Short Circuit: A roundup of recent federal court decisions
Geek therapy, crack felony, and some Scooby Snacks.
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: We look at 100 years of zoning and chances of zoning reform, in court and in city councils, with Harvard's Molly Brady and Vice Mayor of Cambridge, Mass., Burhan Azeem.
And on the latest episode of the Law Office History podcast, Christian Burset of Penn Law explains how it was hard to be a textualist in Olde Timey England because Parliament wasn't very clear when writing its statutes and it was hard to find copies of them anyway.
- Sure, some observers would think that the interesting part of this First Circuit decision is the clash of parental rights in schools and a vaccine mandate of general applicability. (Despite recent SCOTUS decisions, no preliminary injunction will issue.) But, for us, the big news is that the First Circuit wrote an opinion in single-spaced Times New Roman. It's a start!
- Political group asks for a P.I. ahead of NYC's mayoral election, claiming it wants to run ads but that certain disclosure laws that apply to the ads are unconstitutional. The district court denied the motion and the group appealed. Second Circuit: The election was in, like, 2025. This is moot. You didn't say anything about the next election. Dissent: Actually, they did, especially if you look at the underlying complaint. Further, this disclosure regime is unconstitutional.
- Due to the evisceration of the Chevron doctrine the evisceration of the Administrative State continues. This time it's the Fourth Circuit eviscerating the . . . deportation of a Dominican woman working for an elder care provider who may have checked the wrong box on an employment form.
- District court sua sponteremands a removed case because the notice didn't adequately establish the plaintiffs' citizenship. Can the remand order be appealed? That depends, explains the Fifth Circuit, on whether the defect was jurisdictional or procedural. If jurisdictional, it can't be appealed no matter what. If procedural, it also can't if raised by a party. Since here it was raised sua sponte, though, the judge acted outside the statute, and that remand can be appealed.
- Ethiopian man slated for deportation to anywhere besides Ethiopia files a habeas petition six months after an immigration court deems him removable. When the gov't tries to put him on a flight to Cameroon (as it said it intended to do months earlier), he files emergency motions to prevent deportation. The district court denies his motions, but, while his appeal is pending, grants his habeas petition and orders his release into the U.S. Fifth Circuit (per curiam): Appeal dismissed as moot. None of this sits very well with Judge Oldham, whose statement respecting the dismissal describes the case as a "travesty" involving "gamesmanship," an "avalanche of self-contradicting gibberish," and a "magistrate judge's surprise switcheroo."
- Tabletop role-playing game aficionado develops a game designed to help people with anxiety and other psychological disorders. He enters into a licensing agreement with a company that promotes "geek therapy"—therapeutic techniques that incorporate geek culture. Things go south and the designer sues to company. The district court dismisses all his claims. Will he throw a saving roll on appeal? Fifth Circuit: Natural 1.
- Public employees in Indiana can have union dues deducted from their paychecks. Since 2021, teachers alone must take additional steps to do so, including signing a form that reads, "I am aware that I have a First Amendment right . . . to refrain from joining and paying dues to a union." A district court held that the statement was compelled speech in violation of . . . the First Amendment. So, Indiana amended it to "The State of Indiana wishes to make you aware . . . " Seventh Circuit: The rewrite resolves the compelled speech problem, but making teachers jump through additional hoops is viewpoint discrimination in violation of . . . the First Amendment. Affirmed.
- Missouri man is convicted of being a felon in possession. Eighth Circuit precedent bars his Second Amendment claims but what about a Fifth Amendment claim? After all, states have different laws, and it would be unfair to disarm someone whose previous criminal conduct might be a misdemeanor in a different state. Eighth Circuit: Well, you were convicted of selling crack, which is a felony in all 50 states.
- Idaho physician challenges state abortion ban as applied to situations where an abortion is necessary to prevent serious and lasting—but not life-threatening—harm to pregnant women. District court grants injunction and Idaho seeks a stay pending appeal. Ninth Circuit: Granted. Concurrence: I mean, c'mon. Dobbs resolved all this. Dissent: Roe recognized two abortion rights: one privacy-based and one health-based. Dobbs only rejected the former, and history and tradition support the latter.
- Boise State student and trans athlete Lindsay Hecox challenged Idaho's Fairness in Women's Sports Act, but when the Supreme Court took her case, she disclaimed any interest in playing collegiate sports covered by the law and suggested her case was moot. The Supreme Court disagreed because she was still an enrolled student, upheld the law, and remanded to the Ninth Circuit. Ninth Circuit: But now she has withdrawn from the school, so the case really is moot, despite her claims that she wishes to re-enroll.
- Facebook invokes terms-of-service violations to terminate a content creator's decade-old account with 25 million followers. Creator: Sure, our ads are "scammy" and "blatant clickbait," but Facebook breached its agreement in deleting our account. Ninth Circuit: Even assuming you have an enforceable contractual right, you're seeking to meddle with Facebook's publishing discretion, which Section 230 bars.
- Football fans obtained a multi-billion-dollar jury verdict against the NFL, arguing that its anticompetitive agreements made them pay inflated prices for Sunday Ticket. Zoinks! The district court rejected the verdict, excluding the fans' expert as unreliable and entering judgment as a matter of law for the NFL. Ninth Circuit: Reversed from the booth. Expert opinions aren't unfounded or unreliable merely because they're impeachable. (Your humble summarist would submit that the Denver Broncos are super.)
- In Bivens news, exactly three people can win under Bivens. The terrorist Abu Hamza (complaining of the conditions of his life imprisonment) is not one of those three people. Therefore, he cannot win under Bivens. Tenth Circuit: Yup.
- You might be tempted to read this Eleventh Circuit opinion because a customer used "Cash App" to see if they could get themselves some "Scooby Snacks." But you'll get more out of it for the drug dealer defendant's (unsuccessful) attempts to request a Franks hearing and exclude hearsay.
- And in en banc news, the Fourth Circuit will not review its decision upholding a P.I. that allows fired CIA employees, who worked in DEI-related positions, to pursue internal employment appeals.
- And in further en banc news, the Fifth Circuit will not initially be going en banc in an appeal concerning whether Congress has power under the Commerce Clause to ban machine guns. The vote almost went over the top, though, 9-8.
- And in additional en banc news, the Fifth Circuit will reconsider its decision that Trader Joe's committed an unfair labor practice when it fired someone the dissent called "the sort of employee who haunts the nightmares of HR managers everywhere."
- And in wild, yet now not that newsworthy, en banc news, on Monday the Ninth Circuit granted a stay of a district court's TRO against the federal gov't related to the gov't's demand that California and Washington segregate certain ballots. Then, later that day, the Ninth Circuit granted a motion for the case to go en banc. Then, on Tuesday, the Ninth Circuit (the eleven-judge en banc panel) reinstated the initial stay. The plaintiffs then asked for "full court rehearing en banc," i.e., that all 29 active circuit judges plus the senior judge on the initial panel hear the case. Ninth Circuit (still on Tuesday): Full en banc? We never go full en banc.
Protectionism alert! This week, IJ sent a letter to officials in Clewiston, Florida, warning that the city's food truck ordinance violates the Florida Constitution. Food trucks in Clewiston may only operate on Mondays and Tuesdays and must stay at least 200 feet away from any open restaurant unless that restaurant gives written permission. Those two days are not a coincidence. Mondays and Tuesdays are when most brick-and-mortar restaurants in Clewiston are closed, meaning the ordinance permits food trucks only when they are unlikely to compete with established businesses. The 200-foot buffer zone fulfills a similar protectionist function, giving existing restaurants veto power over whether a competitor can set up nearby.