[Eugene Volokh] Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

Thousands of Americans die needlessly each year because they cannot find a bone marrow donor, writes IJ’s Nick Sibilla. Click here to watch IJ’s award-winning short film on the need for compensation for donors.

• Oil companies that drill on Alaska’s North Slope transport their crude to market by means of a single pipeline. During the 800-mile journey, high-quality crude gets commingled with low-, so FERC calculates compensation for companies that receive lower-quality stuff than they put in. D.C. Circuit: Could be some companies are still getting shortchanged. FERC needs to change, or at least explain, its methodology.
• The United States was not at war with al-Qaeda in 2000, argues the alleged mastermind of the attack on the USS Cole. So does a military commission set up after 9/11 have the authority to put him on trial? We’ll not intervene, says the D.C. Circuit.
• Puerto Rican officials drastically raise corporate alternative-minimum tax. Walmart: In such a way as to apply only to us. Our tax liability would increase to 132 percent of our total annual income if this is enforced. First Circuit: The tax violates the dormant Commerce Clause.
• Resident complains to Quincy, Mass., police about an officer who angrily and mistakenly confronted her (while armed) about stolen property. The officer is suspended and ordered to stay away from the police station, but he shows up there just as she arrives to make a statement. He’s fired. First Circuit: Which was not unlawful retaliation for protected speech.
• New York City officials require cabs to be equipped with GPS so that regulators might detect overcharging. An unreasonable search? Second Circuit: The plaintiff doesn’t seem to own his cab, so he can’t bring suit. Dissent: The city never argued that. Moreover, the implied license taxi drivers extend to customers (and therefore also to regulators) to briefly occupy their cabs is plainly not an invitation to install surveillance equipment.
• EMT receives unsolicited phallus photo from a co-worker, reports him. He just happens to have printouts on hand of a fabricated text-message conversation indicating she welcomed such behavior. She’s fired for sexually harassing him. District court: The employer can’t be held liable for the actions of a low-level employee. Second Circuit: It can when the employer’s negligence gave effect to his nefarious intent.
• Electrical fire breaks out at Lower Merion Township, Pa., home as electricians repair faulty wiring. Yikes! Police file bogus arson charges against a former resident. District court: She was acquitted, so she can’t sue police for fabricating evidence. Third Circuit: Yes she can. Moreover, though she was never jailed, she was indeed “seized” (when fingerprinted, forced to post bond, and required to attend numerous pretrial proceedings on pain of arrest), so her malicious-prosecution claim was improperly dismissed.
• DHS officials decide that 28 women and their children (who entered the country illegally and were caught immediately) should be deported forthwith, as they aren’t likely to be tortured or face spousal abuse at home. Can the women seek review of those findings in an Article III court? The Third Circuit says no and, moreover, that the statute that mandates this result does not violate the Constitution.
• Advancing theories of fire that have been “unequivocally repudiated by rigorous scientific testing,” prosecutors obtain arson and murder convictions in 1986 against Ionia, Mich., man who lost his wife and daughters in a house fire. Released in 2012, can he sue officials involved in his prosecution? Sixth Circuit: But for the estate of one forensics worker, no.
• Allegation: Man makes to flee traffic stop (over a speeding violation); a Flint, Mich., officer runs in front of the car just as the man hits the gas. The officer shoots him dead through the driver’s-side window.