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Short Circuit: A Roundup of Recent Federal Court Decisions

Idling buses, an iPhone non-search, and high seas cocaine.

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New on the Short Circuit podcast: Do NIMBYs like big bats and they cannot lie? Plus some remands and removals.

  • Special education student sues D.C., claiming inadequate education under IDEA. D.C. Circuit: Summary judgment for D.C. There's no flaw in the student's individualized education program, even if he didn't reach the desired "educational outcome." Concurrence: Summary judgment is an awkward fit for IDEA cases. Even with a closed record, factual disputes remain. We should use Rule 52 bench trials instead.
  • Eylea is a very expensive macular-degeneration drug ($2,000+ annual Medicare copay) with a far cheaper competitor. To appeal to patients, the drug manufacturer wants to reduce that copay. But giving a copay rebate directly to the doctor or patient is an illegal kickback, so instead the manufacturer gives the money to a charitable foundation that then distributes copays. Still a kickback, says the feds, which makes the Medicare claims the doctors file "false or fraudulent" under the False Claims Act. First Circuit: Not quite. There's no false or fraudulent claim if the doctor would've purchased Eylea anyway. The kickback must be a but-for cause.
  • Bus company allegedly idled its buses for more than five minutes at a few Massachusetts bus stops, including the Harry Agganis Way shuttle stop. Apparently this violates state law and through some complicated regulatory machinations therefore violates federal law. Who knew? A few environmental groups. But do they have standing? District court: No more than anyone else who breathes air. Dismissed. First Circuit: Well, depends on the facts. Undismissed and remanded to figure those out.
  • A student in Ludlow, Mass., informs school officials that they prefer to use a different name and pronouns. School officials honor that request, and, pursuant to an unwritten policy, do not divulge anything to the student's parents. Parents eventually find out and allege the policy violates their fundamental parental right to direct the upbringing of their children. First Circuit: A fundamental right, yes, but not one implicated by the school maintaining its own environment and declining to disclose this information to parents. And it survives rational basis. Dismissal affirmed.
  • A U.S.-Egypt dual citizen alleges that in the 1990s Egypt expropriated his shares in an Egyptian paper company, causing him a loss of over $15 mil. He obtains a ruling and a ministerial decree in Egypt that purportedly require his compensation. Unable to collect for years, the dual citizen eventually sues Egypt's minister of finance in New York state court, who removes to federal court. There the suit is dismissed after the court finds it was effectively a suit against Egypt. Second Circuit: The minister is entitled to invoke the Foreign Sovereign Immunities Act, and the dual citizen waived any argument that an exception to that immunity applies. Dismissal affirmed.
  • Is using an iPhone camera to see through a tinted window a search? Nope, holds the Second Circuit. Kyllo (that case about using a thermal scanner on a house) doesn't apply to cars. And touching the car while holding the camera isn't a search either. Jones (that case about putting a GPS tracker on a car) doesn't apply when a physical trespass isn't the source of the information.
  • Generally speaking, parties involved with meth are not the winners in federal court. So what the hell needs to happen for the Fourth Circuit to find plain error, allow one of those defendants to withdraw his plea, and start talking about "egregiously impermissible government conduct"? The answer, apparently, is not "a new or isolated incident from the United States Attorney's Office in the Eastern District of North Carolina."
  • Active service member living at Fort Campbell, Ky., is murdered. The feds prosecute her estranged husband and he's convicted. The fact that the fort is within the United States' "special maritime and territorial jurisdiction" is established by judicial notice, not by the jury. Was that wrong? Sixth Circuit: No. Concurrence: This is a question without precedent, so I look to history. And in 1833 SCOTUS used a book called Stoddard's Louisiana to discern admiralty jurisdiction. Which seems good to me.
  • An Illinois man was set to be released from custody on the Friday of a Presidents' Day weekend, but releases aren't processed on weekends or holidays, so they kept him locked up until the following Tuesday. Seventh Circuit: Bummer, but it's just four days and doesn't violate the Eighth Amendment.
