Monday, March 19, 2018

D.C. District Says No Standing for Groups to Challenge FDA Inaction on Hair Product

Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.

The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.

The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."

The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.

While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.

March 19, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, March 16, 2018

Fourth Circuit Says Students Have Standing to Challenge "Disturbing," "Disorderly Conduct" Laws

The Fourth Circuit ruled this week in Kenny v. Wilson that a group of primary and secondary school students had standing to lodge a facial First Amendment challenge against South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law." The ruling says nothing about the merits, however; that's for remand. (Although it's kind of hard to see how these laws aren't unconstitutionally vague.)

The laws are basically what their titles imply. The Disturbing Schools Law makes it unlawful

(1) for any person willfully or unnecessarily (a) to intefere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) or loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or

(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

The Disorderly Conduct Law says:

Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.

Plaintiffs-students lodged facial vagueness challenges to the laws, after they were disciplined for violations. But they sought declaratory and injunctive relief, not damages, so standing became an issue.

The court said that they had standing, for two independent reasons. First, the court said that they had standing under Babbitt v. Farm Workers, because "[t]hey attend school without knowing which of their actions could lead to a criminal conviction," and "there is a credible threat of future enforcement" that's not "imaginary or wholly speculative." Next, the court said they had standing because the plaintiffs alleged an "ongoing injury in fact" based on a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression."

March 16, 2018 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, March 14, 2018

Massachusetts High Court on Public Funding of Churches and the State Anti-Aid Amendment

The Supreme Judicial Court of Massachusetts ruled last week on the constitutionality of local grants going to church improvements under the state Anti-Aid Amendment. The ruling balances the interests behind the Anti-Aid Amendment, on the one hand, and the Free Exercise Clause under Trinity Lutheran, on the other, and comes out with a cautious thumb on the scale in favor of anti-aid.

The case, Caplan v. Town of Acton, arose when a local church applied for and received two grants of public funds for church improvements--one for a "Master Plan for Historic Preservation," covering several renovation and preservation projects on the facilities, and one for restoration and preservation of the church's religious-themed stained-glass windows. Taxpayers sued under the state private-attorney-general provision, arguing that the grants violated the state constitutional Anti-Aid Amendment. That Amendment prohibits the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society."

Two questions came to the court. First, does the Anti-Aid Amendment categorically bar the grants, or are the grants subject to a three-factor test that the state uses for a companion provision in the Amendment? (A categorical bar would prohibit the grants without further inquiry, whereas the three-factor test could permit the grants if they met certain factors.) Next, if the three-factor test applies, do the grants satisfy it?

The court ruled that the Anti-Aid Amendment isn't categorical, and is instead subject to its three-factor test. (That test looks to whether a motivating purpose of each grant was to aid the church; whether the grant would have the effect of substantially aiding the church; and whether the grant avoid the risks of the political and economic abuses that prompted the passage of the Amendment.) The court gave three reasons: (1) because the three-factor test applies to a companion provision in the Amendment, it made sense to apply it to this provision, too; (2) the Amendment by its own terms requires a case-by-case analysis, which is consistent with a three-factor test (but not a categorical approach); and (3) a categorical approach "invites the risk of infringing on the free exercise of religion" under Trinity Lutheran. As to that last reason, the court said that the three-factor test allowed it to account for the Amendment without violating free exercise, Trinity Lutheran style.

As to the application of the test, the court ruled that the plaintiffs were likely to succeed in their challenge to the stained-glass window grant, but remanded the case on the "Master Plan" grant.

Two justices concurred, and one dissented, arguing in different ways how the Amendment and the grants stacked up against Trinity Lutheran.

March 14, 2018 in Cases and Case Materials, Establishment Clause, Free Exercise Clause, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0)

Tuesday, March 13, 2018

Eleventh Circuit Says No Clearly Established Right Against Arrest for Wearing a Mask at a Protest

A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a "V for Vendetta" mask. The ruling ends the protestor's civil-rights action against the officers.

