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

A rescinded diploma, a brown seer stone, and a pointless waste of time.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. On the Center for Judicial Engagement Blog, CJE Director Anthony Sanders explains why in the past IJ hasn't used the terms "liberalism" and "rule of law" all that much but that there's more need for them now—and how that puts us in the same big tent with law professor Cass Sunstein.

• In "technically correct but damn" news, try this saga from the D.C. Circuit. In 2013, Thorpe and Knight are charged with several offenses. They're offered a deal, but only if both accept. Thorpe wants to, Knight refuses. The deal is withdrawn. A jury convicts. Both are sentenced to 20+ years. Except, Knight refused the deal because of his counsel's ineffective assistance. After an appeal ending in 2020 he gets released. D.C. Circuit rejects Thorpe's ineffective-assistance-of-co-defendant claim. But, to "ameliorate any injustice," judges suggest prosecutors dismiss Thorpe's charges. The circuit takes up the case again. Except . . . prosecutors can't dismiss charges after they become a judgment. Whomp.
• During a car stop, D.C. police officers order driver to lower his illegally tinted windows, permitting them to see inside his vehicle. There's a gun in the back. Yikes! Felon-in-possession charges ensue. D.C. Circuit: And the officers' order that the driver lower his tinted windows did not violate the Fourth Amendment.
• Under longstanding administrative law principles, federal agencies are generally required to provide notice and a period of public comment before adopting new rules. The TSA, however, in requiring airports to screen workers who go into secure areas, just got comments from airports. So let's see how the D.C. Circuit balances blackletter law against an "agency's own assumption that there is a limited need to hear from the public."
• Cynics will tell you that the Supreme Court's decision in Bivens is a dead letter, but this Second Circuit opinion, which comes with two different concurrences and a dissent, confirms that it's at minimum a dead letter about which people have a lot to say.
• If the First, Fourth, Seventh, Ninth, and D.C. Circuits won't extend the right to bear arms to assault rifles and high-capacity magazines, what will the Second Circuit do? Come for the inevitable holding, stay so we can debate your humble summarist's view that "history and tradition" is just another way of saying "intermediate scrutiny."
• New York man pleads guilty to unlawful possession and is sentenced to three years incarceration plus three years of supervised release. Uh oh! Although the conditions imposed in the written order on the supervised release are standard, some were not mentioned at the sentencing hearing. Man challenges the conditions for violating his right to be present at sentencing. Second Circuit (en banc): We used to let this slide, but now we've changed our mind. So the district court should have a new hearing where it says these conditions in the presence of the defendant. Dissent: "What a pointless waste of time."
• The Third Circuit invalidates Pennsylvania's practice of discarding ballots contained in envelopes with missing or incorrect dates after finding "only tangential links, at best" to the state's legitimate interests, outweighed by thousands of presumably proper ballots being disqualified. Affirmed.
• Fourth Circuit: Your facial challenge to the county's restriction on carrying guns in certain public places fails because some of those places are preschools, and your as-applied challenge fails because, as far as the record shows, you've been able to carry guns wherever you want just fine.
• Ignoring two trustees' concerns, a high school in Kingsville, Tex. rehires a teacher who previously had a not-so-secret sexual relationship with a student. Lo and behold, two years later, the teacher is convicted of soliciting a minor and attempted possession of child porn. The victim sues the school, arguing it was liable under § 1983 and Title IX for rehiring the teacher. District court: To a jury! Jury: Verdict for the victim. $250k. Fifth Circuit (per curiam): None of which was error. Affirmed.
• Fifth Circuit (February 2025): Suppressors aren't "arms" under the Second Amendment. This dude who sold them without a license stays in prison. Federal gov't: On second thought, they are "arms." But, yeah, keep this guy in prison. Fifth Circuit (August 2025): Cool, we'll say we take no stand on suppressors and "arms." But still prison.
• Culture warriors will be excited about this Sixth Circuit case because it's about whether a physician assistant can be fired for refusing to use patients' preferred pronouns. Procedure geeks will focus on the fact that the majority and the concurrence have a deep discussion of when a defendant has waited too long to invoke an arbitration clause. As masochists, we focus on the fact that an opinion about a case that's over a year into trial-court litigation still begins with a reference to "the early stage at which this case has reached us."
• Fort Wayne, Ind. death doula: I give families advice and information about planning for the end of life. Indiana: If you want to talk about that stuff, you need to go to mortuary school, embalm dozens of bodies, and buy a funeral home in order to get a funeral-director license. Seventh Circuit: "This approach furthers the state's interests the way an atom bomb would further the eradication of a residential ant infestation." Preliminary injunction against Indiana's free-speech-violating nonsense affirmed. (This is an IJ case.)
