November 4, 2011
Acension Parish School Board, Redistricting, and Equal Protection: The Fifth Circuit Remands
In Lewis v. Acension Parish School Board, the Fifth Circuit's three judge panel issued as many opinions as there were judges, and remanded the case for further evidence development regarding whether the School Board intended to use racial classifications and whether its actions had a discriminatory effect, citing Washington v. Davis.
The factual background is a complicated one, but essentially the school district sought to both attain enrollment maximums and maintain unitary status, hiring a demographics application specialist who developed various options, conducting public hearings, and doing statistical analysis which included current and projected "enrollment, percentage of African-American students, and percentage of at-risk students at each school in the district" under the options. The board ultimately adopted the option known as "2f."
The plaintiff Lewis, according to the per curiam opinion, "does not suggest that at-risk students are a suspect class for equal protection purposes. His claim is that minority students are being discriminated against based upon their race by a disproportionate influx of at-risk students into their schools." The trial court found the adopted plan facially race-neutral, and that Lewis had not presented competent evidence of discriminatory motive by the School Board or disparate impact resulting from Option 2f. Applying a rational basis test, the trial court found there was a legitimate government interest in alleviating school overcrowding. The trial court presumably also found that the means chosen were rationally related, although the Fifth Circuit does not highlight this portion of the necessary analysis.
The per curiam Fifth Circuit opinion reverses this conclusion:
We find the court's analysis troubling for two reasons. First, it is unclear how, on the record before us, the court could make a factual finding as a matter of law about the Board's lack of discriminatory purpose. Second, the court's assumption that it might be justifiable to use racially-based decisions for the "benign" purpose of maintaining post-unitary "racial balance" among the schools in the system is at least in tension with the Supreme Court's decision in Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007).
The per curiam opinion also noted that the question of whether the plaintiff Lewis had standing as to one of the two plaintiff children could be cured on remand.
Concurring, Chief Judge Edith Jones stressed that "race-based student assignments undertaken "to preserve unitary status," like other racially motivated government actions, presumptively violate the equal protection clause."
Concurring in part and dissenting in part Judge Carolyn King wrote at length after first reasserting that Lewis' claim concerned the effect on minority students of the transfer of at-risk students, quoting from the oral argument. Judge King agreed with the trial court that Option 2f is race-neutral and that there was no evidence of discriminatory intent. Judge King then noted that plaintiff Lewis presented no evidence or argument regarding a lack of rational basis and the judge's own "review of the record indicates that Option 2f may have in fact been the most practical option." Judge King then distinguished the factual scenerio from the one in Parents Involved.
While the judges did disagree about the applicable legal standard and its application, much of the disagreement amongst the judges concerned plaintiff Lewis' precise legal claim. Thus, it seems that remand is the most appropriate course. Although it also seems that this case may engender extensive litigation.
[image from the Ascension Parish School Board website via]
Ninth Circuit: No Qualified Immunity in Excessive Force Case
The Ninth Circuit ruled today in Glenn v. Washington County that police officers did not enjoy qualified immunity from a civil rights suit for shooting and killing a suicidal youth.
Lukus Glenn, a recent high school graduate, returned to his parents' home late one night, drunk. After a verbal altercation, Lukus pulled a pocketknife, held it to his neck, and threatened to kill himself. Lukus's mom called 911.
Police arrived, knowing that Lukus was suicidal, and handled the situation as if Lukus posed a threat to others. One officer shot six beanbag rounds at Lukus, and, when Lukus ran for cover, two other officers unloaded eleven rounds from their semiautomatics, killing Lukus. Officers later claimed that they thought Lukus was running into the house and posed a threat to his parents.
Lukus's mom filed suit under 42 U.S.C. Sec. 1983, arguing that the officers used excessive force in violation of the Fourth Amendment. The district court ruled that the officers enjoyed qualified immunity and granted their motion for summary judgment.
The Ninth Circuit reversed. The court ruled that under the totality of the circumstances the officers were not entitled to summary judgment on their qualified immunity defense. The court said that officers could have used some reasonable force to prevent Lukus from taking his own life, but that the force here exceeded standards that apply even when a suspect is threatening others.
The court also remanded the plaintiff's Monell claim against Washington County (which the lower court dismissed based on its entry of summary judgment in favor of the officers) and a related state law claim.
The ruling means that the case can move forward at the district court.
White House Responds to Committee Subpoenas for Solyndra Docs
The White House responded today to subpoenas issued by the House Energy and Commerce Committee for documents related to Solyndra, saying that the subpoenas are too broad and fail to balance the interests of the executive branch with the legitimate oversight interests of the Committee. We posted most recently here.
All documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc., by the Department of Energy . . . .
The White House wrote back that this is just too broad a request:
[T]he Committee's extremely broad request for documents--now a subpoena--is a significant intrusion on Executive Branch interests, particularly given that you have not made any effort to tailor the request to the legitimate interests of the Committee. As written, it encompasses all communications within the White House from the beginning of this Administration to the present that refer to or relate to Solyndra, and the subpoena purports to demand a complete response in less than a week. Thus, any document that references Solyndra, even in passing, is arguably responsive to the Committee's request, and you reaffirmed this week that you intend for the request to be that broad. There is no basis for such a broad request beyond a "vast fishing expedition," as Congressman Dingell noted yesterday. Moreover, responding to such an expansive request would require the devotion of substantial resources to gather and review many documents that are of no legitimate oversight interest--which is itself an unreasonable burden on the President's ability to meet his constitutional duties. For example, we do not understand how thousands of pages of news clips--all of which are responsive to the subpoena you issued--relate to the Committee's inquiry.
In past correspondence and again in our meeting this week, we suggested that the Committee focus first on communications between the White House and those agencies directly involved in the Solyndra loan guarantee. . . . The Committee has rejected that approach without any justification other than a general curiosity about internal White House communications. Such curiosity is not a sufficient justification for encroaching on longstanding and important Executive Branch confidentiality interests, particularly when none of the more than 85,000 pages of documents produced to date evidence any favoritism to political supporters or wrongdoing by the White House.
The ball's now back in the Committee's court.
November 3, 2011
Ninth Circuit: No Bivens Claim for Immigrants' Unlawful Detention
A three-judge panel of the Ninth Circuit ruled today in Mirmehdi v. U.S. that immigrants have no Bivens claim against FBI special agents for providing false and concocted evidence that resulted in the immigrants' unlawful detention pending their asylum hearings.
The case arose out of the detention of four Iranians living in the U.S. who applied for political asylum in 1998. They were subsequently detained as suspected terrorists on evidence compiled by two FBI agents, but the Iranians claimed that the evidence was bogus.
The Iranians raised these claims on direct appeal of their detention, during the merits proceedings on their asylum claim, and by way of federal habeas corpus. Each time they were rejected. But they ultimately succeeded in gaining "withholding of removal because they had demonstrated a likelihood of mistreatment if removed to Iran, and because the government failed to establish that they were engaged in terrorist activity as defined by statute." Op. at 19882. After they were released, they sued the agents for unlawful detention and conspiracy to violate their civil rights.
The Ninth Circuit rejected the Bivens claims under the two-step clarified in Wilkie v. Robbins. The court wrote that the plaintiffs had alternative remedies--appeal of their detention, their asylum case, and habeas, all of which they pursued--even if none of these offered monetary damages. And the court said that special factors counseled against a Bivens remedy, in particular:
immigration issues "have the natural tendency to affect diplomacy, foreign policy, and the security of the nation," which further "counsels hesitation" in extending Bivens. [Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009).] As the Supreme Court has noted, concerns that always mitigate against "subjecting the prosecutor's motives and decisionmaking to outside inquiry" have particular force in the immigration context. Rather than mere "disclosure of normal domestic law-enforcement priorities and techniques" such cases often involve "the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products."
Op. at 19887-888 (citations, except Arar, omitted).
ABA Review of National Security Law
The ABA Standing Committee on Law and National Security, with partners at the University of Virginia, Duke, and Georgetown, announced the "21st Annual Review of the Field of National Security Law," on Thursday and Friday, November 1 and 2, 2011, at the Ritz Carlton Hotel in Washington, D.C.
Organizers put together a very impressive line-up, including Chief Prosecutor for the Office of Military Commissions BG Mark S. Martins and State Department Legal Adviser Harold Hongju Koh.
The full program is here; here's a Letter of Invitation; and here's the registration form; and click here for on-line registration. E-mail Holly McMahon, at email@example.com, with questions.
November 2, 2011
House Republicans to Subpoena White House Solyndra Docs
The House Energy and Commerce Committee is poised to seek a subpoena for White House documents related to Solyndra. The Republican-controlled Committee will meet Thursday morning at 9:00 a.m., when it is expected to approve a resolution authorizing the subpoena to White House Chief of Staff Bill Daley and VP Chief of Staff Bruce Reed. The meeting will be webcast live here.
