Short Circuit: A Roundup of Recent Federal Court Decisions
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Comply first, complain later. That’s former U.S. Attorney General William Barr’s advice for citizens facing overzealous law enforcement. And that’s just what José Oliva, an unarmed, unresisting Vietnam vet, did as federal security officers put him in a chokehold and slammed him to the ground, causing life-altering injuries. José complied, but last year the Fifth Circuit said he can’t complain, dismissing his lawsuit because, the court ruled, there is no constitutional remedy for excessive force by federal officers. Now José and IJ are asking the Supreme Court to take a look and reverse. Click here to read more.
- The Federal Advisory Committee Act requires that any committee established to advise a federal agency make its records publicly available. The Drone Advisory Committee (which provided advice to the Federal Aviation Administration about, well, drones) created four subgroups, which provided advice to the committee but never directly to the FAA. Are those subgroups required to make their records available? D.C. Circuit: No. Dissent: There are allegations that the FAA used the subgroups to circumvent the Federal Advisory Committee Act, so they should be deemed advisory committees in their own right.
- Man charged with pepper spraying Capitol police on January 6 seeks to be released before trial. Man: I have non-Hodgkin’s lymphoma and thus am at increased risk of contracting COVID-19. D.C. Circuit: Well, now that you’ve tested positive for COVID-19, you’re no longer at increased risk of contracting it. You can ask the district court if the diagnosis itself merits pretrial release. (h/t: @ZoeTillman.)
- Readers may recall Todd Bank, the attorney who set the speed record for torpedoing an oral argument in the Second Circuit in 2019. Second Circuit Grievance Panel: His prize is a public reprimand. (Separately, what’s the story behind all these amicus-brief bounce-backs? Perhaps Supreme Court Rule 37.2(a)? Or 37.2(b)? Or 37.6?)
- Allegation: New York inmate first asks, and days later begs, to be seen by a doctor. Still more days later, when he begins passing in and out of consciousness, he is finally taken to the hospital, found to be in critical condition, diagnosed with diabetic ketoacidosis, given a 10 percent chance of survival, placed in a medically induced coma, subjected to multiple surgeries, and kept hospitalized for more than a month. Once back in jail the man files a grievance about his treatment. Prison officials: Sorry, our rules are that you have to file grievances within five days of the event. District Court: And you can’t sue, because you didn’t follow the grievance procedure. Second Circuit: The Prison Litigation Reform Act requires only that prisoners exhaust “available” administrative remedies, and this one ain’t that.
- Inspector at the Nuclear Regulatory Commission is worried about safety at the Diablo Canyon Nuclear Power Plant (which, to be fair, does have the name of a place where things would go horribly wrong). He raises his concerns—and then is denied promotions. Can he get damages based on whistleblower protections? Fourth Circuit: Nope. Congress hasn’t waived sovereign immunity for complaints against the NRC.
- Allegation: Texas inmate tells prison guards that he is being threatened by a sexually violent inmate and asks to be reassigned to a different cell block. Fully aware that snitches get stitches, the guards require him to identify the man in front of other inmates. The assistant warden then denies the transfer because he is a snitch. And, in short order, he is assaulted by the violent inmate who tells him he “never should have reported him.” He files a lawsuit pro se. District court: Dismissed sua sponte. Fifth Circuit: Being violently assaulted is not a legitima
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