Nuclear waste, river cruises, and an exploding toilet.

John Ross · March 22, 2024

When Sylvia Gonzalez was elected to the city council in Castle Hills, Tex., she wanted to see that the city’s potholes got filled. But angering the city’s leadership led to a months-long investigation that ended with Sylvia arrested, allegedly for stealing a citizen petition that she herself championed. After the charges against her were dropped, Sylvia sued city officials for retaliating against her for her exercise of First Amendment rights, and this week IJ Attorney Anya Bidwell argued her case before the U.S. Supreme Court. Learn more here, and listen to the argument audio here.

  • Been a while since we’ve had a vocab quiz from the First Circuit’s notoriously sesquipedalian Judge Bruce Selya. This week features the Selya classics “immurement” and “encincture.”
  • Regeneron Pharmaceuticals sues Novartis over antitrust claims related to prescription medications used to treat the overproduction of vascular endothelial growth factor (VEGF). Your summarist could not care less about the Second Circuit’s ruling allowing those claims to go forward, and includes it only because it brings back fond memories of his science-fair project, which similarly involved a drug that inhibits VEGF.
  • We suspect that critics of the Jones Act are overrepresented among Short Circuit readers, so please enjoy this ruling from the Second Circuit, rejecting an attempt by American Cruise Lines to prevent the Swiss company Viking River Cruises from operating Mississippi River cruises.
  • New York’s 2019 Child Victims Act created a two-year window for victims of childhood sexual abuse to bring claims for which the statute of limitations had run—but that window didn’t open until 6 months after the law passed. A plaintiff took advantage of the law, alleging that she was sexually abused by a teacher in high school. But her lawyer misread the statute and filed suit before the window opened. Rather than immediately assert the claims were premature, the school district litigated the case for over two years and then successfully asserted the statute of limitations, but only after the window had closed so that the plaintiff couldn’t refile the suit. Second Circuit: Whether this sketchy maneuver works is a state-law question we’d like New York’s high court to answer instead of us. Question certified.
  • Several CUNY professors quit the union that exclusively bargains for all CUNY faculty and staff because of the union’s pro-Palestinian views and prioritization of certain instructors’ interests of over others. But they’re still subject to employment terms negotiated by the union they disdain. They sue, saying that’s a First Amendment violation. Second Circuit: The Supreme Court recently held you can’t be forced to pay dues to a union you disagree with, but that doesn’t upset older precedent that the state can choose to ignore you in favor of the union when it’s setting employment terms.
  • “After the toilet in plaintiff Troy Moore, Sr.’s prison cell exploded, covering him and the entire cell in human sewage, defendant Correctional Officer Saajida Walton refused to let Moore out of his cell to clean up for over eight hours.” Third Circuit: And we’re not going to throw out his case merely because, through no fault of his own, the original complaint misspelled the officer’s name as “Walden,” which delayed service until after the statute of limitations had expired.
  • Is it a particularly serious crime to launder the proceeds of an internet catfishing scheme to a group of Ghanaian militiamen? Fourth Circuit: Not always!
  • Prison: If you tested positive for a soy allergy, we’d stop feeding you soy, but we don’t think you have a real allergy and we’re not buying your “my religion compels me not to eat foods that make my stomach hurt” schtick. Fourth Circuit: That is, like, very precisely the sort of schtick you are required to buy.
  • In which the Fourth Circuit confronts an American-funded experiment in which unwitting Guatemalan prisoners were deliberately infected with sexually transmitted disease, which was simultaneously a horrific crime against humanity and also not a thing this particular defendant is responsible for.
  • Texas man sues propane company after his attempt to light his gas-grill leaves him engulfed in flames. Following a jury verdict, the man is awarded more than $1.8 mil in damages. Fifth Circuit: There was legally insufficient evidence of a manufacturing defect. Dissent: I’d say the fact that the guy ended up engulfed in flames when he lit his grill the same way he’d done hundreds of times before is at least some evidence.
  • Texas company “fluorinates” plastic containers, creating a barrier that keeps dangerous substances from leaching out or other substances from permeating in. The EPA becomes concerned that the chemicals used in the process are harmful and orders the company to stop, citing the agency’s authority to regulate on an accelerated basis any “significant new use” of a chemical substance. Fifth Circuit: They’ve been fluorinating containers this way for 40 years; that’s not a new use. The EPA will have regulate the slower, old-fashioned way.
  • Since administrative stays are in the news lately, your editors thought you’d want to know that the Fifth Circuit has stayed enforcement of the SEC’s climate-related disclosure rules.
  • The SEC routinely allows defendants to settle civil-enforcement actions without admitting wrongdoing—but only if the defendants promise to never publicly proclaim their innocence. Which, says the Fifth Circuit, still doesn’t give an appellate court jurisdiction to review procedurally improper post-judgment motions.
  • Neither snow nor rain nor heat nor gloom of night will stay postal workers from the swift completion of their appointed rounds, but (if one believes the allegations recounted in this Fifth Circuit opinion) disapproval of your tenants’ skin color just might.
