Wednesday, March 29, 2017

Tenth Circuit Upholds Prairie-Dog Protection Under Endangered Species Act Against Commerce Clause Challenge

The Tenth Circuit today rebuffed a challenge to the Endangered Species Act and ruled that Congress had authority to enact the Act under the Commerce Clause. The ruling in PETPO v. FWS upholds the Fish and Wildlife Service's regulation protecting Utah prairie dogs.

The ruling deals a(nother) blow to challengers of ESA regs that protect purely intra-state species and reaffirms federal authority to protect those species under the Commerce Clause. (Because the court held that the prairie-dog reg was authorized under the Commerce Clause, it did not separately address whether it's authorized under the Necessary and Proper Clause.)

We might keep an eye on this case and any others like it. If Judge Gorsuch is confirmed, he could tilt the balance on the Court against ESA regs--and in favor of yet more restrictions on congressional authority under the Commerce Clause. (Remember that Justice Scalia concurred in Gonzales v. Raich, the basis for the Tenth Circuit's ruling. Judge Gorsuch might not agree, or might see this case through the Lopez- and Morrison-lenses of the plaintiffs. Judge Gorsuch was not on the Tenth Circuit panel in this case.)

The court applied the test from Gonzales v. Raich, which upheld the federal prohibition on home-grown marijuana for medical use because it was part of a larger regulatory scheme (the federal Controlled Substances Act), which itself was authorized under the Commerce Clause. At the same time, the court specifically rejected PETPO's argument that it should consider the prairie-dog regulation only in isolation (like the Gun-Free School Zones Act in U.S. v. Lopez or the individual cause of action in United States v. Morrison)--not as part of the larger ESA scheme. By analyzing the reg under Raich (and not under the provision-specific approach in Lopez and Morrison), the court aligned with other circuits that have ruled on the question.

The court summarized its test:

In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

The court rejected PETPO's contention that it shouldn't apply Raich, because PETPO lodged a facial challenge to the specific prairie-dog provision under Lopez and Morrison, and not "an application to a particular subset of activity, as in Raich." The court said,

the real crux of PETPO's challenge is not a challenge to any particular FWS regulation but to Congress's power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prarie dog is "a particular challenged provision," this prohibition finds its place within the broader regulatory scheme of the ESA's protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress's broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened.

The court said that "the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute."

The court also rejected PETPO's argument that the ESA "is a comprehensive scheme to provide for environmental conservation, not [to] regulate a market." The court said that this was based on too cramped a reading of Raich, which, the court said, doesn't require a "comprehensive economic scheme." Instead, Raich only required a "comprehensive regulatory scheme" that has a "substantial relation to commerce." The court said that the ESA prohibitions easily meet this standard, based on their plain economic effects (some of which PETPO itself raised as the harms that formed the basis of its suit).

The court went on to hold that Congress had a rational basis for thinking that the prairie-dog-protection reg constituted an essential part of the ESA, a comprehensive regulatory scheme, that, "in the aggregate, substantially affects interstate commerce."

 

March 29, 2017 in Cases and Case Materials, Commerce Clause, Congressional Authority, News | Permalink | Comments (0)

Thursday, March 23, 2017

Fifth Circuit Says Medical Reimbursement Preemption Claim Can Move Forward

The Fifth Circuit ruled this week that a medical air-evacuation company has standing and that it sufficiently alleged that state defendants had "some connection" to the enforcement of state law against it to allow the company's preemption suit, including a request for injunctive relief, to move forward. The ruling remands the case to the district court for proceedings on the merits.

The case involves Texas's workers'-compensation scheme, which caps reimbursement to Air Evac's medi-vac air ambulances from an insurance company. Under the Texas Workers' Compensation Act, the Texas Workers' Compensation Commission sets reimbursements rates for insurers to pay health-care providers directly. The Act also prohibits health-care providers from billing a patient for any amount in excess of the set rate. The upshot is that "the initial bill goes to the insurer rather than the patient," at a set rate, here 125% of the Medicare rate for the same service.

Air Evac, along with other, similar health-care providers, challenged the rate through the state administrative-dispute system, arguing that it was preempted by the federal Airline Deregulation Act. They lost, and the lead plaintiff, PHI, appealed.

While the appeal was pending, Air Evac filed this case in federal court, seeking a declaration that the ADA preempted the TWCA and an injunction against TWCA enforcement (under Ex Parte Young). But the district court dismissed the case for lack of subject-matter jurisdiction, because the state defendants weren't charged with enforcing the maximum-reimbursement scheme against Air Evac (because the rate "constraints the amount insurers can pay, rather than the amount air-ambulance companies can charge"), and because Air Evac "failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended."

The Fifth Circuit reversed. The court ruled that Air Evac had standing, because the maximum rate actually constrained the amount that Air Evac could receive, even though it operated directly on the third-party insurer (and not Air Evac). The court held that there was federal question jurisdiction, because Air Evac pleaded that the federal ADA preempted the TWCA. And the court ruled that the state defendants had "some connection" to enforcement of the maximum rate against Air Evac, again because the maximum rate actually constrained Air Evac's reimbursement, even if it operated on the insurer. The court declined to abstain while PHI's state appeal was pending, because the parties and claims were different.

The ruling sends the case back to the district court for proceedings on the merits, the preemption claim.

 

March 23, 2017 in Cases and Case Materials, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Monday, March 20, 2017

Fourth Circuit: No First Amendment Protection for Fire Battallion Chief's Disruptive Facebook Posts

The Fourth Circuit today dismissed a fire department battalion chief's First Amendment retaliation claim for his Facebook activity in violation of the Department's Social Media and Code of Conduct policies. The court also dismissed his facial challenge against the policies as moot.

The case arose when Howard County (Maryland) Fire and Rescue Services Battalion Chief Kevin Patrick Buker posted a series of statements and "likes" on his Facebook page. On January 20, 2013, Buker posted this while on duty (sics omitted):

My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

He then "liked" a colleague's post that added ugly racial comments to this.

The assistant chief directed Buker to remove the posts pursuant to the Department's Social Media Policy. That Policy, relatively new at the time, prohibited employees from posting anything that "might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission."

