Thursday, June 23, 2016
The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)
While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):
Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.
Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.
The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).
On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause. In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).
Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit. On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r-a-c-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")
Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:
In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.
Kennedy's opinion ends with a paean to diversity and a warning, including to UT:
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
Justice Alito disagreed strongly and read portions of his dissent from the bench. His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately). Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:
The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.
Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded: "The majority cannot side with UT simply because it is tired of this case."
Monday, June 20, 2016
On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.
Central to the First Amendment claim is the contention that the "event zone" is far too large and
apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.
Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time. ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."
The Cleveland regulations ban a host of dangerous items within the zone. This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC. However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls. There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.
Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government. Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance. While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.
Thursday, June 9, 2016
A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.
The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.
It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).
The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.
The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).
The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."
The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.
The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.
Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."
In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.
Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.
Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:
The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.
This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."
Justice Kennedy's relatively brief opinion for the Court specifically rejected each of Pennsylvania's arguments.
As to the passage of time between the prosecutorial and judicial events, the Court reasoned that
A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.
As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection." Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences. And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."
As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:
A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.
Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton. Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation. Roberts states that it is "up to state authorities" to determine whether recusal is required.
In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.
[image NYPL digital collection, "A Murder Trial in the Court of General Sessions, circa 1901, via]
Wednesday, June 8, 2016
Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.
While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech." This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement - - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”
But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007). Soon thereafter, the BOP had instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.
McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.
McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:
We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).
In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."
The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.
Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.
Monday, June 6, 2016
The Supreme Court ruled today in Simmons v. Himmelreich that a federal prison can maintain his Bivens claim against individual prison officials for Eighth Amendment violations, even though the district court threw out his earlier Federal Tort Claims Act case for the same incident under the FTCA's "discretionary function" exception.
The ruling is a win for Himmelreich and similarly situated federal civil rights plaintiffs. It means that the FTCA doesn't foreclose this kind of claim, and that Himmelreich will have his day in federal court, after all.
The unanimous ruling turned on a very plain, and very simple, reading of the FTCA exceptions provision. In short, the exceptions provision says that the FTCA judgment bar (which ordinarily would have foreclosed Himmelreich's suit against the individual officers, because the district court threw his FTCA claim out) doesn't apply to claims claims dismissed under the exceptions. And because the district court threw his first case out under the exceptions clause, the judgment bar didn't foreclose his subsequent Bivens claim.
Prisoner-rights litigation can often raise some tricky issues. Navigating them can mean the difference between keeping a claim alive in federal court, and losing it – and thus the difference between enforcing federal civil rights, and not.
One of these tricky issues was on full display in Simmons v. Himmelreich. But despite the potentially complicated questions in the case, a unanimous Supreme Court held today that one of the rules for prisoner-rights suits simply means exactly what it says: A prisoner can bring a constitutional tort claim against individual prison officials even after a court dismissed his earlier Federal Tort Claims Act suit because the officials acted in a “discretionary” capacity.
The ruling, penned by Justice Sonia Sotomayor, is a decisive win for prisoner-rights advocates. It means that Walter Himmelreich and other, similarly situated civil rights litigants retain a critical tool – the constitutional tort claim against individual officers – in enforcing civil rights and deterring their abuses. More generally, it means that there is now one less tricky issue in prisoner-rights litigation, and it is just a little bit easier, at least in the narrow circumstances of this case, to retain a claim and enforce federal civil rights.
The case involved Himmelreich’s suit against federal prison officials for violations of his Eighth Amendment rights. Himmelreich was serving time for producing child pornography when prison officials transferred another prisoner from special housing into the general population. The transferred prisoner had previously threatened to “smash a pedophile” if given the chance, so it was hardly a surprise when the transferred prisoner severely beat Himmelreich.