• Illinois schoolteacher—twice disciplined for using profanity in the classroom—posts politically charged messages on Facebook, where about 80% of her followers are former students. The messages, including suggestions that BLM protestors be hosed down with sewage, lead to more than 100 calls and emails to the school. The teacher is fired, and she sues. Seventh Circuit: Her comments were on matters of public concern, but it's also clear they disrupted school operations. Case dismissed.
• Eighth Circuit: A claim that the plaintiff received inadequate notice in terminating her from Medicaid is a claim about something that happened in the past and therefore barred by sovereign immunity. (Dissent: But she wants to be reinstated to Medicaid, which sounds an awful lot like a claim about something that's happening right now.)
• EEOC brings lawsuit against railroad company, alleging hostile work environment at a Nebraska railway. And the allegations are pretty gross! Eighth Circuit: They are also more than enough to survive a motion for summary judgment, let alone a motion to dismiss.
• In which the Ninth Circuit holds that a plaintiff can bring a Federal Tort Claims Act action for damages based on having been improperly deported to the wrong country.
• If a federal prisoner alleges, among other things, an "irreversible kidney injury" due to the indifference of prison staff, can he bring a Bivens claim? Ninth Circuit: Since this case is "identical in all meaningful respects" to a SCOTUS case that itself extended Bivens and hasn't been overruled then, yes, even in 2025 he has a claim.
• Oregon passes law requiring pharmaceutical companies to report a bunch of information to the state gov't about how they make pricing decisions, which is then disclosed on a gov't website. Pharma companies: We would prefer not to. This law unconstitutionally compels speech. Ninth Circuit: Yeah, but at most it compels commercial speech, so who cares? Dissent: "Commercial speech" does not mean all speech about commercial stuff.
• New stress dream just dropped: Your public university rescinds your diploma! Ninth Circuit: Just keep whispering to yourself, "I have a property interest in my diploma, I have a property interest in my diploma."
• Two individuals allege Arizona's Unclaimed Property Act unconstitutionally lets the state seize their unclaimed checks—the unclaimed property is listed online, but the Act doesn't require the state to provide apparent owners with actual notice. District court dismisses the case, citing sovereign immunity and rejecting the takings and due process claims. Ninth Circuit: Plaintiffs have standing, sovereign immunity doesn't block prospective injunctive relief, and while there's no taking (property held in trust isn't "taken"), the due process notice claim is revived. (Similar challenge to Alaska's Unclaimed Property Program disposed of similarly via unpublished opinion.)
• Farm-owning family in Chihuahua, Mexico, is menaced out of the country by a cartel, which wants their land. Asylum? Board of Immigration Appeals: Asylum-based claims based on family membership are certainly a thing, but here, the cartel wasn't persecuting you just because of your family membership, but also to achieve some other ultimate goal (snagging your family farmland). No asylum. Tenth Circuit (2-1): People (and cartels) often do things for multiple reasons. The BIA messed this one up. Remanded.
• Is it the RICO for the heads of the Church of Jesus Christ of Latter Day Saints to (according to these plaintiffs) lie about some of the key historical events of the Mormon religion? Like saying that Joseph Smith translated the Book of Mormon from reformed Egyptian with the help of spectacles consisting of two translucent stones? When in fact (according to these plaintiffs) Joseph Smith actuallydictated the Book of Mormon while looking at an opaque "brown seer stone" placed in a hat? Tenth Circuit: It is hard for us to overstate how much this dispute is not something the federal courts exist to adjudicate.
• Friends, you will never see the words "cumbersome review of the record" deployed with as much venom as in this 83-page decision of the Tenth Circuit, which gives police officers—accused of beating an Oklahoma motorist to death during a routine traffic stop—exactly the factual review they ask for and then some before affirming the district court's denial of qualified immunity.
• In deference to the many small children who regularly read Short Circuit, we will not repeat the specific four-letter-word at issue in this Federal Circuit trademark case, but we will note that the trademark examiner who had to gather "evidence from multiple internet websites" about its meaning probably had a fun day at work.
• And in en banc news, the Ninth Circuit will not reconsider its decision about how it defers to the BIA in the post-Chevron world, despite a 30-page dissental.
• And in more en banc news, the Eleventh Circuit will reconsider its decision that categorically not allowing any "sex offender" whatsoever to spend the night in the same home as their own child violates the fundamental right to establish a home.

IJ's cofounder and longtime President and Board Chairman William "Chip" Mellor passed away last year. In his honor, IJ and the State Policy Network created the "Chip Mellor Prize for Excellence in Public Interest Litigation." The prize comes with $100,000 and recognizes teams of litigators and advocates who work together to earn significant litigation victories to hold gov't officials accountable, advocate for civil society and the rule of law, and to help the most vulnerable least able to fight back. This week the inaugural prize was awarded to the New Civil Liberties Alliance for its work in overturning the Chevron doctrine.