Buker removed the posts, but then posted comments criticizing the Social Media Policy and the "liberals" who were behind it. The Department moved Buker out of field operations and into an administrative assignment and began an investigation.

About three weeks later, another colleague posted to his own Facebook page a picture of an elderly woman with her middle finger raised, with a caption saying that he'll post whatever he wants, and a note stating, "for you Chief." Buker "liked" it.

Shortly after that, Buker was fired for violating the Social Media Policy and the Code of Conduct. (The Code of Conduct banned "conduct unbecoming," that is, "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.")

Buker sued, arguing that the Department fired him in retaliation for his speech, and that the Social Media Policy and Code of Conduct Policy were facially unconstitutional. The Fourth Circuit disagreed.

Applying Pickering, the court held that two of Buker's posts (the one about assaulting liberals, and the one criticizing the Social Media Policy) addressed matters of public concern. (The court assumed, without deciding, that Buker's Facebook activity constituted a "single expression of speech.") But the court said that the Department's interest in efficiency and preventing disruption outweighed Buker's interests:

  • Buker's Facebook activity "interfered with an impaired Department operations and discipline as well as working relationships within the Department.
  • The posts "significantly conflicted with [his] responsibilities as battalion chief," including "acting as an impartial decisionmaker and 'enforcing Departmental policies and taking appropriate action for violations of those policies.'"
  • Buker's "speech frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
  • Buker's activity "expressly disrespect[ed] [his] superiors" after he had been reprimanded.
  • The posts "disregarded and upset the chain of command."

The court dismissed Buker's facial challenge to the Social Media Guidelines and Code of Conduct as moot. The court said that although the Department changed the policies to eliminate the earlier version's prohibitions on the private use of social media, the Chief and defendants' counsel both promised the court that the Department wouldn't re-implement the old guidelines (so as to make this a "voluntary cessation" case).

 

 

March 20, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, March 9, 2017

No Standing to Challenge BIA's Native American Land Lease Tax Reg

The Ninth Circuit ruled that the California Desert Water Agency lacks standing to challenge a new Bureau of Indian Affairs regulation concerning taxes on leases on Native American lands to third parties. The ruling ends DWA's challenge, although DWA could resurrect it, if BIA later halts DWA taxes under the reg.

The case centers around a BIA reg on state and local government taxation of leases by non-Native Americans on Native American lands. The relevant subsection says that "[s]ubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction."

The DWA, which assess taxes on these leases, sued under the APA. But the Ninth Circuit ruled that it lacked standing.

The court said that the regulatory language "[s]ubject only to applicable Federal law," incorporated existing case law, in particular, White Mountain Apache Tribe v. Bracker (1980), which held that courts must apply a fact-specific balancing test in order to determine whether federal law preempts any particular state effort to regulate non-Native American conduct on tribal lands. In other words, the reg, as understood incorporating the Bracker test, couldn't preempt and halt DWA taxation until a court, applying the Bracker test, said so. The reg by its own force doesn't preempt. And with no preemption of DWA taxation, DWA doesn't have a harm, and without a harm DWA lacks standing. (Indeed, after BIA issued the reg, DWA continued to collect taxes on these leases, with no direct threat of enforcement by the BIA.)

The court went on to reject DWA's argument that notwithstanding Bracker incorporation, it still suffered a harm, because the reg would encourage leaseholders not to pay their taxes. The court applied Linda R.S. v. Richard D. and Simon v. Eastern Ky. Welfare Rights Org. in support of its conclusion that "a plaintiff in DWA's position lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to continue their harmful behavior or, alternatively, if it is too speculative to conclude that they would modify their behavior in the way the plaintiff desires."

March 9, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (1)

Wednesday, February 22, 2017

Fourth Circuit Upholds Maryland's Assault Weapon Ban

The en banc Fourth Circuit yesterday upheld Maryland's ban on assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling reverses an earlier panel decision and puts the circuit in line with other circuits that have ruled on the issue. (We posted on the earlier panel ruling here.)

The court said first that assault weapons aren't even protected by the Second Amendment. Quoting Heller, the majority wrote, "Because the banned assault weapons and large-capacity magazines are 'like' 'M-16 rifles'--'weapons that are most useful in military service'--they are among those arms that the Second Amendment does not shield."

The court said next that even if the Second Amendment applied, the ban satisfied intermediate scrutiny. (The court applied intermediate scrutiny, not strict, because Maryland's ban "does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.") The court wrote that the ban is "reasonably adapted" to the state's "substantial" (indeed, compelling) interest in public safety, because assault weapons and large-capacity magazines are especially dangerous and are disproportionately used in crime and to kill law enforcement officers. The court also noted that the ban did not regulate the more typical weapon used in the home for self-defense (the core of the Second Amendment right, under Heller)--the handgun.

The court also ruled that the ban didn't violate equal protection by allowing retired police officers to possess assault weapons, because police officers are highly trained, and thus not situated similarly to civilians. Finally, the court held that the ban on "copies" of assault weapons wasn't unconstitutionally vague, because the term ("copy") is sufficiently clear under well established Maryland law.

The ruling drew a sharp dissent and several other opinions.

February 22, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Tuesday, February 21, 2017

Court Leans Toward Agent in Cross-Border Shooting Case

The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.

The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.

The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.

Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.

Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.

But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:

Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.

The four conventional progressives pushed back, equally hard.

If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.

February 21, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (1)

Friday, February 17, 2017

Eleventh Circuit Strikes Florida's Ban on Doctors' Questions About Patients' Guns

The Eleventh Circuit ruled yesterday that Florida's law banning doctors from asking patients about gun ownership violated the First Amendment. The en banc court struck three key provisions of Florida's law, but upheld a fourth, banning discrimination against gun owners.

We previously posted on the case here.

Florida's Firearms Owners' Privacy Act bans doctors from asking about guns in patients' homes, from keeping records on patient gun ownership, from "unnecessarily" harassing patients about gun ownership, and from discriminating against patients based on gun ownership. The legislature enacted the provisions after hearing about six instances involving doctors asking patients about gun ownership or discriminating against patients because of gun ownership.

