March 3, 2012
Federal Locomotive Act Preempts State Law Claims Related to Asbestos Exposure
The Supreme Court ruled this week in Kurns v. Railroad Friction Products Corp. that the federal Locomotive Inspection Act preempted the petitioner's state-law design-defect and failure-to-warn claims arising out of harms from exposure to asbestos. The ruling reaffirms an 85-year-old case holding that the LIA's delegation to the ICC was a "general one" and that the LIA therefore occupied the field.
George Corson was a welder and machinist for a railroad carrier. After his retirement, he was diagnosed with mesothelioma. He and his wife sued the Railroad Friction Products Corporation and Viad Corp in state court for design defect and failure to warn of the dangers posed by asbestos.
But the state law claims ran up against the LIA, which reads, in relevant part,
A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtences--
(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.
49 U.S.C. Sec. 20701.
Justice Thomas wrote for the Court that the LIA preempted the state law claims. Justice Thomas relied on the Court's ruling in 1926 in Napier v. Atlantic Coast Line R. Co. that the LIA occupies the field and thus, under field preemption, preempts state law claims like the petitioner's. The Court rejected the petitioner's attempt to work around Napier. (According to the Court, the petitioners didn't argue that Napier should be overruled. Instead, they tried to show that their claims didn't fall within Napier's field. The Court rejected this.)
Justice Kagan concurred, writing that she "doubt[s] this Court would decide [Napier] in the same way today."
Justice Sotomayor concurred and dissented, jointed by Justices Ginsburg and Breyer, aruing that under Napier the LIA preempts the petitioner's design-defect claim, it does not preempt petitioner's failure-to-warn claims: "In my view, the latter escape pre-emption because they impose no state-law requirements in the field reserved for federal regulation: 'the equipment of locomotives.'" (Quoting Napier, 272 U.S. 605, 612.)
[Image: Train Wreck at Montparnasse, 1895, Wikimedia Commons]
March 2, 2012
Federal Judge Richard Cebull and Judicial Ethics
Federal Judge Richard Cebull of the District of Montana has reported himself to the Chief Judge of the Ninth Circuit for forwarding an email "joke" about President Obama. While the email is widely and rightly condemned as racist, it is also sexist. The "joke" is primarily directed at President Obama's mother, accusing her of promiscuity, bestiality, as well as interracial sex.
Documents, including Cebull's letters to Judge Kozinski and President Obama, and reporting at the ABA Journal here.
Federal Restricted Buildings and Grounds Improvement Act Presented to President
An act being criticized as curtailing First Amendment rights, Congress has passed and presented to the President the Federal Restricted Buildings and Grounds Improvement Act. The proposed act would amend 18 USC §1752 to read as follows:
(a) Whoever— ‘
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or
(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds;
or attempts or conspires to do so, shall be punished as provided in subsection (b).
The term "restricted building is defined rather broadly in subsection (c) as "any posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice President’s official residence or its grounds;
(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.
The term "other person protected by the Secret Service" is defined as "any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.’’
The general punishment is a fine or imprisonment of not more than a year or both, with an enhancement for weapons or significant boldily injury.
The House Report discusses two needs for the revised act. First, this Act expressly includes the White House and Vice-President's residence, specifics that are not included in the present act. Second, and more controversially, the act "clarifies" that it should "apply to those who knowingly enter or remain in any restricted building or grounds without lawful authority to do so. Current law does not include this important element."
Congress grounds its power to pass the act in the necessary and proper clause, Art. I, §8 cl. 18.
Like the act protecting the Supreme Court building and environs, this act has the potential to chill protest, and is sure to provoke similar constitutional challenges.
[image: White House, circa 1860, via]
March 1, 2012
Court Says FDA Warnings Violate First Amendment
Judge Richard J. Leon (D.D.C) ruled yesterday in R.J. Reynolds Tobacco Co. v. FDA that the FDA's required warning labels on cigarette packs violate free speech and granted summary judgment in favor of the tobacco companies that sued to stop them. Judge Leon also permanently enjoined the FDA from enforcing these warning labels and enjoined the FDA from enforcing new, constitutional warning labels against the plaintiffs for 15 months after the FDA finalizes those new labels.