The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia's Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to "wear[] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer" while he is "upon any public way or public property." Gates sued, arguing that his arrest violated the First and Fourth Amendments.

The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates's federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask "knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence."

Under this standard, the court said that the officers didn't violate any clearly established First or Fourth Amendment right. In particular, the majority held that under the circumstances the officers could have reasonably believed that Gates wore the mask to cover his entire face and with an intent to intimidate, and that they therefore had "arguable" probable cause for his arrest. (The court reminded us that "arguable" probable cause--the standard for qualified immunity from a Fourth Amendment claim--is a pretty low standard and doesn't require an officer to have specific evidence of intent. In any event, as to intent, the court said that the circumstances of the protest, the fact that officers previously ordered mask-wearers to remove masks on threat of arrest (even if Gates didn't hear this), and the symbolic threat behind the Guy Fawkes mask all suggested that an officer could infer intent to intimidate.)

Judge Williams dissented. She argued that the majority "fail[ed] to adequately address the First-Amendment implications of the conduct and statute at issue here." In particular, she wrote that "the specific right at issue here--whether individuals can be subject to arrest for wearing a mask during a peaceful protest--was "clearly established" at the time of Gates' arrest."

The panel unanimously held that the officers enjoyed absolute immunity against Gates's state-law claims.

March 13, 2018 in Cases and Case Materials, First Amendment, Fourth Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Eighth Circuit Says No First Amendment Right to Qualifications of Execution Team Medical Members

The Eighth Circuit today rejected a common-law and First Amendment claim to information relating to the professional qualifications of two members of a Missouri execution team. The ruling means that this information will stay under seal.

The case arose during the course of an omnibus Eighth Amendment challenge to Missouri's execution protocol. Larry Flynt successfully intervened in that litigation and sought information from depositions and other documents relating to the professional qualifications of two medical members of the execution team, which the court refers to only as "M2" and "M3." Flynt argued that common law and the First Amendment compelled disclosure. The district court disagreed, and the Eighth Circuit affirmed.

As to Flynt's common-law claim, the court ruled that the district court didn't abuse its discretion in concluding that "[t]he personal and professional safety of one or more members of the execution team, as well as the interest of the State in carrying out its executions, were sufficiently in jeopardy to overcome the common-law right of public access to the records."

As to the First Amendment claim, the court, drawing on circuit law, said that there was no "historical tradition of accessibility" of this kind of information, and that release of the information wouldn't play any "role for public access in the functioning of the judicial process," because "it would effectively eviscerate the State's ability to carry out executions by jeopardizing its ability to have medical professionals on the execution team."

Finally, the court ruled that the district court didn't err in denying Flynt's motion to review the state's in camera briefing on the issue of release. The court said that Flynt didn't object in a timely manner, and that in any event in camera review was the best way to accomplish the district court's mandate to consider whether redaction was possibly a less restrictive means (than sealing in the entirety) of protecting the information." The court noted,

At the bottom line, this dispute is about the identity of medical members of the execution team. Flynt's stated rationale for wanting this information--to check the professional credentials of these members--is in direct and perilous conflict with the State's superior rationale of protecting the identity of these parties. The district court thus did not abuse its discretion in electing to review the supplemental briefing in camera, and denying Flynt's subsequent request to review it.

March 13, 2018 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, March 12, 2018

Tenth Circuit Rejects First, Second Amendment Claims of Detained Open-Carry Gun Owner

The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.

While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.

The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was  no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.

Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.

The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.

As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.

Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.

While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.

March 12, 2018 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Second Amendment, Speech | Permalink | Comments (0)

Friday, March 9, 2018

Ninth Circuit Says Hacking Victims Have Standing to Sue, even Without Actual Identity Theft

The Ninth Circuit ruled this week that victims of a commercial web-site hacking have standing to sue the site for failure to secure their personal information, even though their information hasn't (yet) been used for identity theft. Importantly, the court distinguished Clapper v. Amnesty International. The ruling aligns with similar cases out the D.C. and Seventh Circuits.

