Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

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

Friends, the Supreme Court is conferring this very day about whether to take up Baker v. City of McKinney, which asks the question: If a SWAT team blows up an innocent person’s house to apprehend a fugitive, who pays for the damage? The unlucky homeowner or the public as a whole? Defying fairness, justice, and 150 years of Supreme Court precedent, last year the Fifth Circuit went with the former. Click here to learn more.

This week on the Short Circuit podcast: A 20-word victory at SCOTUS about walking on the wrong side of the road.

1. Federal employees: The debt limit is unconstitutional! First Circuit: Every time default looms, Congress swoops in and saves the United States’ credit, just like MacGyver. Who’s to say it won’t again in the next episode? Your injury is thus entirely speculative, and your case is moot. Come back after the apocalypse and then perhaps we can talk.
2. Allegation: Jamaican gang terrorizes man and his family for political reasons. He’s framed him for murder; a warrant is issued. He flees to the U.S. and is arrested. Man: If I’m deported, I face additional torture! First Circuit: There was probable cause for the warrant, so no asylum. But you might have a shot under the Convention Against Torture on remand.
3. After 1 a.m., Collingdale, Penn. police officer tries to pull over suspected stolen car, but the driver speeds off. Forty minutes later, the officer sees the car again, and this time it pulls over. The officer draws his weapon, waits for backup, and then all three occupants are ordered out at gunpoint. They comply. A frisk uncovers a gun magazine. A look into the trunk yields evidence connecting the group to a string of armed robberies. Suppress the evidence? Third Circuit: No. Dissent: The record does not support the officer’s belief that the driver tried to evade him, and cops can’t just pull people out of vehicles at gunpoint or frisk them based on a hunch.
4. In which the former CEO of a Dallas-based investment firm mired in bankruptcy proceedings petitions for mandamus to recuse the presiding bankruptcy judge. Fifth Circuit: The judge’s two novels do not display an impermissible bias, even though one of them (Hedging Death) involves a Dallas-based investment fund. Nor does the fact that the judge has sometimes said disobliging things about the CEO, since those disobliging things are supported by the record.
5. Pro se allegations: Supervisor at Abilene, Tex. jail asks inmate to record gang member confessing to murder but declines to inform guards, who can’t be trusted not to out informants. Yikes! The guards discover the inmate’s recording device. A gang member assaults the inmate, leaving him with a broken nose and persistent headaches that have gone untreated. Fifth Circuit (unpublished): His failure-to-protect claim against the supervisor should not have been dismissed. [NB: Experts agree that on remand he actually has a decent shot at overcoming qualified immunity because the Fifth Circuit is on the side of the circuit split that doesn’t require a totally identical prior case when the claims don’t involve split-second decisions. Read all about the split-second split in IJ’s petition for certiorari in Martinez v. High.]
6. The Michigan Court of Claims consists of judges from the Michigan Court of Appeals. Appeals from the former court go to the latter court (although the same judges don’t review their own cases). Michiganders who lost cases in the Court of Claims argue this violates their due process rights because judges might go soft on their fellow judges’ rulings. Sixth Circuit: Interesting theory, although SCOTUS justices used to do the same thing by riding circuit, and in 1803 they said that was OK. Anyway, you sued the wrong people.
7. In 2017, Detroit police set up a perimeter around a gas station after a hand grenade is discovered sitting next to the pumps. Oh no! There’s heavy fog and a man pops into the station unaware of the police presence. Officers scream profanities at him, don’t identify themselves as law enforcement, and then handcuff him despite his protestations that he is … also a police officer. He files a complaint. Sixth Circuit (2021): Could be the dept. retaliated against him for that. Sixth Circuit (this week, unpublished): No need to disturb the jury’s verdicts in his favor on that claim and the claim that the handcuffs were too tight.
8. Does police officers’ use of a “pole camera” to film the front of someone’s home amount to a search under the Fourth Amendment? Seventh Circuit (2021): No. Seventh Circuit (2024): Still no. Concurrence: On a blank slate, I’d say yes. (IJ has some thoughts on all this too.)
9. Allegation: Witness reports man slamming woman’s head against a metal railing outside apartment. LAPD officers arrive and find the man with scant injuries and the woman beaten to a pulp. She says she wants to press charges but changes her mind after an officer tells her that she’ll be arrested if she does—because the man claimed she was the aggressor. Which is doubly false: The man hadn’t said that and, even if he had, state law discourages the arrest of domestic violence victims who have been beaten to a pulp. Ninth Circuit (unpublished): The woman’s First Amendment retaliation claim against the officer should not have been dismissed.
10. Arizona prison inmate and “adherent to the Christian-Israelite beliefs” requests that he be allowed to eat the “certified kosher-for-Passover” prison diet, which he claims is mandated by his religious faith. Prison chaplain: Prove it. Ninth Circuit: That is exactly the sort of inquiry into the correctness of a person’s religious beliefs that the First Amendment forbids.
