The Volokh Conspiracy

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About The Volokh Conspiracy

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

A sovereign See, a safehouse, and an infinite number of pronouns.

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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.

CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.

New on the Short Circuit podcast: Steve Lehto provides a free diagnostic on license-plate-holder law.

  • We can neither confirm nor deny whether six federal agencies properly used Glomar non-responses about the existence of certain documents in response to FOIA requests. But we will say there seems to be no shredding of national security as an excuse for inaction in this D.C. Circuit opinion.
  • The Stored Communications Act allows the government to subpoena social-media companies for user data, and it even allows those subpoenas to be kept secret from the user—but only if a court determines that certain statutory conditions justifying secrecy are met. The government: So when we subpoena X in this investigation, can we just be the ones to decide which subpoenas are secret instead of the court? D.D.C.: Okay. D.C. Circuit: Not okay.
  • Starbucks baristas seek to decertify their union. When the NLRB refuses to grant their petition, the baristas sue, alleging that the NLRB's tenure protections are unconstitutional. NLRB: You know what, we agree. D.C. Circuit: And since you both agree, there's nothing for us to adjudicate and no standing.
  • After the FBI raids a private safe-deposit company without probable cause to search the contents of the individual boxes, the FBI searches the boxes anyway and tries to forfeit the contents. Much meritorious litigation ensues, and the Ninth Circuit says that this is very bad. In another case, an innocent box holder brings a putative class challenge to the FBI's practice of issuing threadbare forfeiture notices that don't tell property owners what the supposed crime is. The government promptly moots her individual case by returning the $40k it took from her. D.C. Circuit: And because there was no proper appeal of the denial of class certification, the rest of the case is over too. (Ed. note: The lawyers on this case are still handsome and good.) (2d ed. note: This is an IJ case.)
  • This sad D.C. Circuit case about child slavery on cocoa farms in Côte d'Ivoire holds that the child plaintiffs didn't plead a plausible connection to defendants like Hershey and Mars. "The Plaintiffs in this case deserve the greatest sympathy, and the people who took away their childhoods deserve the greatest condemnation." But no causation is still no causation.
  • Did you know that, since 1922, baseball—alone among sports—has been exempt from federal antitrust laws, without any basis in statutory text? This was last reaffirmed in a 1972 Supreme Court decision, where two concurring justices took the unusual step of refusing to join the opening facts section of the opinion because Justice Blackmun's paean to America's pastime was so over-the-top. Anyway, the First Circuit says that antitrust exemption also holds in Puerto Rico—although territorial antitrust laws may nevertheless apply because there's no interstate dimension to the purely local Puerto Rican baseball league.
  • Jury finds a Massachusetts man is liable for human-rights violations when he was previously the despotic mayor of a town in Haiti. First Circuit: But the district court needs to consider anew whether Congress did—or even could—create a cause of action in the Torture Victim Protection Act to sue for torture and extrajudicial killings if they occur abroad solely among foreign nationals. Also, that statute doesn't cover attempted extrajudicial killings.
  • In which the Second Circuit issues a blockbuster ruling ordering the release of the Epstein files! (Not, to be clear, the Epstein files that have been in the news all week. Just some, but not all, of the filings in a defamation lawsuit against Epstein associate Ghislaine Maxwell. But still, that first sentence was exciting for a minute there, wasn't it?)
  • New York boy disappears in 1979. Over 30 years later, a man with low IQ and a long history of mental illness and hallucinations is prosecuted for murder and kidnapping based on his confession—which occurred only after many hours of interrogations and before Miranda warnings, but which he repeated after being Mirandized. One jury hangs, and another convicts only after several notes inquiring about the voluntariness of the confessions. New York state courts: No constitutional problem, and any error was harmless. Second Circuit: There's a Supreme Court case directly on point saying police can't do this confession-Mirandize-repeat maneuver. Habeas granted.
  • American victims of terrorist attacks in Afghanistan sue foreign banks for aiding and abetting terrorism, alleging that the banks facilitated money laundering and provided financial services to Pakistani fertilizer companies whose product was smuggled into Afghanistan and used to manufacture IEDs. Second Circuit: But the allegations don't show the banks knowingly and culpably aided and abetted the attacks. No leave to amend because "after filing two complaints together totaling over 1,200 pages" and no plan for fixing the complaint, the plaintiffs have exhausted the court's patience.
  • Although the Pope no longer leads armies into battle, the Holy See is considered a sovereign nation. And thus has sovereign immunity in U.S. courts under the Foreign Sovereign Immunities Act. But not if the tortious activity exception applies. But not if the discretionary function exclusion to that exception applies. How does the Second Circuit figure out how any of this applies when alleged victims of abusive priests sue the See? By borrowing law from IJ's good buddy, the FTCA.
  • In 2021, New Jersey passed a law banning the state, its local governments, and private parties from making, renewing, or extending any contract to detain people for civil immigration purposes. CoreCivic, operator of an immigrant detention center in New Jersey, challenges the ban as a violation of the Supremacy Clause. Third Circuit: More specifically the doctrine of "intergovernmental immunity." The feds are in charge of immigration, and states can't go making it impossible for them to contract for private detention facilities. Dissent: States can until Congress tells them they can't.
  • Philly nonprofit called "Safehouse" wants to address opioid overdoses through providing a, well, safehouse, where people can more safely use drugs. The feds sue. Third Circuit (2021): That might violate the law. Safehouse: But what if we're religious about it? Third Circuit (2025): That might just work.