The case, Stevens v., arose when hackers stole personal information from the retailer-web-site. Victims brought two kinds of claims against the retailer: claims based on theft of their personal information that led to actual financial loses from identity theft; and claims based on theft of their personal information without allegations of actual financial losses from identity theft. The lower court held that the first group had standing, but the second did not. So they appealed.

The Ninth Circuit reversed. The court said that its own case, Krottner v. Starbucks Corp., controlled. Krottner held that employees of Starbucks had standing to sue based on "the increased risk risk of future identity theft" after a company laptop containing their personal information was stolen.

The court explained why Krottner was still good law after Clapper v. Amnesty International:

Unlike in Clapper, the plaintiffs' alleged injury in Krottner did not require a speculative multi-link chain of inferences. The Krottner laptop thief had all the information he needed to open accounts or spend money in the plaintiffs' names--actions that Krottner collectively treats as "identity theft." Moreover, Clapper's standing analysis was "especially rigorous" because the case arose in a sensitive national security context involving intelligence gathering and foreign affairs, and because the plaintiffs were asking the courts to declare actions of the executive and legislative branches unconstitutional. Krottner presented no such national security or separation of powers concerns.

And although the Supreme Court focused in Clapper on whether the injury was "certainly impending," it acknowledged that the other cases had focused on whether there was a "substantial risk" of injury. Since Clapper, the Court reemphasized in Susan B. Anthony List v. Driehaus that "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending,' or if there is a 'substantial risk that the harm will occur.'"


March 9, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, March 8, 2018

D.C. Circuit Rejects Challenge to Second Detroit-Windsor Bridge

The D.C. Circuit this week rejected a challenge to the Secretary of State's authorization of a second bridge linking Detroit with Windsor, Ontario, as an impermissible delegation of authority by Congress (among other things).

The case, Detroit International Bridge Co v. Government of Canada, arose in 2012 when the Secretary of State authorized a second bridge pursuant to the International Bridge Act. The IBA provides:

The consent of Congress is hereby granted to the construction, maintenance, and operation of any bridge and approaches thereto, which will connect the United States with any foreign country . . . and to the collection of tolls for its use, so far as the United States has jurisdiction.

The plaintiff, which owns and operates the first bridge (the Ambassador Bridge), sued, arguing that the IBA violated the nondelegation doctrine, among other claims.

The D.C. Circuit this week rejected the plaintiff's nondelegation claim (along with the others). The court, quoting Zemel v. Rusk, said that there's a thumb on the scale against nondelegation challenges in the area of foreign affairs, because Congress "must of necessity paint with a brush broader than it customarily wields in domestic areas." It then compared the case to the congressional delegation in TOMAC v. Norton (D.C. Cir. 2006):

Applying these principles, this court has held that a delegation authorizing the Secretary of the Interior, who has a trust obligation with respect to Indians, "to acquire real property for the [Pokagon Indian] Band," was not unconstitutional because it was "cabined by 'intelligible principles' delineating both the area in and the purpose for which the land should be purchased. Here too, the Secretary's authority is limited by an "area"--navigable waters between the U.S. and Canada or Mexico--and a "purpose"--the construction of international bridges. Thus, the intelligible principle is that in view of the Secretary's mission relating to foreign affairs, the Secretary will review international bridge agreements for their potential impact on United States foreign policy.

March 8, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, March 7, 2018

Sessions Sues California Over Sanctuary Provisions

The Justice Department filed suit yesterday against California seeking declaratory and injunctive relief against the enforcement of three state provisions that, says DOJ, frustrate the federal government's enforcement of immigration laws. The government argues that the three state provisions violate the Supremacy Clause and thus are preempted and invalid.

AG Sessions has previously moved to clamp down on sanctuary jurisdictions through withholding of the federal JAG Grant. This is the first time DOJ has sued a jurisdiction for sanctuary policies.

