Monday, June 6, 2016
The Supreme Court ruled today in Simmons v. Himmelreich that a federal prison can maintain his Bivens claim against individual prison officials for Eighth Amendment violations, even though the district court threw out his earlier Federal Tort Claims Act case for the same incident under the FTCA's "discretionary function" exception.
The ruling is a win for Himmelreich and similarly situated federal civil rights plaintiffs. It means that the FTCA doesn't foreclose this kind of claim, and that Himmelreich will have his day in federal court, after all.
The unanimous ruling turned on a very plain, and very simple, reading of the FTCA exceptions provision. In short, the exceptions provision says that the FTCA judgment bar (which ordinarily would have foreclosed Himmelreich's suit against the individual officers, because the district court threw his FTCA claim out) doesn't apply to claims claims dismissed under the exceptions. And because the district court threw his first case out under the exceptions clause, the judgment bar didn't foreclose his subsequent Bivens claim.
Prisoner-rights litigation can often raise some tricky issues. Navigating them can mean the difference between keeping a claim alive in federal court, and losing it – and thus the difference between enforcing federal civil rights, and not.
One of these tricky issues was on full display in Simmons v. Himmelreich. But despite the potentially complicated questions in the case, a unanimous Supreme Court held today that one of the rules for prisoner-rights suits simply means exactly what it says: A prisoner can bring a constitutional tort claim against individual prison officials even after a court dismissed his earlier Federal Tort Claims Act suit because the officials acted in a “discretionary” capacity.
The ruling, penned by Justice Sonia Sotomayor, is a decisive win for prisoner-rights advocates. It means that Walter Himmelreich and other, similarly situated civil rights litigants retain a critical tool – the constitutional tort claim against individual officers – in enforcing civil rights and deterring their abuses. More generally, it means that there is now one less tricky issue in prisoner-rights litigation, and it is just a little bit easier, at least in the narrow circumstances of this case, to retain a claim and enforce federal civil rights.
The case involved Himmelreich’s suit against federal prison officials for violations of his Eighth Amendment rights. Himmelreich was serving time for producing child pornography when prison officials transferred another prisoner from special housing into the general population. The transferred prisoner had previously threatened to “smash a pedophile” if given the chance, so it was hardly a surprise when the transferred prisoner severely beat Himmelreich.
Himmelreich sued the government under the Federal Tort Claims Act, which waives sovereign immunity for tort claims against the federal government for the acts of its employees. It also gives federal district courts exclusive jurisdiction over those claims, subject to certain procedural requirements in Chapter 171 (which becomes relevant below, in Himmelreich’s second suit). But the FTCA also contains a list of exceptions, in particular, a “discretionary function” exception that exempts “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function” from the FTCA. This means that someone (like Himmelreich) who has been injured has no FTCA claim against the government for injuries that result from a discretionary act of a government employee. The district court thus dismissed Himmelreich’s FTCA claim under this exception, ruling that the prison officials’ decision as to where to house inmates was a discretionary function. The parties did not challenge this ruling.
While Himmelreich’s FTCA case was still pending, he filed a second suit against the individual prison officials for violating his Eighth Amendment rights. After the district court dismissed Himmelreich’s first suit, the officials then moved to dismiss this second suit under yet a different part of the FTCA. In particular, the officials argued that the FTCA’s “judgment bar” foreclosed this second case. The judgment bar, in Section 2676, says that once a plaintiff receives a judgment in an FTCA suit, he generally cannot bring another suit against an individual employee based on the same incident. It reads:
The judgment in any action [under the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.
In other words, the government argued that the district court’s dismissal of Himmelreich’s FTCA case amounted to a “judgment,” and that the FTCA judgment bar therefore foreclosed Himmelreich’s second case against the individual officers.
