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NEWSLETTER

Goat standing, galling doctrines, and forfeited arguments.

Bianca King of Lakeway, Texas, is a single mother with two young children. Until recently, she was able to raise her 2- and 4-year-old kids while making a living running a small daycare out of her home. But on February 9, city officials—citing concerns of a group of nearby golfers (including former mayor Joe Bain) that they could hear and see children playing in her backyard—shut her down. This week, she joined forces with the Institute for Justice to file a lawsuit in state court challenging Lakeway’s near total ban on running a home business. Learn more here.

  • Man in the Judiciary Square, D.C. Metro station falls into gap between waist-high parapet and station wall and ultimately dies of his injuries; his body is found four days later by a Metro rider. His family sues, claiming that had they done their job, Metro employees would have discovered him in time to save him. Metro: But he was drunk, meaning he was contributorily negligent, meaning we can’t be held liable. District court: Correct. D.C. Circuit: Decidedly not. Under D.C. law (which controls here), the Metro’s status as a common carrier means it can’t avail itself of the contributory-negligence doctrine. To trial the case must go.
  • In this First Circuit opinion about the First Step Act, an unusually subdued Judge Selya lobs only a few modest vocabulary grenados: “immurement,” for example, “paint the lily” (no, not “gild” it), and “monolithic.” (By the by, “monolithic” (as you probably know) derives from the Greek for “single stone”—hence the Village of Monolithos on the Island of Rhodes, named for the rock on which perches the Knights of St. John’s castle.)
  • Firearm-offense sentences can be enhanced if you’re an “unlawful user” of drugs at the time of your crime. And, says the First Circuit, “evidence of long-time regular use interrupted by periods of abstention” doesn’t fit the bill. So weed/gun enthusiast is entitled to a resentencing without the unlawful-user enhancement.
  • Twenty-six-year-old Honduran woman seeking asylum credibly alleges that when she lived in her native country, a gang member connected to a political opposition party physically and sexually abused her and her mother, stalked and raped her sister, and murdered her uncle. But, says the Fourth Circuit (over a dissent), she didn’t produce copies of her fingerprints in advance of her hearing before an immigration judge, so back to Honduras she goes.
  • The Fifth Circuit denies qualified immunity and explains its reasoning with a page of charts. Judge Oldham, dissenting, argues that case law requiring charts cannot be clearly established.
  • An auto-antonym is a word with two opposite meanings, such as “cleave” or “sanction.” Also, goat and G.O.A.T. are not the same thing in athletics. The point is: don’t confuse prudential standing with Article III standing. If you don’t have Article III standing, you’re done in federal court. But if you merely lack prudential standing, you might be ok. (So, per the Fifth Circuit, a mother’s federal suit for wrongful death can go forward if she amends to add the survivor with the right to sue under Louisiana law.)
  • In an unsigned order, the Fifth Circuit holds that United Airlines employees who have received religious exemptions from the company’s vaccination requirement would suffer irreparable harm if the policy is not preliminarily enjoined. And Judge Jerry Smith (dissenting) Is. Not. Having It.
  • Under Kentucky’s certificate-of-need regime, new home health agencies cannot open unless they prove their services are “needed,” which they must do in an administrative litigation against their would-be competitors. But do billion-dollar incumbents really need to be protected from entrepreneurs who might provide better services? Would allowing a startup to provide Nepali-language care to Louisville’s surprisingly sizable refugee population really make health care worse? Alas, it’s rational to think so, holds the Sixth Circuit. Yes, it’s “galling” to the plaintiffs. Yes, there’s “considerable evidence” of “pernicious effects.” And, yes, the entire rational-basis test might be an “overcorrection.” But you’d have to take that up with the Supreme Court. [This is an IJ case.]
  • Sartre said that Hell is “other people,” but the original French is better translated as “the Department of Labor’s Benefits Review Board.” And thus the Sisyphean saga of one Kentucky widow’s struggle to get black-lung benefits on behalf of her late coal-miner husband. After 17 years and four trips from an administrative judge to the board, the widow receives zilch. She then appeals the fourth appeal to the Sixth Circuit. Held: “poor customer service,” but no legal error. Because, hey, there was one issue that turned out to matter, and she didn’t raise it during the first appeal ten years ago.