Himmelreich sued the government under the Federal Tort Claims Act, which waives sovereign immunity for tort claims against the federal government for the acts of its employees. It also gives federal district courts exclusive jurisdiction over those claims, subject to certain procedural requirements in Chapter 171 (which becomes relevant below, in Himmelreich’s second suit). But the FTCA also contains a list of exceptions, in particular, a “discretionary function” exception that exempts “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function” from the FTCA. This means that someone (like Himmelreich) who has been injured has no FTCA claim against the government for injuries that result from a discretionary act of a government employee. The district court thus dismissed Himmelreich’s FTCA claim under this exception, ruling that the prison officials’ decision as to where to house inmates was a discretionary function. The parties did not challenge this ruling.
While Himmelreich’s FTCA case was still pending, he filed a second suit against the individual prison officials for violating his Eighth Amendment rights. After the district court dismissed Himmelreich’s first suit, the officials then moved to dismiss this second suit under yet a different part of the FTCA. In particular, the officials argued that the FTCA’s “judgment bar” foreclosed this second case. The judgment bar, in Section 2676, says that once a plaintiff receives a judgment in an FTCA suit, he generally cannot bring another suit against an individual employee based on the same incident. It reads:
The judgment in any action [under the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
In other words, the government argued that the district court’s dismissal of Himmelreich’s FTCA case amounted to a “judgment,” and that the FTCA judgment bar therefore foreclosed Himmelreich’s second case against the individual officers.
This is where things get a little complicated. Himmelreich countered that the judgment bar did not apply to cases dismissed under the FTCA exceptions provision (the same one that the district court used to dismiss Himmelreich’s first case). That’s because the exceptions provision says that “[t]he provisions of this chapter” shall not apply to claims dismissed under the exceptions (including the discretionary function exception). “The provisions of this chapter,” in turn, refer to Chapter 171, the list of procedural requirements (mentioned above). And Chapter 171, in turn, includes the judgment bar. The upshot is that a case dismissed on the judgment bar (like Himmelreich’s first case) does not foreclose a case against individual officers arising out of the same incident (like Himmelreich’s second case).
The Supreme Court agreed. In a statutory analysis that required all of two paragraphs, the Court said that Himmelreich’s plain reading of the FTCA was correct, and that the FTCA created no bar to his second case against the individual officers. The Court noted that result made sense:
If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple . . . .
Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.
The Court also roundly rejected the government’s non-textual arguments. It said that United States v. Smith, in which the Court held that another provision of Chapter 171 (the exclusive remedies provision) foreclosed a suit against an individual employee, did not control. That’s because Smith didn’t even discuss the “shall not apply” language in the exceptions provision. Moreover, the exclusive-remedies provision in Smith (unlike the judgment bar) was specifically designed to apply to the exceptions in the FTCA. The Court also said that it didn’t need to address the government’s parade of horribles that would result if every provision of Chapter 171 “shall not apply” to the FTCA’s exceptions. “If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”
At the end of the day, the ruling means that Himmelreich can pursue his civil rights claim against the individual officers, even after the district court dismissed his earlier FTCA claim based on the “discretionary function” exception. More generally, it probably also means that a plaintiff can similarly pursue a civil rights claim against individual officials, even after a district court dismissed an FTCA claim based on other procedural grounds that have nothing to do with “whether an employee can be held liable instead.”
This is a clear win for Himmelreich and other, similarly situated civil rights plaintiffs, because it preserves their constitutional claims against individual officers. This is no small thing: These individual claims, more than any FTCA claim, help enforce civil rights by holding individual officers accountable and by creating a strong deterrent against civil rights abuses by other officers. Thus, today’s ruling, while dealing with just a narrow statutory issue under the FTCA, is nevertheless an important victory for Himmelreich, an important victory for access to justice, and an important victory for civil rights enforcement.
The Supreme Court ruled today in Ross v. Blake that a state prisoner wasn't excused from exhausting administrative remedies under the Prisoner Litigation Reform Act because of "special circumstances," but that he may be excused if administrative remedies are unavailable.