This is where things get a little complicated. Himmelreich countered that the judgment bar did not apply to cases dismissed under the FTCA exceptions provision (the same one that the district court used to dismiss Himmelreich’s first case). That’s because the exceptions provision says that “[t]he provisions of this chapter” shall not apply to claims dismissed under the exceptions (including the discretionary function exception). “The provisions of this chapter,” in turn, refer to Chapter 171, the list of procedural requirements (mentioned above). And Chapter 171, in turn, includes the judgment bar. The upshot is that a case dismissed on the judgment bar (like Himmelreich’s first case) does not foreclose a case against individual officers arising out of the same incident (like Himmelreich’s second case).
The Supreme Court agreed. In a statutory analysis that required all of two paragraphs, the Court said that Himmelreich’s plain reading of the FTCA was correct, and that the FTCA created no bar to his second case against the individual officers. The Court noted that result made sense:
If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple . . . .
Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.
The Court also roundly rejected the government’s non-textual arguments. It said that United States v. Smith, in which the Court held that another provision of Chapter 171 (the exclusive remedies provision) foreclosed a suit against an individual employee, did not control. That’s because Smith didn’t even discuss the “shall not apply” language in the exceptions provision. Moreover, the exclusive-remedies provision in Smith (unlike the judgment bar) was specifically designed to apply to the exceptions in the FTCA. The Court also said that it didn’t need to address the government’s parade of horribles that would result if every provision of Chapter 171 “shall not apply” to the FTCA’s exceptions. “If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”
At the end of the day, the ruling means that Himmelreich can pursue his civil rights claim against the individual officers, even after the district court dismissed his earlier FTCA claim based on the “discretionary function” exception. More generally, it probably also means that a plaintiff can similarly pursue a civil rights claim against individual officials, even after a district court dismissed an FTCA claim based on other procedural grounds that have nothing to do with “whether an employee can be held liable instead.”
This is a clear win for Himmelreich and other, similarly situated civil rights plaintiffs, because it preserves their constitutional claims against individual officers. This is no small thing: These individual claims, more than any FTCA claim, help enforce civil rights by holding individual officers accountable and by creating a strong deterrent against civil rights abuses by other officers. Thus, today’s ruling, while dealing with just a narrow statutory issue under the FTCA, is nevertheless an important victory for Himmelreich, an important victory for access to justice, and an important victory for civil rights enforcement.
Saturday, June 4, 2016
In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces."
The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970). The Department of Justice had stated:
‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’
However, the Department of Justice abandoned that argument before the United States Supreme Court:
In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger, ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief]. This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.
[citations and footnote omitted]
A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).
Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."
Friday, June 3, 2016
Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.” Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.
Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay. As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary.
This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant.
And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.
The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult. Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions).
No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage. If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge.
Saturday, May 7, 2016
The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].
As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court. (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage. As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":
- Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015;
- Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order.
- Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages;
- Ex parte State ex rel Alabama Policy Institute (API) (March 2015), and the certificate of judgment and dismissal of petitions on March 4, 2016.
The complaint gives a good chronology of the various events which have been contentious. As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.
One of the more interesting aspects of the ethics charges is this:
On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:
IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
[paragraph 38]. In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law." However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."
Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:
- Canon 1. A judge should uphold the integrity and independence of the judiciary.
- Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
- Canon 3. A judge should perform the duties of his office impartially and diligently.
Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice. Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.
May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Friday, April 22, 2016
Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys
In the divided panel opinion in Schoenefeld v. Schneiderman, a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.
The statute, N.Y. Judiciary Law §470, provides:
A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.
Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York. She challenged §470 on several constitutional grounds. The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1. The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court. The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."
Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose. Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process. Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose." Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."
The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause.
In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating. The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination. Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling." Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."
Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.
April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Wednesday, April 20, 2016
The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).
The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.
This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.
While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."
In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.
The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.
But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."
Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."
Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.
Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.
Monday, April 18, 2016
In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.
The rule provides:
During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.
In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys.
During the trial, one of the defendant attorneys "suffered from a self-inflicted gunshot wound." The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets." Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.
The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available." The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.
While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.
Thursday, April 14, 2016
In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
In a nutshell, the appellate court found:
Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
The appellate court implied that the trial judge had misconstrued his constitutional task:
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion. In its own analysis, the appellate court considered the plaintiffs' original contentions that:
the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.