The last time we covered congressional subpoenas to the White House, a Democrat-controlled House Judiciary Committee issued a subpoena to former White House Counsel Harriet Miers and Chief of Staff Josh Bolton in the Bush administration--and then sued to enforce them. The district court ruled in Committee on the Judiciary v. Miers and Bolton that Miers and Bolton did not enjoy absolute immunity, but that they may assert executive privilege to specific questions, "where appropriate."
The Committee's action on Thursday will raise some of the same issues, although there's no indication that the White House will claim a sweeping absolute privilege. Counsel to the President Kathryn H. Ruemmler said it this way, in her first response to the Committee's request for the documents:
Your most recent request for internal White House communications from the first day of the current Administration to the present implicates longstanding and significant institutional Executive Branch confidentiality interests. Encroaching upon these important interests is not necessary, however, because the agency documents the Committee has request, which include communications with the White House, should satisfy the Committee's stated objective--to "understand the involvement of the White House in the Review of the Solyndra loan guarnatee and the Administration's support of this guarantee."
She elaborated in her second response:
[I]t has been well established for decades that the President has a strong, constitutionally-rooted interest in preserving the confidentiality of Executive Branch deliberative communications. This is especially true for White House communications because it has long been recognized that the President's advisors must be able to engage in candidate deliberations in advising and assisting the President in the discharge of his constitutional duties. Republican and Democratic administrations have sought to avoid the chilling effect that disclosure of such internal communications to Congress would have on the free and open exchange of ideas within the White House by accommodating Congressional interests in a manner that minimizes these concerns. . . .
This accommodation process, of course, requires that both branches work to accommodate each other's needs and interests.
The administration's position on executive privilege isn't nearly as strong as the absolutist position of the Bush administration in the Miers and Bolton case. Moreover, the adminstration has already turned over scores of thousands of pages of documents, including communications with the White House. And, indeed, Ruemmler's letters seem to suggest that the administration may be open to yet more accommodation.
Third Circuit Reaffirms Its Fleeting Indecency Opinion on Remand
"This case involves a February 1, 2004 incident: the exposure, for nine-sixteenths of one second, of Janet Jackson‘s bare right breast during the live halftime performance of the National Football League‘s Super Bowl XXXVIII." The "wardrobe malfunction" of superstar Janet Jackson (pictured right) was the subject of a fine by the FCC.
While the holding of today's Third Circuit opinion in CBS v. FCC is a matter of administrative law rather than constitutional law, the First Amendment provides the background of the FCC's ability to regulate broadcast obscenity. The case is also part of the extended litigation surrounding fleeting indecency and fleeting expletives that have occupied the courts on administrative and First Amendment issues for the past thirty years and are again before the Supreme Court in FCC v. Fox Television Stations (II) involving Cher's use of an expletive.
Today's Third Circuit opinion was remanded in light of the Court's ruling in the previous iteration of the Cher case, FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). But the Third Circuit did not change its conclusion. As the majority opinion stated:
This case, like Fox, involves a tightening of the Federal Communications Commission‘s standards for the broadcast of fleeting indecent material. Fox concerned the FCC‘s decision to abandon its safe harbor for expletives that are not repeated; this case considers the FCC‘s departure from its earlier policy exempting fleeting images from the scope of actionable indecency. While we can understand the Supreme Court‘s desire that we re-examine our holdings in light of its opinion in Fox — since both involve the FCC‘s policy regarding ―fleeting material — in Part A of this opinion we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.
The majority restated its conclusion that the FCC action was arbitrary and capricious:
Considering all of these facts, we do not see any basis to conclude that Fox alters our previous analysis of the fleeting-material exception. At bottom, the Commission attempts to convert a passing reference in Fox‘s background section into a holding that undermines what the opinion otherwise makes clear: an agency may not apply a policy to penalize conduct that occurred before the policy was announced. The Commission‘s argument also rewrites history, marginalizing the Supreme Court‘s recognition in Fox that Golden Globes reflected a clear change in FCC‘s fleeting-material policy, and ignoring the agency‘s consistent practice — over three decades before its order in this case — of exempting all fleeting material, whether words or images, from enforcement under its indecency policy
The 70 page majority opinion by Judge Marjorie Rendell, joined by Judge Julio Fuentes was accompanied by a 50 page dissenting opinion from Judge Anthony Scirca.
With the First Amendment issue presently before the Court, perhaps the case could be subject to yet another petition for certiorari and remand?
[image: Janet Jackson via]
CFP: Junior Scholars Writing on Humanities & ConLaw
From the organizers:
Junior Faculty Forum
Request for Submissions
Stanford, Yale, and Harvard Law Schools announce the Junior Faculty Forum (the successor to the Stanford/Yale Junior Faculty Forum that has convened for the past twelve years) to be held at Harvard Law School on June 1-2, 2012, and seek submissions for this meeting. The Forum's objective is to encourage the work of young scholars by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, alternating between Yale, Stanford, and Harvard.