The ruling walks back a lower-court-created exception to the PLRA exhaustion requirement, but at the same time recognizes that PLRA statutory exhaustion only applies to "available" remedies. This is probably a net loss for state prisoners (because they can no longer excuse failure to exhaust based on "special circumstances"), but it means that the plaintiff's claim in this case will stay alive, at least through remand to the lower courts, on the question whether remedies were actually "available" to him. The ruling also gives some good language on what it means to be "available" under the PLRA--fodder, no doubt, for future prisoners defending against PLRA-failure-to-exhaust claims.
While the case is not directly constitutional, it certainly has implications for prisoner civil rights and access-to-justice.
In short, the plaintiff in the case, Shaidon Blake, brought a civil rights claim against a state prison official. The official moved to dismiss for failure to exhaust administrative remedies under the PLRA. Blake countered that he did exhaust. As the case moved to the Supreme Court, it became clear that the administrative remedial scheme itself was, well, confused, and nobody could really say whether Blake exhausted or not.
The Fourth Circuit ruled in favor of Blake, saying that court-created "special circumstances" excused any failure to exhaust, especially where an inmate, as here, reasonably believed that he had sufficiently exhausted his remedies.
But a unanimous Supreme Court rejected the Fourth Circuit's "special circumstances" approach. Justice Kagan, writing for the Court, said that the PLRA contained no "special circumstances" exception, and that the courts couldn't make it up.
But at the same time, the Court said that the PLRA itself required that a plaintiff exhaust only "available" remedies, and that there were serious questions in this case whether the remedies were, in fact, available. Indeed, the Court went on at some length describing why remedies may not have been available--providing a strong prompt to the lower court on remand to hold that they were not available (and therefore to excuse Blake's failure to exhaust).
The Court said that "special circumstances" and "availability" were two different questions. Because it's probably harder to show that a remedy is unavailable than that "special circumstances" excuse exhaustion, the ruling is probably a net loss for prisoners. But at the same time, the Court remanded Blake's case with pretty specific instructions and guidance for the lower court to determine that remedies were not available, and therefore that Blake's failure to exhaust (if any) was excused. In other words, Blake may well end up at the same place he was before his case went to the Court: Exhaustion excused, but this time for lack of available administrative remedies.
Saturday, June 4, 2016
In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces."
The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970). The Department of Justice had stated:
‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’
However, the Department of Justice abandoned that argument before the United States Supreme Court:
In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger, ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief]. This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.
[citations and footnote omitted]
A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).
Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."
Friday, June 3, 2016
The D.C. Circuit ruled today in Friends of Animals v. Jewell that Congress did not violate separation of powers when it enacted legislation ordering the Fish and Wildlife Service to reinstate a categorical exemption for captive-bred animals under the Endangered Species Act.
The ruling is a blow to endangered-species advocates, because it permits the FWS to grant an exemption to the ESA's prohibition on taking or possessing an endangered species without going through the previous individualized-exemption application process. In other words, FWS can now grant a blanket exemption to all holders of captive-bred endangered species without publicizing individual applications and individual exemptions--and also without allowing interested parties to weigh in.
The case arose when the FWS issued the Captive-Bred Exemption to the ESA's general prohibition on taking or possessing an endangered species. The Exemption meant that all captive-bred herds of three antelope species got an automatic pass, without having to go through the individual-application process in Section 10(c) of the ESA.
But Friends sued, arguing that the Exemption violated Section 10(c) of the ESA. The district court agreed, citing the plain language of Section 10(c), which says, "[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." (Emphasis added.)
After the district court struck the Exemption, the FWS backed off and withdrew the Exemption. But then Congress passed "Section 127," which ordered the FWS to "reissue the final rule published on September 2005," that is, the Exemption.
Friends sued again, this time arguing that Section 127 violated separation of powers--in particular, the rules in Plaut v. Spendthrift Farm, Inc. and United States v. Klein. (These cases were on full view in the Court's recent ruling in Bank Markazi.) The lower court dismissed the case, and the D.C. Circuit today affirmed (although on slightly different grounds).
