Constitutional Law Prof Blog

D.C. Circuit: No Bivens Claim for LOC Employee Fired for Speech

A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech.  The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.

The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions.  Davis was also critical of the Bush administration handling of Guantanamo detainees.

Davis had some unique familiarity with these issues.  He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.

After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him.  Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.

The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch. 

Judge Rogers filed a lengthy and sharp dissent.  She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles.  That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees.  The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication.  According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy.  On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.

SDS

Court Dismisses Challenge to Amtrak's Authority to Develop Standards

Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation.  The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.

Section 207 requires the Federal Railroad Administration and Amtrak to jointly develop standards to evaluate the performance of Amtrak's intercity passenger trains.  It says:

[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including . . . on-time performance and minutes of delay . . . .

Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier.  (Amtrak leases the rail lines that it uses from freight rail carriers.)

The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants.  The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.

The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance.  But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim.  Here's what he wrote:

The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed.  Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine.   The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees.  In addition, Amtrak is required to submit annual reports to Congress and the President.

Op. at 11-12.  Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.

As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).  

While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .

Conditioning regulation on a private party's assent . . . is not constitutionally problematic.  Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.

Op. at 18-19.

SDS

DOMA Held Unconstitutional - - - Yet Again

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management.   Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities.  The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Representatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment.  Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

• the history of invidious discrimination against the class burdened by the legislation;
• whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
• whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
• the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." 

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources.  For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

• Congressional caution in defining a legislative term and maintaining the status quo
• Congressional caution in area of social divisiveness
• Consistency
• Any other possible basis

With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

    The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
J., concurring).
    This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
Nominee).
    In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity.  For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

RR

D.C. Circuit: No Federal Court Jurisdiction for Alien Detainee Constitutional Torts

The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts.  The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths.  They have no judicial remedy in U.S. courts for any violation.

Section 7 of the MCA reads as follows:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

28 U.S.C. Secs. 2241(e)(1) and (2).

The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution. 

The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause.  The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause).  So subsection (2) is still valid; and it bars the fathers' suit here.

The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right.  The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional."  Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).

Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.

SDS

Challenge to Constitutionality of DOMA by Military Member

Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse"  violates the Fifth Amendment's equal protection component.  Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.

This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.

RR
(h/t Jen Hogg)

D.C. Court Rejects Due Process Claim in Immigration Case

Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.

Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage.  The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act."  That section allows exclusion of a visa applicant from the United States for any of six security-related grounds.  The Consulate did not reveal the precise ground for exclusion.

Mostofi sued, arguing that the exclusion violated her fundamental right to marry. 

Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches.  But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).

The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation.  Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest."  Op. at 7.

SDS

Constitutional Challenge to AETA (Animal Enterprise Terrorism Act)

The First Amendment problems with AETA, the Animal Enterprise Terrorism Act, are well known.  Last year, a Northern California District Judge dismissed the high profile indictments against Joseph Buddenberg and three other defendants under AETA, 18 USC 43, on the basis of a Fifth Amendment failure to allege sufficient facts, although related to the First Amendment, as we discussed here.  AETA itself concludes with “Rules of Construction” which provide in relevant part that nothing in this section shall  be construed"

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution; 

(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference . . . . "

The Center for Constitutional Rights has filed a complaint, Blum v. Holder, in the District of Massachusetts federal court challenging AETA on its face and as applied as a First Amendment violation.  The plaintiffs are described as "five longtime animal rights activists whose advocacy work has been chilled due to fear of being prosecuted as a terrorist under the AETA."  The complaint alleges that "The AETA classifies certain protected speech and activity as a “terrorist” crime" and "punishes individuals who alone, or with others, criticize or demonstrate against what the statute vaguely identifies as an “animal enterprise,” if that otherwise permissible speech damages the property or profitability of the animal enterprise or even a person or entity connected with it."   The complaint also alleges that  AETA defines “animal enterprise” uncommonly broadly, "to include almost any business that buys or sells animal products:"

As such, it insulates a large number of businesses from the types of criticism that are deeply rooted in our constitutional tradition. For example, labor picketers, who seek to affect the bottom line of an employer engaged in unfair labor practices (that happens to sell animal products) are subject to prosecution under the act if their peaceful, lawful picket “causes the loss of any…personal property,” including profits.

