Friday, February 16, 2018

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

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

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

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

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

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

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

And:

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

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

The ruling means that the Hagys' case is dismissed.

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

Wednesday, February 7, 2018

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

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

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

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

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

Wednesday, January 31, 2018

Check it Out: Frost on Nationwide Injunctions

Monday, January 22, 2018

Tenth Circuit Rejects First Amendment Retaliation Claims

The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed.

The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn't addressed the plaintiffs' precise claims.

The case arose when former Sheriff Terry Maketa and Undersheriff Paula Presley took employment actions against employees for their speech in order to influence an upcoming election for sheriff. In particular, Maketa and Presley transferred plaintiff Lieutenant Peck to the midnight shift after Peck refused to deliver to the media a false story concocted by Maketa regarding a missing Internal Affairs document. They opened a criminal investigation against plaintiff Sergeant Stone and Stone's two children (who were also employees of the Sheriff's Office) after Stone expressed political support for the candidate opposed by Maketa and Presley. And they put a group of commanders on administrative leave; confiscated their phones, tablets, weapons, badges, and vehicles; and had them escorted out of the building after they lodged EEO complaints against Maketa and Presley.

The court didn't rule on the merits of the plaintiffs' free speech claims. Instead, it ruled that the defendants didn't violate any of the plaintiffs' clearly established rights under the Garcetti/Pickering test for public employee speech.

As to Peck, the court said that in communicating a message to the media against Maketa's orders, she wasn't clearly speaking as a private citizen (rather than a public employee), as required for a public employee's free speech claim. The court noted that "[i]n some circuits, Lt. Peck's disobedience might affect whether she was speaking as part of her official duties." But because the Tenth Circuit hadn't ruled on this yet, it wasn't clearly established.

As to Stone, the court said that the investigations didn't clearly constitute adverse employment actions as required for a public employee's retaliation claim. Again, the court noted that other circuits have ruled differently--that "[o]ther circuits disagree with one another on the issue" whether a retaliatory criminal investigation "entails a constitutional violation." But because the Tenth Circuit "has not settled the question," the right wasn't clearly established.

Finally, as to the commissioners, the court said that the defendants' actions weren't clearly adverse employment actions.

January 22, 2018 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, January 18, 2018

Out of State Claimant Has Standing, but no Ex Post Facto Claim for "Sexual Predator" Designation

The Seventh Circuit ruled that a Wisconsin claimant who was convicted of rape, sexual assault, and kidnapping in 1983 in Illinois had standing to challenge his designation under a 2011 Illinois law as a "sexual predator," but that the restrictions that went with his new designation didn't violate the Ex Post Facto Clause.

The case arose when Illinois amended its Sex Offender Registration Act to define "sexual predator" as a person who had been convicted of any felony offense after July 1, 2011, and had been required to register as a sex offender under a conviction that required registration for more than ten years. Under the amendment, sexual predators had increased reporting requirements and certain new restrictions. Anthony Johnson fell into the new classification, because he was convicted of rape in 1983 (and was required to register for ten years) and of felony theft in 2013. Johnson was therefore subject to the reporting requirements and restrictions.

When Johnson moved to Wisconsin, he discovered that he had to meet certain heightened registration requirements there, too--but only because he was designated a "sexual predator" in Illinois. In other words, Wisconsin piggy-backed on Illinois's sexual predator requirements for someone like Johnson. Without his designation as a sexual predator in Illinois, Johnson wouldn't have to meet these requirements in Wisconsin.

Johnson sued Illinois officials, arguing that the 2011 amendments violated the Ex Post Facto Clause. The defendants moved to dismiss for lack of standing.

The Seventh Circuit ruled that Johnson had standing, but that the new requirements didn't violate the Ex Post Facto Clause.

As to standing, the court said that Johnson only had reporting requirements in Wisconsin because of his designation under Illinois law (and that he therefore demonstrated causation), and that if he won his case against Illinois officials, he'd no longer have to meet Wisconsin's requirements (and that he therefore demonstrated redressability).

As to the Ex Post Facto Clause, the court said that the new requirements under Illinois law were a function of his 2013 felony theft conviction, not his 1983 rape conviction: "Had Mr. Johnson not committed a felony after the Act went into effect, he wouldn't be classified as a sexual predator today. But he committed that later felony, and that conviction produced the sexual predator classification of which he complains."

Or, as Justice Jackson wrote in a similar enhanced-penalty case, nearly 70 years ago, Gryger v. Burke (and quoted by the Seventh Circuit):

The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.

January 18, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, January 17, 2018

Sorting Out Bannon's Claim of Executive Privilege

Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

But the privilege extends only to communications with the President. So any communications that Bannon had with Candidate Trump or President-Elect Trump are not covered under Nixon. Under Nixon, executive privilege simply does not apply.

Moreover, the privilege works against particular requests for information. It doesn't provide a broad shield against testifying generally. (As the courts have recognized, if it worked as a broad shield, the President could use it to frustrate the functions of the coordinate branches, in violation of the separation of powers.) Bannon can only assert the privilege on behalf of the President in response to a particular request, and not as a shield against testifying generally.