The court rejected Friends' argument that Section 127 violated Plaut, because Section 127 is prospective legislation (and not a retroactive revival of a dismissed case, in violation of Plaut):
Section 127 is not retroactive legislation because it does not establish what the law was at an earlier time. Likewise, Section 127 does not apply to a case already decided and does not overturn the court's determination in [the earlier case]--it simply alters the prospective effect of [the ESA's prohibition on taking or possessing an endangered species without an individual exemption] by exempting U.S. captive-bred herds of the three antelope species from the Act's . . . prohibitions going forward.
The court rejected Friends' argument that Section 27 violate Klein, because Section 127 simply "amends applicable law":
On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption "without regard to any other provision of statute or regulation that applies to issuance of such rule." By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by [the ESA].
The court also held that Friends had informational standing, based on the language of the ESA, which says that "[i]nformation received by the Secretary as part of any application [for an exemption] shall be available to the public as a matter of public record at every stage of the proceeding." According to the court, this was enough for Friends, an endangered-species advocacy organization, to assert informational standing.
Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.” Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.
Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay. As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary.
This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant.
And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.
The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult. Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions).
No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage. If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge.
Thursday, June 2, 2016
The Ninth Circuit yesterday revived a student group's First Amendment retaliation complaint against the Arizona Board of Regents for pulling the plug on the group's funding in response to the group's public advocacy.
The ruling keeps this free speech case alive and sends it back to the district court.
The case arose when the Arizona Students' Association used its student-generated fees to push a ballot initiative that would increase funding for public education. In response, the state Board of Regents, which collected the fees and distributed them to the ASA, decided to withhold the fees that it already collected for the Spring 2013 semester and to make it harder for the ASA to collect future fees.
The ASA sued, but the district court dismissed the case. The court said that the Board enjoyed immunity under the Eleventh Amendment and, in any event, the complaint failed to state a claim.
The Ninth Circuit reversed. The court ruled that the ASA could (and did) state a Young claim for injunctive relief, but that the group failed to name individual Board members, as required under Young. The court said that the lower court should have granted ASA's motion to amend its complaint in order to name individuals and to comply with Young.
As to the merits, the appeals court ruled that ASA stated a plausible First Amendment retaliation claim. The court rejected the arguments that the Board had no obligation to pay for ASA's speech in the first place and that the fees were not a valuable government benefit:
ABOR had no affirmative obligation to collect or remit the ASA fee, but having done so for fifteen years at no cost, ABOR could not deprive the ASA of the benefit of its fee collection and remittance services in retaliation for the ASA's exercise of its First Amendment rights. ABOR's fee collection falls within the range of government benefits we have previously recognized as sufficiently valuable to give rise to a retaliation claim. Indeed, the ASA alleged that its student fees were allocated to its efforts to exercise core political speech. As we have previously held in other First Amendment retaliation cases, and as we now hold in this case, the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment.
A high school teacher confiscates a note passed in class containing rap lyrics with a racial slur and then engages the class in a well-intentioned but poorly executed discussion of why such words are hurtful and must not be used." The school board suspends the teacher under its "written policy that forbids teachers from using racial epithets in front of students, no matter what the purpose." Does the teacher have a First Amendment claim?
In its brief opinion today in Brown v. Chicago Board of Education, the Seventh Circuit unequivocally answers "no."
In short, the Court says, Garcetti v. Ceballos (2006) "dooms" the teacher's claim. Brown was speaking as a teacher - - - and not as a citizen - - - and thus even under Pickering v. Board of Education (1968), there is no First Amendment right in the public employment context.
As the court states, "Brown is indignant that he was suspended for using a racial slur while attempting to teach his students why such language is inappropriate. His frustration is understandable, but it is not legally actionable." [There's some good reporting from when the suit was filed about the incident and the teacher Lincoln Brown from The Chicago Reader]
The court says that "the Board may have acted in a short‐sighted way when it suspended him for his effort to educate the students about a sensitive and socially important issue, but it did not trample on his First Amendment rights.”
