The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Venue roulette, a sham affidavit, and uninspected bloomin’ onions.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Saddle up for a ride into the Tenth Circuit hills with a parking lot full of Broncos fans and a new legal doctrine called Biven's cat.
- Army forensic examiner's now-ex-wife files report alleging sexual assault with his employer. Following an investigation, he's told it doesn't look good, so he quits. The next month, he submits an application for a position with the Department of the Treasury that, some might say, obfuscates his reasons for leaving his previous employment. He's hired, but things go from bad (fired) to worse (convicted of wire fraud). D.C. Circuit: Conviction overturned. His lies didn't deprive the Treasury of the benefit of the employment bargain, so he never defrauded the government of money or property within the wire-fraud statute's requirements.
- Pro se litigants usually get a certain level of pleading leniency. But that doesn't apply to trained lawyers, says the D.C. Circuit, leaving a former Department of Veterans Affairs attorney (with 36 years of legal experience) with a tossed case.
- Two people stole the president's daughter's journal and sold it to Project Veritas. With search warrants, the feds seized 47 devices from the head of Project Veritas and two of its journalists, with nearly 1,000 documents being responsive to the warrants. Are they entitled to protection under the journalist's privilege? District court: No. Second Circuit (unpublished): Indeed. The devices contained evidence of federal crimes (conspiracy to possess stolen goods), and the documents were responsive to the search warrants. No privilege.
- There's no earthly way of knowing to which venue we are going! An immigration judge in the Fourth Circuit (Va.) orders that a Mexican citizen detained in the Third Circuit (Pa.) be deported based on a proceeding filed in the Sixth Circuit (Ohio). The deportee files his appeal in the Third Circuit. Appropriate venue? Third Circuit: No, but his confusion is "not unreasonable." Venue lies wherever the immigration judge "completed the proceedings," and these proceedings were completed where they were initiated: Petition transferred to the Sixth Circuit.
- Officer reports her ex for sexually abusing her daughter; ex then files bogus, now-expunged internal affairs complaint. Philadelphia prosecutors disclose officer's IA complaint to her arrestees and, eventually, bar officer from testifying against arrestees altogether. Officer, and her minor daughter (whose sexual assault was aired in cross-examinations of her mom), file 1983 suit against prosecutors. Third Circuit: Prosecutorial immunity. Yeah, the prosecutors might've erred in disclosing the IA complaint. But they were acting within their official capacity
- Staffing associations challenge a New Jersey law that imposes, among other things, new record-keeping and wage requirements on staffing firms. They contend the law violates the dormant Commerce Clause, is unconstitutionally vague, and is an unreasonable exercise of the police power. The district court denies the associations' request for a temporary injunction to assist their temporary staffing needs. Third Circuit: And that's because the associations' claims all fail.
- 40-year-old man accused of robbing a New Jersey bank is offered a plea deal that will result in 15-17 years imprisonment and told that he'll face additional charges for robbing two other banks and three firearms charges if he turns down the offer. His lawyer advises him the firearms charges could land him an additional 21 years. He rolls the dice and goes to trial. Oops! The firearms charges carry a mandatory minimum of 57 years. He says he would have taken the deal had he known. Third Circuit: He'd have been a fool not to! Ineffective assistance of counsel.
- Though thought to exist only in myth—like Bigfoot and the Loch Ness Monster—the Fourth Circuit claims to have found a real live Bivens claim. Dissent: And like people who claim to have found Bigfoot and the Loch Ness Monster, the majority is making it up.
- Allegation: Officers deny inmate his medication; altercation ensues, and they throw inmate into a feces-lined rubber room, where they feed him moldy, roach-infested meals and deny him medical care for three months. Man suffers serious health issues as a result and files 1983 suit. He asks for counsel and extra time in discovery given his inmate status, serious mental illnesses, legal inexperience, and low IQ. Fourth Circuit: He is entitled to both, so we reverse the district court's pre-discovery dismissal of the case.
