Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

Doping horses, DEI trainings, and working on a Saturday

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

New on the Short Circuit podcast: Won't you take me to YIMBYTown?

1. This D.C. Circuit case has it all! Sovereign immunity! Arbitrability! Equatoguinean law!
2. IRS: Sure, sure, federal law requires us to pay whistleblowers a percentage of what we recover based on their reports of misconduct, and, yes, this whistleblower spent years meeting with IRS officials and trumpeting the wrongdoing he'd found in the media, and, of course, we paid him the full percentage for four of the companies he blew the whistle on, but this fifth company he also blew the whistle on at the same time? Yeah, that one we would have found all by ourselves (we assert without evidence). D.C. Circuit: Yeah, absolutely not.
3. White employee of the New York Department of Education quits and sues, alleging a hostile workplace based on, among other things, mandatory DEI trainings. Choice quotes from the trainings include: "There is white toxicity in the air, and we all breathe it in;" "white culture's values" are "homogenous and supremacist;" and if participants don't learn to stand up to "people like [plaintiff] who disagree with these views about white supremacist values, children's lives [will] be at stake." Second Circuit: That could indeed be a hostile workplace. Summary judgment for DOE reversed (other claims affirmed).
4. Come for the "extensive and years-long doping conspiracies in the professional horse racing industry." Stay for how the Second Circuit responds to the defendants' argument that nobody was harmed by their doping scheme because maybe all the horses were doping. (Though the court is more sympathetic to their arguments that racetracks didn't suffer losses when they would have had to pay out a winner of the races regardless of doping, and that forfeiture isn't an available punishment for this sort of drug-misbranding offense.)
5. Gun owners: The Second Amendment gives me a right to carry my pistol in Times Square or on the subway, and to do so openly, and without having to get a NYC-specific permit. Second Circuit: Doubtful, at least at this stage. No PI for you.
6. Pretending to be consumers with debt, Pittsburgh law firm sends handwritten letters that bury a debt dispute deep in the text, hoping creditors miss it. (A creditor who notifies a credit bureau of a debt without disclosing the dispute subjects themselves to a consumer lawsuit that can result in $1,000 damages + attorneys' fees.) Creditors indeed miss it, lawyers pounce—raking in debt-collection dollars for the firm. Ruh roh, a creditor catches on to two nearly identical complaints, and everything unravels when paralegals admit to writing and sending the letters without ever speaking with the clients. Sanctions abound! Third Circuit: As they should.
7. A group of law enforcement officers executed a search warrant in Charlotte, NC at a suspected meth trafficker's home. Chaos ensues. One officer shoots another at least ten times, severely injuring him. Shot officer sues shooting officer for excessive force and several tort claims. As they litigate, the district court seals bodycam footage, refuses local TV station access. Fourth Circuit: Unseal it. The First Amendment protects the right of access to court records, which isn't outweighed here by the shooting officer's right to a fair trial.
8. Two-thirds of this Fifth Circuit panel upholds the EPA's rejection of Texas's State Implementation Plan (a SIP) to govern certain air pollutants, which requires the imposition of a Federal Implementation Plan (a FIP), and does an admirable job of pretending we can spend all this time talking about SIPs and FIPs yet somehow still sound like grownups.
9. When the government abrogates a contract using its sovereign power, it (sometimes) works a taking and is required to pay just compensation by the Fifth Amendment, but when the government abrogates a contract as a party to that contract, it just abrogates the contract and the Constitution doesn't have much to say about it. This Fifth Circuit case is an example of the second thing.
10. Sixth Circuit: II. Analysis. A. Evidence of Racial Harassment. 1. Use of the Terms "Monkey" and "Monkey Ass."
11. UPS driver really doesn't want to work on Saturdays, engaging in all sorts of employer-annoying shenanigans that get him repeatedly fired (the union keeps getting his job back). Driver sues UPS under the Iowa Civil Rights Act, alleging race and age discrimination, hostile work environment, and retaliation. The case is removed to federal court. Eighth Circuit: Where (1) it belongs under the doctrine of complete preemption, and (2) you lose.
