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

Remote quorums, jetway robberies, and the beauty of our constitutional republic.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case: IJ client Khalilah Few invested her life savings trying to open a hair salon in Clayton County, Ga., but last month officials denied her a permit, saying the area is saturated with salons and that finally getting a business into the long-empty storefront that Khalilah rented and renovated is not "smart growth." Pshaw.

New on the Short Circuit podcast: Kangaroo courts and fugitive Russian jet-setters.

1. Judge: The only way to remove an Article III judge is for Congress to impeach, and yet I have been effectively impeached by a judicial council that includes my accusers and witnesses. D.C. Circuit: It does seem like a constitutional problem that there doesn't seem to be a judicial forum to raise some of these constitutional claims. But we'd have to go en banc about it.
2. In 2017, after student reports being sexually assaulted at D.C. high school, the principal says that the report is "bullshit" and that she will "go the extra mile" to "embarrass [the student's] ass." After security footage corroborates the student's account, the principal lies to the superintendent about what it shows. D.C. Circuit: A jury might think that's outrageous. Grant of SJ to the now-former principal is partially reversed.
3. First Circuit: Sure, saving the gov't money is a legitimate interest, and, yes, denying someone a level of benefits to which they'd otherwise be entitled saves money, but even under the rational basis test you probably have to say a little more than that.
4. District court: Bivens is dead, and it has been dead since 1988, when Congress created a formal mechanism to complain about federal law-enforcement. First Circuit (over a dissent): If Congress had eliminated Bivens remedies in 1988, we're pretty sure somebody would have noticed. The doctrine is only mostly dead.
5. Ferdinand Marcos stole billions while dictator of the Philippines. He deposited $2 mil of that in a New York account; it's now worth $40 mil, and the feds seek to forfeit it and return it to the Philippines. But wait—victims of his human rights abuses and the owner of the legendary Yamashita Treasure that he stole (booty plundered by Japanese troops during WW2 and buried in the Philippines to keep out of American hands) say the money should go to them instead. Second Circuit: Though entitled to money, they cannot stop the forfeiture to get this money.
6. Philadelphia driver with a long rap sheet, and lacking a valid driver's license, registration, or insurance, is found to have an illegal gun and "136 packets of fentanyl and heroin." Will the Third Circuit let him off the hook because the officers who pulled him over complimented his watch and politely asked him about his job? To ask the question is to answer it, though readers will surely enjoy the panel's distillation of case law into practical guidance.
7. Fourth Circuit: The beauty of our federal republic is that Maryland is free to levy a tax on internet advertising. The beauty of our constitutional republic is that Maryland cannot forbid the taxed businesses from telling their customers about it.
8. A woman convicted of murder in Maryland won a new trial after showing her lawyer was ineffective. But it proved a Pyrrhic victory: during her motion for a new trial, the court made her hand over privileged files and let the same prosecutors "scour" them. At the retrial, the state leaned heavily on new evidence revealed in those files, and she declined to testify because the court left open whether her prior testimony could be used to impeach her. The state appeals court assumed error but found no prejudice, concluding the new evidence didn't hurt her and she hadn't properly proffered her testimony. Fourth Circuit: Both determinations were objectively unreasonable; the case is remanded for de novo review of whether her Sixth Amendment rights were violated. Vacated and remanded.
9. Clemency traces back to eighth century England and has been widely available in the States since they came into existence. Virginia's Constitution strips people convicted of felonies of the right to vote and vests the power to restore that right in the governor's exclusive, unfettered discretion as a matter of executive grace. Man: The First Amendment requires the discretion to be fettered. Fourth Circuit: It does not
10. During the COVID-19 pandemic, the U.S. House of Representatives enacted a resolution to allow absent members to vote by proxy. One of the things they voted on was the Consolidated Appropriations Act of 2023, which was passed by the votes of 205 members present and 226 by proxy. Texas: The Quorum Clause requires that members be physically present to establish a quorum; the Act (or more specifically, two of the appropriations we don't like) is invalid. Fifth Circuit: Text and history support establishing a quorum by proxy. Dissent: Text and history support the opposite of that.
11. President of West Texas A&M University bans a drag show intended to raise funds for the Trevor Project. The student organizers of the show sue. District court: Drag shows aren't protected by the First Amendment because they don't convey a particular message and aren't fine art. Fifth Circuit (over a dissent): This show certainly had a specific message, and we aren't in the business of determining what constitutes "fine art."
12. Allegation: Texas school principal hears repeated statements from faculty that a pre-K teacher is being sexually inappropriate with students. She admonishes them that "we can't be picky." The teacher is eventually arrested and sentenced to a minimum of 60 years in prison. One of the victims sues the principal, who argues for qualified immunity. Fifth Circuit: Absolutely f'ing not.
13. Man dies in Tarrant County, Tex. jail in August 2019. His wife files a (second) lawsuit in November 2023. Fifth Circuit: It's barred by the two-year statute of limitations, and no exceptions apply given lack of diligence in investigating claim. Concurrence: Following the rules consistently honors the rule of law, even for a guy who's executed after filing his cert petition a day late. Dissent: Husband "suffocated to death because he was repeatedly pepper-sprayed while he was in restraints, then abandoned on a jail cell floor," and the prison covered it up, thus extending the limitations.
14. Three Texas companies, including SpaceX, run to court to prevent unfair labor practice hearings before the NLRB. They claim both NLRB ALJs and NLRB board members are unconstitutionally protected from removal by the President. Fifth Circuit: Indeed. The ALJs can only be removed if another board finds cause, and the members of that board are themselves protected from removal without cause. Plus, NLRB members kind of obviously wield some important powers. That makes for-cause protections pretty sus.