The unanimous panel found that there was no "identifiable class" for equal protection purposes: the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers. As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth." While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.
While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes.
The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence. It is likely to stand.
Wednesday, April 13, 2016
The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.
The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.
The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.
Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.
But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."
In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.
The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
Monday, April 11, 2016
The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.
The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."
Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."
Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.
The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.
Friday, April 8, 2016
In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
The panel stated:
The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.
In any event, for present purposes we need not gild the lily. Our prior mandate was clear . . .
[citations and footnote omitted].
After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course." Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."
The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable. But the First Circuit did cite contrary authority and made clear its disagreement. The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.
April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Thursday, April 7, 2016
In its opinion in Arizona Dream Act Coalition v. Brewer, the Ninth Circuit has found unconstitutional an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States.
Recall that the Ninth Circuit had earlier reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim. The United States Supreme denied Arizona's application for a stay. On remand, the district judge had found that the plaintiffs prevailed on their equal protection claim, applying a rational basis standard of review, and entered a permanent injunction.
In this appeal by the Arizona state defendants, the same Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in the opinion again authored by Judge Pregerson, not surprisingly found equal protection "problems" but decided to resolve the case on the "nonconstitutional grounds" of preemption, explaining (in footnote 5),
Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance.
Yet the panel's opinion spends more than half of its analysis on the equal protection question. The court's opinion states that the judges "remain of the view" that "Arizona's policy may well fail even rational basis review" and rejected all of Arizona's asserted government interests. Moreover, the opinion stated that it "bears noting, once again" that "the record does suggest" that Arizona's policy was motivated by "a dogged animus against DACA recipients," and as the Supreme Court has "made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice," citing cases including United States v. Windsor.
The opinion continued
Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an alternative to resting our decision on the Equal Protection Clause. Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.
While the court's final opinion is of questionable precedential value concerning the equal protection conclusion, the previous opinion's equal protection conclusion remains of high precedential value, and certainly the ultimate conclusion - - - here based on the Supremacy Clause preemption - - - is definitive.
Tuesday, April 5, 2016
The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.
The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.
The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.
The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."
The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.
Friday, April 1, 2016
In his opinion in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.
The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges. However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.
On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:
Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).
In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).
While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).
Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”
While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).
The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:
Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).
In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.
Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.
The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.
Thursday, March 31, 2016
South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution
The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense.
Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.
The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government.
The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power
a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
b. to report on that conduct; and
c. to take appropriate remedial action.
In this case, the Public Protector, investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly.
The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability." Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement. Thus, the decision in the case is not surprising.
Nevertheless, the Constitutional Court's decision is an important one. It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding." Additionally, it finds that both the President and the National Assembly acted unconstitutionally:
The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.
Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.
Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.
Monday, March 28, 2016
The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.
The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.
On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.
Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.
The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.
Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)
Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)
Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.
Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.
The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.
The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.
The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.
The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.
Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.
Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.
Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).
Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.
(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)
Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).
In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.
This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.
Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.
Wednesday, March 16, 2016
Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee.
The New Yorker analyzes Garland as a "sensible choice."
NPR says "Reputation Of Collegiality, Record Of Republican Support."
First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture. Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.
Progressive groups will fall in line, and deeply respect Garland and the President’s choice, but their actual disappointment will be deep.— SCOTUSblog (@SCOTUSblog) March 16, 2016
Tuesday, March 15, 2016
Here's my argument preview in Simmons v. Himmelreich, originally posted at SCOTUSblog. The case is scheduled for oral argument next Tuesday.
Federal prisoners who seek redress for civil rights violations face an infamous thicket of rules, regulations, statutes, and case law. Prisoners have to navigate often-complicated prison rules and regulations to file an administrative claim in the first instance. They have to check to see that they have exhausted all administrative options before filing in federal court. And they have to choose and plead their federal claims carefully. (And that’s just the beginning.) This thicket sometimes seems especially designed only to thwart prisoners’ claims entirely, creating an access barrier that restricts and even prohibits a federal prisoner from obtaining a remedy for a civil rights violation.
