Monday, January 23, 2017
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.
Sunday, January 22, 2017
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.
Thursday, January 19, 2017
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 . . . ."
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.
Tuesday, January 17, 2017
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."
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.
Here's my preview, from the ABA Preview of U.S. Supreme Court Cases, with permission:
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.
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.
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.)
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:
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.)
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.
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.
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.
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.
Thursday, January 12, 2017
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.
Tuesday, December 27, 2016
The D.C. Circuit ruled today that a civil case involving the recovery of some unknown number of apparently not-yet-released Hillary Clinton e-mails is not moot. But the ruling carefully says nothing about the merits and other barriers to moving forward, so it's not yet clear that the ruling will result in any further investigation. It just means that the district court can move to the next steps.
The case arose when Judicial Watch sought a court order compelling Secretary of State Kerry to refer the effort to recover certain e-mails to the Attorney General. Judicial Watch relied on the Administrative Procedure Act and a portion of the Federal Records Act. That Act requires the relevant agency head (in mandatory, non-discretionary language), when he or she becomes aware of "any actual, impending, or threatened unlawful removal . . . or  destruction of [agency] records," to "notify the Archivist . . . and with the assistance of the Archivist [to] initiate action through the Attorney General."
The district court tossed the case on mootness grounds, ruling that Secretary Kerry and the Archivist had made a "sustained effort" to recover the e-mails, yielding "a very substantial harvest," even if they failed to refer the effort to the AG.
The D.C. Circuit reversed. The court ruled that there may still be some un-recovered e-mails out there that the Secretary's and Archivist's efforts haven't revealed--and that therefore require referral to the AG, under the Records Act. In particular, the court said that Clinton used yet different e-mail accounts (other than her private server account) during part of her tenure as Secretary, and that e-mails on these accounts haven't been recovered.
If appellants had only sought emails from the server account, a mootness argument based on the recovery of hte server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. . . .
The complaints here sought to ensure recovery [of] all of the former Secretary's work emails, including [on these other accounts]. Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recover of a server that hosted only one account does not moot the suits.
The ruling sends the case back to the district court. But that doesn't necessarily mean that the court will, or can, order Secretary Kerry to refer the matter to the AG, or that the AG must do anything. As the court wrote,
[W]e express no opinion on whether the Attorney General's action or inaction in response to a referral would be reviewable. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command's constraint on their discretion; they have raised no such argument.
Thursday, December 15, 2016
Steve Michel, the attorney who sued Senate Republicans to get them to take up President Obama's nominee to the Supreme Court, Judge Merrick Garland, to a vote, reportedly filed for an emergency injunction at the Supreme Court.
Recall that Judge Contreras (D.D.C.) dismissed Michel's suit last month for lack of standing.
Michel's latest move is unlikely to succeed: He still lacks standing.
The Seventh Circuit ruled this week in Brunson v. Murray that an official is not entitled to absolute immunity for a liquor-license renewal decision, even though absolute immunity extends to suspension and revocation decisions.
The ruling reverses circuit precedent on the issue. The court said that changes in state law and federal law (Cleavinger, discussed below) compelled the change.
The difference between a renewal decision, on the one hand, and a suspension or revocation decision, on the other, is that the latter is judicial-like (which triggers absolute immunity), where the former is not. The court determined this based on how each decision operates under state law (a functional analysis) and the six factors "characteristic of the judicial process" in Cleavinger v. Saxner. In short: "Under state law, a local liquor commissioner's action on a license renewal lacks the procedural formalities and protections that apply to the same official's decision to suspend or revoke a license. The differences are great enough to produce different results for the availability of absolute immunity."
The court remanded the plaintiff's claim for the renewal decision, remanded some other claims, and dismissed yet others in this strange and sordid case involving conflicts of interests and apparent vendettas by local public officials against a liquor store owner.
Wednesday, December 14, 2016
The Ninth Circuit this week upheld California's ten-day waiting period for gun purchasers against a Second Amendment challenge, even as to those purchasers who already had a concealed carry permit and to those who had cleared a background check in less than ten days.
The ruling is a significant defeat for gun-rights advocates. It means that California's ten-day waiting period stays in place for all gun purchasers as a "reasonable safety precaution" against impulsive gun buys.
The Ninth Circuit applied the familiar two-part test for Second Amendment challenges now used by most of the federal circuits: (1) does the law burden conduct protected by the Second Amendment; and, if so, (2) does the law satisfy the appropriate level of scrutiny? As to the first step, the Ninth Circuit applies an "historical understanding" test--"[l]aws restricting conduct that can be traced to the founding era and are historically understood to fall outside of the Second Amendment's scope may be upheld without further analysis." As to the second step, the Ninth Circuit applies a sliding scale based on how close the law comes to the core of the Second Amendment and how much it burdens Second Amendment rights.
