The Volokh Conspiracy

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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

A judge-on-judge benchslap, a pharmaceutical kickback, and a direct descendant of the Kings of France.

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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: The eternal return of a qualified immunity case plus the long shadow of Judge Bork's VHS rentals.

  • Come for the D.C. Circuit smackdown of a NEPA challenge to a decade-long, ultra-voluminous environmental review that the court already signed off on once. Stay for Judge Randolph's tutorial on "Knightian uncertainty," and what it means for the possibility of quantifying carbon impacts of natural-gas exports from Alaska.
  • Man buys NYC house in 2014. When he goes to sell it in 2021, he discovers (for the first time) a $1,000 penalty from the city for failing to file a report about a boiler that had been removed before he bought the house. City: A third-party contractor's third-party contractor mailed the violations in 2015, so he probably got it then and should've filed suit several years ago. Man: I did not get it. Second Circuit: Good enough for government work. (This is an IJ case.)
  • Buckle up for a Fourth Circuit judge-on-judge benchslap! It stems from a man's guilty plea for robbing a gas station and his plea's appeal waiver. Rather than explain what the waiver meant, detail its scope or exceptions, and probe to see if the man understood what he was waiving, the district court "decided 12 years of [his] life in 13 minutes." This is the "regular practice of the district court" knowing that it is generally shielded by appeal waivers, and is a "miscarriage of justice that cannot remain unaddressed." The man gets new sentencing in front of a new judge.
  • It's no secret that IJ and Fourth Circuit Judge Harvie Wilkinson III haven't always seen eye-to-eye over the years. We've disagreed with his abdication in zoning cases. Been at odds over civil forfeiture. Taken differing views on judicial protection of economic liberty. And repeatedly called out his book's endorsement of "ultra-deferential judicial restraint." But on this Good Friday we are extremely pleased to bring good news of judicial engagement from him to you (and the Executive Branch) in the context of disappearing people to foreign prisons: "We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos."
  • Prisoner alleges repeated abuse from prison officer. He first files a complaint with Bivens claims against several individuals but separately files a complaint with FTCA claims against the U.S. He loses in both cases but only appeals the Bivens case. Fourth Circuit: Oops! The FTCA loss means there's a "judgment bar" on the Bivens claims.
  • Man built a pharmacy focusing on compounded drugs. Kickbacks involving federally reimbursed drugs are illegal. To avoid tripping that wire, the man restructured his business and converted those marketing drugs from independent contractors to W-2 employees. Marketers continued to offer incentives to physicians to write prescriptions, and the marketers received commissions tied to prescription value. Jury: That's a kickback. Fifth Circuit: Conviction and sentence affirmed, including the nearly $60 mil in restitution.
  • If the government tries to fine you $57 mil, does that trigger the right to a jury trial? Fifth Circuit: Yes, even if you are a common carrier and your name is AT&T.
  • Officers in Laredo, Tex. chase a driver for two hours, spike his tires, and box him in, at which point he rams one of their cruisers. Over the next ten seconds, officers fire nine rounds: three as the truck lurches forward, three more as the engine stops revving, and three immediately after. One of the bullets paralyzes the driver. District court says officers have QI for shots 1-3, but not 4-9. Fifth Circuit: Officers reasonably believed that they were still under threat from a "5,000-pound weapon" when they fired shots 4-9. QI for the entire volley.
  • A lawful permanent resident facing removal asks a district court to make a determination on his still-pending naturalization application under 8 U.S.C. § 1447(b), which lets courts step in if the application languishes for more than 120 days. No can do, says the Sixth Circuit, because another provision, § 1429, bars naturalization determinations when there's a pending removal proceeding. Dissent: § 1429 ties only the AG's hands while there's a pending removal proceeding—it says nothing about courts.
  • Dentist writes two hefty morphine scripts after an eight-hour dental procedure; the patient tragically ODs and her blood test comes back triple the fatal amount. The jury finds that the dentist knowingly issued an illegal prescription; he's convicted and faces a 20-year sentence. Dentist appeals, arguing that the jury wrongfully heard testimony about an earlier forged-prescription and a profanity-laced firing. Sixth Circuit: Yep, that's classic Rule 404(b) character stuff, not "intrinsic" evidence from the same criminal event. Here's a new trial.
  • Ohio cop pulls over a car and sees marijuana residue inside. Driver, a convicted felon, claims he has a state medical marijuana license. A search reveals firearms. Was the search OK because pot is still illegal under federal law? Sixth Circuit: Damn right it was. Even though Congress has told federal officers they can't enforce federal marijuana law when the pot is legal under state law, it's perfectly fine if state officers enforce that federal law, even if they can't under state law.
  • All law students in the past 25 years encountered the world "clickwrap" in their contracts class, an arcane body of case law that decides whether you're bound by all those terms you don't actually read when you buy stuff online. Here, the Ninth Circuit says an advice website wasn't sufficiently clear that users were agreeing to an arbitration clause for it to be enforceable. But the concurrence is where the action is, arguing for common-sense general principles rather than "rococo" rules on web design.
  • Feds to Navajo family: Time to move! This is Hopi land now. We'll cover the cost, if you qualify. Hearing officer: Sorry, you don't qualify. Ninth Circuit (over a dissent): Rehearing. Hearing officer denied benefits after calling every witness not credible—for disagreeing with each other. That's not how evidence works.
  • Brahimi (for those not in the know, David Lat's Twiqbal-esque portmanteau of Bruen and Rahimi) did not announce a new right for felons to possess arms. So no collateral review of a drug dealer's gun conviction, holds the Tenth Circuit. Bad man stays in jail.
  • Head down to sunny Florida for the Eleventh Circuit's extremely readable explication of the quartet of SCOTUS cases that govern sentencing of juvenile offenders. The law, simplistically, is that sentencers have to consider youth in one way or another, depending on the crime. Eleventh Circuit: And, sorry, approximately 170 "juvenile lifers." Sentencing authorities in Florida do consider youth. They might be super stingy about it, but the system's not a sham, and that's all the Eighth Amendment requires.
  • They say the best way to stop a bad guy with a gun is a good guy with a gun. Unless, that is, if a cop shoots and kills the good guy with a gun because the cop thinks he's the bad guy with a gun. Does that make the cop liable to the good guy's family? Eleventh Circuit: Look, accidents happen.
  • Eleventh Circuit revives (some) Helms-Burton claims over Castro-confiscated Cuban land: If a shipping company is benefitting from confiscated land, a jury can award damages to the former owners. Concurrence: I'm on board—but let's talk about that frozen chicken defense.
  • If you're a French Royalist of either the Bourbon or Orléans variety, get ready for some mauvaises nouvelles. In the Federal Circuit, the New Orleans Saints (no relation) fought off an attempt to cancel their fleur-de-lis trademark by a "direct descendant of the Kings of France (Scotland, Aragon, and Castille)." This despite the man alleging that "Louis VIII King of France was the father, and great…grandfather of the New ORLEANS SAINTS (Louis IX)!" and purported evidence that "My Family's Fleur de Lys" was first used "from c. 483-508 AD."

New case! Esperanza Gomez runs a small business near the U.S.-Mexico border providing everyday, small-dollar financial services. She helps people do things like cash paychecks and send money to their families. But now a federal agency, FinCEN, is enlisting her in a new, Orwellian surveillance scheme. Typically, businesses like Esperanza's must report cash transactions over $10,000 to the feds. But, for some areas near the border, FinCEN is dropping that limit to $200. Beyond the invasion of privacy, that means hours of paperwork—literally more hours than there are in a day. Esperanza and IJ are joining forces and fighting back.