Last Week in Federal Appeals (#78)
Appellate decisions from the week of March 9, 2026.
“Just as Americans enjoy a reasonable expectation of privacy in files maintained in a filing cabinet in the physical world, so too, Americans enjoy a reasonable expectation of privacy in the digital files they place in cloud based storage accounts. Law enforcement cannot open and view those private files without first securing a warrant.”
~ Judge Thacker, United States v. Lowers
Decision Summaries
First Circuit
Walsh v. HNTB Corporation
The First Circuit held that a performance improvement plan that does not affect the terms or conditions of employment is not an adverse employment action.
United States v. Parlin
The First Circuit held that in assessing the sufficiency of the evidence supporting a criminal verdict, all evidence admitted must be considered without regard to whether the trial court’s evidentiary rulings were correct. However, where evidence was improperly admitted, a defendant is entitled to a new trial unless the government proves that it is highly probable that the admission of the evidence in question did not influence the verdict.
Second Circuit
Sufiyan v. Bondi
The Second Circuit ordered the Board of Immigration Appeals to consider whether an immigrant would be eligible for asylum and statutory withholding of removal despite its conclusion that the immigrant’s material support for a terrorist organization barred removal. Otherwise, the immigrant would not be in a position to ask DOJ to waive the material support bar.
Jin v. City of New York, et al.
The Second Circuit held that police officers were entitled to qualified immunity from a false arrest claim because they had arguable probable cause for the arrest. The Court held that, generally, (1) officers should determine probable cause on a case-by-case basis in a domestic violence incident as they would assess probable cause in other types of criminal activity and (2) the veracity of a witness should not be doubted simply because the witness providing information about a domestic dispute may have been involved in the dispute.
Third Circuit
United States v. Concepcion
The Third Circuit held that no rational jury could conclude that an individual who transported over a kilogram of cocaine from the U.S. Virgin Islands to Puerto Rico intended to consume rather than distribute, the cocaine. Therefore, the lower court was not obligated to instruct the jury regarding the lesser-included Simple Possession crime.
Fourth Circuit
United States v. Lowers
The Fourth Circuit held, in part, that an individual has a Fourth Amendment reasonable expectation of privacy in files uploaded to a private Google Drive account, reversing the district court’s ruling that Google’s privacy policy stating it would monitor for “illegal conduct” did not vitiate the defendant’s reasonable expectation of privacy. The panel further rejected (1) the district court’s conclusion that there was no reasonable expectation of privacy because child pornography is contraband, and (2) that Google’s previous review of the files amounted to a “private search” that foreclosed any reasonable expectation. Nonetheless, the panel affirmed the denial of the defendant’s motion to suppress under the attenuation doctrine.
Fifth Circuit
Barber v. Rounds
The Fifth Circuit rejected a school principal’s qualified immunity defense after he prohibited her from praying on school grounds simply because the prayer, conducted before the start of the school day, might be visible to students.
United States, ex rel. Ferguson v. Lockheed Martin
The Fifth Circuit held that the False Claims Act’s first-to-file bar does not apply when a subsequent suit alleges a new mechanism of fraud, rather than merely adding details to the prior suit.
Ninth Circuit
B.B., a minor by and through her mother, Chelsea Boyle v. Capistrano Unified School District et al.
The Ninth Circuit, reversing a district court’s decision that an elementary school student’s Black Lives Matter drawing was not protected speech, held that elementary-aged student speech is protected by the First Amendment, and that students’ age is a relevant —but not dispositive — factor under a Tinker analysis. The panel further explained that schools can only restrict student speech when the restriction is reasonably necessary to protect student well-being.
Tenth Circuit
Dekovic et al. v. Rubio et al.
The Tenth Circuit weighed in on a circuit dispute, holding that a minor child of a lawfully permanent resident (who is eligible for a valid petition for an immigrant visa based on that status) can obtain a visa as the minor child of a citizen once the child’s parent has become naturalized. The age of the child on the date of the parent’s naturalization refers to the statutory, rather than chronological, age.
Eleventh Circuit
Beazer v. Richmond County Constructors
The Eleventh Circuit held that delayed postal delivery of a complaint due to the confluence of (1) a hurricane and (2) a law firm’s untimely response to Petitioner’s inquiries entitled the Petitioner to equitable tolling. The panel reasoned that such a these circumstances amounted to extraordinary circumstances that prevented timely filing.
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