Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Cruise ships, sham interviews, and our nation's commitment to a government of laws.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: In 2015, NYC purportedly issued a citation to IJ client Serafim Katergaris for a code violation (a missing boiler inspection report) committed by the prior owner of his house in Harlem, a violation that did not show up in the title search. Serafim would like to argue that the city's code-enforcement system, which makes it impossible to challenge fines like his, violates due process. But he never received the 2015 citation and didn't find out about it until years later—too late to sue, according to the Second Circuit. In a holding that departs from other circuits, the court treated the federal common law "mailbox rule" not so much as a rebuttable presumption of receipt but as an ironclad one. We're asking SCOTUS to bring harmony back to the circuits.
New on the Short Circuit podcast: Sixth Circuit dissental drama.
- On January 20, 2025, President Trump issued an executive order freezing foreign aid spending. Recipients of the aid sued, alleging that the President was unconstitutionally violating the separation of powers by withholding the appropriated funds. District Court: And here are three reasons why I'm preliminarily enjoining the President's actions. D.C. Circuit (over a dissent): And here are three reasons why the plaintiffs don't have a cause of action.
- The Trump administration has canned over 80 percent of the workforce at the Consumer Financial Protection Bureau and has ordered remaining employees not to do any work that isn't expressly required by statute. D.C. Circuit: And the plaintiffs might have challenged those individual decisions, but instead they chose to challenge the administration "shutting down" the agency, which isn't a final action, so we won't hear it. Dissent: "The notion that courts are powerless to prevent the President from abolishing the agencies of the federal government that he was elected to lead cannot be reconciled with either the constitutional separation of powers or our nation's commitment to a government of laws."
- Police find spent shell casings and not much else after shooting in D.C. As it happens, a pole camera (part of an unrelated investigation) snagged video of the shooter, who'd fired into the air and stepped back inside a home. A search of the home yields the defendant and copious contraband. D.C. Circuit: No need to suppress the pole-camera evidence. But: "We do not suggest that pole-camera surveillance could never amount to a Fourth Amendment search. In another case, the technology might be used over longer periods, with more cameras, or in combination with other tools—such as facial recognition, automated tracking or artificial intelligence—to build a far more comprehensive portrait of an individual's life."
- Employing a variety of skeevy artifices, college track coach obtains naked selfies from student athletes, over 50 women in all—images that are now floating around the internet. First Circuit: No reason to disturb his above-guidelines, five-year sentence for cyberstalking and wire and computer fraud, a sentence that is all the more reasonable because he continued to seek nudes while on pretrial release.
- Et in Acadia … cruise ships? Bar Harbor is a popular tourist destination in Maine and gateway to the majestic Acadia National Park. In the mid-2000s, the town began soliciting cruise ship tourism—too successfully, according to some residents: In 2022, the town enacted an ordinance capping disembarkments at 1,000 passengers/day. Tourism-reliant businesses sue, arguing, inter alia, a Dormant Commerce Clause violation. The district court ruled for the town. First Circuit: That's mostly fine, but on remand, take a harder look at whether burdens on interstate commerce are clearly excessive in relation to the ordinance's putative benefits. Affirmed in part, vacated and remanded in part.
- New York's adult-use marijuana rollout has been rocky thanks to fights over how to dole out scarce retail licenses. Its first program—limited to N.Y. residents—went up in smoke in 2022 after a court found it likely violated the Dormant Commerce Clause. The follow-up program let out-of-staters apply—but tripled the odds of approval for low-income residents of disproportionately impacted communities who (or whose close family member) had a New York marijuana conviction. Another lawsuit followed. The lower court held that the DCC doesn't apply because marijuana is federally illegal. Second Circuit (over a dissent): The DCC's "familiar rule" banning state protectionism applies even in this "strange circumstance." The lower court must take a clear-eyed and full-hearted look at the injunction request. Vacated and remanded.
- 2019: E. Jean Carroll sues Donald J. Trump for defamation. 2020: Attorney General certifies Trump was acting in official capacity while making defamatory statements, so U.S. should be substituted as defendant. 2023: Following appeals, new AG decides actually Trump wasn't acting in official capacity. 2024: Jury verdict for Carroll, Trump appeals. 2025: New new AG decides first AG was right. Second Circuit: You can't go to trial, lose, and then try this substitution maneuver anew on appeal.