The court said that it didn't need to address step 1 (the historical understanding), because the ten-day waiting period satisfied the appropriate level of review, intermediate scrutiny. (The court used its sliding scale test to arrive at intermediate scrutiny, because "[t]he actual effect of the [waiting period] on Plaintiffs is very small.") The court held that the law providing a cooling off period to promote safety and to reduce gun violence, even for purchasers who already had a gun (because the purchasers may seek "to purchase a larger capacity weapon that will do more damage when fired into a crowd.") "A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home . . . ."
Judge Thomas concurred: "I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California's ten-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under [Heller], a ten-day waiting period is presumptively lawful."
Friday, December 2, 2016
It depends on what "aggrieved" means, according to the Trump team in its filing yesterday in opposition to Stein's recount petition.
Under Michigan law, a candidate can petition for a recount if the candidate "is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers."
In a filing before the Michigan Board of State Canvassers yesterday, the Trump team argued that Stein wasn't "aggrieved," because, as the fourth-place finisher in the state, "finishing over 2.2 million votes behind the winner," she could not possibly benefit from a recount. The Trump team argued that her petition should be denied.
It turns out there's little direct authority on how to define "aggrieved." The Trump team points to the gloss given by the Director of Elections in a Board hearing ten years ago, the "natural understanding" of the term, and the use of the term in other places in Michigan law and other states' laws.
But even if Stein was "aggrieved," the Trump team argues that Michigan can't possibly conduct a recount before December 13 (outside the six-day "safe harbor" under federal law before the meeting of the electors on December 19).
But even if Stein was "aggrieved" and if Michigan could conduct a recount, the Trump team argues that Stein failed to sign and swear her petition.
Trump won 2,279,543 votes in Michigan; Clinton won 2,268,839; Gary Johnson won 172,136 votes; and Stein won 51,463.
UPDATE: Michigan AG Bill Schuette just filed suit in the Michigan Supreme Court to halt any recount, making arguments substantially similar to those by the Trump camp.
Thursday, December 1, 2016
The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.
The ruling means that the officer's First Amendment case can move forward on the merits.
The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)
Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.
As to the second part, adversely affected, the court explained:
Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.
The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.
The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.
The ruling sends the case back to the trial court to go forward on the merits.
Wednesday, November 30, 2016
Second Circuit Says Plaintiff Has Standing for Some, but Not All, Truth-In-Lending Procedural Violations
The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.
The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.
The court's ruling applies last Term's Spokeo v. Robins, dealing with a plaintiff's ability to challenge a defendant's failure to comply with "procedural" statutory requirements, absent a more traditional injury. The Court in Spokeo held that a plaintiff who seeks to challenge a defendant's failure to comply with a statute also has to allege and show a concrete injury in order to show Article III standing. (The statutory violation is called a "procedural violation," because the statute in Spokeo (and this case) required the defendant to follow certain procedures--in particular, to disclose certain things to consumers. The Court in Spokeo said that sometimes those procedural violations also come with a concrete harm, and sometimes they don't. A plaintiff has to plead and show that they do.)
The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.
The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.
As a starting point, here's what the court said about Spokeo:
Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.
As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.
As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.
The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.
Tuesday, November 29, 2016
Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).
The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.
Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.
The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.
As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.
Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.
Monday, November 28, 2016
Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.
The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.
The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.
As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.
Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.
As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."
As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."
Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.
(The court also rejected the plaintiffs' APA claim.)
Friday, November 25, 2016
The Ninth Circuit ruled this week that the Interstate Commerce Commission Termination Act preempted an Oregon state environmental measure as it related to repairs on a tourist rail line.
The ruling means that the state "removal-fill law," which requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat, does not apply to the repair project.
The case arose when the Port of Tillamook Bay, which owns railways in Oregon, contracted with the Oregon Coast Scenic Railroad, which operates tourist trains on a portion of the Port's tracks, to repair some of the track. But when Oregon Coast started work, the Department of State Lands sent Oregon Coast a cease and desist order, alleging that the repair work would violate the state's removal-fill law. Oregon Coast sued, arguing that the federal ICCTA preempted Oregon's removal-fill law.
The Ninth Circuit agreed. The court ruled that the ICCTA preempts if an activity is (1) "transportation" (2) "by rail carrier" and (3) "as part of the interstate rail network." The court noted that the parties agreed that the activity was "transportation" under the ICCTA. It went on to say that the work was "by rail carrier," because "the repair work performed by Oregon Coast is 'an integral part of [the Port's] provision of transportation by rail carrier.'" Finally, the court held that the work was "part of the interstate rail network," because the line, while not currently attached to an interstate rail line, once was attached to an interstate rail line, and, when the repairs were finished, would once again be attached to an interstate rail line.
The court said that under ICCTA preemption, the work falls under the exclusive jurisdiction of the federal Surface Transportation Board, and that state regulation--including environmental regulation--is preempted.
Tuesday, November 22, 2016
Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.
The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.
At the same time, the new Trump Administration will almost surely undo these rules, anyway.
So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)
The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.
Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.
States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.
The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.
As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)
Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.
The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.
The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.
Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)
If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.
A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.