The Judiciary Below the Water Line

Decisions of the Supreme Court understandably get a lot of attention, but what about the decisions of the Circuit Courts of Appeals, not to mention District Court and state appellate courts? Their decisions are often very important to the evolution of case law, but receive much less attention and often don’t get appealed successfully to the Supreme Court (except, it would seem, for the 9th Circuit Court of Appeals because of its relentless nuttiness).

The good folks at the Institute for Justice do a weekly roundup of lower court proceedings worthy of note in a weekly email and podcast called “Short Circuit.” You can sign up to receive “Short Circuit” in your email here. The summaries are brief and snappy. (Listen to the podcasts if you want more details.)  A few of this week’s highlights:

• Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.

• To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.

• Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”

• DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.

• Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.

• Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth CircuitContra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.

• Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.

• Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods. Ninth Circuit: Even if you had standing, which you don’t, you would still lose.

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