Enjoy the latest edition of Short Date, a weekly feature written by a bunch of folks at the Institute for Justice.
Alaska’s sparse population creates unique educational challenges. To address this problem, the state created “correspondence programs,” in which a student’s public school uses mail or airplanes to deliver lessons and then download and grade assignments. In 1997 and again in 2014, the law was expanded to allow parents greater freedom to design their children’s curriculum and receive reimbursement for certain educational costs, including tuition at non-public schools. But now the program is under attack, and IJ has teamed up with a group of Alaskan families who benefit from the program to defend it in court.
- FOIA allows agencies to withhold “confidential” and “commercial” information, but could that category include the bare names of contractors who sell execution drugs to the Bureau of Prisons? DC Circuit: Maybe, but not on this board. (Agreement: But remember that “maybe” doesn’t mean “yes.”)
- Second Circuit Pro Tip: George Costanza’s defense (“Was it wrong? Shouldn’t I have done that?”) is a poor basis for withdrawing your guilty plea to extortion for threatening to post nude photos of your ex without your girlfriend’s consent unless you’re accepted back.
- Third Circle: “Legal silence, like awkward silence, tempts speech.” But, we’re reminded, Congressional silence calls for a different response than silence about someone’s Tinder dates.
- In a scheme apparently designed to frustrate writers of pithy appellate briefs, Johnson & Johnson, faced with tens of thousands of lawsuits over the (possible) negative health effects of baby powder, forms a new corporation to which it gives its baby powder business all liability from the baby powder lawsuits. powder, as well as a promise to pay compensation from those lawsuits. Then, the new corporation files for bankruptcy to facilitate the orderly distribution of the money to the claimants. Can they do it? Round Three: This is bankruptcy, and that giant promise of damages seems to be preventing the new corporation from going bankrupt. Petition dismissed.
- In which the Third Circuit resorts to Webster’s definition of the word “if,” if that’s something you’re interested in.
- There are probably lawyers who have been anxious to see what the Third Circuit will say about how the preclusion issue and case law apply to multidistrict price-fixing litigation in the drywall industry. If you are one of them, we are happy for you.
- If there’s anyone who likes precision in the use of the English language, it’s Bryan Garner. But if there’s anyone else, it’s your Short Circuit editors. So kudos to this Fourth Circuit panel for holding that a statement that a doctor “misread” a test result could be defamatory when everyone agrees that it actually was it is not read the test result (and it may have been medically justified for him not to do so). SNOOTs of the world, unite!
- Does insurance that covers “direct physical loss or damage” to property cover business interruption caused by COVID-19, because, you know, COVID viruses are physical things that can touch things? The fifth circuit says “no” once again.
- Normally, a case like this would fly under the radar, but when you subscribe to the Short Circuit, you can be sure to hear about it when the Fifth Circuit holds that the Second Amendment protects the right of people subject to domestic violence restraining orders to keep and bear arms.
- Sixth Circuit: Government employees have a right to speak about matters of public concern under the First Amendment. But depending on the speech — “Let me be the first to have the balls to say that Tamir Rice should have been killed and I’m glad he’s dead” — they don’t necessarily remain public servants.
- A forklift driver hits a bump in the warehouse. She falls to the floor and stops. No forklift. Now one of her legs is short, she is suing the forklift manufacturer. Her expert wants to testify that the accident could have been prevented through this safety device called a “door”. District Court: Excuse me, sub Daubert the test that the expert is off. Seventh Circuit: Yes, but that’s literally all the district court said, which is not sufficient grounds for exclusion.
- The DEA seized $146,000 in cash from the man’s vehicle. After receiving the foreclosure notice, the man’s lawyer sends the papers. But, oops! It was faulty paperwork that forced the government to go to court, a “pardon petition” instead of a “lawsuit.” After the deadline, he still files a lawsuit. District Court: I have no subject matter jurisdiction. Seventh Circuit: In fact, the court probably had jurisdiction. But the government wins anyway.
