An inexhaustive weekly compendium of rulings from the federal courts of appeal

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

New on the Short Circuit podcast: Privately nondelegating horse puns.

1. In 2020, the U.S. Postal Service made a number of changes that reduced service. New York, New Jersey, and Hawaii sue, alleging that the changes will impede voting by mail. The district court enjoins the changes. D.C. Circuit: No jurisdiction. Congress said you have to take these challenges to the Postal Regulatory Commission first.
2. Rhode Island, like many states, limits a motor vehicle manufacturer’s ability to establish a new dealership near one of its existing in-state dealerships. Unlike other states, Rhode Island law extends this limit to new dealerships established in neighboring states. First Circuit: That sort of extraterritorial regulation violates the Dormant Commerce Clause.
3. Agents in Puerto Rico seize a man’s phone via a search warrant for an iPhone 6s. There is bad stuff on the phone. Oof! Turns out the phone they searched is an iPhone 13. Agents: Good-faith exception applies. It was an iPhone linked to the same phone number. First Circuit: The 6s and 13 aren’t even the same size, and the agents realized they had the wrong phone at the time. Motion to suppress affirmed.
4. A few years back IJ won a case at SCOTUS, forcing Maine to offer private school tuition without discriminating against religious education. Now in a non-IJ case, the First Circuit has confronted a follow-up question: What strings can the state place on that aid that might come into conflict with a religious school’s mission? Over the course of well over 100 pages, in two opinions, the court largely upholds the denial of the schools’ motions for preliminary injunctions, although one school succeeds in obtaining a PI regarding one religious liberty claim. Bonus: Pullman abstention goes down in flames repeatedly.
5. Jamaican man fighting deportation asks for bail so he can receive kidney dialysis. Second Circuit: Without getting to the merits of his pending habeas appeal, he should be temporarily released for treatment. Dissent: He can get treatment in Jamaica via a self deport.
6. New York City charges a toll for vehicles entering the Central Business District in Midtown and Lower Manhattan. Neighboring New York counties sue, alleging the toll unconstitutionally restricts the right to travel and violates the Due Process, Equal Protection, and Excessive Fines Clauses of the New York and U.S. Constitutions. Second Circuit: It does none of those things.
7. New York City ordinance forbids real-estate brokers from collecting fees from tenants based on apartments they list—which, the Second Circuit says, absolutely restricts their commercial speech and impairs the obligations of their contracts but does so in a manner that is, constitutionally speaking, okey-dokey.
8. Families of children with ADHD and autism spectrum disorder sue drug manufacturers, arguing that the manufacturers failed to warn them that prenatal ingestion of acetaminophen could cause both disorders. The district court excludes all of the plaintiffs’ expert witnesses and grants summary judgment for defendants. Second Circuit: Reversed for some of the experts (including the Dean of Harvard’s School of Public Health). Maybe their conclusions are wrong or a jury won’t be convinced, but their testimony meets the standards for admissibility.
9. If you want to play Woke Cancellation Bingo, this Third Circuit story about a doctor who published a detailed article critiquing medical school affirmative action policies (in 2020, to an unpleased reaction by his colleagues) would be a great resource. But the last cancellation may belong to the doctor, as (over a dissent) his defamation claims against university, hospital, and others are now back in play.
10. Immigrant tries to timely e-file motion with immigration judge to reopen his removal proceedings. Electronic-filing system doesn’t accept it. Then he tries to timely file a hard copy in person. Clerk refuses to accept it. Then he sends it by mail—but after the deadline. Court accepts it. Huzzah! … And then denies the motion as untimely. Fourth Circuit: Come on guys. “Filing a motion should not be a game of gotcha.” (The court also gives a well-deserved shout-out to the Georgetown Law students who represented the immigrant on appeal.)
11. Allegation: Salem, S.C. post office employee goes berserk, violently attacking a woman collecting her mail—an attack enabled by the postmaster, who opened double-locked doors to aid the employee’s advance. Fourth Circuit: She can pursue a narrow claim against the postmaster but nothing else. The combo of the FTCA, Westfall Act, and Bivens “sends a plaintiff … directly from the arms of Scylla to the mouth of Charybdis. The result is quite harsh and rather shocking”; take it up with Congress.
