A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: Foreign divorces & naturalization in the Third Circuit and ineffective assistance of counsel in the Fourth.

  • Supreme Court nominee Judge Ketanji Brown Jackson releases her first opinion regarding the D.C. Circuit, finding that the Federal Labor Relations Authority arbitrarily changed the threshold at the which some federal employers can collectively bargain their employees’ union from an extremely low threshold to one with substantial impact.
  • Supreme Court nominee Judge Ketanji Brown Jackson gives her second opinion regarding the D.C. Circuit, which concluded that Iraq didn’t waive sovereign immunity in its participation to an eight day bench trial regarding a contract dispute it had with an American defence contractor. The contractor has not been lost! Judge Brown raises the possibility that an exception to the Foreign Sovereign Immunities Act may apply—an issue to be decided by the district court on remand.
  • Federal Labor Relations Authority made an arbitrarily-capricious decision to raise the threshold below which some federal employers can collectively bargain without their union members from a minimum threshold to a significant impact threshold. Circuit, the debut opinion of Judge Ketanji Jackson (short-listed Supreme Court judge).
  • Would you be interested in knowing what the CIA’s Chief of Medical Services thought about his office’s participation in the CIA’s detention and interrogation/torture program? Yes, we would. However, the Second Circuit ruled that all of the relevant information is exempted from the Freedom of Information Act.
  • Previously, sexually explicit materials were “ubiquitous” in Connecticut prisons. This led to issues like “gunning”, which you will need to investigate for yourself. However, a rule change in 2012 put an end to this. Most such materials were banned, except for those that are artistic, educative, or scientific. Plaintiffs: People could be disciplined for their gunning. Second Circuit: There are no constitutional issues.
  • The duty of the government to ensure safety is not imposed on them if they are in imminent danger. Third Circuit. That is exactly what a state-run mental hospital in Morris Plains did to a mentally ill patient who was severely depressed and violent. The mother became vulnerable during the subsequent attack. No qualified immunity.
  • A rural West Virginia man holds his grandchild and daughter hostage. He then swings a stick at the troopers, threats to shoot them and runs. A state trooper shoots and kills the man, claiming self-defense. . . The back. Fourth Circuit: This may not constitute a violation of the Constitution if the trooper tells the truth. A gunshot to the stomach raises questions as to what actually happened. So to the jury it goes. (Sorry plaintiff, we do not have the ability to reverse QI.
  • Virginia law allows an 18 year-old to have sex with an older child, while a younger person who only proposes to sex with another 14-year old can be expelled from the state’s list of sex offender. Weird? Yes. Unconstitutional? The Fourth Circuit says no. Virginia lawyers are unable to justify this law in a reasoned manner. But don’t be discouraged, they have our back.
  • Descendant of Jewish art-gallery operator sues, among others, the Ministry of Education, Culture & Science of the Netherlands, the Cultural Heritage Agency of the Netherlands, and several private and municipal museums in the Netherlands, seeking return of 143 pieces of artwork stolen from his ancestors by the Nazis. (More precisely, the allegation is that the pieces were sold to the Nazis under duress, as, for example, when Hermann Göring popped by the family’s gallery in The Hague with armed guards.) District Court: As per the Foreign Sovereign Immunities Law, both the ministry as well the agency are exempt from liability. The proper venue for museums is the U.S. District Court of South Carolina. Fourth Circuit. The FSIA decision was right on the mark, and the plaintiff appealed the venue ruling. . . affirmed.
  • Virginia prisoner, an observer Muslim, claims that his faith requires him to use prayer oil from a Muslim seller. The prison, however, will only allow him to purchase the oil from the commissary, which also sells swine and idols to other inmates—which the inmate says violates his religion. Fourth Circuit (over an dissent). The government’s interest to prevent contraband is more important than your religious-liberty right to purchase oils from an approved vendor.
  • Texas banned publicly traded companies from selling alcohol at retail in 1995. Hotel and all publicly traded companies with an application or permit to sell liquor at retail prior to 1995 are exempt. How does an exempt company sell its business to another non-exempt entity? Which corporation is the owner of the retail liquor licence? The Fifth Circuit says that this question should be addressed by the Texas Supreme Court.
  • Michigan State University had to eliminate its swimming and diving programs for men and women due to a $35-40m budget gap and major facility repairs. Title IX allows women to sue the university for a temporary injunction. This would allow the university’s women’s diving and swimming team to continue. District court: The participation gap between male and female athletes is less than 2%—too small to make a fuss over. Sixth Circuit: This is over a dissent. The percentage doesn’t matter as much as the number of athletes, which could be as high at 35. That’s sufficient to form a team. Let’s take a second look at the following.