 The complaint claims that AETA violates the First Amendment on the grounds of overbreadth, on the grounds of impermissible viewpoint and content discrimination, and violates the First and Fifth Amendments on vagueness grounds.

More about the specific plaintiffs and the litigation is available on the CCR website.

RR
[image via]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Federal Cigarette Tax Likely Violates Due Process, but not Tenth Amendment

Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment.  Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.

Plaintiff Gordon owns and runs a cigarette retail business.  He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins.  He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance. 

Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed.  Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington).  Without the minimum connection, the tax provision likely violates due process.

But Judge Lamberth rejected Gordon's other claims.  Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers.  (Nothing in PACT compels states to adopt or to change their taxes.  Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)

Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.

SDS

Justifying Targeted Killing

Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT.  And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010.  Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause.  See our May 2010 analysis for more on those sources.

But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo.  The administration hasn't responded to congressional or media requests for information.

SDS

Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward.  (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.)  The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens.  (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail.  The meaty opinion seems carefully tailored to withstand any appeal.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it.  The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity.  The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy.  In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.  Here's a flavor of what the court said on that point:

The unprecedented breadth of defendants' argument should not be overlooked.  The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone.  The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.  We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

Op. at 43.

Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone."  Op. at 81.

This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld.  We'll watch for appeals.

SDS

[Image: Anonymous, Execution, Wikimedia Commons]

Court Rules Torture Claim Against Rumsfeld Can Move Forward

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings.  In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security. 

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint.  The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention.  He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed.  Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues.  Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged).  Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense.  Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process.  (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal.  Instead, it was a direct claim for authorizing torture.)  But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary.  He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case.  Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas.  Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case).  But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy. 

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

SDS

On Raisins and Takings: Ninth Circuit Upholds USDA

The raisins so prominent in morning cereal and children's snacks are "heavily regulated" agricultural commodities under marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq.   

In its opinion in Horne v. USDA, the Ninth Circuit upheld the imposition of civil assessments under the regulations and upheld the constitutionality of the regulatory scheme.   The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.

The Hornes' administrative and statutory claim was that they had reorganized their raisin business and were no longer subject to the regulations because they were no longer "handlers" but only "producers."

Their major constitutional claim was that even if subject to the regulations, "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."  They also claimed that the penalities imposed for their “self-help” noncompliance (caused by their reorganization in an attempt to escape from the regulations) violated the Eighth Amendment's Excessive Fines Clause.

The Ninth Circuit panel opinion has an excellent rehearsal of regulatory takings doctrine, which clearly does not support the Hornes' claim.  However, as the opinion notes,the Hornes claim that the Ransin Marketing Order is a physical taking because there is an annual “direct appropriation” of their reserve-tonnage raisins.  The panel rejected this construction: "Though the simplicity of their logic has some understandable appeal—their raisins are personal property, personal property is protected by the Fifth Amendment, and each year the RAC “takes” some of their raisins, at least in the colloquial sense—their argument rests on a fundamental misunderstanding of the nature of property rights and instead clings to a phrase divorced from context."

Instead, as the panel reasoned,

the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. Simply put, it is a use restriction, not a direct appropriation. The Secretary of Agriculture did not authorize a forced seizure of forty-seven percent of the Hornes’ 2002-03 crops and thirty percent of their 2003-04 crops, but rather imposed a condition on the Hornes’ use of their crops by regulating their sale.

The panel then cited a Ninth Circuit opinion from 1938 - - - Wallace v. Hudson-Duncan & Co., 98 F.2d 985 - - - rejecting a takings challenge to a reserve requirement under the walnut marketing order.  The panel therefore joined the Court of Federal Claims, which not long ago decided the same question under the Raisin Marketing Order, Evans v. United States, 74 Fed. Cl. 554 (2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007); in accord with a smiliar case rejecting a challenge to the reserve program under the almond marketing order, Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244 (1994).

On the Eighth Amendment claim, the panel applied the test from United States v. Bajakajian, 524 U.S. 321(1998), considering whether the assessment is imposed, at least in part, for punitive and not merely remedial purposes, and whether the fine is grossly disproportional to the gravity of the offense for which it is imposed.  Affirming the district judge, the panel found the fine was remedial and the infractions serious.  It also noted that the fines were not as "steep" as those authorized by the statute.

