David Sosa has some important thoughts. And so does David Sosa. As well as David Sosa. Also, David Sosa.

John Ross · June 23, 2023

New on the Short Circuit podcast: Special guest Sean Marotta of Hogan Lovells joins the panel to talk banana pants and civil procedure.

  • Never trust the U.S. Mail. That’s the lesson of this D.C. Circuit opinion, which dismisses a lawsuit brought by a former federal employee who placed his complaint in the mail four days before the statutory deadline, but whose complaint was delivered one day too late. The court holds that it could excuse the untimely filing, but—since the employee could have just sent an email—it won’t.
  • In 2020, federal officers brutalize protesters at a police brutality protest across from the White House. D.C. Circuit: No can sue. This is a new context for a Bivens claim. Never mind our 1977 case allowing Vietnam War protesters on the Capitol steps to sue under Bivens. Concurrence: The Supreme Court’s Bivens cases don’t make much sense. Another concurrence: Litigants are SOL when federal officers violate their constitutional rights unless they can find a loophole in the Westfall Act, which has generally prevented all state-tort suits against federal officers. (We urged the court to take a different course of action.)
  • Lobstermen sue the National Marine Fisheries Service, alleging that new rules designed to protect North Atlantic right whales from entanglement in fishing gear exceed the agency’s power under the Endangered Species Act because its projections of population decline are too pessimistic. The agency says it’s just giving the “benefit of the doubt” to the whales. D.C. Circuit: The ESA requires agencies to base policy on predictions of what is “likely” to happen to endangered species—and predictions based on worst-case scenarios aren’t likely.
  • ’80s and ’90s kids remember when chlorofluorocarbons were destroying the atmosphere, but the hot new thing is hydrofluorocarbons, which are destroying the atmosphere in a different way. In 2020, Congress tasked the EPA with enacting a cap-and-trade scheme to reduce production and consumption of these potent greenhouse gasses. Manufacturers of the gases and the cylinders in which they are transported challenge the scheme. D.C. Circuit: We’re going to uphold most of it, except for a requirement that the industry use reusable cylinders marked with QR codes. Dissent: Reusable, trackable cylinders make it harder to circumvent the law; the EPA has plenty of authority to require them.
  • Plaintiff: I would like a vehicle, please, to ask the Supreme Court to overrule its controversial precedent upholding laws that restrict pro-life protests/counseling outside abortion clinics. District Court: No, because you don’t have standing. Second Circuit: Yes, you have standing because there’s a credible threat you’ll be punished if you engage in such prohibited counseling, but you lose because of that existing precedent. To One First Street you may go.
  • Protestor at Black Lives Matter protest in Baton Rouge strikes a police officer. Can the officer sue the purported leader of the protest? The answers (courtesy of the district court, the Fifth Circuit, SCOTUS, the Fifth Circuit on remand, the Louisiana Supreme Court, and, once again, the Fifth Circuit) are “no,” “in part,” “maybe,” “please help,” “not no,” and—now—”still yes.”
  • Allegation: Border agents seize and search attorney’s phone, copy data that he believes includes privileged communications with his clients. In later journeys, they seize and search his phone at least four other times. He sues to stop future searches and get his data back. Fifth Circuit: Without evidence of it hurting anyone, the feds just holding onto privileged data really ain’t all that bad. Also, it’s not like repeated searches establish a trend or anything. No preliminary injunction.
  • A very brief reminder from the Fifth Circuit that—even in zoning cases—facts matter.
  • After the Biden administration redirected funding from border-wall construction, Texas and Missouri sued and sought a preliminary injunction ordering DHS to spend the money on wall construction before the funds expire. The district court denied the preliminary injunction and dismissed the case. Fifth Circuit: Case un-dismissed. The district court should reconsider the preliminary injunction—and since the funds start expiring next year, it should be quick about it.
  • Religious employers sue the EEOC, making a variety of arguments for why they and all similar employers should be exempt from Title VII’s prohibition on discriminating against gay and transgender employees. The Fifth Circuit—after consulting the Supreme Court’s “delphic” ruling in Bostock v. Clayton County—concludes that class certification is improper: one of the plaintiffs lacks standing because it is statutorily exempt from Title VII, and the other is indeed entitled to an exemption under the Religious Freedom Restoration Act.
