New on the Short Circuit podcast: A dive into IJ’s research report Unaccountable, which examines how qualified immunity really works in the federal circuit courts of appeals. The interview with its authors includes a special look at the methodology used by the team to comb through over 7,000 opinions issued over 11 years.

• USPS products include those over which it has a monopoly, like first-class mail, and competitive products, like package delivery. The rates it charges for competitive products are supposed to be high enough to cover the costs attributable to those products, though its brown-attired competitor takes issue with its package-delivery ratemaking. D.C. Circuit: The ratemaking gets our stamp of approval.
• If you ever wanted to read a “bench slap” of the National Labor Relations Board, this humdinger from the D.C. Circuit would be the place to go. Number of times the court calls NLRB’s arguments “nonsense”: 2. Number of unfair labor practices found: zero.
• Man is seized as an unlawful immigrant and charged criminally with “illegal re-entry.” District court: You can be released on bail. ICE: Great, but we also have power to detain him pending his removal, so we’re going to go ahead and keep him in custody. District court (2017): You can’t do that. ICE: Yes we can. Second Circuit (2018): As a general matter, ICE certainly has the authority to detain people pending removal, but it might not be OK if the detention is a pretext for circumventing the district court’s bail decision in the criminal case. We remand for the district court to clarify if it thinks ICE is acting pretextually. District court (2023): Yeah, definitely pretextual. Second Circuit (2024): You … didn’t conduct any evidentiary hearing or consider any facts. The ICE detention stands, and the criminal indictment for illegal re-entry is reinstated. Concurrence: But just to be clear, pretextual ICE detentions are not OK. It just so happens there’s no reason to think this particular ICE detention was in fact pretextual.
• Allegation: Manhattanites’ home is damaged due to faulty renovations in the building next door. Construction has been going on for years, and unresolved complaints to the city have led to tens of thousands of dollars in fines! Homeowners: Hey neighbors, pay us lots of damages. Neighbors: Too bad for you, we’re the Permanent Mission of the Republic of Sierra Leone to the U.N. Sovereign immunity! Second Circuit: Often that is a get-out-of-jail-free card, but not here. The commercial activity and tortious activity exceptions apply. Case can move forward.
• Grocery store supervisor tells female subordinate that women are “too sensitive to be managers.” Also says a lot of other jerky and sexist things. Subordinate is fired for allegedly falsifying food logs. She sues, claiming gender-based discrimination. But does she have what it takes to satisfy her third-stage burden under the McDonnell Douglas test? Second Circuit: She does, because while a plaintiff may satisfy Stage 3 by demonstrating that the employer’s stated reason is a pretext, she can instead just prove that an impermissible purpose was a motivating factor.
• If you’re a Pennsylvania voter and chose mail-in voting, you must sign and date the outside of the envelope before mailing your ballot in. Turns out, the date doesn’t matter for establishing whether it’s mailed on time. So if you forget to date it, does your vote still count? Pennsylvania Supreme Court (2023): The law’s the law. Toss that vote away. Third Circuit (2024): And that’s okeydokey under the Materiality Provision of the Voting Rights Act. Dissent: Really?
• Pennsylvania man is arrested following a drug deal gone bad. In exchange for a sentence of 20-40 years, he pleads guilty to third-degree murder, conspiracy, and carrying an unlicensed gun. But wait! He alleges that his lawyer told him he’d be eligible for parole after 10 years. He wouldn’t have pleaded guilty if he’d known the truth: that he wouldn’t be eligible for parole until he’d served 20 years. Ineffective assistance of counsel? Third Circuit: Possibly. He deserves at least an evidentiary hearing on whether his lawyer misadvised him.
• Are the latest lines for state senate districts in the North Carolina General Assembly gonna be redrawn again due to the latest Voting Rights Act opinion in the Fourth Circuit? Dozens of pages of language extolling judicial restraint (over an almost-as-long dissent) will tell you “no.”
• Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex in educational programs receiving “Federal financial assistance.” Does that include the tax benefits that come with being a 501(c)(3)? District Court: Yes. Fourth Circuit: So every private school in the country has been subject to Title IX for the last 50 years, and nobody realized it until now? Seems unlikely. (IJ did an amicus brief in this case, discussing the implications of the district court’s ruling for educational-choice programs.)
• Texas prisoner gets at most 3.5 hours of sleep per night. For 10 years. Bedtime is 10:30 p.m., with breakfast at 2 a.m., plus a “bed count” that requires him to wake up at 1 a.m. Cruel and unusual punishment? District court: I’m not convinced your health problems are related to this sleep stuff. Fifth Circuit: How about you check that analysis again?
• Remember all the hubbub last week about temporary administrative stays vs. stays pending appeal? Well, the Fifth Circuit has now issued an actual opinion about the latter regarding Texas’ S.B. 4 immigration law.
• Michigan man is charged with robbing a gas station. At his arraignment, his attorney fails to appear. Later, he tells that attorney about three alibi witnesses who could testify that he was home at the exact time of the robbery. That attorney never talks to them. After firing the attorney for more failures to appear, he tells the next attorney about the same witnesses. That attorney also never talks to them. He’s convicted, and the state courts uphold the conviction on appeal. Sixth Circuit: Ineffective counsel and effective habeas.
