Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal
Pill-pushing predictions, off-campus speech, and a crude insurrection.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
At SCOTUSblog, IJ's John Wrench tells a tale of white coats and black robes: How a 1927 eugenics-era decision warns against swapping judicial scrutiny for "medical consensus"—and how that lesson could shape a free speech case at the Supreme Court.
If you were to break into the National Archives, these days you'd see a sad, though sadly inevitable sight: While portions of the Constitution are still bold and easy to read, the words of the Declaration are fading. Anyhoo, over at the Home of the Brave, IJ's Anya Bidwell and Patrick Jaicomo say that our Founding ideals are under threat.
New on the Short Circuit podcast: Is sharing your password at work a federal crime?
- Is the noble tomato fruit or vegetable? Is the bat bird or beast? Is the warden of the Donald W. Wyatt Detention Facility in Central Falls, R.I., acting under color of state law or federal? First Circuit: On that last vexing question, we hold that it's at least plausible the warden was acting under color of state law. So a former detainee's Section 1983 suit against him may proceed.
- Puerto Rican utility officials don't like town's mayor, so for years they decline to provide the town with potable water, even though residents pay for it. The utility blames infrastructure issues but no steps are taken to upgrade; during one shutoff, water is restored by simply flipping a few switches at the water treatment plant. District court: Troubling! But political retaliation is a First Amendment issue, and these residents brought due-process claims. First Circuit: These allegations are conscience shocking. Case undismissed.
- In 2006, tanker carrying 300k barrels of No. 6 fuel oil runs aground off the coast of Puerto Rico, disturbing a soccer-field-size swath of coral but (phew!) not spilling oil. Feds: The tanker's owner must pay $1.4 mil more to restore the coral. District court: Yeah, pay up. First Circuit (interlocutorily): Maybe not. Liability depends on (among other things) whether there was in fact a "substantial threat" of a spill, and we can't just defer to the feds on that. To discovery this must go.
- A lot of people these days have very strong opinions about what does or does not constitute an "insurrection." Courtesy of the Second Circuit, you can apply them to something different for a change: Whether Citgo's insurer is on the hook for over 930k barrels of crude seized by the Maduro regime.
- New York man is convicted in 2022 on charges of securities fraud, making false filings with the SEC, and improperly influencing the conduct of audits. This comes as a real surprise because in 2021 he was acquitted on charges that he conspired to do all those things. A double-jeopardy violation? Second Circuit: Yes. (Ed.: But he really went looking for trouble with an alias like "Sealed Defendant 1.")
- Outside of school hours and not on school grounds, Livingston Manor, N.Y. high school senior stages a photo of a friend putting their knee on his neck. It's posted to social media with the caption "Cops got another." Social media is not pleased. And though he quickly deletes it, the post goes viral. He's suspended and misses out on fun senior class activities. Was that constitutional? District court: Totally, as even though the speech was away from school it caused a substantial disruption. Second Circuit: The "disruption" was a short assembly and student-led demonstration. Constitutional the punishment was not.
- Allegation: In 1998, after Brooklyn, N.Y. man is convicted of one drug murder and acquitted of another, the feds mark him down as a double murderer. The court orders the mistake corrected, but it's not, resulting in elevated restrictions and even physical injuries from being placed with more dangerous inmates. Feds: Shucks, but we told him to send the requisite pre-litigation paperwork to the wrong office. His FTCA claims can't go. Third Circuit (over a dissent): Case undismissed.
- West Virginia municipalities sue opioid distributors, alleging promiscuous pill-pushing got residents hooked and constituted a public nuisance. District court: State common law doesn't allow this sort of lawsuit. Fourth Circuit (2024): Would the West Virginia Supreme Court please tell us who's right on that dispositive state law question? West Virginia Supreme Court (2025): No, thank you. Fourth Circuit (2025): Fine, we predict that these claims are viable under state law, and remand for the district court to try again.
- After surgeon blows the whistle on Texas Children's Hospital for secretly running a youth transgender program that was to have been closed down, he's indicted for violating HIPAA and faces a decade in prison plus $250k in fines. The feds drop the charges, however, and the surgeon tries to get the criminal discovery materials in the hands of his civil counsel, by way of modifying a protective order. District court: No. Fifth Circuit: Yes. Any concern about the presence of protected grand jury material is purely speculative, and a reasonless district-court decision gets no deference. Dissent: This risks a grave violation of grand jury secrecy.
- Between election years, Tarrant County, Tex. redraws commissioners' districts, making it so about 10 percent of voters who were to cast ballots in 2026 must wait until 2028 when it's their new district's turn. Affected voters sue. Fifth Circuit: No PI. Federal courts can't hear purely partisan gerrymander claims, there's no evidence of intentional race discrimination, and this is mere vote postponement natural to redistricting in a staggered election system.