- Officers in Fairfax County, Va. discover an injured man at a gas station but fail to determine "how, where, when, or why" he was injured. Was he stabbed? They don't know. But if he was, then the suspect could be nearby! Using an infrared-camera-equipped helicopter, officers identify a warm car parked outside a nearby private residence. When they arrive at the car, its occupant ("suspiciously," according to the officers) closes the driver's door. The officers handcuff and frisk him, search the car, and find . . . nothing. Woops! He lives at the residence, and his parents come outside to see what all the fuss is about. District court: No Fourth Amendment violation and the officers get qualified immunity. Fourth Circuit: The officers lacked particularized suspicion to stop and search the occupant. Fourth Amendment violation and no qualified immunity for the officers. Vacated and remanded.
- You know what probably feels good? Writing a law review article arguing that the FCC's "universal service" tax violates the nondelegation doctrine and then, nearly 20 years later, seeing your article cited on the first page of a Fifth Circuit en banc opinion holding that the FCC's "universal service" tax violates the nondelegation doctrine. That's got to be an above-average Wednesday.
- It's Juvenal's ago-old question: Who watches the watchmen? Or, as the kids say these days, who watches the watchlist? And do said watchers have statutory authority to do the watching? It's highly relevant to five U.S. citizens who allege that because they're on the list it's difficult or impossible for them to fly. Fifth Circuit: There's oodles of statutory authority for many tentacles of the administrative state to do all kinds of watching and listing.
- Associates reading this summary on a Friday afternoon while planning to take the partners' files and clients when they're out golfing and then go to work at a new firm on Monday might want to read this cautionary tale of a former associate at a Texas firm who ended up on the wrong end of conversion, breach of fiduciary duty, and tortious interference claims. He's sued in state court, removes to federal, is remanded, and tries to appeal. But can he? Fifth Circuit: Our old precedent says he can't, so no, but *nudge nudge, wink wink* we think that precedent is totally wrong. Concurrence: It's en banc o'clock.
- The Supreme Court has held that the Eighth Amendment forbids mandatory sentences of life without parole for juveniles—but what if, instead of "life," it's just, oh, "100 years without parole"? Seventh Circuit: We're not saying that's allowed, but it's not sufficiently forbidden to warrant habeas relief.
- L'esprit d'escalier is the French phrase for thinking of the perfect witty reply only after you've already left a conversation. The "sham-affidavit rule," the Seventh Circuit reminds us, is the American legal phrase for thinking of the perfect helpful facts only after you've already finished your deposition.
- When a former Illinois immigration lawyer convicted of submitting wildly fraudulent asylum applications contends that his former clients were given undisclosed benefits to induce them to testify, the district court permits broad discovery and holds a seven-day evidentiary hearing—only to decide that everything was totally cool. Seventh Circuit: And that incredibly voluminous record makes it easy for us, too, to say that everything was totally cool. Sentence affirmed!
- In 2019, the Chicago Sun-Times published a story saying that an Illinois Department of Corrections officer had been posting on Facebook about how "homosexuality is a sin," "Allah is not god," and a "musslamic" member of the U.S. House of Representatives should be arrested. DOC: The officer gets a 10-day suspension. Seventh Circuit: Which did not violate his First Amendment rights. The DOC's interest in efficiency and preventing disruption outweighed the officer's interest in his Facebookery.
- Onion distributor asks onion seller if it can make sure some onions go via the Port of Long Beach to Honduras. They work out a deal. Except. They forget to say who is responsible for the U.S. Department of Agriculture inspection. With no inspection the ship leaves without any bloomin' onions. The dispute is governed by a very New Deal-era statute, the Perishable Agricultural Commodities Act. The parties both argue they win under the Uniform Commercial Code. Seventh Circuit: Seller wins, but, uh, this is federal law. What's all this about the UCC?
- Most collective bargaining agreements are governed by Section 9(a) of the National Labor Relations Act, requiring a majority of workers to support union representation. In the construction industry, though, because workers are always coming and going and whatnot, there can be a Section 8(f) CBA, which does not require majority support. The tradeoff is that when an 8(f) expires the employer is under no duty to bargain again. So which did an Iowa seeding company have? The Eighth Circuit says proving a 9(a) requires more than just boilerplate language, but at this stage—like assessing the influence of the French Revolution—it's too soon to tell.
