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

Federal enclaves, false alarms, and pseudonymous lawsuits.

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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.

At The Unpopulist, IJ's Anthony Sanders digs into the Supreme Court's inequitable evisceration of universal injunctions.

This week on the Short Circuit podcast: Is yoga speech? And what's a scrivener's error?

On the latest episode of Unpublished Opinions, IJ's roundtable podcast: Things get heated when opening the Bluebook, secrets are dished about dictionaries, and the team ponder what it's all about when it comes to public interest law.

  1. Man with two Ohio felony convictions from the early 1990s turns his life around, gets a Ph.D., obtains a security clearance, and eventually receives a pardon from the Ohio governor, which allows his conviction to be sealed. He applies for a job with the FDIC, which rejects him when he informs them about his sealed conviction. Dr. John Doe then files a pseudonymous lawsuit against the FDIC, challenging its blanket ban on hiring felons. D.C. Circuit: But he cannot do so anonymously.
  2. Proxy advisory firms give recommendations to institutional investors on how they should vote on shareholder governance proposals. In 2019, the SEC starts treating these recommendations as "solicitations," subjecting advisory firms to a slew of additional regulations. D.C. Circuit: Which is wrong. If anyone is soliciting here, it's the investors soliciting opinions from the firms, not the firms soliciting votes from the investors.
  3. Man arrested for robbery and destruction of property is released on his own recognizance. But before he can leave the courthouse, U.S. Marshals detain him on an "ICE hold." Man files a class action, arguing that the marshals acted outside their authority. D.C. Circuit: Just so. Only people who have undergone certain training are allowed to make civil immigration arrests, and the marshals haven't done that. But class-wide relief was inappropriate.
  4. The FAA categorically bans pilots who are taking the antidepressant mirtazapine from flying, whereas pilots taking other medications get evaluated on a case-by-case basis. D.C. Circuit: We're not inclined to second-guess why the FAA does that, but it does have to have reasons and, y'know, tell us what they are.
  5. Documentary filmmaking associations: The State Department is requiring visa applicants to disclose their social media accounts. This harms us because it makes people less likely to share information on social media that we rely on. D.C. Circuit: But even if we enjoined the policy, consular officials could still review visa applicants' social media profiles on a case-by-case basis, which for all we know would have the same chilling effect. So no redressability, no standing.
  6. Puerto Rican man serving life sentence (for, among other things, murdering his DEA informant girlfriend) needs a CPAP machine to treat his sleep apnea and severe hypertension, and the feds show no inclination to give him one. Compassionate release? First Circuit: Possibly. The district court needs to take another look.
  7. Two execs accused of participating in bribery schemes at prominent soccer association, the Fédération Internationale de Football Association, lose pretrial motions to dismiss the charges against them. They're convicted after a seven-week trial and face years in prison and millions of dollars in penalties. But then! Their posttrial motions for acquittal (arguing honest services fraud didn't encompass the conduct) are granted. Second Circuit: Convictions reinstated. Foreign commercial bribery where the relevant conduct occurred in the U.S. = super illegal.
  8. Erratic driver flees police stop, and, during the ensuing high-speed chase, passengers toss crowbars, screwdrivers, two-way radios, and a handgun. (They crash and run into a frozen swamp, from which they have to be rescued by helicopters.) Turns out the gun was used to shoot a Willingboro, N.J. officer months earlier in a burglary attempt. One of the passengers is convicted of the shooting in 2012. He gets 30 years. Third Circuit (over a dissent): And his pro se habeas petition was rightfully granted (an outcome some describe as sort of a unicorn).
  9. In the rare case with court-appointed counsel on both sides of the v.—and even rarer, one oral advocate still in law school—the Fourth Circuit holds that a dismissal on Younger-abstention grounds does not count as a "strike" under the Prison Litigation Reform Act. And in what seems to your untutored correspondent like two layers of dicta, the court also holds that a second dismissal would have been a strike (though not a third one), except that it wasn't entered until after the current case was already on file.
  10. Allegation: In early COVID, an inmate at Virginia's Red Onion State Prison goes to the prison barber for a trim and a shave; the barber tells him to remove his mask for shave-related reasons; he does; and nearby guards later bring a disciplinary charge against him for removing his mask in violation of the prison's COVID policies. Following a shambolic set of disciplinary proceedings, the inmate is fined $15, deducted from his prison-trust account. Fourth Circuit: And contrary to the district court's view, that $15 is indeed the inmate's "property" within the meaning of the Due Process Clause. Case undismissed.
  11. The power to control entry and removal of immigrants is vested solely with the federal gov't, so Texas has no business declaring that it's under "invasion" and doing its own immigration enforcement. So says two-thirds of this Fifth Circuit panel, upholding a preliminary injunction on the merits.