  • In which the Sixth Circuit applies the “clear rule” version of qualified immunity and not the “case with identical facts” version. Thus, due process lets a Sterling Heights, Mich. hotelier object before a state inspector shuts off elevators that, in the event of an emergency, were programmed to descend to the ground floor instead of the basement. (One suspects there wasn’t a case saying so.)
  • The United States has the world’s largest prison population and one of the world’s highest rates of imprisonment. It’s not exactly hard to rack up a harsh sentence. So color your editors surprised at this one. Considering a child abuser and would-be crack dealer who violated probation by leading “police on a high-speed chase through a residential neighborhood with methamphetamine in his possession,” two-thirds of a Sixth Circuit panel hold that four more years is substantively unreasonable.
  • Under an absolutely bananas municipal policy, Granite City, Ill. officials order compulsory eviction of private tenants because their adult daughter, who had visited their home briefly, was later arrested for stealing a van. Their landlord didn’t want to evict them and the tenants didn’t want to leave, so the tenants sued the city and got a preliminary injunction. When the tenants later moved out of Granite City, they continued pursuing their claim for nominal damages against the city. Seventh Circuit: You can’t seek nominal damages because the city only tried to illegally kick you out of your home; it’s not like they succeeded. (This is an IJ case.)
  • Man who pled guilty to mail fraud 24 years ago and boasts a clean record since sues in the Northern District of Illinois to get his gun rights back under federal law. (As discussed on the podcast, in recent weeks the Third Circuit and the Eighth Circuit have split on whether the federal lifetime bar on felons possessing guns violates the Second Amendment.) So what’s the Chicago way? Seventh Circuit: This briefing stinks. Untouchable, you might say. “We cannot resolve the issue without the benefit of more substantial briefing on remand.” Also, throw in a few amicus briefs while you’re down there. Dissent: “[A]ffirm the district court now, without saddling it with a Ph.D.-level historical inquiry that necessarily will be inconclusive.”
  • Displeased that two children (who want to go home with their father) are refusing to go with their mother after a custody hearing, a Missouri state judge personally walks the kids into jail cells, where they stay for an hour until—after he threatens to put them in foster care—they relent and go with their mother. Eighth Circuit: Usually judges are absolutely immune from suit, but this is the rare exception. (IJ argued this case as an amicus.)
  • The Supreme Court has long held that prisons cannot censor or withhold inmate mail without due process. Thus, holds the Eleventh Circuit, neither can Georgia prisons censor or withhold inmate email—a portmanteau of the words “electronic” and “mail.” But here the “e” stands for “earlier case.” And because there wasn’t one specifically addressing email, prison officials get qualified immunity for this constitutional violation.
  • Plaintiff: Broward County, Fla. sheriff’s office discriminated against me for my military background when they kicked me out of my helicopter rescue-pilot job. Jury: They did indeed, and willfully at that. District Court: I don’t think it was willful. Eleventh Circuit: The jury’s decision trumps the judge’s. Concurrence: And if it didn’t, that would raise big Seventh Amendment problems.
  • And in state court news, the Supreme Court of Maryland rifles through the evidence and shoots down firearm experts’ striking claims that they can link a certain bullet to a particular gun. Henceforth, such claims will trigger significant scrutiny, and, if an expert that tries to claim more than what the evidence supports, courts should rightfully go ballistic.
  • And in amicus brief news, IJ and several men named David Sosa are asking the Supreme Court to grant another David Sosa’s cert petition after the en banc Eleventh Circuit said the Constitution allows police to detain anyone for three days as long as there’s a warrant out for the arrest of anyone with the same name somewhere in the country.  

Victory! Last year, Lakeway, Tex. officials tried to shut down Bianca King’s state-licensed, in-home daycare after golfers, including the former mayor, complained about the sight of toys and the kids making too much noise in the backyard, which abuts a golf course. But after IJ filed suit, the city changed its home-business ordinance and this week finally granted Bianca her permit. Three cheers for freedom, good sense, and the right to earn an honest living. And no cheers for snooty former mayors. Click here to learn more.