Doctors sued, arguing that the provisions violated free speech. The court agreed (again, except for the anti-discrimination provision).

The court held that FOPA was a content-based restriction on speech, subject to the heightened-review standard in Sorrell v. IMS, and that FOPA failed to stand up. (Because FOPA failed under heightened review, the majority said that it didn't need to consider whether strict scrutiny applied. Judges Wilson and Martin would have applied strict scrutiny, however, arguing that FOPA is both content- and viewpoint-based. Judge Tjoflat dissented, taking issue with the majority's failure "to elucidate and apply a particularized standard of review," especially in wake of the "uncertainty" created by Reed v. Town of Gilbert.) In a separate majority opinion, the court said that the anti-unnecessary harassment provision was unconstitutionally vague.

Florida proffered four interests: protecting Second Amendment rights; protecting patient privacy; ensuring equal access to health care; and regulating the medical profession to protect the public. The court said that FOPA's wasn't necessary to achieve any of these.

As to the Second Amendment, the court said that doctors can't violate it, because they're not state actors, and because the Second Amendment doesn't protect against questions on gun ownership:

The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.

As to the state's interest in protecting patient privacy, the court noted that the FOPA itself, in a provision not contested in this case, protects a patient's right not to answer questions about gun ownership. "So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on this topic." Moreover, "Florida law already places significant limits on the disclosure of a patient's confidential medical records, and there is no evidence that doctors or medical professionals have been improperly disclosing patients' information about firearm ownership."

As to ensuring equal access to health care, the court noted that it upheld FOPA's anti-discrimination provision, and that the other challenged provisions in FOPA simply weren't narrowly tailored to promote that interest.

Finally, as to the state's interest in regulating the medical profession "in order to protect the public," the court said that this just "is not enough here." "There is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective. Nor is there any contention (or, again, any evidence) that blanket questioning on the topic of firearm ownership is leading to bad, unsound, or dangerous medical advice."

Judge Marcus, in a separate majority opinion, added that the anti-unnecessary-harassment provision was unconstitutionally vague.

The court upheld the anti-discrimination provision, because it raised no First Amendment concerns as applied to non-expressive conduct such as "failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms."

The court severed the record-keeping, inquiry, and anti-harassment provisions, so that other provisions of the FOPA stay on the books. These include a provision relating to firearm inquiries by emergency medical professionals, a provision allowing patients to decline to answer questions about firearm ownership, the anti-discrimination provision, a provision prohibiting insurers from discriminating against gun owners, and a provision stating that a violation of any of these constitutes grounds for disciplinary action.

February 17, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, February 16, 2017

Sixth Circuit Tells Lower Court: Go Ahead and Rule on TN Campaign Finance Law

The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.

The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).

The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.

But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.

So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.

The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.

The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.

February 16, 2017 in Cases and Case Materials, Elections and Voting, Federalism, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, February 7, 2017

Melania Trump's Defamation Claims

The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.

First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.”  The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."

Melania_Trump_at_the_Inauguration
Melania Trump at the Inauguration, January 2017, via

Additionally, as the news report stated:

The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.

"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.

This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.

Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.

Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts.  Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities.  Paragraph 3 of the Complaint reads:

As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.

This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products.  Indeed, Melania Trump's initial biography on the White House website lends credence to this view:

Screen Shot 2017-01-20 at 5.18.58 PM

This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.

Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses.  However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.  

Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.

 

February 7, 2017 in Cases and Case Materials, Current Affairs, Executive Privilege, First Amendment, Gender, Speech | Permalink | Comments (0)

Tuesday, January 31, 2017

San Francisco Sues Trump Over Sanctuary Cities Order

San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.

We posted on the EO and some of the federalism issues here.

San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.

Recall the EO's federal-funding-for-compliance provision:

the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.

8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."

As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.

The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."

As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)

January 31, 2017 in Cases and Case Materials, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Monday, January 30, 2017

Washington State AG Sues Trump for Immigration EO

Washington State Attorney General Robert Ferguson has filed suit on behalf of the State in Western District of Washington, arguing that President Trump's immigration EO violates various constitutional provisions (including equal protection, due process, and establishment of religion). The State also moved for a nationwide temporary restraining order.

Check out our analysis of the equal protection issues in the EO here.

As to standing, the state argues that the EO interferes with its interests in protecting the health, safety, and well-being of residents (including about 7,280 non-citizen immigrants from the seven countries identified in the EO) and its interests in economic activity and growth. (The State points out that it's the home of Microsoft, Amazon, Expedia, and Starbucks, among others, and that those companies rely on the H-1B visa program.)

January 30, 2017 in Cases and Case Materials, Equal Protection, Executive Authority, News, Procedural Due Process, Standing | Permalink | Comments (0)

Wednesday, January 25, 2017

Segall on CREW's Emoluments Case

Check out Prof. Eric Segall's (Georgia State) piece in the LA Times, arguing that CREW has standing to sue President Trump for an Emoluments Clause violation. We posted on the case here.

Segall says that CREW's harm is greater than the plaintiffs' harms in other cases, where the Court granted standing. Citing Fisher and Massachusetts v. EPA, Segall writes that "[t]here are many examples of plaintiffs in high-profile and important cases having their cases heard despite injuries just as or even more abstract and tenuous than the ones put forward by CREW."

January 25, 2017 in Cases and Case Materials, Executive Authority, News, Standing | Permalink | Comments (0)

Monday, January 23, 2017

CREW Files Complaint Alleging Trump Violates the Emoluments Clause

Here's CREW's complaint against President Trump for violations of the Emoluments Clause. (We wrote on this yesterday, too.) CREW filed this morning in the Southern District of New York.

In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."

CREW's standing to sue will certainly be an issue. Here's the abridged version of what CREW has to say about its injury:

Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.

There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.

January 23, 2017 in Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Sunday, January 22, 2017

Lawsuit To Challenge Trump on Emoluments

The New York Times reported today that a group of law profs, Supreme Court litigators, and former White House ethics lawyers will file a suit tomorrow alleging that President Trump is violating the Emoluments Clause. Here's the gist:

The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.