11. California woman challenges ALJ’s denial of her request for Social Security disability benefits and wins. Not only does she win, but the district court concludes that the Social Security Administration’s position was not “substantially justified” and awards her attorneys’ fees under the Equal Access to Justice Act. But it holds that she cannot recover fees for alternative legal theories the district court did not reach in ruling for her. Ninth Circuit: Give her all of the fees.
12. In 2021, President Biden issued an executive order directing federal agencies to include a clause in federal contracts requiring contractors to pay employees a $15 minimum wage. Five states—which sometimes act as federal contractors and had to pay higher wages as a result of the requirement—file suit. Feds: The purpose of the Federal Property and Administrative Services Act is to promote economy and efficiency in federal procurement, and the president can implement any policy he thinks does that. Ninth Circuit (over a dissent): He can implement policies to carry out the operative provisions of the FPASA, not any policy that’s merely consistent with the law’s purpose. No operative provision grants authority to impose a wage requirement.
13. Class of student loan borrowers sues the Department of Education, upset about the dept.’s backlog of hundreds of thousands of unprocessed applications for borrower defense relief. As the two sides move towards settlement, the dept. produces a list of 151 schools whose students should presumptively get relief based on “strong indicia regarding substantial misconduct” by the schools. Three of the for-profit universities on the list object to the settlement and seek to intervene, arguing that including them on the list damaged their reputation. Ninth Circuit: The schools have Article III standing, but not prudential standing, so we lack jurisdiction to review the settlement. Dissent: They do have prudential standing, we do have jurisdiction, and the settlement was unlawful.
14. In 2023, Colorado raised the minimum age to purchase a firearm from 18 to 21. (Possessing, using, or acquiring one by gift or inheritance remains legal.) Tenth Circuit: The injunction preventing the law from going into effect is dissolved. Concurrence: And please do scroll on down to page 92 for a big list of state laws (enacted both before and after 1900) imposing similar restrictions.
15. Black-tailed prairie dogs and sundry friends and relations live in the Thunder Basin National Grassland in Wyoming. It’s been proposed that the endangered black-footed ferret be reintroduced to reside there as well. After many years of planning, however, the prairie dogs were hit with a massive plague epidemic, leading to a revised plan for prairie dog management and ferret introduction. Environmental groups sue, claiming the plan was most unhelpful to our furry friends. Tenth Circuit: And they have a point. Go back and give a “hard look.” Dissent: The Forest Service already did that.
16. Montgomery County, Ala. clerk’s office issues warrant for failure to appear for a probation meeting. The targeted man then meets with his probation officer, who tells him everything’s cool and he’s “free to go.” Four years later he’s arrested and held without a hearing—for 48 days. During which time his car is repoed, he defaults on a loan, and his roommate sells some of his stuff. He sues the jailers. District court: Who don’t get qualified immunity. Eleventh Circuit (unpublished): We maybe would immunize you guys, but your defense counsel conceded so much stuff both below and at oral argument here that we need to dismiss the appeal. Good luck at trial.
17. Terminated public university employees in Georgia sue for discrimination and retaliation under Title IX, which doesn’t expressly allow private lawsuits for sex discrimination in employment. Did Congress nevertheless intend to provide a right to sue? Eleventh Circuit: No. Title VII already has clear remedies for employment discrimination. Congress likely didn’t want Title IX—which handles discrimination mostly by withholding federal funding—to create a workaround for claims already within Title VII’s detailed scheme.
18. And in en banc news, the Fourth Circuit will reconsider its decision that it wasn’t a “search” when law enforcement got a “geofence warrant” for cell-phone data from Google that placed the defendant with 150 meters of a bank and which led to his conviction for armed robbery.
19. And in more en banc news, the Sixth Circuit will reconsider its decision that an Ohio school district’s policy barring students from intentionally using another student’s non-preferred pronouns passes muster under the First Amendment.

With winter approaching, Kalispell, Mont. officials recently shut down the Flathead Warming Center, a nonprofit homeless shelter. Asked by a federal judge where he expects people to sleep, the mayor replied, “They have to go back into the trees.” But good news! This week, the center won a preliminary injunction that will allow it to continue providing warm beds (just as nighttime temps drop into the 20s) while its constitutional claims against the city proceed. We look forward to proving, among other things, that the center is a good neighbor that’s being scapegoated by officials (who really should be focusing their attentions on the skyrocketing price of housing). Click here to learn more.

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