Last week, the Fifth Circuit utilized the common-law trespass test to find that a state trooper’s tapping of a car tire was a search.

Recently, the Ninth Circuit held that officers may not extend a lawfully initiated traffic stop because a passenger refuses to identify himself absent reasonable suspicion that the individual committed a criminal offense.

Last week, FEDagent reported on the Federal Circuit’s decision in Siler v. EPA, on the issue of whether EPA adequately asserted the attorney-client privilege to withhold documents from Siler during the discovery phase of his MSPB appeal his removal from federal service. This week, we report on the portion of the court’s decision that vacated the MSPB’s denial of Siler’s whistleblower reprisal affirmative defense and remanded the matter to MSPB for further proceedings.

Recently, the Court of Appeals for the Federal Circuit reversed a decision of an Merit System Protection Board Administrative Judge, and found that the EPA made no evidentiary showing to prove its claim of the attorney-client privilege to prevent the discovery of draft proposed disciplinary actions.  

The Federal Circuit Court of Appeals, via a panel decision, held that when a federal employee is removed from service on a charge of “positive test for illegal drug use,” there is no requirement for the government to prove that the employee intended to use an illegal drug.

The First Circuit recently affirmed a district court judgment dismissing a FTCA claim based on the “clearly established” step of the qualified immunity analysis applied in Bivens. In doing so, it questioned the availability of the qualified immunity defense in a FTCA claim in Puerto Rico, but left this question open as the plaintiff did not raise this issue.

Former U.S. Senate Candidate Barry Michaels has asked the U.S. Supreme Court to consider whether felons may ever become “law-abiding and responsible,” to overcome a felon disarmament statute and possess a firearm.

Recently, the Supreme Court heard oral argument in Nieves v. Bartlett, a case that addresses whether an officer’s probable cause acts as an absolute bar to a citizen’s First Amendment retaliatory arrest claim.

In oral argument today on Gamble v. United States, a majority of justices were critical of an appeal seeking to overturn the “separate sovereigns” doctrine exception to the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, a case previously reported in FEDagent.

Recently, the Ninth Circuit held that Network Investigative Technique (“NIT”) warrants relied on to authorize a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. Still, the court of appeals found that the good faith exception applied to admit the evidence obtained as a result of the unconstitutional search.

In a consolidated multidistrict class action against the Office of Personnel Management following a severe data breach of OPM’s cybersecurity that affected millions of federal employees and former federal employees, federal employees and the union alleged gross negligence and a violation of constitutional rights to informational privacy. The United States District Court for the District of Columbia dismissed the case on September 19, 2017. On October 12, 2017, the employees appealed the dismissal to the United States Court of Appeals for the D.C Circuit.

Shooting dogs during a lawful search constituted an unconstitutional seizure, the Sixth Circuit recently held, allowing a plaintiff’s §1983 claim against officers to proceed.

Recently, the Fifth Circuit held that IP information from an internet provider connected to cell phone use falls within the third-party doctrine post-Carpenter, and that a search warrant of the residence connected with the IP information was supported by probable cause.

Whether state and federal prosecution for the same criminal act violates the Fifth Amendment’s prohibition against double jeopardy, a matter that Justice Ginsburg and Justice Thomas have previously called for “fresh examination,” is set to be decided by the U.S. Supreme Court this term.

Recently, the Ninth Circuit extended a Bivens cause of action to a cross-border shooting from the United States into Mexico. The Ninth Circuit also found that the U.S. Border Patrol Agent lacked qualified immunity.

The U.S. Supreme Court is set to decide whether a finding of probable cause defeats a §1983 claim alleging retaliatory arrest where two troopers arrested a man for disorderly conduct after he protested their conduct.

The Third Circuit Court of Appeals affirmed a lower court decision dismissing a tort claim filed under the Federal Tort Claims Act by an airline traveler who was arrested after an alleged altercation with Transportation Security Officers (“TSOs”). The appeals court held that the United States did not, through the Federal Tort Claims Act (“FTCA”), waive sovereign immunity from tort claims made against TSOs, who were not “investigative or law enforcement officers.”

Recently, the U.S. Supreme Court decided on Carpenter v. U.S., a case that FEDagent previously reported on. In a majority opinion delivered by Chief Justice Roberts, the Court held that the third-party doctrine does not apply to cell-site location information, and the acquisition of historical cell-site location information is a search within the meaning of the Fourth Amendment, for which the government would generally have to obtain a warrant.

On June 25, 2018, President Trump signed into law the Whistleblower Protection Coordination Act (“WPCA”), which permanently reauthorized a “Whistleblower Protection Coordinator” at each federal agency’s respective Office of Inspector General.

In two companion cases before the United States Court of Appeals for the Federal Circuit, United States Postal Service employees challenged MSPB dismissals, for lack of jurisdiction, of their removal appeals.