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

Federal enclaves, false alarms, and pseudonymous lawsuits.

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On the latest episode of Unpublished Opinions, IJ's roundtable podcast: Things get heated when opening the Bluebook, secrets are dished about dictionaries, and the team ponder what it's all about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

Comments

[ReaderY]

While a sovereign judiciary with a veto (aka “robust review”) power may not be a British idea, it’s an idea the Founders specifically and forcefully rejected.

[John F. Carr]

The Fifth Circuit invasion case rests on a concept of organizational standing that the Supreme Court might reject. Only private plaintiffs remain. The United States, which clearly had standing, withdrew from the lawsuit after Trump became President.

[John F. Carr]

"But how was I to know I couldn't kneel on his neck for several minutes?"

If I understand qualified immunity law correctly, the death of George Floyd doesn't give fair warning because it did not result in a federal appellate decision holding that a knee on the neck for at least 8 minutes and some seconds can be unconstitutional.

[Dr. Ed 2]

I have a real problem with the criminal standard being LOWER than the civil one, i.e. he can be convicted of murder but not civilly sued because of SI. That makes no sense...

[SRG2]

I have a real problem with QI being extended to any situation not requiring a split-second decision.

[David Nieporent]

I don't accept the "split second decision" exception either. You know, heart surgeons may have to make split second decisions while they have someone's chest cut open, but that doesn't mean they can't be sued if they screw up. "Split second decision" can certainly be legitimate grounds for a jury to find no negligence, but the key word there is "jury." There's no reason immunity should kick in.

The only time I think QI is appropriate is when a court has previously said that what the government actor (remember that it's not just cops, but anyone) did was acceptable. Government actors should be entitled to rely on established precedent without being sued. (So note what I'm doing here: flipping around the burden; the cop or whomever must show that it was clearly established that what he did was constitutional.)

[SRG2]

but that doesn't mean they can't be sued if they screw up.

There was a British case years ago where IIRC the courts ruled that a mistake is not necessarily negligence and that as surgical mistakes were inevitable, the mere fact of a mistake did not constitute negligence.

[Drewski]

That's a bizarre take. Floyd's family sued in the District of Minnesota, in CA8. This decision is from CA11. It correctly relied on in-circuit precedent and did not mention the Floyd case.

[Poxigah146]

The transgender cases are outrageous. Basically, the courts say that taking the conservative position interferes with the ability to do the job, but these leftist hacks would never say the same, if these government officials were advocating for transgender "rights."

[JoeFromtheBronx]

one oral advocate still in law school

Sounds like a Legally Blonde sequel.

[Causter]

I just can't wrap my head around the claim that the Founders were opposed to legislative sovereignty.

First, the direct evidence in the Constitution is that Congress is sovereign: the speech or debate clause gives them absolute immunity while the remainder of Article I Section 5 gives them absolute control over their own procedures subject to no outside review. Also, the Senate has the absolute power to remove any member of the Executive or Judiciary; if this power is not wielded absolutely in practice this is only for political expediency. Second, there's the indirect evidence of the initial relationship between Congress and the Executive: the Presidential role was essentially created for General Washington who, for the preceding decade, had been under the absolute authority of Congress' legislative predecessors. Finally, look at the circumstantial evidence of how the Founders treated the actual British Parliament with as much deference as the situation would permit: in the Declaration of Independence, many ills which should properly have been blamed on Parliament (by all contemporary accounts, including British ones) were instead placed at the feet of an impotent king.

However uncomfortable it makes you, the founders were Parliamentary absolutists. The only problem they had with Parliament was the decisions it made, and perhaps its composition, but not its authority.

[Krayt]

There is a concerted push on to feign vox populi vox dei authority on Congress. You're not the only one around here. And that it's in the Short Circuit thread suggests planned operations.

We who love freedom are keeping an eye on you and your power monger-enabling assertions. That you aren't taken aback at your own claims, to wonder if vox populi vox dei is even a good idea, is telling. You seem to accept it as a Good, out of hand.

History informs Earth of no stability whatsoever with an unlimited legislature when the gift of gabber comes along every few generations. You shortsightedly assume democracy will keep reins on the tools of tyrants. I assure you, the gift of gabbers are not d'accord.

You can probably rattle off a list of fears caused by the current gift of gabber. See how, in its role you imagine as unlimited power holders, Congress stands like an iron giant pulling executive power back to itself, keeping the gift of gabber constrained?

[ReaderY]

What exactly is freedom if it doesn’t include a right to have a say in how one’s society is run? And you really seriously think putting everything in the hands of a Big Judiciary who rules the country like a bunch of philosopher-kings is going to result in more freedom than people selecting their own representatives?

[Drewski]

"We who love freedom are keeping an eye on you and your power monger-enabling assertions."

The best way to change minds is to vaguely, but impotently, threaten them online. You're a nobody, dude; you aren't keeping an eye on anyone in a meaningful sense. What are you going to do, troll more?

[David Nieporent]

Finally, look at the circumstantial evidence of how the Founders treated the actual British Parliament with as much deference as the situation would permit:

Why don't we instead look at what the framers actually did, which was not to create a parliamentary system?

[Krayt]

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.

Republicans: Booo! Free speech for teachers!
Democrats. Yay! Government has the honor of controlling speech by its employees, including teachers!

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.

Democrats: Booo! Free speech for teachers!
Republicans. Yay! Government has the honor of controlling speech by its employees, including teachers!

[ReaderY]

Fair point.

But in both cases, government ends up getting to control its employees.

[mulched]

The second case (Republicans yay!) doesn't try to control speech outside the classroom like the first one (Democrats yay!).