  12. Family moves into military housing at Air Force base in Texas. They complain about a musty smell, but the housing rep waves away any worries claiming, "this is what grandma's house smells like." Further problems ensue: insects, asbestos, health issues, and contamination of their personal property. The family (and others similarly situated) sue. The trial court throws out most claims and denies any attorneys' fees, but does allow a jury to award them some money for breach of contract. Fifth Circuit (unpublished): The base is a federal enclave, and federal law ain't great for renters like you. Affirmed.
  13. Texas mom heads to Kuwait for a few days to explore teaching job opportunity that will allow the family to move closer to dad, who's deployed to the Middle East. She leaves her 12- and 14-year-olds at home, notifies the 12-year-old's school (where she is a teacher), and arranges for neighbors and coworkers to check in on them. Yikes! School cops go to the home, search it without a warrant, find that nothing is wrong, and, without a court order, remove the 14-year-old (who is home-schooled) anyway. (Mom is charged with child endangerment, spends 19 hours in jail, and, over a year later, is acquitted on all counts.) Fifth Circuit: No qualified immunity. J. Ho, concurring: It all worked out here, but the Fifth Circuit is uniquely bad about granting QI even when the constitutional violation is obvious.
  14. If you want to rev your understanding of automatic transmissions and standing in class actions into high gear then take a few laps through this Grand Prix set of opinions from the en banc Sixth Circuit about GM cars and Federal Rule of Civil Procedure 23.
  15. Milwaukee public school counselor goes to a rally at the state capitol to oppose the transgender-rights movement. She gives an impromptu speech where, among other things, she proffers that "[n]ot a single one of my students under my f***ing watch will ever, ever, transition socially and sure as hell not medically." Video of the speech goes viral. She's fired. Seventh Circuit: And that didn't violate the First Amendment.
  16. Abu Zubaydah, a once-alleged high-ranking Al-Qaeda leader, was captured in Pakistan in 2002 and has been in U.S. custody ever since—without trial. He's been on an international tour of black sites, was the first suspect subjected to "enhanced interrogation," and lost an eye at some point in CIA custody. He's also been on an expedition of the American court system, from the Supremes to a languishing habeas petition (filed in 2008 and still pending today), and now a trip to the Ninth Circuit asking whether he can sue under the Alien Tort Statute for damages from injuries during his detention. Answer: No. The Military Commissions Act inverts respondeat superior, leaving gov't agents unaccountable in court for their acts done on behalf of the United States by stripping federal courts of jurisdiction over such claims.
  17. Florida law prohibits male-at-birth public high school teacher from using the honorific "Ms." and identifying as "she/her" to students. Using those very pronouns, the Eleventh Circuit (over a dissent) says there is no First Amendment problem with the law, as it merely targets her speech as a gov't employee rather than as a private citizen.
  18. Wakulla County, Fla. officers respond to multiple-shooter situation at store—a false alarm, it turns out. They misidentify man in parking lot as a suspect and take him roughly to the ground. Officer: Thanks to prior cases, I knew that I couldn't hit or kick him once he was cuffed. But how was I to know I couldn't kneel on his neck for several minutes? There could have been other suspects on the loose. Eleventh Circuit (unpublished): No qualified immunity.
  19. Alabama litigant (under seal): I should be allowed to proceed under a pseudonym, because private stuff is going to come out in this lawsuit like X, Y, and Z. District court (not under seal): There's no reason to believe that X, Y, and Z will come out about you, so refile under your own name. Litigant: But now you've put that stuff out there in a public filing, so I should definitely be allowed to proceed under a pseudonym. District court: Nah, but I'll seal my order. Eleventh Circuit (unpublished): Take another look at this one.
  20. Miami-Dade County, Fla. employee pens an opinion piece warning that federal legislation (that ultimately did not pass) would, among other things, require small-business owners to submit to "the new 'tranny tyranny'" and choose between "baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." He's required to go to anti-discrimination training and fired when he declines. Eleventh Circuit: And that didn't violate the First Amendment.
  21. And in en banc news, the Eighth Circuit will not reconsider its opinion that private parties can't use Section 1983 to bring claims under Section 2 of the Voting Rights Act. (Nor, per an earlier ruling, can such claims be brought directly.)

Friends, the Supreme Court often declines to strike down laws because it would be "undemocratic" to second-guess the legislative branch and, by extension, the will of the people. But the sovereign legislature is a British idea, and one that the Founders forcefully rejected. So on this, our nation's birthday, IJ's Anthony Sanders reminds the Court—and, by extension, the people—to quit being so British and stick up for baseball, apple pie, and robust judicial review. Click here for those ruminations (from 2024).