The plaintiff in the case is Citizens for Responsibility and Ethics in Washington, CREW.

We've posted on the Emoluments Clause and President Trump here and here (with links to others). Prof. Andy Grewel's (Iowa) paper, recently posted, referenced in the piece, and arguing that payment to a Trump hotel wouldn't violate the Emoluments Clause, is here.

January 22, 2017 in Cases and Case Materials, Executive Authority, News | Permalink | Comments (0)

Thursday, January 19, 2017

Seventh Circuit Shoots Down Chicago's Restrictions on Firing Ranges

The Seventh Circuit ruled yesterday that Chicago's restrictions on firing ranges violate the Second Amendment. The ruling means that the City can no longer enforce two of its zoning restrictions and an age regulation for firing ranges, and that Chicago will have to go back to the drawing board if it wants to zone or regulate.

The case has some history. Chicago previously banned all firing ranges from the City. But the Seventh Circuit struck that ban, ruling that it intruded on "the core individual right of armed defense[,] includ[ing] a corresponding right to acquire and maintain proficiency in firearm use through target practice at a range."

The City came back with a bevy of regulations, including three at issue here: (1) a zoning restriction that limits firing ranges only as special uses in manufacturing districts; (2) a zoning restriction that prohibits ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses; and (3) a provision barring anyone under age 18 from entering a shooting range.

The court applied the familiar two-part framework to Second Amendment challenges. It first asked whether the regulated activity fell within the scope of the Second Amendment. It next asked, if so, do the regulations meet the sliding scale of heightened scrutiny, where a regulation must more closely fit the government's objectives the most closely the regulations touch on the core of the Second Amendment?

Drawing on its earlier case and the "Second Amendment right to maintain proficiency in firearm use via target practice at a range," the court said that the three regulations all fell within the scope of the Second Amendment. The court then held that the City failed to provide any evidentiary support for its claimed concerns to justify the regulations--firing range attract gun thieves, they cause airborne lead contamination, and they carry a risk of fire--and therefore they must fail.

Importantly, the court held that the two zoning restrictions had to be considered as a package, not separately. The court then noted that between the two, only about 2.2 percent of City area was available to firing ranges. Moreover, since the court's earlier ruling, no firing range had opened in the City.

Judge Rovner wrote a lengthy opinion dissenting on the distance-zoning regulation, but concurring on the other points. Judge Rovner argued that the court should have analyzed the two zoning regulations separately, and, if it had, it should have ruled that the City had sufficient interests in regulating the distance between a firing range and certain other sites. Judge Rovner also wrote that the City should have greater leeway in regulating "the limited rights of minors under the Second Amendment," citing a host of stories about injuries and deaths of youths at firing ranges. But ultimately she agreed with the majority that "the outright ban on all children under the age of eighteen entering a firing range is impermissible . . . ."

January 19, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (1)

Court Leans Toward Government in 9/11 Detainee Suit

An unusually short-stafffed Supreme Court heard oral arguments yesterday in Ziglar v. Abbasi, the case testing whether detainees in the early post-9/11 round-ups could sue government officials for damages for constitutional violations based on their harsh conditions of confinement. (Our preview is here.)

The Court leaned toward the government.

The deck was already stacked against the detainees, what with Justices Sotomayor and Kagan both recused. This left a six-member Court, with just two (Justices Ginsburg and Breyer) more likely to favor the detainees. But even if Justices Ginsburg and Breyer would rule for the detainees, they'd need a third vote to tie and affirm the Second Circuit's ruling, or a fourth to outright win. It didn't look like that will happen.

The deck was stacked for another reason: defendants challenged the Second Circuit's ruling on three independent grounds--failure to meet the pleading standards in Iqbal, lack of a Bivens remedy, and qualified immunity. A ruling for the officials on any one of these grounds would result in a loss for the plaintiffs. And based on the arguments, it seems likely that the Court could rule on different grounds for the different classes of defendants.

Much of the arguments focused on Bivens, and whether the plaintiffs' claim raised a "new context" for Bivens. Chief Justice Roberts and Justice Kennedy--the two perhaps next most likely to rule for the plaintiffs, after Justices Ginsburg and Breyer--both said yes, based on the national security and immigration context of the case. (The plaintiffs have always maintained that the context is the condition in ordinary prison detention (and therefore a familiar Bivens context), not national security and immigration, because that's what they complained about. But Chief Justice Roberts and Justice Kennedy didn't buy it.) If so, the Court will likely rule that Bivens doesn't extend to this case, and toss the plaintiffs' claims.

Pleading standards and qualified immunity got somewhat less attention, but could also defeat the plaintiffs' claims. As to pleading standards, the government argued that this case is simply a re-do of Iqbal itself, with the same pleading deficiencies. As to qualified immunity, the government argued that high-level DOJ officials couldn't be held liable for establishing policies, while the prison officials argued that they couldn't be held liable simply for implementing policies. If so, qualified immunity puts the plaintiffs between a rock and a hard place, getting relief neither against high level DOJ officials nor lower-level prison officials.

At the same time, the Court (particularly Justice Kennedy) seemed concerned that the plaintiffs would have some remedy, even if not a Bivens remedy. Habeas, the Administrative Procedures Act, injunctive relief, civil rights conspiracy (42 U.S.C. 1985), and the Federal Tort Claims Act were all floated at one time or another as potential remedies, but each has its limits or outright problems. Between some or all of these, though, there's probably enough of a non-Bivens remedy to satisfy Justice Kennedy and even Chief Justice Roberts, if, indeed, that's a concern that might sway them.

January 19, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0)

Tuesday, January 17, 2017

D.C. Circuit Rejects Free Speech Claim of Inauguration Protest Group

The D.C. Circuit rejected a claim today that the Park Service's set-aside of Freedom Plaza for the Inauguration Committee violated the free speech rights of a group that sought to protest in that space during President-Elect Trump's inauguration.

The ruling ends this challenge, and means that the group will have to find some other place to protest.

