Short Circuit: A Roundup of Recent Federal Court Decisions

Troubled waters, a Declaration of War, and some batty paperwork.

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: City officials just can't help themselves from tearing down people's homes.

1. In 2014, the Russia-backed Donetsk People's Republic shoots down Malaysia Airlines Flight 17, en route from Amsterdam to Kuala Lumpur, killing all 298 people aboard. (Russia denies involvement.) The family of an American passenger sues Sberbank, alleging that its U.S. branches facilitated money transfers to DPR that funded terrorism. Russia then becomes majority owner of the bank—meaning that the bank is now immune from suit, right? Second Circuit: Wading through several issues of first impression, the court holds that neither the Foreign Sovereign Immunities Act nor the Anti-Terrorism Act shield Sberbank from suit.
2. Following horrific, race-motivated shooting in a Charleston, S.C. church, one of the victim's children sued Facebook for allegedly recommending extremist groups to the shooter (via algorithm) that fueled his radicalization. Fourth Circuit: Facebook is immune from the child's state tort claims under Section 230 of the Communications Decency Act because it merely curated and displayed others' speech. Case dismissed. Partial dissent: Curating content is one thing; "'You Should Join' this hate group" is Facebook's own speech. Claims regarding the latter allegations should proceed.
3. To combat the opioid crisis, Congress permits certain healthcare providers to administer methadone—provided they give patients counseling services as well. Asheville, N.C. physician assistant files False Claims Act suit against her former employer, alleging the company systematically documented therapy and counseling sessions that never took place. Fourth Circuit: Yikes. All this at least gets her past the pleadings; most of the case can proceed.