Approximately twelve junior scholars (with one to seven years of teaching and who are not yet tenured) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from one of the host institutions, will comment on each paper. The audience will include the invited young scholars, faculty from the host institutions, and invited guests. The goal is discourse on both the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among legal scholars generally, particularly among new and veteran professors.
Each year the Forum invites submissions on selected topics in public and private law, legal philosophy, and law and humanities -- alternating loosely between public law and humanities subjects in one year, and private and dispute resolution law in the next. The focus of this year’s session will be public law and the humanities. The topics to be addressed include ... Constitutional Law...
There is no publication commitment associated with the Forum, nor is published work eligible. The host institution will pay presenters= travel expenses and provide accommodation; presenters will be required to attend the entire Forum schedule. Paper submissions for the Forum should be sent to Ms. Kaitlin Burroughs at Harvard Law School (1525 Massachusetts Avenue, Cambridge, MA 02138). Electronic submissions should be sent to firstname.lastname@example.org. The deadline for submission is February 15, 2012. Please note on the cover letter which topic your paper falls under.
Inquiries concerning the Forum should be sent to Adriaan Lanni (email@example.com) or Gabriella Blum (firstname.lastname@example.org) at Harvard Law School, Joseph Bankman at Stanford Law School (email@example.com), or Ian Ayres at Yale Law School (firstname.lastname@example.org). We very much hope that young scholars will submit work. If the strong commitment of the host schools can make it so, participation at the Forum will benefit presenters and the profession.
November 1, 2011
DOJ Files Complaint Against South Carolina Immigration Law
The Federal Government's complaint in United States v. South Carolina seeks an injunction against various portions of South Carolina's immigration statute, Act 69, scheduled to become effective January 1, 2012.
As expected, the complaint alleges that the state act is pre-empted by federal law and is therefore void under the Supremacy Clause, Article VI. Just as the South Carolina statute imitates other state laws, the federal complaint makes similar arguments.
Of special interest, however, is paragraph 33 of the DOJ complaint:
33. On June 27, 2011, Governor Nikki R. Haley signed into law Act No. 69, which
contains several provisions designed to work together to discourage and deter the entry into and presence of unlawful aliens in South Carolina through a statute that regulates numerous aspects of these aliens’ lives. Indeed, Governor Haley, in signing Act No. 69, said that one purpose of the law is to “make sure” that unlawfully present aliens find “another State to go to.” See Governor Nikki Haley Signs Illegal Immigration Reform Bill (video recording), available at http://www.youtube.com/watch?v=BMZikpA3_8U (uploaded by “nikkihaley”).
Indeed, the governor's remark appears at the segment starting at 2:35 in the video below:
This comment lends credence to the federal government's argument that individual state laws frustrate the implementation of a national immigration policy.
The complaint's most concise articulation of the government's implied pre-emption occurs in paragraph 35:
. . . Act No. 69 conflicts with and otherwise stands as an obstacle to Congress’s demand for
sufficient flexibility in the enforcement of federal immigration law to accommodate the
competing interests of immigration control, national security and public safety, humanitarian
concerns, and foreign relations – a balance implemented through the supervision and policies of the President and other executive officers with the discretion to enforce federal immigration laws. See 8 U.S.C. §§ 1101 et seq. South Carolina’s punitive scheme would further undermine federal foreign policy, in that the federal government has – as a matter of reciprocal, bilateral understandings – established that unlawfully present foreign nationals (who have not committed some other violation of law) should be removed without criminal sanction or other punitive measures and that the same treatment should be afforded to American nationals who are unlawfully present in other countries. Act No. 69 would thus interfere with federal policy and prerogatives in the enforcement of the U.S. immigration laws and the conduct of foreign affairs. All of these provisions are backed by a private right of action that ensures a policy of full enforcement by every political subdivision in the State (Section 1).
Act 69 (also known as SB20) is also the subject of a complaint filed in federal court in October, Lowcountry Immigration Coalition v. Haley, alleging the unconstitutionality of the law.
October 31, 2011
Ninth Circuit on Federal Aviation Administration Authorization Act Preemption
A divided three-judge panel of the Ninth Circuit on Monday ruled on the preemptive effects of the Federal Aviation Administration Authorization Act in American Trucking Associations, Inc. v. City of Los Angeles. The case involves five provisions of concession agreements that the Port of Los Angeles required of all drayage truck operators as part of the Port's Clean Truck Program. (Drayage trucks tranport cargo from the Port to customers, railroads, or other trucks.) Those provisions are:
- The "employee-driver provision," which requires drayage truck operators to transition over five years to using 100% employee drivers rather than independent owner-operators.