The ruling was hardly a surprise. Judge Leon issued a temporary injunction last November based in part on the plaintiffs' likelihood of success on their First Amendment claim. He adopted very similar reasoning yesterday--that the warning labels do not communicate information (instead, they advocate a position), that they are therefore not compelled commercial speech under Zauderer v. Office of Disciplinary Counsel, and, as non-commercial compelled speech, they do not satisfy strict scrutiny.
Here's Judge Leon on why the labels do not communicate information, but instead advocate a position (taking them out of the Zauderer framework):
To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking. Indeed, a report by the Institute of Medicine--an authority chiefly relied upon by the Government--very frankly acknowledges this very purpose. . . .
Further, the graphic images are neither factual nor accurate. For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking. Indeed, it makes no attempt to do so. Instead, it contends that the image symbolizes that "smoking kills 443,000 Americans each year."
Here's Judge Leon on why the government end is not compelling:
Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.
And finally, here's Judge Leon on narrowly tailoring:
As I noted previously, "the sheer size and display requirements for the graphic images are anything but narrowly tailored." . . .
[W]ith respect to the content of the graphic images, it is curious to note that plaintiffs have offered several alternatives that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech.
Judge Leon also noted that according to the legislative record Congress didn't consider First Amendment problems with the authorizing act.
Arizona's SB1070: Day Labor Provisions Violate First Amendment
Two provisions seek to regulate what is generally termed day labor. One provision makes it unlawful for an occupant of a motor vehicle that is stopped on a street,roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Another provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.
In Friendly House v. Whiting, Judge Susan Bolton has just ruled on a renewed motion for preliminary injunction against both these provisions, reasoning that the plaintiffs were likely to prevail on the merits of the First Amendment challenge to the provisions.
Judge Bolton rejected the plaintiffs' contention that the SB1070 provisions were not commercial speech, agreeing with Arizona that the regulated speech did little more than propose a commercial transaction and thus the lesser standard governing commercial speech should apply . Nevertheless, applying the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980), as slightly modified with regard to the last prong when there is content discrimination as in last term's case of Sorrell v. IMS Health, Inc., Judge Bolton held that the provisions were unconstitutional.
On Central Hudson's threshold prong - - - that the communication is neither misleading nor related to unlawful activity - - - Bolton focused on the communication itself, rejecting Arizona's contention that "impeding traffic" was unlawful activity and thus the First Amendment did not apply. She noted that Arizona did not (and could not) argue that day labor itself was unlawful.
On Central Hudson's government interest prong, Judge Bolton found that the interest of traffic safety easily met the standard of a substantial interest. With more difficulty, Bolton also found that the restriction directly advanced the substantial interest of safety, even though the ban was content-based and thus "by logical extension underinclusive to some degree."
It was Central Hudson's final prong, especially as modified by Sorrell, that proved fatal to the SB1070 provisions. Central Hudson provides that the regulation "must not be more extensive than is necessary to serve that interest," while makes clear that the law must not seek "to suppress a disfavored message."
Judge Bolton reasoned that there were less burdensome means in the pre-existing traffic regulations, and also noted that "S.B. 1070 contains a purposes clause" stating that the intent of the Act "is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Importantly, she reasoned, "nowhere does it state that a purpose of the statutes and statutory revisions is to enhance traffic safety." Thus, because the provisions "were created as part of a package of statutes and revisions aimed at perceived problems related to unlawful immigration" weighs against a finding that the provisions are “drawn to” address a traffic problem.
In weighing the standards for a preliminary injunction other than likelihood to prevail on the merits, Judge Bolton found the balance of equities and the public interest were in favor of injunctive relief.
Thus, the day labor solicitation provisions join the other provisions that have been held unconstitutional, and will most likely also provoke extended litigation.
[image: "Street Art" by Kotzian via]
February 29, 2012
Equal Protection and Taxes: Oral Argument in Armour v. Indianapolis
Does tax forgiveness by a municipality present an equal protection problem? Do the taxpayers who paid in a timely manner have a constitutional claim for reimbursement when the debt of the later payers is substantially forgiven?