  • Years-long feud between a Minnesota cattle farmer and state regulators over feedlot permits and alleged violations culminates in a record $152,724 penalty. Farmer raises a due process claim (for permit delay) and a First Amendment retaliation claim (for the fine). District court: Dismissed. Eighth Circuit: Remand. No "protected property interest" in the permit—so the due process claim's dead. But the retaliation claim is revived—regulators allegedly fined farmer for lawful pushback, like petitioning the state legislature for help.
  • Defendant: Sure, I routinely showed up to move marijuana shipments at my brother's giant marijuana warehouse from which you eventually seized almost half a ton of marijuana, but who's to say I really knew the bags I was moving contained marijuana? Eighth Circuit: The jury. The jury said you knew that. And, since they had darn good reason to think so, conviction affirmed.
  • The caption reads Missouri v. Trump, but in this case the Eighth Circuit actually strikes down a Biden administration student-loan forgiveness program after the Supreme Court nixed its first attempt based on a different statute. Statutory-interpretation aficionados will enjoy cameos from the major questions doctrine, Loper Bright, and nationwide APA vacatur.
  • Does the Driver's Privacy Protection Act prohibit state officials from sharing motor vehicle records with other states to improve voter registration files? Eight Circuit: We can't say, but we do know the Act doesn't allow private lawsuits against state officials and agencies.
  • Congress enacts the Pregnant Workers Fairness Act, and the EEOC issues a regulation extending the Act's protections to employees who have abortions. A bunch of states sue to invalidate the reg. But do they have standing? Eighth Circuit: The states are employers the Act directly regulates and Congress has explicitly abrogated their sovereign immunity. Case undismissed.
  • Ninth Circuit: Section 230 of the Communications Decency Act means that, while the adult men who used Grindr to contact and eventually assault the minor plaintiff might be liable, Grindr can't be sued for hosting that contact in the first place.
  • In which the Ninth Circuit politely notes (over a dissent) that the plaintiff has standing to object to the Air Force's failure to conduct an environmental review before deciding to dispose of unexploded ordinance on a nearby Guamanian beach because conducting that review might have persuaded the Air Force to, like, not do that.
  • During a nighttime patrol outside of Reno, Nev., Bureau of Land Management rangers spot a group of motorcyclists riding around without lights. When one motorcyclist refuses to stop, the rangers give chase and arrest him. The motorcyclist is indicted for, inter alia, "driving an off-road vehicle on public lands at night without a taillight." He argues the statute authorizing that regulation unconstitutionally delegates legislative authority to the Secretary of the Interior. Ninth Circuit: The statute provides a "sufficiently intelligible" principle: developing a long-term management strategy to realize the land's value in a sustainable way. That's enough even though violations can result in criminal penalties. Reversed and remanded.
  • This Tenth Circuit panel has some internal disagreement about how to allocate the burden of proof when a guard and an inmate dispute whether a prison sexual encounter was consensual, but that disagreement doesn't matter much at summary judgment when both the inmate's testimony and the video (!) of the encounter make it seem plenty nonconsensual.
  • Sensationalists and yellow journalists might focus on this Tenth Circuit panel's disagreement over whether a transgender prisoner forced to stay in a housing unit that doesn't match her gender identity states an Equal Protection claim, but the loyal staff at Short Circuit wants you to know that footnote 15 in the majority opinion is more than a page long.
  • Generally speaking, parties involved with meth are not the winners in federal court. So in a more typical result, here's the Tenth Circuit ruling for a Denver-area police officer who shot and killed a deranged man who charged at the officer inside a burning home. [Your editors, who hate qualified immunity, think this case is a good example of the protection for law enforcement already embodied in the reasonableness standard of the Fourth Amendment.]
  • The Constitution gives Congress broad power to "define and punish . . . Felonies committed on the high seas[,]" which means (says the Eleventh Circuit) that if Congress says you go to prison for having a honkload of cocaine on your boat, then you go to prison for having a honkload of cocaine on your boat.

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