The first provision, AB 450, prohibits  private employers in the state from providing consent to federal immigration officers to search a workplace or employment records without a subpoena or warrant. DOJ contends that this "interfer[es] with the enforcement of the INA and IRCA's prohibition on working without authorization," and thus is preempted.

The next one, AB 103, requires the state AG "to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California" and to examine the "due process provided" to civil immigration detainees. DOJ argues that this "commands an improper, significant intrusion into federal enforcement of the immigration laws."

The final provision, SB 54, prohibits state and local law enforcement officials (other than employees of the California Department of Corrections) from "[p]roviding information regarding a person's release date or responding to requests for notification by providing release dates or other information." The provision also requires that federal officials get a "judicial warrant or judicial probable cause determination" before the state or locality may transfer an immigrant to DHS for enforcement. DOJ says this about these requirements:

These provisions impermissibly prohibit even the most basic cooperation with federal officials. As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien's release from state custody. Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission and take all appropriate action against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state and local prosecution. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS "information regarding the citizenship or immigration status of an individual."


[The transfer restriction] also conflicts with federal law, which establishes a system of civil administrative warrants as the basis for immigration arrest and removal, and does not require or contemplate use of a judicial warrant for civil immigration enforcement.


March 7, 2018 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0)

Monday, February 26, 2018

District Court Dismisses Challenge to Trump's 2-for-1 Regulation Order, Maybe

Judge Randolph D. Moss (D.D.C.) today (almost) dismissed the challenge to President Trump's executive order that requires agencies to repeal two regulations for every new one they adopt. Judge Moss ruled that the plaintiffs lacked standing . . . for now, at least.

Recall that Public Citizen and others sued President Trump, arguing that the EO violated the separation of powers, the Take Care Clause, and the Administrative Procedure Act. The government moved to dismiss for lack of standing. Today the court agreed.

The court ruled that the plaintiffs lacked associational standing, because they failed to identify particular members who would be harmed, to plead facts sufficient to show that the relevant agency would've issued a new rule even without the EO, and to allege that any delay of the regulatory action attributable to the EO would substantially increase the risk of harm to their members. The court also ruled that they lacked organizational standing, because "[t]he burden of merely considering [the cost of the EO], however, is insufficient to establish organizational standing."

But the court stopped short of entering a final judgment. Instead, Judge Moss set a March 1 hearing where the parties and the court can determine what to do next, including, possibly, dismissing the complaint with leave to file a new one.

February 26, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Yet Another Gerrymandering Case, but with Not-Your-Usual Standing Problem

Judge William Q. Hayes (S.D. Cal.) on Friday dismissed a challenge to a city's new single-member districts for its city council elections for lack of standing. The ruling means that the city's new districting plan stays in place.

The case, Higginson v. Becerra, arose when the City of Poway switched from at at-large system to a single-member-district system of elections for its four-member city council. The City made the change reluctantly, and only in response to threatened litigation by a private attorney, who wrote to the council that its at-large system violated the California Voting Rights Act. (The attorney argued that the at-large system, along with racially polarized voting in the City, effectively prevented Latinos from electing a candidate of their choice.) The council vigorously disagreed that its at-large system violated the CVRA, but agreed to change, anyway, in order to avoid litigation costs.

After the council drew its new single-member districts, Don Higginson, a voter in the new District 2, sued, arguing that the CVRA violated equal protection. His theory was a little unusual: "The CVRA makes race the predominant factor in drawing electoral districts. Indeed, it makes race the only factor given that a political subdivision, such as the City, must abandon its at-large system based on the existence of racially polarized voting and nothing more." (In other words: according to Higgerson, because there was racially polarized voting, any CVRA requirement to undo the effects of that voting in an at-large system violated equal protection.)

Higginson sued AG Becerra for injunctive relief (to stop him from enforcing the CVRA) and the City for injunctive relief (to stop it from using its single-member district map, as required by the CVRA (according to Higgerson)).