4. In 1940, fourteen Atlantic coastal states (and Pennsylvania) formed the Atlantic States Marine Fisheries Commission, with Congress's blessing, to recommend fishery-management plans to the compacting states. Last year, the Commission voted to adopt a plan that recommends limiting the customers of Maryland charter boats to keeping one striped bass per day. Maryland charter boats: Wait … what? That's unconstitutional! Fourth Circuit: You're not regulated by the Commission, but by Maryland, which you haven't sued and which has more stringent laws than the Commission's plan. No standing. (Obligatory maritime pun at page 5: "But striped bass were still not off the hook.").
5. Allegation: Maryland has allowed ineligible people to vote, which violates my rights by diluting my vote. Fourth Circuit: "The vote dilution caused by the counting of an unknown number of invalid third-party votes affects all voters in a State in the same way. That generalized injury cannot support Article III standing."
6. The owners of a Charleston, S.C. timber farm want to develop a portion into 9,000 new homes, schools, city services, and a medical center. They've been seeking permits from numerous agencies since 2012, culminating in a set of permit modifications in 2024 to ensure construction did not unduly disturb the endangered northern long-eared bat. Though no such bats have ever actually been seen on the property, and it represents just a fraction of forest habitat in the state, a coalition of conservation groups sue to block construction pending further environmental review. Fourth Circuit: We appreciate you going to bat for these critters, but there's no need for more environmental paperwork.
7. In 2019, a Baltimore, Md. worker drowns in vat of sewage after a catwalk collapses. District court: And though state investigators found a bevy of safety violations at the wastewater treatment plant that contributed to her death, the city is off the hook on these § 1983 claims because there's no allegation it intended to drown anyone in a vat of sewage. Case dismissed! Fourth Circuit: Which, it turns out, was not a final order because some of the claims against private defendants remain pending.
8. The Fifth Circuit answers a timely and burning question: Whether President Biden could impose a $15 minimum wage for federal contractors via executive order in 2021 under the Federal Property and Administrative Services Act. Turns out he can. What he'll do with the information is anyone's guess. Also, the panel seems to really not like Lochner v. New York (1905), as it states the case was overruled by Day-Brite Lighting (1952) and by Ferguson v. Skrupa (1963) and abrogated by West Coast Hotel (1937). Ok, jeez, we get it.
9. Via footnote 1 of this Fifth Circuit opinion, we learn this week that the gentleman ("affectionately labeled 'Dr. Shush' and 'noise's bogeyman'" by Time Magazine in 1932) who invented silencers also adapted them for industrial uses, including early combustion engines, which made a fearful racket. Not unrelatedly, the panel holds that silencers are not protected by the Second Amendment.
10. The winner of Oregon County, Mo. county clerk election keeps the loser in office as a deputy clerk. Bygones are not let to be bygones, however; the loser marries a judge, who then engineers a contempt prosecution against the winning clerk that is ultimately quashed by the Missouri Supreme Court. Clerk sues, alleging retaliation in violation of her First Amendment rights. Eighth Circuit: Sure, a private citizen could sue for a baseless political prosecution, but maybe for some reason public employees can sue only if their job is adversely affected. At least, that maybe is enough to give the contempt conspirators qualified immunity.
11. Iowa man smokes pot three to four times a week. Cops find him with a Glock 20 pistol in his car during a traffic stop. He's sentenced to 37 months in prison for being a drug user in possession. Second Amendment violation? Eighth Circuit: Could be! Remand for more facts. He should win if he's not dangerously mentally ill or going around menacing people.
12. Qualified immunity protects a lot, but it does not—says this unpublished Ninth Circuit opinion—protect searching for the subject of an arrest warrant by destroying a number of "objects too small to hide" the suspect.
13. James Huntsman, son of Utah billionaire Jon Huntsman Sr., tithed more than $2.6 mil to the LDS Church between 2003 and 2015. When he learned in 2019 that the church had been using tithe funds for commercial projects instead of purely charitable purposes, he sued. Ninth Circuit (2023): These secular fraud claims don't implicate the ecclesiastical abstention doctrine, and there's enough here to go to trial. Ninth Circuit (2025, en banc): Dismissed! Huntsman didn't identify any fraudulent claims, so no need to consider the ecclesiastical abstention doctrine. Concurrence: The First Amendment actually requires we consider it and dismiss on those grounds.
14. Like all good hoary legal principles, sovereign immunity derives from a Latin maxim: Rex non potest peccare ("the king can do no wrong"). Some might say that when we ditched the rex, we also chucked his need for sovereign immunity. Though the Supreme Court has long disagreed, it has recognized several exceptions to states' sovereign immunity—including when Congress is legislating in support of raising armies and navies because part of the bargain of joining the Union was that the federal gov't would have primacy over common defense. Eleventh Circuit: And that means Alabama doesn't have sovereign immunity against claims under the Family and Medical Leave Act having to do with leave related to military servicemembers.
15. Dissatisfied with Walmart's policies, eight Alabamians set fires in four stores, causing $7 mil in damages. They have a "Declaration of War" with seven demands (including providing six months maternity leave, implementing a climate plan, and paying at least $18/hour) that would need to be met for the fires to stop. They're caught. One pleads out, and prosecutors recommend five years' imprisonment. District court: How about three times that? Eleventh Circuit: No problem.
16. Florida's Fish and Wildlife Conservation Commission restricts where and how Florida-registered fishing boats can harvest the Florida pompano in federal waters off the coast of Florida. Florida fisherman: Wait … what? That's an obvious equal-protection violation, because Florida lets non-Florida boats do whatever they want with the pompano! Eleventh Circuit: Florida doesn't actually have any power to regulate non-Florida boats in non-Florida waters, so there's no equal-protection problem here. (Obligatory maritime pun at page 29: "[The plaintiff's] argument immediately finds itself in troubled waters … ").
17. An inmate of a federal prison in Florida sues a prison official, alleging that the inmate's poor living conditions exposed her to mold, water leaks, asbestos, and COVID-19, in violation of, inter alia, her Eighth Amendment rights. The lower court concluded that the inmate pled an Eighth Amendment claim under Bivens but did not address qualified immunity. Can the prison official immediately appeal that decision under the collateral-order doctrine? Eleventh Circuit: No, the doctrine creates a narrow exception that Bivens-extension orders "seldom (if ever) slip through." Appeal dismissed for lack of jurisdiction.
18. And in en banc news, the D.C. Circuit will not reconsider its decision that the Council on Environmental Quality doesn't have the power to issue regulations—50 years of practice notwithstanding—because it was created by executive order, not by Congress. Chief Judge Srinivasan, joined by six other judges, chides the original panel for reaching an issue not raised by either side, violating the party presentation principle, but concurs in the denial of en banc rehearing because the panel opinion had an alternative holding reaching the same merits outcome on less dramatic grounds.
19. And in more en banc news, the Fifth Circuit will not reconsider its decision that two Texas physicians lacked standing to challenge a Biden-era notification that, following the Supreme Court's ruling in Bostock, Section 1557 of the Affordable Care Act prohibits discrimination on the basis of gender identity. The original panel held that nothing the physicians wanted to do (or refrain from doing) was discriminatory. Judge Ho called for an en banc vote, which the court rejected 16-1. Concurring in the denial, Judge Duncan, joined by six other judges, argues that a recent executive order by President Trump moots the case anyway.
20. And in additional en banc news, the Sixth Circuit will not reconsider its decision that a farmer who won a racial discrimination lawsuit challenging the American Rescue Plan Act shouldn't get legal fees.
21. And in further en banc news, the Ninth Circuit will reconsider its decision that a lawsuit challenging the L.A. school district's COVID-19 vaccine policy could continue because of the voluntary cessation exception to mootness.

First-round victory! Friends, last year, Norfolk, Va. officials blanketed the city with license plate reader cameras from Flock Safety that enable police to track all vehicle movements, which are then made available for 30 days to law enforcement across the country at the click of a button—no probable cause, no warrants, no judicial oversight whatsoever. What the Flock!? But this week a federal district court denied the city's motion to dismiss IJ's Fourth Amendment challenge to the program, finding that it could violate people's reasonable expectations of privacy. Click here to learn more.