  • Federal procurement law includes contracting preferences for service-disabled, veteran-owned small businesses (SDVOSBs). That creates an incentive for people to game the procurement system by, for example, nominally having service-disabled veterans as the owners of a company, while actually having non-veterans run everything. Who could have predicted such gamesmanship? Your summarist! And who’s going to jail for it? Fifth Circuit: This guy!
  • The Prison Litigation Reform Act generally requires prisoners to exhaust administrative remedies before they can file a lawsuit in federal court alleging a violation of your civil rights. But what if the violation is that a prison official retaliated against you by tearing up the grievances you filed, preventing you from exhausting administrative remedies? Sixth Circuit: Then exhaustion is intertwined with the merits, and you go straight to a jury.
  • Allegation: Cleveland, Ohio hospital refused all religious exemption requests for its COVID-19 vaccination policy (while granting some medical exemption requests), provided no appeal process, and told employees anyone not fully vaccinated within 45 days would be fired. Two employees whose requests were denied quit before the deadline. Sixth Circuit: And they have standing to pursue their religious discrimination claim. But the 43 other plaintiffs, most of whom were still employed by the hospital when the complaint was filed (after the hospital reversed course on its policy), lack standing.
  • Catholic school sought to install lights at its athletic field to allow for nighttime games, but Madison, Wis., denied the request under the city’s zoning code. Seventh Circuit: Which violates neither RLUIPA nor the Free Exercise Clause. An inability to host nighttime competitions on the school’s own field is not a substantial burden on its Catholic mission.
  • Chicago Bible college espouses complementarianism, which it defines as a belief in men-only clergy. A non-tenure-track instructor is an ordained minister who believes that qualified people shouldn’t be restricted from roles based on their gender. After three years at the school, she’s fired, supposedly because her non-alignment with the school’s complementarian beliefs make her a poor fit. Sex discrimination? School: Church autonomy guarantees immunity from judicial entanglement in religious matters, and the district court was wrong to deny our motion to dismiss. Seventh Circuit: The general rule about interlocutory appeals—that we cannot hear them—applies. Dissent: Orders denying immunity in other contexts are reviewable before final judgment; this should be, too.
  • “‘Sunlight’ is ‘the best of disinfectants,’” recounts a Ninth Circuit majority, in considering a First Amendment challenge to a slate of donor-disclosure and ad-disclaimer laws governing political speech in Alaska. But perhaps a later Brandeis quote would be more apt: “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent”? Majority: We’re sticking with the “sunlight” one—Alaska’s laws are probably fine. Partial dissent: One of the reporting requirements seems pointlessly duplicative of other, existing laws, which suggests it might flunk First Amendment scrutiny.
  • Two gentlemen in California are arrested with a bunch of drugs and a bunch of guns, respectively. For each, a condition of pretrial release is that he not possess firearms. Each appeals. Ninth Circuit (January 2023): In the interests of resolving the appeals quickly, here’s an order affirming the district court—an opinion will follow. Appellants: Justkiddingwe’dliketodismisstheappealasmootplease. Ninth Circuit (March 2024): No chance. And here’s a few dozen pages on why the district court’s firearm condition was fully consistent with the Second Amendment.
  • “Does the Fourth Amendment permit the government to surveil a home for months on end without a warrant?” asks the Tenth Circuit. “This case requires us to decide.” And we decide … yes! It does. The Department of Veterans Affairs did nothing wrong when it installed a motion-activated, remote-controlled pole camera across from a veteran’s house to monitor whether he was feigning his permanent-disability status.
  • Do Automated License Plate Readers (ALPRs) raise the same Fourth Amendment concerns as cell-site location data? Eleventh Circuit: Fortuitously, we need not decide. The Supreme Court did not hold that cell-site location data requires a warrant until the day after police searched the ALPR data for the suspect in this attempted murder, so the good-faith exception to the warrant requirement applies.
  • This decision of the Eleventh Circuit, involving a $78 mil “Ponzi scheme masquerading as a foreign currency investment fund,” features a rarely seen three-judge concurrence, in which the entire panel calls for courts to be less loosey-goosey about words like “standing.”
  • And in en banc news, the Fifth Circuit will not reconsider its decision that the Nuclear Regulatory Commission lacks the authority to license temporary, away-from-reactor storage facilities for spent nuclear fuel. Where to store nuclear waste is the sort of major question that Congress would clearly delegate if it wanted it stored anywhere other than the Yucca Mountain repository.
  • And in further en banc news, the Fifth Circuit will not reconsider its decision that a former NFL running back was not entitled to increased disability benefit from the NFL’s retirement plan because he failed to timely appeal an adjustment of his benefit.
  • And in still more en banc news, the Ninth Circuit will reconsider its decision that Oregon’s prohibition on most secret recordings of conversations is a content-based restriction on speech because it exempts, among other things, recordings of police and persons engaged in felonies.

Raise a glass of milk to toast an early victory for small dairies in Oregon! Last year, at the prompting of large dairies, the state announced it would subject dairies with just one or two cows to the same expensive wastewater management rules as dairies with hundreds of cows. Faced with an IJ lawsuit on behalf of small dairy owners Sarah King and Christine Anderson, the state has now decided to hold off on enforcing the policy, but the lawsuit will continue until it is repealed or struck down for good.