- The "Rooney Rule" requires NFL teams to interview at least two minority applicants for each coaching position. But what if, allegedly, the interviewer is a "completely disheveled" John Elway who arrives an hour late and seems hungover? Plaintiff, a former NLF coach: Then it's a sham interview, and I have a claim for racial discrimination. NFL: Except under your old employment contract you agreed to arbitrate these claims. Second Circuit: But there needs to be a neutral arbitral forum, and the contract just leaves everything up to the discretion of the NFL Commissioner, which makes it a sham. The case may proceed.
- Allegation: Prediabetic prisoner in New Jersey federal pen is denied appropriate medication; suffers agonizing pain; develops suppurating sores, ulcers, and eventually an infection that spreads to the bone. His toe has to be amputated. Third Circuit: There exists an administrative remedy process (of "dubious" effectiveness), and that's an end to it. Concurrence: Other circuits allow constitutional claims like this one to proceed, and they have the better approach.
- In this peculiar case where both sides agree there was no jurisdiction for a federal court to hear this lawsuit in the first place, the Fourth Circuit provides us a treatise on standing and declaratory judgments.
- American Federation of Teachers challenges executive order giving DOGE access to member information held by the Department of Education and other agencies that the Federation alleges is protected by the Privacy Act. The district court grants a preliminary injunction. Fourth Circuit: Reversed. To show a likelihood of success, Plaintiffs would need to prevail on four separate issues, and even if they're likely to prevail on each issue, when you multiply those probabilities, they're unlikely to prevail overall. This might be called a "multiplicative problem." Dissent: It's hard enough to get a preliminary injunction without bringing math into it.
- After a trip to the Texas Supreme Court, the Fifth Circuit again approves, over a partial dissent, a San Antonio maintenance plan for 343-acre park that calls for removing trees and deterring cormorants from a 20-by-30-foot area that is sacred to the Lipan-Apache Native American Church—but will cease to be sacred without trees and cormorants.
- Allegation: Louisiana gerrymandered its 2022 legislative maps to dilute the voting strength of black voters in violation of Section 2 of the Voting Rights Act of 1965. District court: Twenty-five districts were either cracked or packed, so no elections under these maps until they're fixed. Fifth Circuit: Affirmed, as Louisiana did the bad stuff. Moreover, Section 2 has a private right of action, as we've already said (a split from the Eighth Circuit), and it's constitutional.
- Another week, another unpublished Fifth Circuit undismissal of a prison-conditions case, this one involving allegations of purposeful sleep deprivation, pest infestations, filthy cells, ringworm and scabies, burning-hot (literally) showers, etc. etc.
- Houston officials: Sure, it would be a taking if we deprived property owners of all economic value in their land, and, yes, our own expert says our rules make it economically impossible to do anything useful with this land right now, but it still has some value because maybe someday, in the future, that could change. Fifth Circuit: These guys are real-estate developers, not Little Orphan Annie. If there's no value today, that' s a taking.
- Auctioneers speak pretty fast, but not fast enough to render a licensing law that prevents unlicensed people from engaging in a "sales transaction" into a First Amendment violation, says the Sixth Circuit.
- Family buys isolated, wooded, 40-acre parcel in northern Michigan for family gatherings. In addition to the small cabin already there, they install five prefabricated "mini-cabins" for family members to use. Neighbor gets deeply perturbed, thinking that the family is poised to operate a public campground, and he escorts three gov't officials onto the family's land to peer into the mini-cabins, measure the setbacks, take photographs, and do other generally intrusive things. Sixth Circuit: And at summary judgment, the district court rightly denied the officials qualified immunity for their clearly established Fourth Amendment violations.
- Did you know there are approximately 175,977 privately, and lawfully, owned machineguns in the Great U.S. of A? Learn that and other machinegun facts from the Sixth Circuit as a guy in Memphis who fired at cops while trying to evade a traffic stop loses his quest to vindicate his Second Amendment rights.