As Chief Judge Diane Wood begins her opinion, the school board's action is within the category of "stupid but constitutional." Wood refers to the late Justice Scalia's quip that all federal judges should have a stamp with that slogan.
Monday, May 23, 2016
A unanimous Supreme Court ruled today in Wittman v. Personhubalah that three members of Congress from Virginia lacked standing to appeal a federal court's rejection of the state's districting plan. The ruling means that the district court's decision stays in place, and that districting plan designed by a court-appointed special master and approved by the court now sets the lines for Virginia's congressional districts.
In this up-and-down, politically charged case, the Court not only avoided a thorny underlying question of race-based districting (and all the politics that go with it), but it also avoided the hardest standing issues in favor of resolving the case unanimously on narrower standing grounds.
The case involves the state's 2012 redistricting plan, which packed black voters into a certain congressional district. Sponsors of the measure said that they did this in order to comply with the one-person-one-vote principle and to comply with nonretrogression under Section 5 of the Voting Rights Act. A district court struck the plan (twice) as a racial gerrymander, and the state declined to appeal. But Republican members of Congress, who intervened on the side of the state, tried to take the case to the Supreme Court. (In the meantime, a court-appointed special master drew a new district map, and the court approved it.)
The Supreme Court rejected the appeal for lack of standing. The Court said that one member of Congress, who challenged the district court's ruling because it would have made it harder for him to get elected in his current district, lacked standing because he was already running, and would continue to run (irrespective of the Court's ruling), in another district. In other words, that member failed to show that a Court ruling would redress his harm. The Court said that two other members of Congress, who challenged the district court's ruling for the same reason, "have not identified record evidence establishing their alleged harm."
The Court dodged the harder standing issue--whether a representative has been sufficiently harmed based on district lines that would make it less likely that he or she could get elected.
The Court also dodged the underlying issue, whether a race impermissibly dominated when a state's redistricting plan packed black voters into a district for the stated reasons to comply with one-person-one-vote and non-retrogression. The last time the Court took up a similar question, almost exactly a year ago, in Alabama Legislative Black Caucus v. Alabama, the Court also avoided ruling squarely on the merits. Instead, the Court outlined some guiding principles and remanded the case for further proceedings.
Justice Breyer wrote the opinion for the unanimous Court.
In an opinion by Chief Justice Roberts in Foster v. Chatman, the Court reversed the finding on the Georgia courts that death row inmate Timothy Foster did not demonstrate the type of purposeful discrimination in jury selection to substantiate an Equal Protection Clause violation as required under Batson v. Kentucky (1986).
Recall that in 1987 an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson. The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In today's relatively brief opinion - - - 25 pages - - - Chief Justice Roberts carefully recited the facts and then focused on the materials in the "prosecution file." The Court concluded:
The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” Batson after all, had come down only months before Foster’s trial. The prosecutors, according to the State, were uncertain what sort of showing might be demanded of them and wanted to be prepared.
This argument falls flat. To begin, it “reeks of afterthought,” [citation omitted] having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it “was actively seeking a black juror.” But this claim is not credible. An “N” appeared next to each of the black prospective jurors’ names on the jury venire list. An “N” was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the “definite NO’s” list. And a draft affidavit from the prosecution’s investigator stated his view that “[i]f it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.” Such references are inconsistent with attempts to “actively see[k]” a black juror.
The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck [potential jurors] Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.
[citations to record omitted].
Only Justices Alito and Thomas did not join Roberts's opinion for the Court; Alito to write a separate concurring opinion and Thomas to write a dissenting opinion. Alito's concurring opinion states its purpose as to "explain my understanding of the role of state law in the proceedings that must be held on remand." For Alito, while the Georgia Supreme Court is "bound to accept" the Court's evaluation of the federal constitutional question that there was an Equal Protection Clause violation under Batson, "whether that conclusion justifies relief under state res judicata law is a matter for that court to decide." Alito notes that the Court is "evidencing a predilection" for granting review of state-court decisions denying postconviction relief, a "trend" he argues is inconsistent with the States' "legitimate interest in structuring their systems of postconviction review in a way that militates against repetitive litigation and endless delay." Alito's opinion only vaguely alludes to the claim that the Batson evidence was not made available to Foster. As for Thomas, his dissenting opinion stresses that the trial court observed the jury selection "firsthand" and "its evaluation of the prosecution's credibility" is "certainly far better than this Court's 30 years later." Thomas's opinion also argues that the "new evidence" has "limited probative value" and is "no excuse" for the Court's reversal of the state court's "credibility determinations."