  • Sex offender, incarcerated since 1986, refuses to complete a sex-offender program designed to reduce the likelihood of recidivism. As a result, he is repeatedly denied parole. He sues, alleging that prison officials violated due process by failing to give him a hearing before treating him as a sex offender and requiring him to participate in the sex-offender program to obtain parole. Sixth Circuit: For one thing, you are in prison for a sex offense. For another, parole is discretionary and nobody is stopping you from completing the program. Case dismissed.
  • There is only one thing that Seventh Circuit Judge Frank Easterbrook could possibly enjoy more than drafting a merits opinion in a case involving antitrust law, the Rooker-Feldman doctrine, and Colorado River abstention: dismissing that same appeal for want of appellate jurisdiction.
  • Schaumburg, Ill. passes a law changing how private fire alarm systems must handle an emergency. Rather than taking the calls first and connecting to the local dispatcher if emergency response is needed, the village now insists that an alarm notify the dispatcher directly. This saves the village a cool $300k per year via a credit from the dispatcher—and costs the private alarm companies all of their business in the village. An alarming Contracts Clause violation? Seventh Circuit: Not on this record, which leaves "much to the imagination."
  • Man forces woman at gunpoint to drive him from Fargo, N.D. a few miles east, crossing the border, to Moorhead, Minn., where he tries (unsuccessfully) to get her to withdraw cash from an ATM, before she bolts and summons help. Man: The evidence showed only a robbery, not a distinct kidnapping, which you can tell by looking at this neat four-factor test from the Third Circuit. Eighth Circuit: Kidnapping conviction affirmed, and though we find that Third Circuit case interesting, no need to adopt it here. Concurrence: This is an easy one, and there's no need to add elements to the kidnapping statute like the Third Circuit did.
  • Man is arrested for his part in a drug deal with the feds on the other side. Whoops. In addition to the pile of meth in the car meant for the deal, he also has a small bag of weed in his pocket. He admits to smoking a few times per day and to having a rifle at home that he'd used only once. Oh snap! Drug addicts can't possess guns. (You may have heard of this statute before.) Eighth Circuit: Smoking weed doesn't automatically blunt someone's Second Amendment right. On remand, the district court needs to determine if the man's marijuana use caused him to act like someone who is mentally ill and dangerous or made him pose a danger to others with his gun.
  • Every four years, the FCC is required by law to assess whether its own rules limiting the number of TV and radio stations that someone can own are "necessary in the public interest as a result of competition." In December 2023, after years of delays and legal threats, the FCC decided that its rules are indeed in the public interest—one should be even more strict! Eighth Circuit: The FCC's review changed "almost nothing" and that's mostly fine, but its decision to keep one rule was arbitrary and capricious, and tightening another exceeded the FCC's authority.
  • While working on a joint state-federal task force, a St. Paul officer lied to get a local teen arrested and the teen spent over two years in custody before charges were dropped. Prior Eighth Circuit decisions ruled out a Bivens remedy and held that § 1983 is off the table because the officer wasn't acting under color of state law. The plaintiff moved to amend her complaint and seek limited discovery after finding new evidence that the officer was working under color of state law. Eighth Circuit: The earlier decision controls—no § 1983 claim, and new evidence wouldn't change that. Affirmed. (This is an IJ case.)
  • Oregon widow and mother of five wants to adopt two additional kids. A state agency has her take a class where, among other things, she's taught "[t]here are an infinite number of pronouns as new ones emerge in our language. Always ask someone for their pronouns." After she later says she doesn't agree with some of what the class taught or similar adoption policies, she's denied the chance to adopt. Ninth Circuit (over a dissent): Which violated her free speech and free exercise rights.
  • You may not be surprised to learn that California requires a background check for every purchase of ammunition. You may be surprised to learn that even the Ninth Circuit (over a dissent) thinks the law violates the Second Amendment.
  • District court (February): The Trump administration's executive order purporting to strip birthright citizenship is an unconstitutional travesty, and these plaintiffs deserve a universal injunction. Ninth Circuit (also February): That's not wrong! SCOTUS (June): Universal injunctions aren't even a thing, though maybe possibly the state plaintiffs need a nationwide injunction to get complete relief. Ninth Circuit (Wednesday): The state plaintiffs need a nationwide injunction to get complete relief. (Dissent: The state plaintiffs don't have standing to get any relief at all!)
  • It seems like maybe bad business to fire a guy who put together the team that secured your company a $15 mil contract just because he said he needed an ADA accommodation to let him sit in exit rows on business trips, but the Tenth Circuit says there's enough evidence the defendant did exactly that for this case to go to the jury. Well, more specifically, it says the guy met the three-prong McDonnell-Douglas test to survive summary judgment without falling into either of the Reeves exceptions to those prongs—prompting a concurrence wondering why we need a system of prongs and anti-prongs instead of just saying "the facts presented at summary judgment make the case close enough to go to a jury."

New Class! (Certified, that is.) For years, police have seized cash at the FedEx processing center at the Indianapolis airport—FedEx's second-largest hub in the country—and used civil forfeiture to keep the money. They did this to $42,000 on route to Henry and Minh Cheng, cash that was a legitimate payment to their wholesale jewelry business. The Chengs and IJ fought back, not just for them but to stop the wider unconstitutional practice. This week they received some good news: Their class was certified, meaning the lawsuit can proceed on behalf of everyone facing similar forfeiture actions.