15. In 2017, ICE agents allegedly seize Louisville, Ky. DACA recipient (who would frequently post bond for ICE detainees) without reason and shuttle her around the Midwest for eight days before release. She sues them under Bivens. Sixth Circuit: These allegations are chilling, but Bivens.
16. Muscatine County, Iowa jail supervisor posts fresh takes online about Muslims ("pawns of the devil") and the gay lifestyle ("an abomination … that defiles the land"). He's fired after several other jurisdictions, who pay millions to warehouse their detainees in the county, express concern. Unlawful discrimination against his Christian faith? Eighth Circuit: To a jury this must go. Grant of SJ to the county is reversed.
17. Operator of a private, for-profit facility in Washington State that confines noncitizen civil detainees challenges a state law requiring private detention facilities to meet certain sanitary conditions, submit to inspections, etc. The company challenges the law and seeks a preliminary injunction, which the district court largely grants. Ninth Circuit: Some of that is wrong and some of it needs a closer look. Injunction vacated.
18. In what was definitely yesterday's most covered judicial decision concerning grant terminations, the Ninth Circuit denies the federal gov't's request to stay a preliminary injunction ordering the EPA and the National Endowment for the Humanities to reinstate various research grants.
19. In 2024, New Mexico places a blanket seven-day waiting period on all firearms sales. But can a restriction on sales of arms violate the Second Amendment, as it just protects the right to "keep" and "bear" arms? District court: Good point. Tenth Circuit (over a dissent): Yeah, it doesn't work that way. Law preliminarily enjoined.
20. Plaintiffs (who are, as it happens, bona fide celebrities): Clayton County, Ga.'s police dept. has a policy of stopping (mostly Black) travelers on jet bridges at Atlanta airport, demanding to search their bags. A Fourth Amendment violation? Eleventh Circuit: Case undismissed. Defendants' contention that people feel free to leave while officers are holding their IDs and boarding passes is bananas. (IJ filed an amicus brief urging this result.)
21. DEA agents take $8.5k cash from (Black) traveler at Atlanta airport. It takes over a year, and $15k in legal fees, but ultimately the feds give the money back and dismiss the forfeiture case with prejudice. District court: But no attorney's fees since there was no judicial decision on the merits. Eleventh Circuit (unpublished, per curiam): Vacated. He "substantially prevailed" and is entitled to fees. (This is an IJ case.)
22. Come for the University of Florida professor disciplined for protesting the return to in-person instruction with the pithy e-mail sign-off, "Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism." Stay for the Eleventh Circuit's hewing to a conspicuously wrong interpretation of Federal Rule of Appellate Procedure 4 and dismissing Herr Doktor's appeal.
23. Three Floridians challenge the federal law making it a crime for them to keep arms while consuming medical marijuana. District court: Case dismissed. If you're not "law abiding" there's no Second Amendment for you. Eleventh Circuit: But they're mostly law abiding and this is an as-applied claim. Case undismissed.
24. Eleventh Circuit (unpublished): It is a clearly established constitutional violation for police to punch a pinned down, nonresisting—but not yet handcuffed—suspect 34 to 37 times in the face. Even if he's a murder suspect (who's since pled guilty). Grant of QI to this Clay County, Fla. deputy is vacated.
25. The 16th century saw French and Spanish forces battling over control of the New World. Jean Ribault, a storied seafarer, led French naval expeditions to Florida, culminating in a final foray in 1565 with seven heavily armed ships that got caught in a hurricane and sank off the coast of Cape Canaveral. One of the ships, la Trinité, was discovered some 450 years later by an underwater exploration company. France: Thanks for finding it; everything is ours, go away. Finder: Then pay us for finding it. Eleventh Circuit (2022): No sovereign immunity bar here. Eleventh Circuit (2025): But the Sunken Military Craft Act bars the finder's claim, as la Trinité was on military noncommercial service when it sank. Concurrence: And the Act is constitutional, contrary to amici's arguments.
26. And in en banc news, the Ninth Circuit will not reconsider a panel decision holding that Kari Lake's lawyers should be sanctioned for filing her failed lawsuit challenging Arizona's voting system. Six judges dissent from denial, arguing that although the case involved a "Hail Mary legal theory," most Hail Mary legal theories aren't sanctionable.
27. New en banc petition: Friends, federal appeals courts usually can't hear appeals of district court orders unless and until they are final and put an end to a case. And while there is an exception for "interlocutory" appeals of what would otherwise be considered non-final, non-appealable orders, the Supreme Court has repeatedly emphasized that it's a "narrow and selective" class of orders that is excepted—and a class that is only to be enlarged by the Supreme Court itself. And yet! Several circuits have taken it upon themselves to permit interlocutory appeals of denials of state-law immunity. Indeed, the Fifth Circuit recently applied Texas "official immunity" to ding malicious-prosecution claims against a Dallas detective, claims that were chugging along below. Which is bad and wrong and can't stand because, in the words of Judge Oldham, there is "no basis for saying that the denial of a state-law immunity justifies immediate appeal under the Supreme Court's current doctrine." Hear, hear.

In July, ICE agents arrested IJ client George Retes, a U.S. citizen and Iraq War vet, when he was on his way to work at a farm in Southern California. Though he did nothing wrong (and was not participating in a protest near the farm), George was pepper-sprayed, dragged out of his car, and pinned down with a knee to his neck (which has several herniated discs from his time in the service). Then he was held incommunicado for three days and three nights at a federal detention center—no phone call, no lawyer, no judge—while his family panicked. Ultimately, he was released without charges, after missing his daughter's third birthday. This week, as a necessary first step to filing a lawsuit under the Federal Tort Claims Act, he submitted claims to ICE and other agencies involved. "I'm calling out the federal government not just for what they did to me, but for what they are doing to others," said George. "I'm continuing to fight for this country, now as a civilian." Click here for more.