Nevertheless, the Court's clear majority (of six) conclude that the prosecution violated the Equal Protection Clause when it engineered an all white jury to convict and sentence Timothy Foster.
Wednesday, May 18, 2016
Judge Julie A. Robinson (D. Kansas) granted a preliminary injunction and halted Kansas's requirement that motor-voter applicants provide proof of citizenship when they register to vote (along with their driver's license application) in federal elections.
The ruling halts Kansas Secretary of State Chris Kobach's latest effort to restrict voter registration in that state. It also requires the state to register about 18,000 voters whose registrations were cancelled or put on hold for failure to provide proof of citizenship. At the same time, it allows the state to use a proof-of-citizenship requirement for registration for state elections. Kobach will appeal.
The Kansas law requires applicants for a driver's license and for voter registration to submit proof of citizenship. But the National Voter Registration Act, Section 5, says that every application for a driver's license "shall serve as an application for voter registration with respect to elections for Federal office." It goes on to say that a state "may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process."
Judge Robinson focused on the "minimum amount" language and ruled that Kansas's requirement didn't meet it. In particular, she said that the evidence didn't support that Kansas needed proof of citizenship, because the registration form already required an applicant to attest to citizenship and to sign the form. She said that the attestation requirement was plenty sufficient for the state to ensure that an applicant was qualified. (She noted that there wasn't really a problem with noncitizens registering, anyway, and that the proof-of-citizenship requirement was applied in a pretty sloppily.)
Judge Robinson rejected the state's argument that this would lead to two different registration forms--one for state elections (which would require proof of citizenship) and another for federal elections (which would not). She said that this wouldn't result in two different sets of electors, just two different sets of requirements that would lead to the same result. And in any event it was a problem of the state's own creation.
The upshot is that Judge Robinson held that the NVRA preempted Kansas's proof-of-citizenship requirement under the Elections Clause and temporarily enjoined enforcement of the proof-of-citizenship requirement for motor-voter applicants for federal elections.
If the case sounds familiar, that's because it is--or almost is. The Supreme Court ruled in 2013 in Arizona v. Inter Tribal Council of Arizona that the state couldn't require proof of citizenship for the federal mail-in form for the same reason: the NVRA preempted state law under the Elections Clause. The NVRA provision in that case--for the mail-in registration option, not the motor-voter option--was different than the provision in this case, so Arizona didn't direct the result here. Still, the NVRA provision at issue here--the "minimum amount" language--led to the same outcome.
Monday, May 16, 2016
The Court said no. It held that "Article III standing requires a concrete injury even in the context of a statutory violation" (emphasis added), but then sent the case back for determination whether there was a concrete injury in this case.
The ruling makes clear that if Robins, the plaintiff, can show a concrete harm, he will have standing. But it makes equally clear that Congress cannot simply create standing by authorizing a new individual cause of action. A plaintiff still has to show a particularized and concrete injury.
The case involves the congressionally-created individual cause of action under the Fair Credit Reporting Act. Under the FCRA, Congress granted adversely affected individuals a right to sue reporting agencies for failure to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Robins sued Spokeo under the provision, arguing that Spokeo posted incorrect information about him on its website. The Ninth Circuit held that Robins had standing.
The Supreme Court today vacated that decision and remanded. Justice Alito wrote for the Court and held that standing requires both a "particularized" injury and a "concrete" injury. The Ninth Circuit analyzed whether Robins's injury was particularized, but not whether it was concrete. Justice Alito wrote that a procedural harm--like the one here, because the FCRA establishes a procedure for reporting agencies to follow--could create a concrete injury, but the Ninth Circuit didn't analyze this in Robins's case. Therefore, the Court remanded to the Ninth Circuit to determine whether Robins sufficiently alleged a concrete harm.