The case involves a 2008 Park Service regulation that authorizes a priority permit setting aside a portion of space along the Inaugural Parade route to the Presidential Inaugural Committee for ticketed spectator bleachers. (The set-aside amounts to about 13 percent of the space along the route. In total, about 30 percent of the space along the route is not open to the public; the other 70 percent is available on a first-come, first-served basis.) That area includes Freedom Plaza, a park along Pennsylvania Avenue.

The set-aside priority permit does not displace the regular permit process for protestor along the parade route. But it means that protestors can't use the area set aside for the Inaugural Committee.

That's where ANSWER (Act Now to Stop War and End Racism) comes in. ANSWER sought to protest on Freedom Plaza, but couldn't, because the space was reserved for the Inaugural Committee. ANSWER sued, arguing that the set-aside violated its free speech rights.

The D.C. Circuit rejected this claim. The court ruled that the Park Service set-aside was a content-neutral, time, place, manner regulation of speech in a public forum, that was narrowly tailored to achieve a significant government interest (celebrating the inauguration), and left open ample alternatives for speech.

The court rejected ANSWER's argument that the regulation was viewpoint based, because the group sought to protest against President-Elect Trump: "ANSWER's admittedly viewpoint-based reason for seeking access to the Plaza does not, however, make any rule that stands in its way content based."

January 17, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Does a Ban on "Disparaging" Trademarks Violate Free Speech?

The Supreme Court will hear oral arguments tomorrow in Lee v. Tam, the case testing whether the Patent and Trademark Office violated free speech when it denied a trademark to an all-Asian-American dance-rock band called The Slant, pursuant to a statutory prohibition against registering a "disparaging" mark.

Our analysis of the lower court ruling is here.

Here's my preview, from the ABA Preview of U.S. Supreme Court Cases, with permission:

FACTS

Simon Tam is the front-man for an all-Asian-American dance-rock band called The Slants. Tam formed the band in 2006 not only to play music, but also to express his views on discrimination against Asian-Americans. So when Tam turned to name the band, he sought to embrace a term that has been used as a racial insult against Asian-Americans, “slant.” (In so doing, Tam drew on a tradition of “re-appropriation.” Re-appropriation is when members of a minority group reclaim terms that have been used to insult or stigmatize them and redirect those terms as badges of pride.)

The Slants’s political statements sweep well beyond the band’s name. For example, their first album was called “Slanted Eyes, Slanted Hearts”; their fourth was called “The Yellow Album.” Some of their song lyrics advocate for Asian pride and promote cultural heritage. (For more on The Slants, check out their web-site, at www.theslants.com.)

In 2011, Tam sought to register The Slants as a trademark. The trademark examiner refused to register the mark, however, because it was likely to disparage persons of Asian descent, under Section 2(a) of the Lanham Act. (As described below, this section prohibits the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks.) The Trademark Trial and Appeal Board agreed.

Tam appealed to the United States Court of Appeals for the Federal Circuit, arguing that the Board erred in finding the mark disparaging and that Section 2(a) violated the First Amendment. A three-judge panel affirmed the Board’s determination that the mark was disparaging, and rejected Tam’s free-speech claim. The full court, however, reversed and ruled that Section 2(a) violated the First Amendment. The government brought this appeal.

CASE ANALYSIS

Congress enacted the Lanham Act in 1946 to provide a national system for registering and protecting trademarks used in interstate and foreign commerce. In enacting the Act, Congress sought to help assure consumers that a product bearing a particular mark is, indeed, the product that the consumer seeks, and to protect a markholder from misappropriation and misuse of the mark.

Under the Act, trademark registration comes with significant benefits. For example, the holder of a federal mark has the right to exclusive, nationwide use of the mark where there is no prior use by others. Moreover, a markholder can sue in federal court to enforce the trademark; obtain assistance from U.S. Customs and Border Protection in restricting importation of infringing good; and qualify for a simplified process for obtaining protection in countries that have signed the Paris Convention. Finally, a markholder can use registration as a complete defense to state or common law claims of trademark dilution.

Under the Act, the PTO must register a trademark unless it falls into one of several categories of marks precluded from registration. One of those categories, Section 2(a) of the Act, bars registration of a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The PTO has used Section 2(a) to deny or cancel “disparaging” marks such as Stop the Islamisation of America, The Christian Prostitute, Marriage is for Fags, Democrats Shouldn’t Breed, Republics Shouldn’t Breed, and others. Perhaps most famously, the PTO used Section 2(a) to cancel six trademarks of the Washington Redskins NFL football team (although this decision is now on appeal and may be affected by Tam’s case).

In denying a mark under Section 2(a), the PTO denies a significant government benefit to speech based on the content and viewpoint of that speech, even though the government does not prohibit the speech itself. (The Slants can still use The Slants, even if the name does not enjoy trademark protection.) The parties dispute whether this kind of denial violates the First Amendment.

The government argues that Section 2(a) does not violate the First Amendment, because it does nothing to restrict Tam’s speech. The government argues that laws that restrict speech can violate the First Amendment, but that federal programs that subsidize speech (like the Lanham Act) cannot. The government points to precedents upholding the denial of federal tax-exempt status for non-profit organizations’ lobbying activities and sustaining federal regulations that prohibited the use of family-planning funds for abortion-related services. The government also says that it can decide not to subsidize speech at all, and, based on a case from just two Terms ago, that it need not provide a “mobile billboard” for offensive messages on state specialty license plates. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). In short, the government contends that it has “significant discretion to decide which activities to fund and what criteria to use for inclusion in government programs.”

The government argues that Section 2(a) falls squarely within these principles. It says that trademark registration confers a significant government benefit, and that it has discretion in determining how to allocate this benefit. The government claims that the PTO’s denial of registration does not restrict Tam from using “The Slants”; it just means that Tam does not get the benefits of federal registration.

The government argues next that the lower court erred in ruling that Section 2(a) was facially unconstitutional. The government says that Section 2(a) is not an unconstitutional condition on a government program, and it is not an impermissible viewpoint-based restriction on speech. Instead, Section 2(a) simply sets out criteria for a government benefit in a way that the Court has upheld, again, just two Terms ago. The government contends that Section 2(a)’s criteria serve legitimate government interests not to encourage the use of disparaging terms and to disassociate itself from racial slurs and other offensive speech. Finally, according to the government, “[t]he Constitution does not put Congress to the choice of either eliminating the federal trademark-registration program altogether or promoting the use of racial slurs in interstate commerce.”