The United States Supreme Court heard oral argument in Amour v. City of Indianapolis to consider the Equal Protection Clause consequences of Indianapolis' sewer assessment program that forgave the remaining obligations of the taxpayers who chose to pay in a multi-year installment plan and refused to refund payments to the taxpayers who had paid the assessment in full.
Justice Sotomayor, posing the first question to Amour's attorney, Mark Stancil, asked "what happens to all other amnesty programs like parking ticket amnesties?" or what happens in an immigration amnesty program? The many instances of the use of amnesty programs or financing forgiveness continued to pepper the questioning, and this was interwoven with the doctrinal issue of rationality. If equal protection does apply, then the standard would definitely be rational basis review, but what makes an amnesty program rational?
As Justice Alito, posing the first question to the city's attorney, Paul Clement, phrased it: "the city calculated that what it did would be more politically acceptable than treating the people who paid upfront equally on an economic basis with the people who paid in installment plans. Now if that's the reason for this, is that rational?"
Clement argued that the risk of imposing equal protection standards on forgiveness programs might mean that if goverments "actually have to provide refunds and face equal protection clause violations, then in the future nobody is ever going to forgive." To this, Justice Kennedy retorted:
And so, I think maybe if you prevail in this opinion, we should say the principle we are adopting in this case is: Don't trust the government.
Kennedy returned to this point in discussing the state law which did not disclose the possibility of future forgiveness, and later returned to it: "that just underscores the promise of the State or the city that all owners will be treated equally. That just underscores the point that that was the understanding and the commitment." Clement disagreed that there was any such commitment, essentially arguing that government has the perogative to change laws, especially if the law is unpopular: "You know, every once in a while the people have a point."
But as for the rationale for the distinction between classes, Clement as the city's attorney stressed the ability of a city to terminate an unpopular program (what Justice Alito called "political expedience") and "avoiding the administrative burdens of particularly the refund process." But Justice Alito in particular seemed skeptical:
What they [the city officials] have done is shift the cost of the sewers from a -- from a small group, a small interest group that is able to presumably exert some political power to -- to everybody. They spread the cost around to everybody. And everybody -- the ordinary person who has to pay a little bit more every month doesn't get all fired up about it.
Paul Clement responded that this does not present an equal protection claim, although perhaps "there's a takings claim for somebody to bring."
During Stancil's rebuttal, Justice Breyer encapuslated the question for the Court:
The argument isn't that it's expensive to administer as much as it is, there are 1,000 people in all these projects who are already paid up. We don't have enough money to pay them all back. That's why we don't want to pay them back. At the same time, we don't want to collect the money for 30 years from these other people who aren't fully paid yet. . . .
The question is, I guess, is, is that rational.
[image: concrete sewer pipes via]
Texas Court Issues New District Maps
The Western District of Texas issued new legislative district maps late yesterday after the Supreme Court sent the case back to the Texas court last month. (Thanks to txredistricting.org for the maps.)
Recall that the Supreme Court in Perry v. Perez vacated the Texas district court's maps that were drawn while Texas's preclearance case under Section 5 of the Voting Rights Act was pending in the D.C. court. The per curiam Supreme Court said that the Texas court should defer to the Texas legislature's maps unless they stand a "reasonable probability" of failing Section 5 preclearance.
In response, the Texas court reissued maps late yesterday. Here's what the Texas AG had to say about it:
The new interim maps issued late today are a substantial improvement from maps previously issued by the San Antonio court. As a result of the U.S. Supreme Court's unanimous, clear direction to the district court, these new interim maps more accurately reflect the decisions of elected Texas legislators.
In light of the State's legal arguments, the San Antonio court only modified the Legislatively enacted plan in response to alleged Voting Rights Act violations--while leaving virtually all other districts as they were drawn by the Legislature. In doing so, the court properly rejected the demands by some plaintiffs to draw drastic and overreaching interim maps.
We apparently don't have a written opinion from the Texas court yet, and we can't see exactly how it applied the "reasonable probability" standard--and therefore whether Texas succeeded in forging a new path around Section 5 preclearance.
Fordham Urban Law Journal Symposium on Second Amendment
The Fordham Urban Law Journal will host its Volume XXXIX Symposium next Friday, March 9, titled Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago.