At the same time, Justice Alito made clear that Congress could "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." But if so, a plaintiff still has to sufficiently allege both particularized and concrete injuries to meet the Article III standing requirement. This means that a plaintiff alleging a procedural injury alone wouldn't have standing, but a plaintiff alleging a procedural injury with a concrete and particularized harm would.
Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.
Justice Thomas concurred and reached the same result by drawing on the difference between suits vindicating private rights and suits vindicating public rights. (Justice Thomas's "public rights" are probably broader than procedural claims like Robins's, and so this approach is probably more restrictive on standing.)
Justice Ginsburg dissented, joined by Justice Sotomayor. She argued that Robins sufficiently alleged a concrete harm, and that remand wasn't necessary.
The Supreme Court today issued a per curiam opinion in Zubik v. Burwell, dodging the question whether the government's accommodation to its contraception mandate under the ACA violates the Religious Freedom Restoration Act, and remanding the case to give the parties a chance to settle in a way that would satisfy everybody's interests. Here's our last post on the case.
The ruling means that religious nonprofits and the government will have a chance to work out their differences and arrive at an accommodation that would both (1) "accommodate petitioners' religious exercise" and (2) "ensur[e] that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'" But the parties will do this separately in the Third, Fifth, Tenth, and D.C. Circuits, leading to the possibility that the results will be different, and possibly come back to the Supreme Court next Term.
Whatever happens in the lower courts, however, today's ruling virtual ensures that the issue won't resurface for a ruling at the Supreme Court before the fall elections.
Today's result came about after the Court asked the parties, post-argument, to brief whether "contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners." Both parties said this could happen. In particular, the non-profits said that their religious freedom wouldn't be infringed if they didn't have to do anything "more than contract for a plan that does not include coverage for some or all forms of contraception," even if their employees would receive free contraception coverage from the same insurance company. The government, for its part, said that it could modify its accommodation and still ensure that women get seamless contraceptive coverage.
The Court was quite careful to say that this is not a ruling on the merits.
Justice Sotomayor, joined by Justice Ginsburg, concurred, underscoring that this isn't a ruling on the merits--or even a signal on the merits--and that lower courts would be wrong to interpret it as such. She also underscored the Court's statements that the parties could fashion an accommodation seamlessly--that is, without establishing a new, separate policy for contraception.
The ruling sends the cases back to the lower courts, gives everyone a chance to figure out how to accommodate everyone's interests, and puts the issue off until after the fall elections (at least).
Thursday, May 12, 2016
Judge Rosemary Collyer (D.D.C.) ruled today that the Obama Administration spent money on reimbursements to insurers on the ACA exchanges without a valid congressional appropriation. Judge Collyer enjoined any further reimbursements to insurers until a valid appropriation is in place, but she stayed that injunction pending appeal.
Because of the stay, the ruling will have no immediate effect on government subsidies to insurers (and thus no immediate effect on the overall ACA, reductions in cost-sharing for certain purchasers on exchanges, or any other feature of the Act). But if Judge Collyer's ruling is upheld on appeal, and if Congress fails to specifically appropriate funds for Section 1402 reimbursements, or if the stay is lifted, this could deal a significant blow to the ACA. That's because the Act would require exchange insurers to provide a cost-sharing break to certain purchasers on the exchange, but the government wouldn't be able to reimburse the insurers for those costs, as the Act assumes. This could drive up costs, or drive insurers off the exchanges, or both--in any event, undermining the goals of the ACA.
The case involves Section 1402 of the ACA, which provides reimbursements to insurers on the ACA exchanges. Those reimbursements are designed to off-set reductions in deductibles, co-pays, and other cost-sharing expenses that the ACA requires exchange insurers to provide to lower-income insurance purchasers on an exchange. In other words, the ACA requires exchange insurers to cut cost-sharing costs for certain purchasers; and Section 1402 authorizes the government to reimburse insurers for those cuts.