12. Medical worker in The Dalles, Or. objected to getting a COVID shot and to testing as an alternative. She claims this is on religious grounds. Employer: No, you're just shoehorning in a religious reason to justify your personal, secular beliefs. Ninth Circuit: We think that's right and it was OK to dismiss her complaint. Dissent: You can't question whether a religious belief is genuine as pleaded. This creates a circuit split and breaks with all kinds of prior understandings of how to deal with religious exemptions.
13. You may remember the Guns-Free School Zones Act from such cases as United States v. Lopez (1995). Congress "fixed" its pesky Commerce Clause problems long ago and it's still out there protecting us from violent criminals. Such as a man in Billings, Mont. A neighbor stalked him and his mother and repeatedly violated a protection order. So the man started carrying a shotgun for protection, for which he had a permit. Unfortunately he lived near a school. Feds: He did have a permit but it didn't comply with the Act's permit exception. Ninth Circuit (over a dissent): We're gonna say it did comply.
14. If you like strip club cases whose specials come with a twist, try out this one from Chamblee, Ga. where the venue challenged ordinances not only under the First and Fourteenth Amendments, plus Georgia's own Equal Protection Clause, but also under the Contracts Clause. The specials aren't all that good, though, as the Eleventh Circuit didn't order any of them.
15. Woman in Stockbridge, Ga. during the COVID pandemic collects some needed oxygen supplies from a building on a cul-de-sac. When she starts driving away two men with flashlights run toward her. Thinking they were a threat, and not knowing they were cops, she guns it. They then gun her, firing four shots (that luckily only hit the vehicle). She sees other officers and stops. And spends hours in detention. Turns out the cops were there because of something suspicious elsewhere in the cul-de-sac. Eleventh Circuit: Not suspicious enough for the cops to get qualified immunity.
16. Drunken man on Pinellas County, Fla. highway repeatedly tries to run a car of Black people off the road, calling them racial slurs. After he gets out at an intersection the Black driver subdues the racist drunk, who passes out but then wakes up to vomit. He's prosecuted under a law adopted under Congress's 13th Amendment power. Eleventh Circuit: Which is constitutional, as precedent says that power extends to the "badges and incidents" of slavery. Concurrence: And it would be a bad idea and contrary to original meaning if SCOTUS overruled that precedent.
17. Police obtain a warrant to search the residence of a man in Lake Worth, Fla. who was suspected of committing drug and firearms offenses. They believe it's a single-family home, but when they get there turns out the man lives in one of a few efficiency apartments in the back. They enter and find the evidence. Man: The warrant only identified the property address, not my individual unit, and thus did not "particularly describe[e] the place to be searched." Eleventh Circuit: Close enough for government work.
18. And in en banc news the Second Circuit will not rehear a motions panel ruling that declined to stay district-court orders requiring the government to return people to the jurisdiction so they could prosecute a habeas challenge to their arrest and detention, though a lengthy two-judge concurrence in that denial suggests that at least some judges think the case should come out the other way when the merits panel takes a look.
19. And in more en banc news, the Ninth Circuit will not rehear a merits panel ruling that upheld an injunction against Arizona's requirement that voters show heightened proof of citizenship, though eleven judges write or join various dissents from that denial.

Five South Side Chicago businesses will compete on October 16 in the finals of the 12th annual South Side Pitch, hosted by the Institute for Justice Clinic on Entrepreneurship. The competition will again be held at the Polsky Center for Entrepreneurship and Innovation in Hyde Park. The five finalists will compete in front of an energetic live audience of South Siders to win several prizes, for a combined total of over $38,500 in cash prizes. Learn more here about how these incredible entrepreneurs will share their origin stories and their vision for the future in a "Shark Tank"-style contest.