The court dismissed the case for lack of standing. The court said that Higginson's harm in not being able to vote for council-members in three of the four districts (because the CVRA required the change to single-member districts)--assuming this was even a cognizable harm--wasn't traceable to AG Becerra or the City. As to AG Becerra, the court said that the AG had not enforced the CVRA against the City, and therefore couldn't have caused Higginson's alleged harm. As to the City, the court said that it acted out of a desire to avoid litigation costs, not because it thought its at-large system violated the CVRA, and therefore it couldn't have caused his alleged harm in the name of CVRA compliance. (For the same reasons, the court said that Higginson failed to demonstrate that his requested relief would redress his alleged harm.)

Without causation and redressability, Higginson lacked standing, and the court dismissed the case.

February 26, 2018 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

No Surprises in Fair-Share Fee Oral Arguments

There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.

The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.

Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.

Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.

Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.

If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.

February 26, 2018 in Association, Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (0)

Court Declines Expedited Review of DACA Recession

The Supreme Court today declined to weigh in on a district court's preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the recession on September 5, 2017." We posted on that injunction here; we posted on a similar injunction out of the Eastern District of New York here.

DOJ asked the Court to review Judge Alsup's injunction, even before the Ninth Circuit had its own say--a request that the Court only rarely grants. Today the Court denied the request.

The Court's brief order simply denied certiorari before judgment, without dissent. It also sent this signal to the Ninth Circuit: "It is assumed that the Court of Appeals will proceed expeditiously to decide this case."

This means that the Court will almost certainly weigh in eventually, but only after the Ninth Circuit has had its own bite at the apple. In other words: today's denial telegraphs nothing about the Court's views on the merits.

The government will press its appeal at the Ninth Circuit. But in the meantime, Judge Alsup's injunction stays in place, and Dreamers can continue to renew. (DOJ didn't seek a stay of Judge Alsup's ruling, so it remains effective unless and until it's stayed or overturned.)

February 26, 2018 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, February 22, 2018

Sixth Circuit Strikes Tennessee's Discriminatory Retail Alcohol License Law

The Sixth Circuit ruled in Byrd v. Tennessee Wine & Spirits Retailers Ass'n that a state law requiring two-year state residency--and ten-year residency for renewal--for a retailer-alcoholic-beverage license violated the Dormant Commerce Clause.

The ruling, with a partial concurrence and partial dissent, further exposes tensions between the Commerce Clause and the Twenty-First Amendment in the Court's treatment of discriminatory state alcohol regulations.

Tennessee's law says that alcohol retailers have to have a license. In order to get one, they have to show that an individual retailer was a state resident for two years, or that a corporate retailer was completely owned by two-year residents. The residency requirement shoots up to ten years for license renewals.

The Sixth Circuit struck the requirements. The court said that the requirements were facially discriminatory against out-of-state economic interests, and that the state failed to show that nondiscriminatory alternative regulations could achieve the state's goals of protecting the health, safety, and welfare of state residents and using a higher level of oversight and control over liquor retailers.

The court noted a split in the circuits as to the interplay between the Commerce Clause and the Twenty-First Amendment under Bacchus Imports v. Dias and Granholm v. Heald. The ruling deepens that split.

Judge Sutton argued in partial dissent that "these modest requirements" were supported by "the text of the Twenty-first Amendment, the original understanding of that provision's relationship to the Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision." Judge Sutton agreed with the majority, however, as to the application of the two-year residency requirement to 100% of a retailer's stockholders and as to the ten-year residency requirement for a renewal.

February 22, 2018 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Check it Out: Epps on Why Thomas is Wrong on the Second Amendment

Check out Garrett Epps's piece in The Atlantic on What Clarence Thomas Gets Wrong About the Second Amendment. The piece responds to Justice Thomas's dissent this week in the Court's decision not to review a Ninth Circuit ruling that upheld California's ten-day waiting period for gun purchases.