On the other hand, this thicket serves some important governmental interests. It helps ensure that a prison itself gets a first crack at providing relief to a prisoner. It helps narrow the issues and streamline a case for the federal court. And it ensures that a federal employee and the government itself need only defend against a single lawsuit arising out of the same incident.
This case tests the push and pull between the rules in this thicket. And while the case deals in the technical and sometimes complicated interplay between different statutory provisions, it really comes down to this simple question: When a federal prisoner seeks redress for a civil rights violation, does federal law favor relatively more open access to the courts, or does it favor protection of federal employees and the government?
In October 2008, Walter Himmelreich was serving a 240-month sentence at the Federal Correctional Institution in Elkton, Ohio, for the production of child pornography. Himmelreich’s crime didn’t sit well with another inmate at Elkton, a prisoner who was housed in the Special Housing Unit because of his disciplinary violations. That prisoner told officials that he was “not able to live with pedophiles” and that if he were released into the general compound he “will smash a pedophile.” Just four days after this prisoner made these claims, prison officials nevertheless transferred him back into the general compound where, perhaps unsurprisingly, he assaulted Himmelreich. Himmelreich suffered serious injuries, including internal bruising, external injuries, permanent ringing in the ears, persistent headaches, and a pinched nerve.
Himmelreich filed and lost an administrative tort claim. He then filed two separate suits in federal court – one under the Federal Tort Claims Act, and the other under Bivens, which allows a plaintiff to sue a federal officer for a constitutional violation, in this case the Eighth Amendment. The court dismissed the FTCA case and then the Bivens case. Himmelreich appealed the Bivens ruling, and after the case went up to the Sixth Circuit twice (where Himmelreich won both times), this question is now before the Court: Does a court’s dismissal of a prisoner’s FTCA case under the FTCA’s “discretionary act” exception foreclose that prisoner’s separate Bivens claim?
The case sits at the intersection of four provisions of the FTCA. The first is the FTCA’s jurisdictional provision, Section 1346(b). This provision waives the United States’s sovereign immunity and grants district courts “exclusive jurisdiction” over claims against the United States for torts by government employees arising out the scope of their employment. In practice, this section operates like ordinary tort claims against a private employer who concedes respondeat superior liability, that is, liability on behalf of its employees for acts within the scope of their employment.
The second provision is the FTCA’s list of exceptions in Section 2680. This provision contains several categories of claims to which the FTCA does not apply. One of those categories encompasses what is commonly known as the “discretionary function” exception: any claim based on a federal employee’s “exercise or performance or the failure to exercise or perform a discretionary function or duty.”
The third is the FTCA’s judgment bar in Section 2676. The judgment bar provides that:
The judgment in any action under [the jurisdictional provision] shall constitute a complete bar to any action by the claimant, by reason of the same subject mater, against the employee of the government whose act or omission gave rise to the claim.
In practice, the judgment bar forecloses a plaintiff’s ability to pursue other kinds of claims against government employees arising from the same underlying incident. Congress enacted the judgment bar to protect federal employees and the government itself from multiple suits by the same plaintiff for the same injuries. At the time of its adoption, this provision served primarily to bar parallel state-law tort claims filed against federal employees in state court. But since 1971, when the Court recognized a federal constitutional-tort cause of action against federal employees in Bivens, the judgment bar has also foreclosed a parallel Bivens cause of action.
The final provision is the Westfall Act. That act, enacted in 1988, after the FTCA, makes the FTCA the “exclusive” remedy for a tort claim against a federal employee. It also precludes state-tort claims against federal employees and provides for the prompt substitution of the United States for the employee-defendants in those state-tort cases. Because the Westfall Act bars state-tort suits directly against federal employees, the judgment bar now functions primarily to foreclose parallel federal Bivens claims.