- What happens when a federal agency issues a regulation, Congress rejects it under the Congressional Review Act, but then later on the agency re-adopts the regulation again? Enjoy the discussion between the Sixth Circuit majority (this particular FCC reg survives) and dissent (the reg is way too much like the old one) as a rare example of CRA jurisprudence.
- Two Indiana kids have serious medical conditions, requiring around-the-clock care ordinarily provided by healthcare professionals. But their families have been unable to secure in-home nurses, so for several years, the kids' moms have served as their nurses. At first, Indiana reimbursed the moms through Medicaid, including for providing "attendant care services" like assistance in eating, bathing, etc. But then Indiana changes its mind: No more reimbursements for those services. Moms: This change will force us to institutionalize our kids! Seventh Circuit: Under the Americans with Disabilities Act, the district court wasn't wrong to issue a preliminary injunction requiring Indiana to keep paying the moms until in-home nurses are secured.
- Chicago man spends nearly five years in jail before being acquitted of murder, robbery. Seventh Circuit: If you get acquitted, you can't sue the police for fabricating evidence, at least under the due process clause.
- Forrest City, Ark. firefighter posts to his personal Facebook page an anti-abortion image that some view as racially offensive. (See for yourself following the second paragraph of the opinion.) Though he deletes it a few weeks later, the mayor fires him for its "egregious nature." Eighth Circuit: A jury gets to decide if the firing was because the image impacted the city's ability to administer public services or because the mayor just didn't like the picture.
- Eighth Circuit (over a dissent): It probably violates the First Amendment for Minnesota prison officials to bar plaintiff from offering an optional, Bible-based course to inmates about "authentic manhood" where manhood can only be achieved via heterosexual relationships, women are to blame for creating "soft" males, etc. etc. Denial of PI reversed.
- You learn as a first-year law student that there's no such thing as taxpayer standing in federal court. (Unless you're suing about religion, obvs.) Well, that's true at the federal and state level, but there actually kind of is taxpayer standing at the municipal level, as the Eighth Circuit points out in a case involving a Minnesota school district.
- Eighth Circuit (en banc): Arkansas's ban on gender-transition procedures for minors is constitutional under Skrmetti. Its ban on referrals for gender-transition procedures for minors doesn't violate the First Amendment, because we're interpreting it to apply only to formal referrals for treatment by in-state providers who are already prohibited from providing that treatment.
- In which the Ninth Circuit holds that would-be religious day cares lack standing to challenge a California rule prohibiting state-licensed day-care facilities from forcing the tykes under their care to attend religious services to which their guardians object because California regulators have never enforced the rule against an openly religious day care (presumably because parents sending their kids to openly religious day cares are okay with religious services at the openly religious day care).
- And in en banc news, the Sixth Circuit will not reconsider its decision that a Michigan school did not violate the First Amendment when it told a third grader to remove a hat that said "COME AND TAKE IT" with an AR-15 outline just three months after a mass shooting at a nearby high school. Every judge on the Sixth Circuit agrees that the case should not be heard en banc, and yet they still have quit a lot to say about it.
- And in more en banc news, the Sixth Circuit will not reconsider its decision allowing a lawsuit to proceed against officials in Benton Harbor, Mich., whom plaintiffs allege covered up problems with lead in the drinking water. One judge dissents from denial of rehearing, prompting another judge to decry the growing prevalence of dissents from denial, causing yet a third judge to point out that the second judge has written plenty of dissents from denials herself.
- And in further en banc news, the Ninth Circuit will not reconsider its decision approving a $17 mil jury award for back pay to civil detainees at privately run immigration detention center for violations of Washington State minimum-wage requirements. Dissental: "Under this court's decision, any State can impair any federal policy—no matter how central to the federal government—so long as the State regulates federal contractors rather than the federal government itself."
New zoning case: In Albuquerque, N.M., it is illegal to sleep in public spaces, and the city clears thousands of homeless encampments each year. It is also as-good-as illegal to sleep on private property, as red tape makes it nearly impossible for even well-run organizations to provide safe, clean, and dignified overnight shelter. So this week, IJ has gone to court on behalf of bookstore owner Gil Kerley, who was fined for allowing a few homeless people to pitch tents in the back of his parking lot as long as they respected the property, his neighbors, and his customers—an arrangement that has worked just fine since it started during the pandemic. Click here to learn more.