The panel's conclusion notes the Hornes' frustration with the raisin regulatory scheme, but observes that the judicial role "is limited to reviewing the constitutionality and not the wisdom of the current regulation."  The Hornes' remedy, the opinion suggests, is with the Secretary of Agriculture.

RR

 

Torture Suit Against Rumsfeld Dismissed

A three-judge panel of the D.C. Circuit ruled on Tuesday in Arkan v. Rumsfeld that former Secretary of Defense Donald Rumsfeld enjoyed qualified immunity against the plaintiffs' Bivens claims that he formulated and implemented policies of torture at Abu Ghraib and other military facilities in Iraq and Afghanistan in violation of their Fifth Amendment Due Process and Eighth Amendment rights.  The ruling follows the Circuit's earlier ruling in Rasul v. Myers (Rasul II) and together with that case makes it nearly impossible for an alien plaintiff to bring a constitutional claim against a government official for torture at an overseas facility.  (The case may be closer for torture at Guantanamo Bay, however.)

 

The panel ruled unanimously that it was not clearly established in 2004, the time of the actions, that the Fifth and Eighth Amendments applied to aliens detained abroad:

As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay--where the Supreme Court has since held the Suspension Clause applies--it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan--where no court has held any constitutional right applies.

Op. at 14. 

The question--whether it was clearly established that Rumsfeld's actions violated the Constitution--is one of two questions courts ask to determine whether an official enjoys qualified immunity.  See Saucier v. Katz; Pearson v. Callahan.  The other question is whether the actions actually violated the Constitution.  The Supreme Court in Pearson held that courts may consider the questions in either order; and if a court rules that it wasn't clearly established at the time, the official gets qualified immunity regardless of whether the actions actually violated the Constitution. 

The panel here considered the former question first--whether it was clearly established at the time--and declined to rule on the other question.  The panel wrote that deciding whether the actions actually violated the Constitution would have been an academic exercise and potentially harmful to prevailing defendants, because it may prevent them from appealing. 

The Supreme Court recently ruled in Camreta v. Greene that a defendant who gets qualified immunity because a right isn't clearly established can nevertheless appeal to the Supreme Court, which has statutory jurisdiction to take an appeal "of any party."  The Court didn't rule on whether a "prevailing" defendant can also appeal to a circuit court, but the panel here seemed to think not.  In any event, the panel here certainly could have ruled on whether Rumsfeld's actions actually violated the Constitution: Pearson allows it; and under Camreta, Rumsfeld clearly could have appealed that to the Supreme Court (assuaging the panel's concern about lack of appealability).  (A principal reason for a court to rule on whether an action actually violates the Constitution is to give officials guidance about their future behavior--what's constitutional, and what's not.)

The upshot is that we don't have a ruling on whether Rumsfeld's actions actually violated the Fifth and Eighth Amendments--and therefore no "declaratory" judgment one way or the other, and no guidance for officials in the future.

The panel also ruled that prudential considerations--that cases like this against military officials would disrupt the war effort--also counseled against a Bivens claim.  The analysis here was sparse, but it puts belts over the suspenders to ensure that no like cases move past a motion to dismiss.

(The panel split 2-1 on whether the plaintiffs could bring an Alien Tort Statute claim.  The majority said no: The ATS claim transforms into a Federal Tort Claims Act claim, because Rumsfeld's actions were "incidental to [his] legitimate employment duties."  Op. at 20.  As an FTCA claim, the plaintiffs had to exhaust administrative remedies.  They didn't, so the case is dismissed.  Judge Edwards, in a lengthy dissent disagreed.)

SDS

A More Constitutional Military

ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.

RR

Juvenile Rights and Miranda

The Court in a 5-4 opinion in J. D. B. v. North Carolina today remanded the case to the state court instructing that a suspect's age - - - 13 - - - can be considered for purposes of determing whether a suspect is "in custody" for Miranda purposes.  The  other facts in the case include police officers going to the suspect's middle school rather than his home and the suspect being in a room with school officials and law enforcement.  Writing for the Court, Justice Sotomayor states, "It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing noreason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis." 