The Journal put together a terrific line-up, available here. The program runs from 10 am to 5 pm on Friday, March 9, 2012, at the Fordham University School of Law, James B.M. McNally Amphitheater. CLE credit is available.
The constitutionality of the anti-prostitution pledge: compelled speech or government funding?
The Second Circuit's opinion earlier this month refused to grant en banc review to a panel decision that the so-called prostitution pledge for government AIDS/HIV funding is unconstitutional, Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v. United States Agency for International Development.
The denial of en banc review prompted a dissent authored by Judge Cabranes, and joined by Judges Raggi and Livingston, while Judge Rosemary Pooler wrote an opinion concurring in the denial of rehearing en banc.
At issue is a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq., providing:
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
22 U.S.C. §7631(f). Note that the exceptions were added in the 2004 amendments to the Act, meaning that the act's provision falls most heavily on smaller NGOs.
The crux of the disagreement is whether or not the compelled speech aspect of the required statement makes it distinguishable from Rust v. Sullivan. The Second Circuit panel found this was a vital distinction - - - and indeed, it is a matter that the Court in Rust emphasized. The dissenters, as well as the Sixth Circuit, found that any such distinction is erased by the unconstitutional conditions doctrine which allows the organization to choose whether or not to apply for funds in the first instance.
As Judge Rosemary Pooler noted in her concurring opinion from denial of rehearing en banc, the doctrine is in a complex state of disarray. For those who teach, study, or litigate in this area, reconciling Rust v. Sullivan with Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), can be challenging - - - unless one resorts to easy and cynical canards about the differences between doctors and lawyers, or the Court's solipsistic concern for its own role when conditions are imposed. The "anti-prostitution" pledge cases could be a great vehicle for exploring the complexities, either as a scholarly project or as a class exercise.
The Second Circuit and the Sixth Circuit opinions also provide a circuit conflict, perhaps teeing up the Second Circuit case for Supreme Court review.
February 27, 2012
War Powers Resolution Challenge to Libyan Mission Moot
Judge Richard W. Roberts (D.D.C.) on Tuesday dismissed as moot Whitney v. Obama, a civil case seeking a declaration and injunction against President Obama's commitment of U.S. troops to Libya last year. We previously posted on House Members' claim against the President here (with links to our past posts on the Libyan mission). (Judge Walton dismissed that case, Kucinich v. Obama, for lack of standing.)
The plaintiff brought the case under the War Powers Resolution. Judge Roberts declined to address the merits but instead ruled the case moot because the operation ended in 2011:
"[T]he [U.S.] ceased air operations in support of" NATO's Operation Unified Protector on October 31, 2011, and Whitney cites no authority for the proposition that the War Powers Resolution covers the continued presence of peaceful troops. Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,] "the court can grant no meaningful relief[.]" The declaratory judgment Whitney seeks would constitute an "improper advisory opinion" since no live dispute remains. Granting injunctive relief likewise would prove ineffectual, as the challenged actions have long since ceased. Accordingly, Whitney's claims are moot.
Op. at 6-7 (citations omitted). Judge Roberts also ruled that the action was neither capable of repetition (because there's no reasonable expectation that Whitney will suffer the same alleged violation of the WPR again), nor evading review (because "offensive wars initiated without congressional approval are not in th[is] category[,]" and neither are military missions "inherently short in duration," Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000).
Cert Denied: Court will not hear Garcetti Circuit Split
In its Orders today, the United States Supreme Court denied certiorari to both Bowie v. Maddox, from the DC Circuit, and Jackler v. Byrne, in the Second Circuit. The arguably conflicting cases interpret Garcetti v. Ceballos, but the DC Circuit uses Garcetti to foreclose the employee's claim while the Second Circuit refuses to extend Garcetti.
ConLawProfs looking for a good problem - - - or law students looking for a good paper topic - - - might take a look at Bowie and Jackler.
The Court also denied certiorari in another First Amendment case, denying the petition on behalf of the National Organization for Marriage (NOM), seeking review of the First Circuit's upholding of Maine's disclosure laws, a decision that it revisited somewhat earlier this month, with the same result.