  • If an ordinary litigant forfeits a non-jurisdictional argument, a court generally won’t consider it. If you’re the government, the court will raise the argument for you. So it is in this case out of the Sixth Circuit, in which the court holds that a criminal defendant had no Fourth Amendment standing to challenge the search of a car in which he was a passenger, and that it was perfectly all right for the trial court to raise that argument on its own.
  • Plaintiff files his claims one day after the statute of limitations runs out. BUT! The statute of limitations expired on a federal holiday, which means he filed on time as a matter of law. BUT! The plaintiff’s lawyer didn’t make that argument in the district court, even when the district court all but asked him to. BUT! The Eighth Circuit, invoking the age-old doctrine of “oh, for Pete’s sake,” says we should cut the guy a break. Case un-dismissed.
  • The thorny intellectual puzzle of what constitutes a “violent felony” for purposes of federal law has generated opinions wrestling with conundrums fit for a philosophy seminar. And it has generated this Eighth Circuit opinion, which finds that “attempted second degree murder” just super-duper obviously counts as “violent.”
  • At least eight times, plaintiff provided her employer with a doctor’s note requesting a different accommodation for an asserted disability. Each time, her employer accommodated her. The ninth time, when she neither submitted a doctor’s note nor asked for a specific accommodation, her employer did not accommodate her. How did her Americans with Disabilities Act claim against the employer fare in the Eighth Circuit? The answer may surprise you. (Unless you read those first three sentences. Then you can pretty much guess.)
  • Wherein the plaintiff loses his property because his house was on fire but also loses his case because the Eighth Circuit finds that, when he generated a list of the personal property he claims was destroyed, his pants were on fire.
  • If a property owner owes $15,000 in back taxes, can the government sell the property for $40,000 at auction and just pocket the profits? Apparently so, says this Eighth Circuit panel.
  • After suffering financial ruin while speculating on the rice market, Joshua Abraham Norton of San Francisco rechristened himself Norton I, Emperor of the United States and Protector of Mexico. When the beloved eccentric died in 1880, upwards of 10,000 people lined the street to pay him homage at his funeral. Somewhat less charming is Mark Rogers, the self-proclaimed Emperor of North America who in 1980 committed a triple murder and was arrested while hanging onto the luggage rack of a moving station wagon. Ninth Circuit: Nevertheless, he deserved a lawyer in his capital murder trial who was more than four months out from passing the bar.
  • In which the Ninth Circuit reminds us that Batson—much like his father—is rarely any help to criminals.
  • Champion Petfoods manufactures dog food that it advertises as “Biologically Appropriate,” “Trusted Everywhere,” and containing “Ingredients We Love [From] People We Trust.” Tenth Circuit: None of which can serve as the basis for a consumer class action.
  • “Generally, issues that are not raised in a party’s brief on appeal are considered abandoned.” Bet you can’t guess what happens next in this en banc ruling from the Eleventh Circuit (over a dissent), in which the government is trying to get evidence admitted against a criminal defendant.
  • Perhaps investors should have guessed that a combination of a new cryptocurrency and multi-level marketing was, in fact, a big old Ponzi scheme. But, per the Eleventh Circuit, the Ponzi schemers can’t escape liability by arguing that their online ads were targeted to the world at large, and not particular purchasers.
  • And in amicus brief news, IJ is asking the Third Circuit to allow a Temple University physics professor’s case against the federal gov’t to proceed. Falsely accused by an FBI agent of being a Chinese spy, plaintiff’s life was turned upside down for years. The brief argues that the district court was wrong to dismiss the case under the discretionary function exception to the Federal Tort Claims Act, as gov’t officials do not have the “discretion to violate the Constitution,” and that the district court was wrong to expand qualified immunity’s “clearly established” test into this new context.

Calling all Southern law students! Join us for an immersive and practical day of learning and connect with like-minded peers and industry experts. We are excited to offer an opportunity for law students to learn about practicing constitutional law from a public interest perspective during our upcoming Legal Intensive at UNC’s Friday Center on Saturday, March 26. The experts at IJ will lead interactive sessions throughout the day that are aimed at helping students learn and practice public interest law strategies, such as identifying constitutional litigation targets, framing cases, and advocating in the court of public opinion. Register by March 4 using this link: ij.org/students/ – space is limited so secure your spot soon!


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