The precise issue had been broached but ultimately left open by a previous case, Yarborough v. Alvarado, 541 U. S. 652 (2004) because that case was decided under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), standard requiring the decision to be  an unreasonable application of clearly established Federal law, as determined by the Court, before it would be subject to constitutional remedy.

Sotomayor, joined by Kennedy, Ginsburg, Breyer, and Kagan, held that so long as the child’s age was known to the officer, or would have been objectively apparent to a reasonable officer, including age in the custody analysis is consistent with the Miranda test’s objective nature. This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.   Most of the arguments in the case concerned whether "age" was an objective or subjective consideration.  Any subjective consideration, of course, would not only undermine the supposedly objective nature of Miranda, but would also mark the beginning of a slippery slope into considerations of other factors, such as a suspect's mental capacities.  Sotomayor' opinion avers:

Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether. Just as police officers are competent to account for other objective circumstances that are a matter of degreesuch as the length of questioning or the number of officerspresent, so too are they competent to evaluate the effect of relative age. . . . The same is true of judges, including those whose childhoods have long since passed.  In short,officers and judges need no imaginative powers, knowledge of devel-opmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.

The Court also decided another Criminal Procedure case today: Davis v. United States.  Davis involved the good faith exception to the exclusionary rule and the Court ruled it was applicable. The problem in Davis was that the police officers relied in good faith on the constitutionality of the procedure that was later deemed unconstitutional.

However, JDB is a decision worth noting beyond the Criminal Procedure realm because of what it says about the Court's approach to children's rights.  For the majority, it seems evident that there are very real differences between children and adults and failing to recognize those differences results in a denial to minors of the "procedural safeguards" - - - constitutional rights - - -afforded adults.

RR
[image: Police Officer and Child, Lexington, North Carolina, via]

Bankruptcy Judges in California Declare DOMA Unconstitutional

The United States Bankruptcy Court for the Central District of California has allowed a same-sex married couple to proceed with their federal bankruptcy action as a married couple, despite the federal Defense of Marriage Act (DOMA). 

 

In an opinion signed by 20 bankruptcy judges (a vast majority of the bankruptcy judges in the district), the judges concluded:

The Debtors have demonstrated that DOMA violates their equal protection rights
afforded under the Fifth Amendment of the United States Constitution, either under
heightened scrutiny or under rational basis review. Debtors also have demonstrated
that there is no valid governmental basis for DOMA. In the end, the court finds that
DOMA violates the equal protection rights of the Debtors as recognized under the due
process clause of the Fifth Amendment.

The judges discuss Attorney General Holder's letter regarding the unconstitutionality of DOMA, but the opinion has its own equal protection analysis, discussing both heightened scrutiny and rational basis.

RR
(h/t Sara Pearl Bird)
[image of bankruptcy code in USCA via]

 

Equally Divided Court Affirms Flores-Villar: Gender Differentials in Immigration Statutes Remain Constitutional

With Justice Kagan's recusal, what might have been a 5-4 decision finding the statute violated equal protection, the decision is instead a 4-4 split and thus the Ninth Circuit's opinion upholding the statute is affirmed.

The "opinion" is a simple recitation of that state of affairs:

PER CURIAM.
The judgment is affirmed by an equally divided Court.
JUSTICE KAGAN took no part in the consideration or
decision of this case.

The gendered differential imposed by the statute at issue in Flores-Villar is the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. 

In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

The Ninth Circuit upheld the statutory scheme, holding that avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests, and that the means chosen substantially further the objectives.  The Ninth circuit stated, "Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”

Flores-Villar might have clarified Nguyen v. INS, 533 U.S. 53 (2001) which upheld gender discrimination in citizenship statute because it had a biological basis.  Clearly, the statute in Flores-Villar had no such basis.  We discussed this when certorari was granted.

However, oral argument most of the discussion concerned the remedy rather than equal protection doctrine.

RR

[image: Frederick R. Spencer, Family Group, circa 1840, Brooklyn Museum, via]

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12: 

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.

RR

International Women's Day, Women in Combat, and Military Leadership Diversity

As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.

In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military.  The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women.  That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.

 Today, according to the United States Department of Defense, a

commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.

In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”

 

The Military Leadership Diversity Final Report,  From Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity.  The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary.  The exclusion of women from combat is specifically linked to career advancement.  The Press Release, dated March 8, provides an interesting connection to International Women's Day.

RR