, then you have to do that, and if you don't, well, that's unfortunate but too bad."

There are others (paging Bob from Ohio, though he's not the only one) who will say, "Ha, ha. All that matters is the scoreboard, and if this arbitrarily gets rid of Democratic voters, great!"

And then there's Dr. Ed, who will say that he heard from a cop about some precinct in Maine where people never date their ballots, and so an election in 1978 had to be redone, and if this law isn't upheld, then people are going to just have to start shooting Democrats.

[Mr. Bumble]

" The date is not used for anything. (You might wonder if it’s used to check whether the ballot is timely, for instance. It’s not. Nobody looks at it.) "
Got a basis for that?

[David Nieporent]

You could take the weird step of reading the court decision.

[BrotherMovesOn]

Can Sea Lions read?

[Mr. Bumble]

Can trolls?

[Mr. Bumble]

Did you?
If you did, provide the the relevant language.

[darkknight9]

English.

(Thank you! Thank you folks! I'll be here all week! Please tip your waitstaff generously!!! Goodnight!)

[Riva]

whoa there little David, “not used for anything”? Signing and dating the ballot constitute, in PA, acts requisite to voting, without which, you ain’t voted in PA. Why? The legislature defined how to vote, using “shall” not may. And, “the date on the ballot return envelope provides proof of when the elector actually executed the ballot in full [and] . . . establishes a point in time against which to measure the elector’s eligibility to cast the ballot”

[David Nieporent]

whoa there little David, “not used for anything”? Signing and dating the ballot constitute, in PA, acts requisite to voting, without which, you ain’t voted in PA.

Me: It's stupid to require the date to be filled out because it isn't used for anything.
Riva: Not true. They use the date to see whether someone wrote the date.

I mean, duh, but that's a tautology that adds nothing to the discussion. That logic would justify a rule that says that voters must draw a picture of a cat on their ballot if they want their votes to be counted.

And, “the date on the ballot return envelope provides proof of when the elector actually executed the ballot in full [and] . . . establishes a point in time against which to measure the elector’s eligibility to cast the ballot”

Nice try, but you are quoting from a dissent there. As with your incompetent reference to Nixon v. Fitzgerald, you don't bother to read, but just scan for a phrase you think you can use.

[Riva]

You forgot one.
Me: The legislature defined the act of voting and the court cannot substitute its preferred definition (or a David’s) just because they feel they could write a better definition.
David: actually not sure, you ignore points you don’t want to respond to and just resort to insult, but I’m sure if you did respond you’d say, the court and I know better.
And dissent or not, I cited a purpose. As for Nixon, if you want to highlight your complete ignorance of the separation of powers issues underlying that case, feel free.

[David Nieporent]

Me: The legislature defined the act of voting and the court cannot substitute its preferred definition (or a David’s) just because they feel they could write a better definition.

A true statement which has nothing to do with the topic under discussion. Everyone agrees with this., including the court and me. The discussion was about the substantive merits of the law, not about what the court should do.

And dissent or not, I cited a purpose.

"To limit the number of feral cats in Pennsylvania" is also "a purpose." It's just not the actual purpose of the law.

[BrotherMovesOn]

You might try reading the very first paragraph.
Are you always this lazy?

"The date requirement, it turns out,
serves little apparent purpose. It is not used to confirm timely receipt of the ballot or to determine when the voter completed it. But the Supreme Court of Pennsylvania ruled that dating the envelope is mandatory, and undated or misdated ballots are
invalid under its state law and must be set aside."

The opinion goes on to explain why the Federal statute cannot cure the lawful rejection of said ballots, and the appellees lose.

"The Pennsylvania General Assembly has decided that mail-in voters must date the declaration on the return envelope of their ballot to make their vote effective. The Supreme Court of Pennsylvania unanimously held this ballot-casting rule is mandatory; thus, failure to comply renders a ballot invalid under Pennsylvania law."

If you would do a little research before barking for your fish you might find your time here more satisfying. Or maybe not. Something to consider.

[Riva]

And the 3rd Circuit’s characterization that the requirement has “little apparent purpose” is just a meritless opinion. The state court found sufficient purpose, and I question the 3rd Circuit’s comment that it is not used to determine when the voter completed it. I believe that may be one of its very purposes. Whether it definitively does so is of no merit.

[Mr. Bumble]

Thanks for confirming that it matters. Apparently Dave and Brother didn't read the opinion.

[David Nieporent]

Except I did; Riva did but incompetently, and you didn't bother at all because you're just my stalker with nothing intelligent to add to the Reason comments section.

[Riva]

Obnoxious and paranoid. I wasn’t questioning the 3rd circuit’s ultimate holding Dave, which did not depend on that court's gratuitous comments on the state court. I was just questioning your dismissive and facile interpretation of the state court ruling. But if you don’t stop the childish insults, I might point out again your rather embarrassing inability to understand the separation of powers issues underlying Nixon v. Fitzgerald.

[David Nieporent]

The state court did not in fact find any purpose. You need to learn to read better — or at all — before posting your legal blitherings. The state court's position was that it was a mandatory provision, and therefore had to be applied.

It isn't used to determine when the voter completed it because it doesn't matter when the voter completed it. The state knows for a fact that the voter completed it between (a) the time the ballot was sent to the voter, and (b) when the ballot was returned, and that's all that matters.

[Kazinski]

But the reason the claim failed under Federal law, as I understand it, is because federal law forbids denying voter registration applications because of missing dates or other data that isn’t strictly necessary.

The lower court applied the voter registration law to ballots, which was an error in applying federal law, so there wasn’t any basis in federal law to overrule the state court judgment.

“No person acting under color of law shall . . . deny the
right of any individual to vote in any election because
of an error or omission on any record or paper relating
to any application, registration, or other act requisite
to voting, if such error or omission is not material in
determining whether such individual is qualified under
State law to vote in such election.”

The state court was not questioning whether the voter was qualified to vote, but whether they filled out their ballot properly, so whether the date on the ballot was material was not a question the.district could decide, or grounds to reverse the state court under Federal law.

Congress can fix that but not the federal courts, well at least not legitimately.

[David Nieporent]

Correct. Federal law says that voter registration forms cannot ask for irrelevant information, but that law does not apply to ballots themselves, according to the Third Circuit. And their opinion — as I said above — seems correct to me.

[Riva]

Just said there could be instances where the date might be useful.
Was the voter properly registered to vote in the district when it was signed and dated? And there is no language in the state court finding no purpose. Though they did find that the legislature defined the act of voting to encompass a signature and a date and the legislature used “shall,” not may. It isn’t the business of the court to redefine that which the legislature is constitutionally empowered to define just because the court (or a David) thinks there’s a better way to vote. So added to other theoretical purposes we have an overriding principle that policy is for the legislature not the courts. I’m probably not the first to point this out to you but must you always be so obnoxious?