In response, Tam argues that Section 2(a) creates an impermissible viewpoint-based burden on speech. Tam says that Section 2(a) permits the registration of marks that express a positive or neutral view, but not those that express a negative view. He claims that the government’s only interest is in protecting people from offensive trademarks, and that this interest is not sufficiently compelling to justify the viewpoint-based burden.

Tam argues that the government is wrong to try to shoehorn Section 2(a) into First Amendment principles that would allow a burden on speech. Tam says that trademark registration is not a government subsidy, because (unlike the subsidies in the Court’s precedents) it involves no actual disbursement of funds. He claims that registration does not amount to government speech, because the speech involved is by the markholder, not the government. And he contends that trademarks are not commercial speech subject to certain government regulation (and he says that it would fail the commercial speech standard, anyway).

Tam argues next that Section 2(a) is unconstitutionally vague. He says that the provision is inherently vague—what does “disparaging” mean?—and that the PTO has applied the provision inconsistently. He claims that the PTO’s methodology, which considers whether a name disparages an entire racial or ethnic group, only compounds the problem, because the PTO does not have a determinate way to measure whether and how a name disparages an entire group. Tam contends that Section 2(a), as a vague restriction on speech, chills speech, and facilitates discriminatory enforcement. He claims that it is therefore unconstitutional.

Finally, Tam argues that Section 2(a) does not bar registration of The Slants, even if Section 2(a) is constitutional. Tam says that the The Slants is not disparaging under Section 2(a); instead, it is exactly the opposite—a re-appropriated term used as a badge of pride. He asserts that the PTO was wrong to deny registration based on whether The Slants disparages an entire racial or ethnic group. He claims that the Act requires the PTO instead to apply Section 2(a) only when a name disparages “persons,” not groups. The Slants, he says, does not meet this test.

SIGNIFICANCE

While this case is certainly important to Simon Tam and his ability to protect his use of The Slants, the underlying issue has received far more attention in the dispute over the NFL’s Washington Redskins. Using the same Section 2(a) involved in this case, the PTO in 2014 cancelled trademark protection for six Redskins trademarks at the request of a group of Native Americans. A federal judge upheld the cancellation, ruling that “Redskins” was disparaging to “a substantial composite of Native Americans” when each of the marks was registered. The Redskins appealed, but the case is on hold pending the outcome of Tam’s case. (The Redskins asked the Supreme Court to review their case along with Tam’s, but the Court declined.) The Redskins’s case illustrates the stakes involved to the markholders: Losing federal trademark protection would mean that markholders could not protect their marks against others’ uses in the federal system, potentially costing markholders substantial revenue and exclusive name rights. The two cases—Tam’s case and the Redskins’s case—together also illustrate the difficulties in identifying and withholding trademark protection from disparaging names, while extending protection to non-disparaging names.

At the same time, denial or cancellation of federal trademark protection does not mean that a person cannot use the name. Tam could still use The Slants, and the Redskins could still use the Redskins, even if they do not receive federal trademark protection. They simply would not get the benefits of federal trademark protection. Moreover, individuals could still seek trademark protection at the state level. (But this would provide protection only within the state, not nationwide. Moreover, states may have restrictions similar to Section 2(a), so that Tam, the Redskins, and others might not qualify at the state level, either.)

Although much of the briefing in the case is couched in constitutional terms, the Court could rule on narrower grounds. For example, the Court could simply rule that the PTO misapplied Section 2(a) in rejecting Tam’s application. (Tam sets the stage for this kind of ruling by arguing that the PTO erroneously considered disparagement to a group, not to “persons,” in evaluating his application.) If so, the Court could simply remand the case with instructions on interpreting Section 2(a), without ruling on its constitutionality. This kind of ruling could limit the application of Section 2(a), but it would not strike the provision.

If the Court engages the constitutional arguments, look for the Court to determine as an initial matter whether the First Amendment even applies. The Court could dodge the harder constitutional issues simply by ruling, as the government argues, that Section 2(a) does not impose a burden on speech, because trademark registration is a benefit or subsidy, and because Section 2(a) does not restrict speech. If so, the Court would uphold Section 2(a), although it might limit it, as above.

If the Court sees Section 2(a) as a burden on speech, however, the Court is almost certain to strike the provision as unconstitutionally vague or as a viewpoint-based restriction on speech. (The Court has consistently expressed its distaste for content-based restrictions on speech in recent years. Viewpoint-based restrictions are even more suspect.)

January 17, 2017 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Can Post-9/11 Detainees Sue Federal Officials for Constitutional Violations?

The Supreme Court will hear oral arguments tomorrow in Ziglar v. Abbasi, the case testing whether post-9/11 detainees can sue federal officials for constitutional violations. In particular, the case asks (1) whether the plaintiffs have a Bivens claim, (2) whether the federal defendants enjoy qualified immunity, and (3) whether the plaintiffs sufficiently pleaded their case for direct liability.

Here's my preview, reprinted with permission from the ABA Preview of United States Supreme Court Cases:

FACTS

Soon after the 9/11 attacks, the FBI and other agencies in the Department of Justice initiated an investigation aimed at identifying the 9/11 perpetrators and preventing another attack. The investigative unit, PENTTBOM, the Pentagon/Twin Towers Bombing investigation, was initially run out of the FBI’s field offices, but moved to the FBI’s Strategic Information and Operations Center, or SIOC, at FBI Headquarters in Washington, D.C. FBI Director Robert Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field offices.

As part of DOJ’s response to the attacks, officials, including Attorney General John Ashcroft and Mueller, developed policies on the arrest and detention of alien suspects based on tips that the FBI received from the public. As part of the policies, according to the plaintiffs’ complaint, “any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation . . . and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Ashcroft also created the “hold-until-cleared” policy, which required that individuals arrested in the investigation would not be released from custody until FBI Headquarters affirmatively cleared them of ties to terrorism.

