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

Qualified privileges, unequal conspiracies, and a file in hand.

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

New case! Armed, masked ICE agents in Alabama have twice arrested Florida-born U.S. citizen Leo Venegas at work, each time barging onto active construction sites and violently detaining Latinos (while leaving everyone else alone) and each time continuing to detain Leo after he showed them his REAL ID. This week, we filed a class action on behalf of Leo and thousands of others similarly situated, challenging the warrantless entries, preemptive detentions, and continued detentions. Click here to learn more.

New on the Unpublished Opinions podcast: The panel ruminates over favorite features of the U.S. Constitution, proposes amendments, and discusses the dangers of viewing rights through a partisan lens.

1. The FBI investigated a woman, monitoring her travel, recording her private conversations, and seizing a trove of materials from her house, including family photos. Fox News aired and published a series of stories about the investigation—including the photos and other materials from the FBI. Woman: the Privacy Act prohibits the FBI from disclosing these records, and it hurt my business bigly. Identify the leaker. Journalist: The First Amendment reporter's privilege means I don't have to. D.C. Circuit: It's only a qualified privilege, which is overcome here because the info is crucial to the case, and she tried every reasonable alternative to get it. Cough up the name.
2. "Not all conspiracies are created equal." A line from a John le Carré novel? No, it's from a Third Circuit imbroglio concerning a U.S. permanent resident and father of four who dabbled in a bit of passport fraud with some collaborators. Is the crime serious enough to warrant deportation and is his evidence strong enough to demonstrate he will be subject to torture if returned to Nigeria? The court says it's too early to tell, but the immigration judge applied the wrong standards. Remanded.
3. A Delta flight attendant saw a man comforting a 13-year-old girl on a turbulent flight and concluded that the man was sexually assaulting and trafficking the child. She reports the incident to the pilot; police meet the plane when it lands and take the man for questioning in the airport. Whoops, it's his daughter, and nothing untoward happened. He sues. Delta: Child abuse reports are generally immune from liability. Man: Only if those reports are made to the state's Department of Social Services. Fourth Circuit: The statute isn't sufficiently clear for us to opine. Virginia Supreme Court, help?
4. West Virginia property owner fails to pay real estate taxes, leading to the local sheriff's selling a tax lien on her property. Notices are sent to her, but all are returned undeliverable. Yikes! Did a shlub in the state auditor's office violate her due-process rights by not doing more to identify her actual address? Fourth Circuit: Qualified immunity.
5. Gov't employee dies, after which his wife and mother each lay claim to his Federal Employees' Group Life Insurance proceeds. Mother: He executed a beneficiary-designation form naming me in 2007. Wife: But he executed a subsequent one naming me in 2013. District court: The wife's form isn't in the man's personnel file, so she's out of luck. Fifth Circuit (unpublished): Okay, but there's evidence her form was in fact received by his employer, including testimony from a supervisor who personally witnessed the man deliver it to HR. To trial the case must go.
6. In which the Fifth Circuit holds that a prisoner had no clearly established right to receive post-deprivation process after the prison withheld some of the money he earned selling handmade belts (assertedly to cover taxes and overhead), but also goes out of its way to note that it says nothing about claims for pre-deprivation process or claims under the takings clause, which nobody properly raised.
7. Michigan student with a history of behavior issues is suspected of having a gun at school based on a report from a fellow student the day before that he had brought a gun to school and overheard comments from the student himself about owning a gun. After a search of the student's locker and backpack turns up nothing, a teacher has him lift his shirt and pull down his pants (but not underwear) to prove he isn't armed. A year later, the student sues. Sixth Circuit (over a dissent): Qualified immunity for the teacher.
8. Depending on which medieval theologian you pal around with, "fact sheets" and sincerely held religious beliefs may seem to be in tension with each other. Apparently not for the manager of the Oak Ridge National Laboratory in Tennessee, though, which tried to dissuade a man from seeking a religious accommodation from a COVID-19 shot mandate by instructing him about how all kinds of religious leaders said the vaccine was A-OK and providing him with a "fact sheet" detailing how cell lines from aborted fetuses are used in all manner of medical marvels. District court: I'm not going to address the Title VII religious questions because there was no materially adverse employment action. Sixth Circuit: That was based on our circuit's now-overturned precedent. Remanded for the merits.
9. Soliciting a minor for sex is gross and wrong and criminal—but it does not, the Eighth Circuit holds, affect interstate commerce just because you made your gross solicitation while sitting in a car that was manufactured out of state.
10. Tax litigation strategies may not constitute high comedy, but for a potential exception get a load of how the IRS tried to justify taxing 3M on $23.7 mil in royalty income from its Brazilian subsidiary instead of the $5.1 mil "3M do Brasil Ltda." actually mailed back to its mothership. The Eighth Circuit tells us that once Loper Bright entered the world the "shifting sands of administrative law brought a change in the IRS's position" and a slew of knee-slapping antics ensued worthy of a Benny Hill chase.
11. Allegation: After giving birth, woman who'd been involuntarily admitted to Reno, Nev. hospital is allowed to leave (against medical advice) in such a fragile state that she dies several hours later near the hospital entrance. Hospital: We acted in good-faith compliance with the relevant laws. Ninth Circuit: That's a defense you can raise at trial, not an immunity from suit. No collateral review even though you are a state actor.
12. Mexican national invokes the Convention Against Torture, arguing that his "indigenous heritage, gang-related tattoos, multiple deportations, mental illnesses, and substance-abuse disorder put him at high risk of persecution and torture" if he is deported. Ninth Circuit: The Board of Immigration Appeals' one-sentence dismissal of these arguments wasn't enough. It has to give a reasoned explanation. Dissent: This guy has been on the run for three years, his lawyer doesn't know where he is, and he was arrested on serious weapons and assault charges just last year. "This case cries out for application of the fugitive disentitlement doctrine."
13. In 2020, Colorado voters approved a proposition that created a dedicated source of public funding for voluntary, universal preschool. Participating schools may receive funds only if they sign a nondiscrimination agreement that prohibits them from basing enrollment decisions on, among other things, a child's (or the child's family's) religious affiliation, sexual orientation, or gender identity. Two Catholic parishes challenge the nondiscrimination requirement as a violation of religious liberty and free association. Tenth Circuit: Nope.
14. Oklahoma lawyer has one clever trick for getting around state requirement that medical-marijuana businesses have 75% Oklahoma ownership. Tenth Circuit: Not clever enough.