But Congress didn't specifically appropriate funding for Section 1402. The administration nevertheless provided reimbursements on the theories that 1402 reimbursements are part of the integrated package that makes the ACA work, and that 1402 appropriations are covered in appropriations for other provisions in the Act.
Judge Collyer rejected these arguments. In particular, she wrote that Section 1402 is separate and distinct from other portions of the Act and requires its own, specific appropriation--not an inferred appropriation, based on a holistic reading of the Act, or based on appropriations for other features of the Act. (Behind these legal arguments is the idea that everyone understood that spending for Section 1402 reimbursements would be covered by appropriations for other portions of the Act. But "everyone understood" doesn't get very far in court.)
Moreover, she said that the government's attempts to leverage King v. Burwell to argue that Section 1402 funding is a necessary part of an integrated ACA fall flat:
This case is fundamentally different from King v. Burwell. There, the phrase "established by the State" . . . became "not so clear" when it was "read in context." . . . Simply put, the statute could not function if interpreted literally; it had to be saved from itself. . . .
The problem the Secretaries have tried to solve here is very different: it is a failure to appropriate, not a failure in drafting. Congress's subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole.
Judge Collyer's ruling is obvious not the end of this matter: the government will surely appeal. In the meantime, her stay (alone) should allow government continued spending on insurer reimbursements, and thus (alone) won't have any significant impact on the ACA.
Judge Collyer earlier ruled that the House of Representatives had standing to bring this case, but that it lacked standing to challenge another administration act, delay of time when employers had to provide minimum health insurance to employees.
Tuesday, May 10, 2016
The D.C. Circuit ruled in Jankovic v. International Crisis Group that a supporter of former Serbian Prime Minister Zoran Djindjic failed to make out a defamation case against the International Crisis Group for critical statements in an ICG report.
The ruling means that plaintiff Milan Jankovic's case against the ICG is dismissed. (Jankovic is also known as Philip Zepter.)
Zepter, a prominent Serbian businessman, sued the ICG for defamation after the organization published a report that said that Zepter was a member of the "New Serbian Oligarchy" and that he was "associated with the Milosevic regime and benefited from it directly." The ICG report also said that individuals like Zepter continued to be in positions of power and to enjoy access to public resources, and that few of the "crony companies" had been subject to legal action, despite promises by post-Milosevic reformers. The district court concluded that a reasonable reader could construe the statements as saying that Zepter was a crony of Milosevic and supported the regime in exchange for favorable treatment.
As an initial matter, the D.C. Circuit applied its three-part rule and concluded that Zepter was a limited-purpose public figure. The court said that (1) the controversy was public, (2) Zepter played a significant role in it, and (3) the defamatory statement was germane to Zepter's participation. As to (2), the court said that "[t]he evidence . . . shows that [Zepter] was an outspoken supporter, financial backer, and advisor of Prime Minister Djindjic [who] paid over $100,000 to a lobbyist to support [Djindjic's] effort to improve relations between the United States and Serbia." "The evidence shows that Zepter had voluntarily thrust himself into ensuring that Serbia underwent reforms in the post-Milosevic era."
If there seems to be a disconnect between Zepter's role as a Djindjic supporter and a Milosevic crony, here's what the court said: "Yet even if Zepter was an important figure in the Serbian reform effort mainly due to his relationship with Prime Minister Djindjic, his relationship to Milosevic is relevant to Zepter's role in the controversy. Linking Zepter to Milosevic would be relevant to understanding Zepter's role and why he wanted to be involved in the reform effort led by Prime Minister Djindjic."
The court went on to say that Zepter failed to show evidence of actual malice. "What is still missing is evidence that ICG had 'serious doubts' about the truth of the defamatory statement or that it published the statement with a high degree of awareness of its probable falsity, such that ICG acted with reckless disregard for the statement's truth."
The ruling ends Zepter's case against the ICG.