  • Man defends himself in a trial for brutally assaulting his girlfriend. The trial does not proceed his way. A victim posts Facebook pictures of him saying “I committed Domestic Violence.” He also claims that he never had a wife against her will. The gov’t counters his testimony by pointing out contradictory testimony from previous partners. Following erratic behavior, and outbursts, they remove him from the courtroom. The defendant was convicted of the crime and sentenced for 864 months imprisonment. Sixth Circuit: Retrial before a new judge. The Sixth Amendment permits people to be represented themselves. However, they must waive their right to counsel knowingly and willingly. This defendant was not properly warned about the dangers of knowingly waiving his right to counsel.
  • Chicago attorney posts Facebook “Did Trump add Ukraine to the travel ban list?” It is impossible to find a clean lady! The lawyer responds with the same tact when challenged. Seventh Circuit: “As often happens with social media, the situation escalated rapidly.” However, the flood of negative reviews posted on lawyer’s Facebook, Yelp and Google pages was not defamatory.
  • Doctor: Dear DEA! I’d like to give psilocybin (an anti-depressant) to a patient who is terminally ill to ease his anxiety and depression. How do I legally accomplish this? DEA: You cannot do this legally because there are no exemptions from the law. Physician: That’s why I’m going to sue you. Ninth Circuit: Ninth Circuit: Ninth Circuit was correct that the DEA’s informational letter wasn’t a final agency action. The letter did not tell you what the law prohibits. Case dismissed.
  • Nevada’s prison allows prisoners to use scented oils during religious services. However, the oil must be stored in the chapel. Unscented baby oil is the only oil that inmates are allowed to have in their cells. Inmate: For 34 out of my 35 weekly prayers, this regulation requires me to use unscented baby oil. Ninth Circuit: This is inadmissible.
  • Did you recall when Trump removed net neutrality, everyone panicked and claimed it meant the end to the internet. Every tweet that you send would be subject to a $1 fee. Then nothing. California adopted essentially identical rules to defend its citizens against the dystopia of the internet. Ninth Circuit. Those rules don’t get preempted in federal law since the feds declared that they weren’t authorized to create rules for internet service providers. Concurrence. You can also stop appealing against denials to preliminary injunctions, and simply go to trial. It’s a waste of your and our time.
  • Oakland landlords who want to make a property his home must pay a substantial “relocation fee” to the tenant. This is a taking. An exaction? What is a physical occupation? Ninth Circuit: You’re searching for “totally awesome.” Your constitutional claims are thrown out by this regulation.
  • On the evidence of testimony from a detective that she confessed to her crime, a mother is found guilty of killing her 4-year old child. The crime was not linked to her by tapes, witnesses or other evidence. She is sentenced. Ninth Circuit (2013): The failure of the prosecution to reveal Phoenix’s past history of lying repeatedly in court was textbook. Brady violation. Habeas granted. Arizona Court of Appeals (2014): Prosecution misconduct causing double jeopardy and preventing a retrial. After spending 22 years in death row, her mother is free. She then sued the detective. Ninth Circuit (2022): Egregious actions all around—this time by the woman. Her lawyers and she destroyed evidence, and they obstructed discovery. The correct outcome is a dismissal without prejudice.
  • In en banc news, it was announced that the First Circuit, over a pair of other dissenters, will not reconsider its denial of qualified immunity to Orono (Me). Without a warrant and with no good reason, officers entered the residence of the suspect without warrant.
  • In more en banc news: The Fifth Circuit won’t reconsider its decision denial of qualified immunity to a Dallas officer that knelt upon a restrained, subdued man, who later died from asphyxiation. Other officers, who sat around laughing, were also denied QI.
  • Further en banc news: An update on an update. In 2020 Tennessee passed two sets of abortion prohibitions. The first prohibits pre-viability abortions. The second prohibits abortions when there is a fetus with Down syndrome. The Sixth Circuit panel upheld the preliminary injunction. In December, the en banc court approved a rehearing of it. The en banc court held a temporary injunction against the second part of the injunction. This means that the law banning abortions on grounds of race, sex or Down syndrome will not be able to take effect. Dissent: The en bloc court will not hear the case until SCOTUS makes its decision. DobbsHowever, this is not something that should be publicly stated.[T]These stay-and delay tactics undermine the regular judicial process and harm both the substance and the legitimacy of our final decision.”