Victory! Under Virginia's "barrier crimes" law, people with convictions for any of 176 crimes are banned, usually for life, from working as substance-abuse counselors. Which is irrational in any number of ways, not least that—until this week—it barred people like IJ client Melissa Brown, who is a highly qualified and effective substance-abuse counselor, because of a 20-plus-year-old conviction for robbery committed while in the throes of addiction herself. For the other ways the law flunks the rational-basis test, we commend this week's federal district court decision holding as much to your attention. Huzzah! And click here to learn more.

Comments

[Poxigah146]

"Soliciting a minor for sex is gross and wrong and criminal—but it does not, the Eighth Circuit holds, affect interstate commerce just because you made your gross solicitation while sitting in a car that was manufactured out of state."

This logic also holds for most of what the federal government claims to have the right to regulate.

[wvattorney13]

Agreed. It's odd that they chose to draw a line here. When something like this appears in an opinion against you, as a lawyer, you know you are getting screwed:

"The government speculates, despite the total lack of evidence on the question, that a jury could reasonably infer that someone in P.W.’s situation, with her family struggling to make ends meet, would spend the $20 on goods or services."

Yeah, silly lawyer. It's the mark of fantasy to suggest that someone might spend money on goods and services---a completely off the rails assertion.

[gormadoc]

It is good for Muhammad Arif of White County, Arkansas that soliciting the 15 year old didn't implicate interstate commerce, but it is bad for Muhammad Arif of White County, Arkansas that it helped get the word out that Muhammad Arif solicited a child.

[Just Eric]

"dabbled in a bit of passport fraud with some collaborators" is a fun way to describe a threat to national security

[TextFirst]

12 shows how outrageous the immigration case law is.

Petitioner asserts that his indigenous heritage, gang-related tattoos, multiple deportations, mental illnesses, and substance-abuse disorder put him at high risk of persecution and torture

The Court goes on to consider the factors, but consider how ludicrous this is: He's already been deported multiple times, he's crazy, and also he's a junkie. He claims that the gang tattoos were given to him against his will but come on, he's probably a gangbanger too and the IJ found his denial of same implausible. And these highly undesirable attributes, in our upside down law, make him MORE likely to be able to stay in the USA when they should make him a priority to be removed. As a multiple deportee, when he's deported (again) he must be deported to an African nation like Uganda so he can't simply walk balk in (again).

[Davy C]

Normally I would say no to deporting Mexicans to Africa... but if he's claiming he would be persecuted in Mexico and we can't return him there...

[TextFirst]

Deporting to a third country is a great solution for exactly these sorts of fact patterns and we should systemically send similarly situated individuals to the lowest bidder. It's win/win/win. The immigrant wins, because they get away from whatever country they were fleeing. The US wins, because it's far cheaper to pay another country to take care of them than to have them live off the US welfare state. The foreign country wins, because they can charge more than the cost of care and pocket the difference. If you think about it, then the crazy thing is that we weren't already doing this.

[David Nieporent]

The same people who will rant about illegal immigrants being "imported" into the U.S. and will sanctimoniously talk about "modern day slavery" will cheer about illegal immigrants actually being sold and exported.