February 22, 2018 in Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0)

Tuesday, February 20, 2018

Court Declines to Review California's Ten-Day Waiting Period for Gun Purchases

The Supreme Court today denied certiorari in Silvester v. Becerra, the Ninth Circuit ruling upholding California's ten-day waiting period for gun purchases against a Second Amendment challenge.

The denial is a blow to gun-rights advocates. It means that the Ninth Circuit ruling and California's ten-day waiting period stay on the books.

Justice Thomas filed a lone dissent, arguing that the Ninth Circuit didn't apply sufficiently rigorous scrutiny in judging the law and that the Court has given the Second Amendment second-class status in denying review in this and other Second Amendment challenges:

Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.

But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California's 10-day waiting period for firearms based solely on its own "common sense." It did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without acknowledging the District Court's factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts' general failure to afford the Second Amendment the respect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

February 20, 2018 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (0)

Friday, February 16, 2018

Check it Out: Epps on Volokh and Baude, on Abood

Check out Garrett Epps's piece in The Atlantic reviewing Eugene Volokh and William Baude's amicus brief in Janus, the case testing whether fair-share fees for public-sector unions violate the First Amendment.

We last posted on the case here.

Volokh and Baude argue that mandatory fair-share fees for public-sector unions don't even raise free-speech problems--at least any more than other, familiar forms of government, or government-sponsored, speech.

Still, Epps writes that while "[t]he professors' brief is elegant and probably right . . . I doubt that their counsel will slow the court's stampede to overturn Abood."

February 16, 2018 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Sixth Circuit Cites Spokeo: No Standing for Congress-Created Procedural Harm

The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.

The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)

The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.

The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)

The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:

Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."


We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.

The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.

The ruling means that the Hagys' case is dismissed.

February 16, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, February 14, 2018

Seventh Circuit Applies Ministerial Exception to Hebrew Teacher at Jewish School

The Seventh Circuit ruled this week that the First Amendment's ministerial exception barred a Hebrew teacher's Americans with Disabilities Act claim against her employer, a Jewish school. The ruling is the first time the Seventh Circuit applied the ministerial exception.

The case, Grussgott v. Milwaukee Jewish Day School, arose when Grussgott, a Hebrew teacher at the school, suffered memory and cognitive issues as a result of medical treatment for her brain tumor. During a call from a parent, Grussgott couldn't remember an event, and the parent taunted her about her memory loss. Grussgott's husband, who happens to be a rabbi, sent an e-mail from Grussgott's work account criticizing the parent for being disrespectful. The school fired her, and she sued under the ADA, arguing that she was fired because of her cognitive issues resulting from the brain tumor.

The Seventh Circuit ruled that the ministerial exception applied and dismissed the case. Applying the "fact-intensive analysis" of Hosanna-Tabor, the court held that while Grussgott's title and the "substance reflected in that title" both tilted against applying the ministerial exception, Grussgott's use of the title and the religious functions she performed both tilted in favor. The court explained:

But Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons. Grussgott's resume also touts significant religious teaching experience, which the former principal said was a crucial factor in the school hiring her in 2013. Thus, the substance of Grussgott's title as conveyed to her and as perceived by others entails the teaching of the Jewish religion to students, which supports the application of the ministerial exception here.


Grussgott undisputedly taught her students about Jewish holidays, prayer, and the weekly Torah readings; moreover, she practiced the religion alongside her students by praying with them and performing certain rituals, for example.

The court was careful to say that its analysis is holistic and fact-intensive, and not a rigid and mathematical application of the four "factors" from Hasanna-Tabor. On the other hand, the court also rejected "a purely functional approach to determining whether an employee's role is ministerial."

We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a "teacher of [] faith" to the next generation outweighed other considerations.

February 14, 2018 in Cases and Case Materials, Establishment Clause, Free Exercise Clause, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, February 7, 2018

D.C., Ninth Circuits Reject Bivens Claims Based on Alternative Remedies

The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.

In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."

In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.

February 7, 2018 in Cases and Case Materials, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)