Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on Unpublished Opinions, IJ’s roundtable podcast: public interest attorneys and social media, specialized courts, and judges wearing wigs.
- Narrow ruling (for now) in buzzy nondelegation case. Issue: Does FINRA, a private corporation that stockbrokers must join, wield too much power by expelling members without any government oversight? Stockbroker Alpine Securities: Absolutely—FINRA can’t expel us! (Even if our alleged client fees are outrageous.) D.C. Circuit: We’ll meet you halfway—no expulsion until SEC review, but FINRA hearing moves forward. Partial dissent: Majority’s partial injunction “is a victory for the Constitution” but doesn’t go far enough. Private regulatory hearings without government oversight are flat-out unconstitutional.
- Fans of the book Planet Narnia will be familiar with the theory that C. S. Lewis’ seven-part Chronicles are actually about the seven medieval planets, even though Lewis literally never told anyone about it and no one supposed it until decades after his death. Well, a Short Circuit reader has a similar theory about Harry Potter and this First Circuit appellate-waiver opinion by Judge Selya. The clues: “transmogrify” (self-explanatory), “umbrage” (Dolores Umbridge), “paint the lily” (Harry’s mother), and the fact that the defendant/appellant is named Ronald (Ron Weasley). We report, you decide.
- Guatemalan woman seeks asylum, claiming gang members killed her family and were targeting her next. Immigration judge: Asylum denied. Board of Immigration Appeals: Appeal dismissed—you filed a day late. First Circuit: Remanded. This was FedEx’s fault for delivering later than promised. BIA’s own precedent says this, yet the Board “inexplicably” ignored it.
- Inmate at New York’s Fishkill Correctional Facility sues five guards, alleging that they assaulted him while he was having a seizure. Guards 1–4 argue administrative exhaustion. Guard 5 raises the same affirmative defense but then misses his deposition and stops communicating with his lawyers. District court: Guard 5’s answer is stricken, a default judgment is entered against him, and the inmate is awarded $50,000. But as for Guards 1–4—yeah, the exhaustion defense is sound, and the inmate’s case against them is dismissed. Second Circuit: Notwithstanding Guard 5’s poor behavior, we apply the “longstanding principle” that a default judgment cannot be inconsistent with a judgment on the merits. But wait! Is a default judgment against a defendant whose affirmative defenses have been stricken as a sanction actually inconsistent with a judgment in favor of co-defendants whose affirmative defenses were, um, not stricken? Second Circuit: Did we stutter?! The inmate loses!
- Scientific article about the withdrawal of COVID sequencing data by the NIH leads to a flurry of FOIA litigation during which the NIH blows deadlines, withholds items, suffers blows in court, and finally turns over several hundred pages of documents, many of them redacted. The matter winds its way to the Fourth Circuit, where the plaintiffs demand justice for the administrative delays. And yet, “there is no standalone cause of action for a violation of FOIA deadlines.”
- Allegation: Norfolk, Va. cop arrests man on a trespassing charge. Cop lies on the stand and man is convicted. He appeals, uses a recording to show cop lied—and wins. Two weeks later, man is seriously injured in a car accident. Norfolk officers arrive and recognize him as the one who gave “a ration of s**t.” Even though the other driver’s BAC is north of 0.30, they falsely report the man as at fault. Can he sue the officers for retaliation? District court: No harm, no foul. Fourth Circuit: Being believed as at fault for a serious accident is kind of a big deal. Undismissed.
- Mississippi: Under state law, medical-marijuana dispensaries can lawfully sell medical marijuana (and we will gleefully tax the proceeds), but, simplifying slightly, they can’t advertise that they sell medical marijuana. Heroic dispensary: But since you’ve said it’s legal for me to do the selling, it sure seems like a First Amendment violation to stop me from saying I’m doing the selling. Fifth Circuit: No, no, no. Because, you see, it’s separately illegal under federal law for you to sell the “marihuana.” So it’s totally fine for Mississippi to legalize your conduct while prohibiting your speech about that conduct, see? (This is an IJ case, and for our part, we see things . . . differently.)
- On habeas review, a prisoner convicted of rape in Mississippi state court argues that his trial and direct-appeal lawyers provided ineffective assistance by failing to assert his insanity defense. Has the prisoner overcome the Antiterrorism and Effective Death Penalty Act’s relitigation bar by showing that the state court’s adjudication resulted in an unreasonable application of clearly established federal law? Fifth Circuit (en banc, over a dissent): Nope. The prisoner failed to preserve his insanity defense in the trial court, and failing to raise an unpreserved claim on appeal is not ineffective assistance.
- The federal government grows worried about Tornado Cash, “an open-source, crypto-transaction software protocol that facilitates anonymous transactions.” Among other things, it’s used by North-Korea-linked hacking groups to launder their loot. But can Tornado Cash itself be sanctioned, and not just the bad dudes using it? Fifth Circuit: The contracts for the cryptocurrency aren’t “property” as that term is used in the International Emergency Economic Powers Act, so the feds’ authority is lacking. (Note: Although perhaps they wouldn’t change the result, someone in the crypto biz has questioned the accuracy of some of the techy factual details the court provides.)
- Did a Centralia, Ill. man convicted of various drug and gun offenses constructively waive his Sixth Amendment right to counsel when he dismissed his third appointed counsel and represented himself at his own sentencing hearing? Seventh Circuit: Sure did. The district court clearly warned the man that he would represent himself pro se if he dismissed yet another appointed counsel and failed to get another attorney by the hearing. Conviction and sentence affirmed.
- Hawaii Disability Rights Center sues the state’s Department of Education and Department of Human Services, alleging that, by failing to provide Applied Behavioral Analysis for students with autism, the state is violating a host of federal laws. The district court dismisses the case for failure to exhaust administrative remedies. Ninth Circuit: That’s correct for claims under the Individuals with Disabilities Education Act (, but plaintiff wasn’t required to exhaust IDEA remedies for its claims under the ADA, the Rehabilitation Act, or the Medicaid Act.
- Oklahoma City teenagers enter a vacant house and are playing with BB guns. A concerned neighbor, thinking that a burglary is underway, calls the police. Police show up and, within minutes, shoot one of the boys twice. He survives and sues for excessive force. Officer: He was holding what looked like a gun when I shot him. Plaintiff: I was holding my hands up, and my BB gun was inside the house. Tenth Circuit: And at this stage that dispute of fact is enough to defeat qualified immunity.
- Laramie, Wyo. high schooler is decidedly and loudly not happy with a mask mandate in Sept. 2021. She organizes walk-outs, carries signs in front of the school, and refuses to wear a mask, leading to her suspension and then trespassing charges when she comes to school anyway. She brings state and federal claims in state court, the case is removed to federal, and then thrown out on standing, partly due to her injuries being “self-inflicted.” Tenth Circuit: That’s not how standing works. Case undismissed.
- Meanwhile, in breast-bearing news, the Seventh Circuit has quietly clarified (p. 15) that it was referring (p. 15) to breasts being bared, not borne (and, due to the timing of the quiet clarification, we believe it was the result of our intrepid reporting).
- In other bear-related—albeit given the timing less-likely-due-to-us (although it’s close)—news, the First Circuit has loudly clarified that the murder of Lizzie Borden’s father and stepmother was grisly, not grizzly.