12. Prominent Maryland lawyer is charged with shambolic attempt to extort a hospital, insists on representing himself at trial. More shambles ensue, with the prominent lawyer yelling at the judge and getting jailed overnight for contempt. Fourth Circuit: And despite the prominent lawyer’s buyer’s remorse, the district court did not plainly err in letting him act as his own lawyer.
13. New Orleans police officer enters yard, shoots, kills 16-week-old puppy who was running toward him without growling, barking, etc. Jury: Shouldn’t have done that but qualified immunity. Also, the city’s policies were not to blame, but the city is liable to the bereaved owners. Fifth Circuit: New trial on municipal liability.
14. Elementary school dropoff-line dispute prompts Onalaska, Tex. traffic cop to (allegedly) jump on SUV’s running board and try to drag mom out by her hair (with kids in the back and vehicle in drive). Fifth Circuit (per curiam, unpublished): It was reasonable to interpret mom tensing up her body as resisting arrest. (But no biggie b/c the officer had probable cause to arrest for other stuff.) No constitutional violation.
15. In which attorneys representing the United States attempt to persuade the Eighth Circuit that their previous settlement agreement with the plaintiff couldn’t possibly forbid them from rescinding his permit because he offered to pay them money to leave him alone after they threatened to rescind his permit.
16. Last year, the Treasury Dept. ordered money service businesses in 30 zip codes along the southwest border to report all cash transactions over $200. For one MSB, the paperwork alone takes 14-17 hours a day, not counting the time it takes to gather customers’ personal info, and business drops by half when customers shy away from giving their info. Ninth Circuit (over a dissent): Looks like, among other missteps, the feds acted without statutory authority. No presumption of regularity and PI affirmed. (This is an IJ case. Boom!)
17. Ninth Circuit (unpublished, over a dissent): Hitting a suspect in the face with a baton is excessive, indeed deadly, force, and a reasonable jury could find it was unreasonable in this case where the suspect had his hands raised and was obeying officer commands. Anyhow, qualified immunity.
18. Two people allege that they were sexually abused by Pushmataha County, Okla. jailers. Tenth Circuit (2025): Though the Ninth Circuit presumes non-consent between guards and inmates, we don’t. Nevertheless, there are enough disputed facts to send this to a jury rather than grant qualified immunity. Tenth Circuit (2026): Though the sheriff’s willful disregard for criminal sexual conduct inside the jail is inexcusable, there is no municipal liability. Concurrence: We need to overturn our precedent and presume non-consent (in a case where the argument is advanced).
19. Fourteen-year-old kicked out of Florida State Fair for unruliness is dropped off at side exit by Hillsborough County deputies, who do not (as required) alert responsible adult. A deputy threatens them with arrest if they re-enter and tells them the only way to get to the main exit where their ride is supposed to pick them up is to cross an interstate. They try, and the teen is killed. Jury: Wrongful death but no 4A violation. Eleventh Circuit: Affirmed, as is the denial of sovereign immunity.
20. And in en banc news, the Fifth Circuit will reconsider its decision that due process requires bond hearings within 90 days for certain aliens pending their removal hearing. (For those of you following closely, there’s a circuit split in this statutory and constitutional soup as to whether mandatory detention sans a bond hearing is okay.)
21. And in more en banc news, the Ninth Circuit (over eight votes and two dissentals) will not reconsider its decision that California’s ban on concealed carrying of switchblade knives (in public) is consistent with history and tradition.

New case! In 2021, IJ client Gino Fiermonte, an electrician at Long Island MacArthur Airport, was severely shocked while repairing a runway sign because, according to Gino, an FAA employee negligently turned the power back on. So Gino filed suit against the FAA employee in state court. But then the feds removed the case to federal court and certified the employee was acting within the scope of her federal duties. So then the proper thing to do is to substitute the United States in as defendant and proceed under the Federal Tort Claims Act, yes? Yes! Right! But instead, the feds are trying to get Gino’s case tossed out. They claim that Gino should have known to file his lawsuit against the U.S. in federal court to begin with—even though the feds (by controlling the scope-of-employment certification) control whether the case ultimately belongs in state or federal court. That can’t be right, and, if it succeeds, the gov’t will have concocted yet another gigantic, atextual hurdle to getting straightforward claims heard on the merits. Click here to learn more.