[TextFirst]

? They wanted asylum, they're getting asylum. Who said anything about slavery? We're simply helping them enjoy the vibrant diversity of Uganda. If they're genuinely fleeing bad conditions back home, then congratulations their old life is half a world anyway. But at the same time, we're discouraging economic migrants who are using "asylum" as a fig leaf. So we're solving a massive public policy problem while also saving money and granting asylum to ACTUAL asylum seekers. This is a public policy win for everybody except the grifters.

[David Nieporent]

They wanted asylum, they're getting asylum.

Editor's note: they are not in fact getting asylum.

[TextFirst]

? It sounds like you've unfairly prejudged Uganda. It's a diverse culture commonly known as the pearl of Africa due to its natural beauty. It's an excellent place for asylum seekers to go.

[Stupid Government Tricks]

Do you also complain about criminals being sold into prisons? The guards sure are profiting from their involuntary servitude.

[wvattorney13]

"West Virginia property owner fails to pay real estate taxes, leading to the local sheriff's selling a tax lien on her property. Notices are sent to her, but all are returned undeliverable. Yikes! Did a shlub in the state auditor's office violate her due-process rights by not doing more to identify her actual address? Fourth Circuit: Qualified immunity."

This is a bad use of qualified immunity. It is clearly established that the state must do more once a notice gets returned as undeliverable. But because there is no case saying that it has to look in the publicly available records and do a particular thing, then QI.

IOW, you have to "do more" but you will never be liable because you don't have to do this particular thing (and everything is a particular thing). It is what causes a large amount of criticism for the whole doctrine.

[Nelson]

Welcome to reason #6,580 that qualified immunity is an abomination. I’m at a loss as to how it ever became a thing in the first place.

[Stupid Government Tricks]

At a loss? Ah, simple. Government employees always (well, almost always) look out for each other.

[Some Person]

Well, if you didn't have it you wouldn't have any government employees. People working for the government don't make enough money that they can afford to pay for their own legal defense every time they get sued because some random person doesn't like an action they took. And the public fisc isn't large enough to support the indemnity payments that would require (I don't see Americans lining up to pay an extra $20,000 a year in taxes to offset the cost of losing qualified immunity and other forms of sovereign immunity).

This would affect EVERY government agency at every level of government- the people who build your roads, the people who save your life when your house catches on fire, etc., would all be afraid to act because someone would find a way to sue them personally for doing their jobs. You might support total government inaction because every government employee is afraid of getting sued into bankruptcy just for doing the basic jobs they were hired to do, but the courts and the government don't feel that way. Nor have the courts historically been designed to establish an anarchy that voters have been unwilling to endorse at the ballot box.

[John F. Carr]

I agree, the summary struck me as clearly within Supreme Court precedent saying officials have to act as if they genuinely wanted to get in touch with the property owner.

[wvattorney13]

Yes. Jones v. Flowers. But this case highlights how QI is used in a disingenuous way.

Of all of the "more" that the official could have done: looking in other public records, doing a google search, looking on social media, hiring a private investigator, etc. the defendant argues that none of those individually or collectively are specifically required by Jones v. Flowers. Therefore there was no clearly established law to do any of them.

To me, that is the classic divide and conquer approach that is disfavored in other areas of law. Yes, no case said that the official had to do any one or more of those things, but he still must do something, of his choosing, that is reasonable under the circumstances. And any reasonable choice would have located the property owner.

In my mind, that is enough to decide the case. The nitpicking is not suitable in a constitutional case.

[kotodama]

Weird turn of phrase in the Sixth Circuit school search case dissent: "In response, Russell does not argue that this search was constitutionally permissible or failed to violate clearly established law."

I think it would have been less awkward to say "avoided violating clearly established law."

Also, the Eighth Circuit solicitation case, is it J.W. or P.W.? Make up your mind!

[thesafesurfer]

In other news...SCOTUS reversed both temporary and permanent injunctive relief while overruling the San Francisco District Court decision that was upheld by Ninth Circuit that held that DHS Secretary Noem lacked authority to vacate the extension of TPS status for Venezuelans thru Oct. 2026. The Trump Admin can proceed with immediate removal of any Venezuelan covered by either of the two TPS designations, and neither the District Judge nor the Ninth Circuit can block it.

SO MUCH WINNING!!!

[ninasteva]

Such interesting cases! For anyone looking to strengthen their relationships and communication, check out https://ilovemybaby.org/ for practical tips and guidance.

[John F. Carr]

Is the Colorado preschool case headed to the Supreme Court?

[John F. Carr]

Interesting footnote in the Oklahoma case. The One Big Beautiful Bill Act included $3.3 billion that can be spent on drug enforcement and is not subject to the Rohrbacher-Farr Amendment protecting medical marijuana.

Also an interesting case citation, Free the Nipple 916 F.3d 792 (10th Cir. 2019).