- The "off-street parking provision," which requires drayage truck operators to submit an off-street parking plan for its trucks to maintain compliance with parking restrictions of local municipalities.
- The "maintenance provision," which makes drayage truck operators responsible for vehicle maintenance and safety.
- The "placard provision," which requires drayage truck operators to post a placard on all its trucks covered by a concession agreement; the placard must display a phone number to report concerns about truck emissions, safety, and compliance.
- The "financial capability provision," which requires a drayage truck operator to demonstrate that it possesses the financial capability to perform these and other obligations under the concession agreement.
The FAAA Act says as a "general rule" that "a State [or] political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property." 49 U.S.C. Sec. 14501(c)(1). The relevant saving clause says that the FAAA Act does not "restrict the safety regulatory authority of a State with respect to motor vehicles." 49 U.S.C. Sec. 14501(c)(2)(A).
Thus the court wrote that it must first determine whether each concession agreement provision "relate[s] to a price, route, or service of a motor carrier." If so, then the court must next determine "whether the provision 'has the force and effect of law'--that is, whether the provision was enacted pursuant to the State's regulation of the market, rather than the State's participation in the market in a proprietary capacity." If the provision meets the market participant exception, it is not preempted. But if the provision has the force of law, then the court must determine whether it fits within the saving clause.
Here's what the court said about whether the FAAA Act preempted each provision:
- The employee driver provision isn't saved from preemption by the market participant exception: it has the force of law (it doesn't meet the market participant exception) because it seeks to impact third-party (driver) wages--a subject of negotiation between the drayage operators and the drivers alone, and not the Port.
- The off-street parking provision is not preempted, because it meets the market participant exception.
- The maintenace provision is not preempted, because it is a safety regulation and fits within the saving clause.
- The placard provision is not preempted, because it is a safety regulation and fits within the saving clause.
- The financial capability provision is not preempted, because it does not relate to prices, routes, or services.
Judge Smith dissented, arguing that the market participant exception didn't apply (because "drayage services (not port services) form the relevant market, and the [Port] acts a as a regulator of drayage services; even if the Port qualifies under the exception, the off-street parking provision is preempted, because it affects "parties unrelated to contractual obligations to the Port"; and the placard provision is preempted under another provision of the FAAA Act.
The ruling affirms the lower court ruling that the provisions on off-street parking, maintenance, placard, and financial capability are not preempted. But it reverses the lower court ruling that the employee driver provision was saved by the market participant exception.
Occupy Movements and the First Amendment: Focus on Ft Myers
As the "Occupy Wall Street” movement has spread to other locales, so too have controversies surrounding the First Amendment's scope. The public-private status of NYC's Zuccotti Park which we discussed here, has indeed proven to be unique, and most other occupations are occurring in public spaces placing the First Amendment and local government regulations center-stage.
Today in federal district court in Ft. Myers, Florida, for example, there is a hearing on an amended motion for preliminary injunction filed on behalf of “Occupy Ft. Myers” resisting the city’s attempts to strictly enforce what the plaintiffs describe as a “series of City Code provisions which severely circumscribed politically-oriented speech, assembly and association within the city.” Like most permit schemes, Ft. Myers' regulations (excerpted on the “Occupy Ft Myers site here) can be articulated as a prior restraint. Indeed, the plaintiffs in "Occupy Fort Myers" note that “Fort Myers Code § 86-153 prohibits any parade, procession, or “open-air meeting” without first having obtained a special permit from the chief of police. However, more problematical under the First Amendment are the details in the permit scheme that may make it a content (or even viewpoint) regulation. In "Occupy Fort Myers," the plaintiffs argue that "Fort Myers Code § 58-156, governing park policy, by its terms, targets all political speech and conduct to be burdened with the requirement of shutting down at 10:30 p.m. or not beginning prior to 6:30 a.m., while exempting athletic events, cultural and civic activities, and other non-political association and assembly.”
Perhaps the Ft. Myers litigation will be resolved as amicably as that in Dallas, Texas. The motion for a preliminary injunction filed on behalf of Occupy Dallas members (Florence v. City of Dallas), was opposed by the city, but the parties reportedly reached a negotiated settlement which moves the protest but allows it to continue with certain conditions.
On the other hand, the specter of the situation involving Occupy Oakland involving tear gas, rubber bullets and serious injuries is one that both parties presumably seek to avoid.
[image: Poster by Jimmy via Occupy Together]