- How hard is it to validly allege that a medical specialty board is doing an antitrust in the Seventh Circuit? According to the dissent in this lawsuit against the American Board of Psychiatry and Neurology, much harder than necessary.
- Iowa purports to make it a crime for aliens who have illegally reentered the United States to be present in Iowa, even if the federal government is still figuring out whether they can stay here. Can the affected parties sue under the Supremacy Clause? Eighth Circuit: There's no cause of action under the Supremacy Clause, but history, tradition, and precedent say you can sue in equity to prevent the enforcement of an unconstitutional law. Preliminary injunction affirmed.
- Ninth Circuit: Look, you're not going to achieve anything by shouting "you can't tell me what to do, you're not my dad (and your proceedings structurally violate the Constitution)" at the NLRB, and so you don't have to exhaust your constitutional claims by raising them in front of an agency that can't do anything about them. That said, your arguments are wrong and the NLRB can totally tell you what to do. (The panel does not address whether the NLRB is your dad, but the staff here at Short Circuit thinks you can figure that out on your own.)
- Allegations: Same-sex couple splits their time between the U.S. and Saudi Arabia (one of them is Saudi), though they hide their relationship because Saudi Arabia deems it a capital offense. At a Riyadh airport, a Lufthansa agent sends their marriage certificate to Lufthansa HQ—info that makes its way to the Saudi gov't. They haven't returned to Saudi Arabia since. They sue in California state court. Lufthansa removes to federal court. Ninth Circuit: Sit down and buckle your seatbelt for our flight through the minimum contacts test, under which we find that personal jurisdiction exists. Dissent: All the relevant activity occurred in Saudi Arabia, making the connection to California tenuous, at best, making jurisdiction unreasonable.
- Wyoming law defines "hemp" in a way that arguably conflicts with federal law. Can the affected parties sue under the Supremacy Clause? Tenth Circuit: Binding circuit precedent says no, though we will note, in this four-page-long footnote, that binding circuit precedent is totally bogus and that history, tradition, and precedent say you should be able to sue in equity to prevent the enforcement of an unconstitutional law.
- Florida inmate alleges prison officials delayed physician-prescribed treatment for gallstones, leaving him in agony for many months. Deliberate indifference to his medical needs in violation of the Eighth Amendment? Eleventh Circuit (unpublished): As we held last year, the only inmates who can bring that kind of claim are dead inmates.
- Feds try to deport a Chilean man, claiming a crime that he committed qualified him for removal under the agency's reading of the relevant statute. In 2022, the Eleventh Circuit agrees, but, after overturning Chevron, SCOTUS says to take another look. Eleventh Circuit (2025): He still loses, but it's hard to figure out why. So we're gonna go full seriatim.
- And in en banc news, the Second Circuit will not reconsider its decision that noncitizens being detained by ICE must eventually get a bond hearing. Judge Nardini respectfully dissents joined by four colleagues (who separately dissent somewhat less respectfully.)
- And in more en banc news, the Fourth Circuit will not reconsider its decision that federal courts have subject-matter jurisdiction over solvent debtors. Six judges disagree, and a dissental by Judge King argues that Article I does not give Congress the power to provide bankruptcy protection to a company created by the "Texas Two-Step" whereby Georgia-Pacific spun off its asbestos liabilities.
- And in further en banc news, the Fifth Circuit will reconsider its decision granting a preliminary injunction to a student group that wanted to host a drag show at West Texas A&M University to raise money for the Trevor Project. Judge Ho wrote a dissent from the original panel decision that your summarist can only describe as extraordinar-a-scathing.
- And in additional en banc news, the Ninth Circuit will reconsider its decision that a Hollywood producer who had over $1 mil in cash seized by Nevada highway patrol at a roadside traffic stop lacks standing to challenge the forfeiture of the money.
First Amendment victory! For over a decade, IJ client Leda Mox has taught equine massage (which is a real thing that is very beneficial for horses) to hundreds of horse owners, veterinarians, and aspiring equine masseuses. In 2023, however, Minnesota officials demanded that she either shut down or comply with expensive and cumbersome licensing requirements for "private career schools"—requirements that do not apply to many other kinds of schools. But Leda's teaching is speech, and if the gov't wants to restrict speech it needs to have a really good reason. The state has never even attempted to provide one, instead insisting that Leda doesn't have standing and that the case is moot. ("We didn't do anything to you and now we've stopped.") So we're excited to say that this week a federal district judge brushed aside the procedural shenanigans and told the state to knock it off. Click here to learn more.