- A man standing outside an apartment complex in Los Angeles is stopped by police, who search him, find his car key, go to a nearby parking lot and click the key until they locate the car – complete with a gun under the front seat. Fourth Amendment Violation? Ninth Circuit: Yes, but harmless given the man’s worst convictions (Hobbs Act robbery and conspiracy). But his second conviction (brandishing a weapon) should be set aside.
- In which the Ninth Circuit takes a deep dive into the traditional fishing practices of the Metlakatkan Indian community and concludes that the 1891 statute secures the Metlakatkan’s right to non-exclusive off-reservation fishing in areas where they have fished since time immemorial. So, does Alaska’s effort to limit Metlakatkan fishing in certain areas violate that right? The district court should resolve this in remand.
- Alaska Airlines and Horizon Air Industries provide paid leave for jury duty, sick and leave, but not for short-term military leave. Violation of the Uniformed Services Employment and Reemployment Rights Act? Ninth Circle: Yes, maybe. This pilot’s class action lawsuit should go to trial.
- The spooky side of Eighth Amendment death penalty litigation is that an inmate challenging his method of execution must propose an alternative he prefers. Here, a convicted murderer on Georgia’s death row is proposing a firing squad instead of a lethal injection because, he says, he takes a drug that will render the sedative ineffective and has vein disease that will make the injection procedure inhumane. Eleventh Circuit (after Supreme Court reverses on procedural issue): Firing squad is valid alternative, and drug-related lawsuit is timely and maintainable. But the vein claim needs more facts to back it up.
- Indigent prisoners can generally bring federal civil rights lawsuits without paying upfront court fees. But the Prison Litigation Reform Act prevents repeat vexatious lawsuits by taking away that privilege after “three strikes” for cases dismissed as frivolous, malicious or without a stated claim. If the case is dismissed for failure to exhaust administrative remedies, is that a “strike”? Eleventh Circuit (en banc): Only if the case was dismissed because the failure to exhaust was apparent at the outset of the complaint, and not if the defendant had to introduce evidence. Compliance with District Courts: Stop asking inmates to fill out an exhaustion checkbox because that’s not how litigation normally works, and exhaustion is more complicated than a yes/no answer.
- And in banking news, the Ninth Circuit won’t reconsider its holding that “and” doesn’t mean “or” in the First Step Act of 2018 case.
- Still in banking news, the Fifth Circuit will not reconsider its opinion upholding the denial of qualified immunity when Louisiana inmates were held in custody for months after serving their sentences. Seven judges voted for a new hearing, but none of them wrote a reason.
- And in even more en banc news, the DC Circuit won’t reconsider its opinion upholding a rule that allows nonimmigrant students to work in the US after graduation. Two justices believed the rule could not be reconciled with the text of the Immigration and Nationality Act, but the case needed five to approve. (Ed.: Why wasn’t six votes necessary when there are ten active judges in the DC Circuit? Two judges did not participate, so the petitioners only needed five of the eight.)
- And in an amicus brief, the IJ is urging the Supreme Court to reverse a Sixth Circuit decision that interpreted federal law to allow the IRS to request — without notice or opportunity to object — financial records from any innocent third party the IRS believes power help them collect other people’s unpaid taxes. We think the Fourth Amendment might have something to say about that.
Friends, do you like donuts? Well, if you’re passing through Conway, New Hampshire, you can stop at Leavitt’s Country Bakery for what the local news calls the best donuts in the state. You’ll be able to spot it by the mural painted on its front by local art students … unless city government officials get their way. They decided that the mural was not a mural at all, but an illegal sign. Why? Since the mural depicts baked goods – if it depicted anything else, it would be perfectly legal. But government officials don’t tell people what they can and can’t take pictures of, which is why IJ teamed up with bakery owner Sean Young to defend his First Amendment rights.