After Himmelreich filed his first case (the FTCA case), the federal government moved to dismiss pursuant to the FTCA’s discretionary-function exception. The court granted the motion, noting that Section 2680 is an exception to the FTCA’s general waiver of sovereign immunity, and that the court therefore “lacks subject matter jurisdiction over acts falling within the discretionary function exception.” The court issued a document titled “JUDGMENT ENTRY” in which the court “ORDERED, ADJUDGED and DECREED” that the case was dismissed.
The court then dismissed Himmelreich’s second case, the Bivens case, for failure to state a claim. The Sixth Circuit reversed and remanded. The district court again dismissed the case, this time based on two alternative theories: Himmelreich’s failure to exhaust administrative remedies and the FTCA’s judgment bar. The Sixth Circuit again reversed, ruling that Himmelreich’s failure to exhaust administrative remedies was excused (an issue that is not now before the Court), and that the judgment bar did not foreclose Himmelreich’s Bivens claim. As to the latter, the court of appeals said that the district court’s dismissal under Section 2680 amounted to a dismissal for lack of subject matter jurisdiction, and that it was therefore not a “judgment” subject to the judgment bar. This is the question now before the Court.
The government argues that the district court’s dismissal of Himmelreich’s FTCA case was a “judgment” under the FTCA judgment bar and thus forecloses his Bivens claim against the individual prison officials. The government says that this interpretation comports with the plain definition of the term, Congress’s use of the term in other portions of the FTCA, and the congressional purpose of the judgment bar. The government contends that Himmelreich is wrong to argue that the judgment bar applies only to the subset of judgments that is capable of having some preclusive effect under the principle of res judicata. According to the government, the term “judgment” is nowhere confined only to judgments having preclusive effect. But even if the term “judgment” is so confined, the government claims that the district court’s dismissal under Section 2680 is still a “judgment” under the judgment bar. That’s because Section 2680 imposes “substantive limitations” on FTCA liability, which makes the dismissal a ruling “on the merits” and therefore (under claim preclusion) precludes another case raising the same claim. It’s also because the district court actually determined that Section 2680 applies, and so (under issue preclusion) the ruling precludes Himmelreich from relitigating the issue. (This argument hinges on Himmelreich’s claim that the judgment bar extends the same res judicata preclusive effect that the government has under the FTCA to a government employee.) Finally, the government says that Himmelreich is wrong to argue that the judgment bar does not apply to an FTCA action dismissed under Section 2680 (because the judgment bar covers any FTCA action), and that he is wrong to claim that the introductory language to Section 2680 prevents Section 2680 dismissals from triggering the judgment bar (because the Court has ruled otherwise in a related context).
Himmelreich counters that the judgment bar does not foreclose his Bivens claim against the individual officials. As an initial matter, he says that the judgment bar does not even apply here, because the plain terms of Section 2680 say that the FTCA’s other provisions, including the judgment bar, “shall not apply” to the categories of exceptions in Section 2680. It’s also because the judgment bar is only triggered by a “judgment” in a suit “under section 1346(b).” But he says that Section 1346(b) does not apply to the “claims” enumerated in Section 2680, so that his FTCA action was not even “under” Section 1346(b) in the first place.
Himmelreich argues next that the court’s dismissal for lack of jurisdiction is not a “judgment” under the judgment bar, because the court’s dismissal carries no res judicata effect (and thus does not shield the government employee from suit). Finally, Himmelreich claims that the government’s approach would lead to absurdities, including lower courts blocking Bivens claims based on technical defects (that result in dismissal) in a plaintiff’s FTCA case, encouraging personal-capacity lawsuits (before FTCA claims, which the FTCA was designed, in part, to prevent), and depriving plaintiffs of a remedy for civil rights violations.
In the end – as technical and complicated as this thicket can be – the bottom line is pretty simple: the Court will either favor more access to justice for federal prisoners who seek redress for civil rights violations, or it will favor the government’s interest in protecting its employees from lawsuits.
Wednesday, March 9, 2016
In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage. In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban. And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a Joint Motion for Entry of Judgment with a proposed order.
In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision. This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama.
Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":
the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.
The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state."
Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:
Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush.
Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].
In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage.
[updated: March 11, 2016: Further discussion of these issues available here].
March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)