In order to coordinate efforts among the various agencies within DOJ that had an interest in, or responsibility for, detainees, the Deputy Attorney General’s Office (DAG) established the SIOC Working Group. The Group included representatives from the FBI, the INS, and the DAG. The group met at least once a day in the months following the 9/11 attacks. Its responsibilities included “coordinat[ing] information and evidence sharing among the FBI, INS, and U.S. Attorneys’ offices” and “ensur[ing] that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general.”

The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the investigation and the effort to prevent additional attacks. It received about 96,000 tips in the week after the 9/11 attacks alone. (Many of these, including the tips on some of the plaintiffs in this case, were astonishingly weak or unreliable or had nothing to do with terrorism.)

The INS maintained a national list of aliens in which the FBI had “an interest.” Separately, the New York FBI created its own list of individuals that were “of interest” or “special interest.” (The New York effort differed from similar efforts in the rest of the country at least in part because of the New York FBI’s and U.S. Attorney’s Office’s long tradition of independence from their headquarters in Washington, D.C. For at least some number of individuals on the New York list, arresting officers failed to conduct the same vetting that detainees on the INS list received.) FBI Headquarters learned of the New York list in October 2001, and officials eventually merged the two lists. Ultimately, 762 detainees, including the plaintiffs, were placed on the INS Custody List and were subject to the hold-until-cleared policy. (491 of these detainees were arrested in New York, but it is not clear how many of those were arrested as a result of the efforts of the New York FBI.)

(For more on the identification, arrest, detention, and treatment of individuals in the post-9/11 investigation, see the DOJ’s Office of Inspector General Report, A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003), available at https://oig.justice.gov/special/0306/full.pdf.)

The plaintiffs were held at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Under the MDC confinement policy, created by MDC officials in consultation with the FBI, these plaintiffs were placed in the MDC’s Administrative Maximum Special Housing Unit (ADMAX SHU), a particularly restrictive unit within the Center. Conditions in the ADMAX SHU were severe. For example, detainees, including the plaintiffs, were placed in small cells for over 23 hours a day, they were strip-searched whenever they were removed from or returned to their cells, they received “meager and barely edible” food, they were denied sleep, and they were denied basic hygiene items, among other problems. MDC staff also physically and verbally abused the plaintiffs. (The conditions are described in greater detail in the lower court opinion and in the plaintiffs’ briefs. For yet more on the conditions at the MDC, see the DOJ’s Office of Inspector General Report, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003), available at http://www.justice.gov/oig/special/0312/final.pdf. ) The plaintiffs were held from three to eight months.

The plaintiffs filed a putative class-action lawsuit against Ashcroft, Mueller, former Commissioner of the INS James Ziglar, former MDC Warden Dennis Hasty, former MDC Warden Michael Zenk, and former MDC Associate Warden James Sherman, alleging that they discriminated against them and mistreated them in violation of the Constitution. They also alleged a conspiracy to violate their civil rights. (There are eight plaintiffs now in the case. It has not been certified as a class action.) The district court dismissed all the claims against the DOJ defendants and some (but not all) of the claims against the MDC defendants. The United States Court of Appeals for the Second Circuit reversed in part and ruled that many of the claims against all of the defendants could move forward. This appeal followed. (The defendants appealed in three separate petitions, but the Court consolidated them into a single appeal. Ashcroft and Mueller are represented by the Solicitor General; Ziglar is represented by private counsel; Hasty and Sherman are represented by different private counsel.)

CASE ANALYSIS

The case involves three discrete issues. Let’s take them one at a time. (The various defendants make largely the same arguments on each point below. But where they make different arguments, this summary distinguishes between the arguments of the FBI defendants and those of the MDC defendants.)

Can the plaintiffs bring a federal civil rights action?

Civil rights in the U.S. Constitution are not self-executing. This means that Congress has to enact legislation in order for individuals to enforce them in the courts. Congress has not enacted such legislation for civil rights claims against federal officials. But the Supreme Court has recognized an implied right of action against federal officials in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971).

Bivens is a quite limited remedy, however. The Court has recognized Bivens actions only in certain contexts (including, as relevant here, a case where a prisoner challenges the conditions of his or her confinement). And the Court will not extend a Bivens claim to new contexts when “special factors counsel hesitation,” that is, when circumstances suggest that Congress, and not the courts, should decide whether an action is appropriate.

The defendants argue that the plaintiffs’ case presents a new context, and that special factors counsel against a Bivens remedy. The defendants say that the context here is the executive branch’s response to an “unprecedented terrorist attack and the detention of foreign nationals illegally in the United States.” They claim that the plaintiffs seek to challenge high-level policy decisions on national security and immigration—new contexts for Bivens. Moreover, they claim that the case implicates the correctness of FBI terrorist designations and federal law enforcement lines of authority and chains of command, in addition to the DOJ’s response to a national-security threat and its implementation of the nation’s immigration laws. They contend that these are all special factors that counsel against extending a Bivens remedy to this new context.

The plaintiffs counter that their case falls squarely within a recognized Bivens context, prisoner challenges to conditions of confinement. But even if their case presents a new context, the plaintiffs argue that a Bivens remedy is appropriate. They say that their claims have nothing to do with national security or immigration enforcement (some of the special factors that the defendants raise that, they say, counsel against a Bivens remedy), and that the interests in deterring federal officials from violating constitutional rights and compensating victims cut in favor of a Bivens remedy. The plaintiffs assert that these points are especially true against the MDC defendants (even if not against the DOJ defendants), because the MDC officials were directly responsible for their conditions of confinement.

Qualified Immunity

The doctrine of qualified immunity protects government officials from civil liability for alleged constitutional harms, so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” In determining whether a right is “clearly established,” the Court looks to “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194 (2001). The inquiry necessarily looks to Supreme Court rulings on the right in question at the time of the officer’s actions.

