Circuit Weekly Digest: A Partial Compilation of Federal Appellate Decisions

Please enjoy the latest issue of Short Circuit, a weekly feature produced by a team at the Institute for Justice.

Fresh case! Pennsylvania requires real estate brokers to keep a physical office space even when there is no need for one and it is never used. In fact, IJ client Kevin Gaughen’s office has been visited more often by state inspectors—who check for a conference table, a landline, a filing cabinet, and an outdoor sign—than by actual clients. The rule mainly imposes needless costs that are more burdensome for small brokers to absorb than for large firms. So this week Kevin joined forces with IJ to challenge the rule under the Pennsylvania Constitution, which protects the right to earn an honest living free from unreasonable regulations. Click here to learn more.

Fresh on the Short Circuit podcast: We dive deeply into the Fifth Circuit’s jurisprudence. Including a detour through the Panama Canal.

In 2022, New York enacted the Concealed Carry Improvement Act, barring firearms on private property where the owner hasn’t expressly allowed carrying, and in public parks. Gun-rights advocates sue. The Second Circuit: The private-property ban runs afoul of the Second Amendment, but there’s enough historical support to uphold the park restriction. A dissent argues the opposite.
Maryland forbids renewable-energy providers from advertising “green power” unless the electricity is at least 51% renewable or supported by renewable-energy credits from within a defined geographic region. As a result, a company whose power is fully backed by credits from outside that region cannot label its electricity as “green.” The company seeks a preliminary injunction. Fourth Circuit: Granted. None of the regulated terms is inherently deceptive, nor has the state shown the law would reduce consumer confusion.
More than 100 West Virginia municipalities sue Express Scripts for a substantial sum, aiming to create a fund to spend on various “good things.” Express Scripts counters: we want a jury trial. District court: no. Fourth Circuit: The law’s distinction between legal and equitable claims means juries decide the former, and seeking a large monetary award is a legal claim. Mandamus ensues!
“Death and taxes” is the old refrain, but taxes can haunt you after death, or at least haunt your spouse. The Fourth Circuit recounts how a couple’s underpaid and overpaid taxes from the early 1980s led to decades of disputes with the IRS—adventures involving misapplied interest—and how the widow now argues it was her husband’s fault all along. The IRS loses this round, which is pleasant news.
In 2020, a fugitive flees Texas officers in a high‑speed chase, then breaks into Vicki Baker’s home and barricades himself inside. A SWAT team floods the house with noxious gas in hopes of capturing him; the fugitive commits suicide. The city promises compensation to Ms. Baker, but the city declines to pay. Fifth Circuit: The Texas Constitution requires the city to cover roughly $60,000 in repair costs and damages. (This is an IJ case. For a carefully crafted podcast episode on what the federal Constitution requires, click here.)
After learning that a probationer burglarized his ex’s Beaumont, Texas home and threatened to murder her, a federal probation officer tells the ex that she is safe and that an arrest warrant will be sought. Instead, the officer does nothing for two days, and the probationer returns and stabs the ex, leaving her quadriplegic. Fifth Circuit: When an officer commits to a proper course of action and then negligently fails to follow through, that is not protected by the Federal Tort Claims Act’s discretionary-function exception. The case survives and proceeds to trial.
We don’t throw around the f‑word (forum-shopping) lightly, but it’s notable that Starbucks’s challenge to NLRB rulings involving two upstate New York stores has landed in the Fifth Circuit. One employee involved used the other f‑word in misogynistic remarks about coworkers, and the court thinks the NLRB should examine that more closely before concluding that firing the speaker violated labor law.
In an unpublished Fifth Circuit decision, a statute requiring pipeline companies to set a specific maximum operating pressure does not implicitly obligate them to maintain records proving compliance, especially when another part of the statute governs what records must be kept.
We understand that judicial opinions must spotlight the decisive facts, but we still wish the Fifth Circuit (unpublished) had offered more details about a DNA expert who was “impeached by her veterinary training, running an unaccredited laboratory, and involvement in the DNA quest for Bigfoot.”
A Texas felon convicted of possessing a firearm challenges the conviction under the Second Amendment. Fifth Circuit (per curiam): An easy affirmation under our existing precedent. Concurrence (Judge Ho): But a lifetime disarmament for all felonies is troubling. Concurrence (Judge Oldham): This is an easy affirmation, even if our precedent is badly flawed.
A man convicted of burying three people alive, despite the absence of physical evidence tying him to the crime, with the conviction hinging on a now-retracted witness’s testimony. He represented himself poorly at trial after waiving counsel, which the Tennessee Supreme Court permitted. The Sixth Circuit (2018) denied habeas relief, and the state scheduled his execution for May 21, 2026. Before that date, he seeks to test crime-scene fingerprints and DNA against another suspect, but Tennessee law forbids the testing. The Sixth Circuit (2026): Those statutes are constitutional. (Ed. note: Officials halted the execution after more than an hour of attempts to locate a vein while he groaned in pain; the governor later granted a one-year reprieve.)
Seventh Circuit: “We see sloppy work in briefs fairly often, and we usually pass with little comment as we concentrate on the merits of the appeal. But…”
Feds’ letter to a company: Your special brake lights violate the rules; disclose all your customers so we can warn them your product makes their cars inoperative, and we will fine you up to $26,300 per day if you don’t comply. District court: The letter is rough, but it isn’t a final agency action you can challenge. Eighth Circuit (in dissent): Yes, it is.
Indigent criminal defendants in Benton County, Arkansas sue for an injunction requiring a state-court judge to appoint counsel before bail hearings. Eighth Circuit: But we have no reason to think you’ll be arrested again or brought before the same judge. No standing!
Black Hawk County, Iowa jail requires inmates to sign “confessions of judgment” upon release, binding them to pay fees for booking, lodging, and meals. Two former inmates sue, alleging that the coerced confessions violate the Due Process Clause. Eighth Circuit: They do have standing, since the confession workaround curtailed their right to process. (Without the confessions, the jail would actually have to pursue a reimbursement action.) The case is not dismissed.
Eleventh Circuit (unpublished): Alabama state law does not shield police officers from suit for making bogus arrests or filing fabricated charges if the officer acted with personal animus. Therefore, the suit against this officer may proceed.
And in en banc news, the Fourth Circuit will reconsider its decision allowing the military not to enlist people with undetectable HIV levels (with modern treatment, such people can take a daily pill and be otherwise healthy). A prior Fourth Circuit ruling had held that the military could not discharge such individuals on the basis of HIV status, and the two decisions are, in technical terms, in conflict.
And in more en banc news, the Sixth Circuit will not revisit its ruling that the owner of an Ohio trucking company lacked standing to sue his insurance company over racial discrimination tied to a small-business grant program open only to Black-owned businesses. The panel maintained that the owner should have applied for the grant even after learning his company was ineligible for it. Dissenter (Judge Thapar): “If a hungry Black customer—ready and willing to buy lunch—walks into a restaurant with a sign reading ‘Whites Only,’ does he have to knock, ask for a table, and be turned away to be harmed?”

Fresh case! The federal government is pressing IJ client Tuncay Saydam—an 88-year-old retired computer science professor (and a truly wonderful person)—to pay $437,564 in penalties for unintentionally failing to file a short form identifying bank accounts held in his native Turkey. The government argues the penalties aren’t “excessive,” and aren’t even “fines,” meaning the Eighth Amendment’s Excessive Fines Clause doesn’t apply. Which is quite a leap. Click here to learn more.