• During a traffic stop in Hamilton County, Tenn. a driver admits she has pot in the car. After her arrest, the cop and her discuss religion. Cop asks woman if she wants to be baptized and, as she later recalled, promises that he will let her off with just a citation if she lets him submerge her in a nearby lake. She reluctantly agrees. You don’t have to be a connoisseur of locusts and wild honey to surmise that the next stop on this spiritual journey is federal court. District court: Qualified immunity biblically denied. Sixth Circuit: Appeal is cast into the wilderness for failing to concede plaintiff’s version of the facts.
• Deaf Michigander sues his former employer for disability discrimination. After months of discovery, the employer’s counsel realizes that the employment agreement contained an arbitration clause. The employer moves to dismiss and compel arbitration. Sixth Circuit: There was a time when we might have agreed with you, but that was before the Supreme Court clarified that arbitration clauses can be waived through litigation conduct, even if there’s no prejudice to the other party, which is what happened here.
• Chicago-area computer science undergrad becomes obsessed with ISIS and develops computer code to help make and distribute ISIS propaganda on social media. He’s taken down by the FBI and convicted of lending material support to foreign terrorists. Defendant: Code is speech! Seventh Circuit: Let’s assume it is and is covered by the First Amendment. You still lose.
• In your summarist’s former life, he litigated a little something for collectively bargained pension plans called withdrawal liability. What is that, you ask? Well, for an employer, it’s a massive amount of cash if it ever leaves a collective-bargaining agreement. Trucking company makes payments to pension fund in line with a CBA but doesn’t actually enter into the agreement. Then ceases to perform work under the CBA, triggering a withdrawal liability demand. Seventh Circuit: A written agreement was needed, and conduct isn’t enough to be bound by it. No withdrawal liability and no $2 million payment.
• Following a car accident in Los Angeles, LAPD officers approach one of the vehicles. Out of it crawls a man with what officers think is a knife. Shouting, the man approaches one of the officers, ignoring commands to stop. Officer shoots the man six times, killing him. (Turns out the knife was a boxcutter.) Ninth Circuit: And while the initial shots were clearly reasonable, the last couple were a closer call. And you know what we do with close calls? Apply qualified immunity. The estate’s (and man’s child’s) federal claims were rightly rejected. But a state-law claim might survive, which the district court can sort out on remand.
• Practice tip: When briefing, do not cite cases that don’t exist (even if cleverly named Smith and Jones) and, for cases that do exist, do not misrepresent their facts and holdings. If you do, you might face a difficult oral argument followed by the court striking your brief from the record and dismissing your appeal, as the Ninth Circuit demonstrates.
• At the height of the COVID-19 pandemic, a California biopharmaceutical company announces the development of an antibody, which the CEO characterizes in a statement to Fox News as “a cure” that “works 100%.” The company’s stock price surges before reality sets in about a week later. Disappointed investors sue. Ninth Circuit: In context, the statements were corporate puffery about in vitro results; no reasonable person would think they were an actual claim of an immediate 100% cure.
• A rule of thumb in civil rights litigation is cases are hard to win. Another rule of thumb is they’re even harder to win if you’re a prisoner. And a further rule of thumb is if you’re a prisoner and you win a case, getting attorneys’ fees is still pretty hard. But what if you’re a prisoner who makes an offer of judgment for $60,000 “plus reasonable attorneys’ fees and costs allowed by law, if any” and it’s accepted? Tenth Circuit: Hard, but prisoner wins.
• Netflix’s Tiger King tells the story of Joe Exotic, the former proprietor of an exotic animal park who—spoiler alert—was convicted and sentenced to 22 years in prison for attempting to hire hitmen to kill animal-sanctuary operator Carole Baskin, with whom he had a long-running feud. The docu-series also features eight video clips recorded by Timothy Sepi, a former employee of Mr. Exotic’s. Sepi contends that Netflix infringed his copyright when it used the clips in the series. Tenth Circuit: His claims regarding seven of the videos fail. But the claims about the eighth video—featuring footage of Mr. Exotic’s late husband’s funeral—need a closer look.
• Miami man scares his girlfriend so badly she dials 911 and screams “emergency, emergency!” and “get off me!” before he ends the calls. When police arrive, he flees through the neighborhood. Officers catch and tase him, at which point he drops and doesn’t move. They repeatedly kick him anyway. And he dies. District court: Qualified immunity! Eleventh Circuit: To a jury this goes.
• Black speech pathologist in an Army hospital claims superiors shuttle white patients away from her and gin up reasons to make her look bad. She goes to the EEOC. She’s then written up for a number of HIPAA violations. And fired. District court: Case dismissed. Eleventh Circuit: She might have hostile-work-environment and race-based-disparate-treatment claims. But affirmed on the rest.
• And in en banc news, the Third Circuit, over six judges’ “dissent sur denial of rehearing en banc,” will not rehear its panel decision that Pennsylvania’s prohibition on 18- to 20-year-olds carrying firearms is unconstitutional.

Melissa Brown made some mistakes while struggling with addiction during her younger years. But she turned her life around more than 20 years ago and became a state-certified counselor, helping others suffering from the same challenges she has overcome. However, in 2018 she found out that a Virginia law bans her from working in that occupation because she has a decades-old conviction on the books. This week, she joined with IJ in federal court to fight for her—and everyone else’s—right to earn an honest living and a second chance. Click here to learn more.