- "At sentencing, Allahdheen . . . asserted in objecting to the findings of the [Presentence Investigation Report] that he was legally entitled to possess firearms because his Muslim religion permitted him to do so." Unfortunately for your summarist, on appeal, Allahdheen offered the more typical argument that 16.5 years is substantively unreasonable for being a felon in possession of a lot of guns. Eighth Circuit: Tough.
- In the halls of an Arkansas courthouse, a bizarre argument between a witness and a police officer leads to the witness's arrest for obstruction . . . of tax collection? Eighth Circuit: Being in an argument in front of the county tax office is nowhere near obstructing official business. No immunity for the arresting officer.
- Officer responding to a reported shoplifting at a Dick's Sporting Goods in Nebraska is told that the suspects are a Black man and Black woman in a silver sedan. He sees a silver sedan driven by a Black man with a passenger and pulls them over. Upon approaching the car, he sees that the passenger is a white woman, but he detains both anyway. Things get heated and he tases the driver in the groin. Shortly thereafter, claiming to have smelled marijuana, he searches the car, finding nothing (though later claiming in his written report to have found "small pieces of marijuana"). After receiving an update that the suspects were actually four women, he releases the driver and passenger. They sue. Eighth Circuit: And at least a few of their claims get past qualified immunity (but not the groin-tasering one).
- University of Minnesota renovates its student union, resulting in one of the floors having 13 lounges for use by student groups. It grants three to student government groups, one to the commuter-student group, and the remaining nine to various identity-focused student groups, which can keep the lounges forever as long as they satisfy a biennial renewal requirement. Another student group, Viewpoint Neutrality Now!, sues, alleging that the school has impermissibly engaged in viewpoint discrimination. Eighth Circuit: We see nothing wrong here. Concurrence: It sure sounds like the school might have granted a coveted spot to self-styled "activist collective[s]," but the plaintiffs didn't build a good enough record.
- Falconers challenge California and federal regulations that subject them to unannounced, warrantless inspections as a condition of receiving a falconry license. Ninth Circuit: Their unconstitutional-conditions claim can go forward, but their Fourth Amendment claim fails because they haven't actually been threatened with inspection. Dissent: Neither of their claims should go forward.
- An immigration judge discounts the testimony of a Chinese national seeking asylum based on a past forced abortion because she waffles when, on cross-examination, the government's attorney points out that Chinese law at the time didn't require the premarital medical exam she says took place. Ninth Circuit: But wait! We find that the government's lawyer was totally wrong about Chinese law, and that legal error entirely irons out her waffles! (Dissent: Maybe we shouldn't make this whole case turn on a question of Chinese law that the parties didn't even raise.)
- Fun fact from Indian law: In some federal prosecutions, proving that the defendant is a Native American is a jurisdictional element. So the feds may well introduce a "Certificate of Indian Blood," which may well be authenticated not by a live witness but by a "Certificate of Authenticity." And the "Certificate of Indian Blood" (this part isn't settled) might even be something that a tribe creates at the request of prosecutors. Anyway, the point of this 2-1 Tenth Circuit decision is not that this regime is super weird but rather that the government still can't wait to disclose a Certificate of Authenticity until the jury is already going to lunch. Conviction vacated.
- And in en banc news the Seventh Circuit has denied Cook County's petition to rehear a panel decision about class actions and incentive awards. Judge Easterbrook (joined by Chief Judge Sykes) issued a statement offering some more general views on incentive awards that refers to "wagers of law" and will be quite the read for fans of Easterbrookian prose.
Minnesota requires a license to teach someone how to massage a horse but not how to ride one. IJ client Leda Mox shared her passion for our equine friends with fellow humans for years, instructing others on how to relax the animals' muscles and relieve their pain. But then the state stepped in with its restriction on speech. Is it indeed a "content-based restriction," though? Well, this week the District of Minnesota agreed with IJ and Leda and ruled the case can go forward. The court heavily relied on an earlier IJ victory about teaching horseshoeing. When it comes to the First Amendment, governments shouldn't horse around.