The defendants argue that they are entitled to qualified immunity, given the special situation in which they operated. The FBI defendants claim that the plaintiffs did not have a “clearly established right to be immediately released from restrictive confinement” when the federal officials learned that “in some instances, arresting officers had failed to conduct the same initial vetting that other September 11 detainees received.” They contend that applying the hold-until-cleared policy was not clearly “so arbitrary as to constitute an impermissibly punitive or impermissibly discriminatory act.” The MDC defendants assert that they were simply implementing FBI and BOP policies in holding the plaintiffs, and that no clearly established law required them to “impos[e] less restrictive conditions [of confinement] based on their own subjective assessment of the [plaintiffs’] terrorism connections.” They claim that the strip-searches did not violate clearly established Fourth Amendment law, because they were reasonably related to prison security.

The plaintiffs argue that the defendants are not entitled to qualified immunity. As to the FBI defendants, the plaintiffs claim that at the time of their arrests and detentions, precedent clearly established that officials could not detain individuals arbitrarily and without a purpose reasonably related to a legitimate government interest. They also say that precedent clearly established that officials could not single out individuals for arrest and detention based on race, religion, or ethnicity. As to the MDC defendants, the plaintiffs contend that placing individuals in restrictive detention without individualized justification violates Bureau of Prisons policy and clearly established law at the time of the detention.

Pleading Standards

While this case was moving through the lower courts, the Supreme Court clarified and heightened the pleading standard that a plaintiff must satisfy in a civil rights case. In particular, the Court ruled that a complaint must “state a claim to relief that is plausible on its face.” This means “more than a sheer possibility that a defendant has acted unlawfully,” or that the alleged facts are “merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). Moreover, a plaintiff’s Bivens claim cannot move forward based on supervisory (or vicarious) liability; instead, a plaintiff must plead that a defendant is directly liability for the unconstitutional conduct.

The defendants argue that the plaintiffs have failed to meet the Iqbal standards. The DOJ defendants point to Iqbal itself and contend that the Court in that case refused to credit similar assertions against the hold-until-cleared policy. They also say that the plaintiffs failed to plead that the DOJ defendants’ decision to merge the New York list and the INS list was based on discrimination, instead of a valid concern that “the FBI could unwittingly permit a dangerous individual to leave the United States.” The MDC defendants claim that they were simply implementing FBI and BOP policies, not acting to discriminate or treat detainees arbitrarily. They also say that they were not personally responsible for certain abuses within the MDC (like strip-searching), because they did not create or approve or even know about those abuses.

The plaintiffs counter that they have met the Iqbal standards against all the defendants. As to the DOJ defendants, the plaintiffs contend that their complaint included sufficiently detailed factual allegations that the DOJ defendants established policies to target Muslim men of Arab and South Asian descent and to hold such men in isolation and to treat them harshly. As to the MDC defendants, they assert that their complaint plausibly claimed that the MDC defendants were deliberately indifferent, and even willfully blind, to the abuse against them. They also say that the MDC defendants failed to correct the abuse when they learned of it.

SIGNIFICANCE

This is an incredibly important case that tests the boundaries of civil rights claims against individual federal officials for designing and implementing policies on the identification, arrest, detention, and treatment of individuals in the investigations into the 9/11 attacks. In other words, it tests when and how federal officials might be personally liable for civil damages arising out of these hotly disputed events and extremely challenging times for both law enforcement and targeted Muslims and Arabs alike.

But it’s important to remember that this case only touches on threshold defenses, and not on the underlying merits. The Court won’t examine whether the defendants actually violated the plaintiffs’ rights, except to the extent necessary to determine whether the claims arise in new context, whether the defendants are entitled to qualified immunity, and whether the plaintiffs sufficiently pleaded their case. (Moreover, the Court will almost surely say nothing about the merits of the underlying policies in investigating or preventing terrorist attacks.)

At the same time, however, these threshold defenses are very important. They operate as gate-keepers to the courts for any plaintiffs who seek to bring civil rights claims against federal officials. As such, they largely control whether a plaintiff has a remedy in the federal courts for a federal violation of civil rights. (And for many federal-civil-rights plaintiffs, the federal courts provide their only remedy.) How the Court rules on these defenses will determine whether plaintiffs have access to a federal judicial remedy in this case, and beyond.

When the Roberts Court has ruled on issues like those in this case, it has fairly consistently restricted access to the courts (and not expanded it). But this case involves three different threshold issues with two (or more) sets of differently situated defendants, so it gives the Court a unique opportunity to more carefully explore the particular metes and bounds of these doctrines.

The Court will be particularly short-staffed in this case. That’s because Justices Sotomayor and Kagan are recused. If the Court divides along conventional ideological lines, three justices (Chief Justice Roberts and Justices Thomas and Alito) will likely rule in favor of the defendants, and two (Justices Ginsburg and Breyer) will likely rule in favor of the plaintiffs. Justice Kennedy could join the conservatives to hand the defendants a win, or he could join the progressives to create a tie. If so, the Second Circuit ruling will stand, although it will have no nationwide precedential value. Given the number of issues and differently situated defendants, however, it is also possible that the Court could issue a more nuanced ruling.

January 17, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Thursday, January 12, 2017

First Circuit Tosses Challenge to Buffer Zone Law

The First Circuit ruled yesterday that plaintiffs lacked standing to challenge New Hampshire's abortion clinic buffer-zone law. The ruling ends the lawsuit and leaves the buffer-zone law in place, although it's not enforced (and that's why there's no standing).

The case arose from a pre-enforcement challenge to New Hampshire's law that permits (but does not require) a reproductive health care facility to establish a zone "up to 25 feet" onto public property adjacent to its facilities and to exclude members of the public from that zone through civil enforcement measures. Plaintiffs challenged the law soon after the Court handed down McCullen v. Coakley, striking Massachusetts's buffer zone.

But no New Hampshire clinic had established a buffer zone, and none was set to establish one. The plaintiffs therefore couldn't allege a harm, and the court kicked the case for lack of standing:

[T]he plaintiffs have not alleged that the Act has meaningfully altered their expressive activities, nor that it has objectively chilled their exercise of First Amendment rights. Because no facility in New Hampshire has yet demarcated a zone, and there is no present evidence that a zone will ever be demarcated, the plaintiffs' "alleged injury is . . . too speculative for Article III purposes." Clapper v. Amnesty Int'l.

The court also ruled that the case wasn't ripe.

January 12, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Ripeness, Standing | Permalink | Comments (0)