As to Bannon's communications with President Trump: Nixon says that the privilege is qualified (that is, not absolute) and subject to a balancing of interests. In particular, in determining whether executive privilege protects communications, the Court balances the need for the information against the need for confidentiality of the particular Presidential communication at issues.

[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protections that a district court will be obliged to provide.

In Nixon, the Court held that the countervailing interests in the "fair administration of criminal justice"--in particular, Fifth and Sixth Amendment rights of defendants and the basic functions of the courts--outweighed the President's "broad interest in confidentiality of communications."

So the question in the Bannon case is whether the balancing works the same way with a congressional inquiry. There's good reason to think that it does. As Judge Bates (D.D.C.) explained in the Harriet Miers case, Committee on Judiciary, U.S. House of Representatives v. Miers, Congress's "power of inquiry" is every bit as important as the judiciary's power to administer justice:

[T]he Executive insists that this case is distinguishable because it does not involve a core function of another constituent branch but rather a peripheral exercise of Congress's power. That is mistaken. As discussed above, Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is "necessary to the effective functioning of courts and legislatures." Thus, Congress's use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury's in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here.

The Miers case was a little different--it involved an assertion of absolute privilege against congressional testimony on a slightly different theory than executive privilege--and the court used the quoted passage merely to support its conclusion that no such absolute privilege existed. Moreover, the passage glosses over the fact that the Nixon balancing considered important competing Fifth and Sixth Amendment rights, absent or diminished in a congressional inquiry. Still, Congress's interests in fact-finding and oversight count for something important, even if slightly less than the judiciary's interests in Nixon, and they may well outweigh a "broad and undifferentiated" claim of privilege.

By claiming executive privilege before the House, but not before Mueller, Bannon and the White House are probably relying on a different balancing of interests under Nixon. In particular, the White House is probably claiming that the House's interests in the communications are less than Mueller's interests, and that the President's interest in confidential communications with Bannon outweigh the House's interests, but not Mueller's. Moreover, it's probably claiming that the communications are more secure if released to Mueller (like the in camera review in Nixon) and less secure if released to Congress (even if a closed-door hearing).

But we don't know for sure, because the White House hasn't said. And we don't know how the courts would rule on these theories, even if the President asserted them.

These disputes between the White House and Congress usually work themselves out informally, without involvement of the courts. But now that the Committee has issued a subpoena, if Bannon continues to decline to provide certain information, the case could go to the courts, and we could get the President's legal reasoning--and a court ruling on whether and how executive privilege applies.

UPDATE: It turns out that U.S. Magistrate Judge James P. O'Hara ruled last spring that executive privilege doesn't apply to communications with the President-Elect. (H/t to my co-blogger Ruthann Robson.) The case involved Kansas Secretary of State Kris Kobach's attempt to invoke the privilege to protect a communication that he had with President-Elect Trump on the National Voter Registration Act. Judge O'Hara rejected Kobach's claim:

Secretary Kobach's communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that potentially almost everything communicated to a president-elect by the hundreds of persons seeking appointments in the new administration would be shielded by privilege.

In Nixon v. Administrator of General Services, the Supreme Court did recognize that former presidents may assert privilege over certain communications made during their terms in office. But the reasoning given by the Court for its decision doesn't directly translate to communications with president-elects.

January 17, 2018 in Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Sunday, January 14, 2018

Check it Out: Nationwide Injunctions

Tuesday, January 9, 2018

Court Says Group has Standing to Seek Powell E-Mails

Judge Trevor McFadden (D.D.C.) ruled today that Cause of Action Institute has standing to sue to seek former Secretary of State Colin Powell's work-related e-mails on his personal AOL account. The ruling means that the case can move forward.

Cause of Action Institute first sought the Powell e-mails through a FOIA request. But after the State Department said that the e-mails no longer exist, the organization sued under the Federal Records Act and the Administrative Procedure Act. State and the Archivist moved to dismiss, arguing that Cause's harm (not getting the e-mails) couldn't be redressed by a favorable court ruling, because, after all, the e-mails no longer exist. Without redressibility, there's no standing.

The court disagreed. Judge McFadden ruled, in short, that the government hadn't tried hard enough to obtain the missing e-mails, given its mandatory obligations to recover missing records under the FRA. The court followed the D.C. Circuit's lead in Judicial Watch, Inc. v. Kerry, which held that a similar case seeking former Secretary Clinton's missing e-mails wasn't moot, and noted that further government investigation in that case led to the discovery of many of those e-mails. The same could be true here, the court reasoned, meaning that Cause could show that a court order for the government to investigate further could lead to the discovery of the e-mails--and that it therefore has standing.

Today's ruling--again, backed by the D.C. Circuit's ruling in Judicial Watch--means that Cause's case can move forward and seek a court order for the government to initiate action under the FRA through the Attorney General for recovery of the e-mails.

January 9, 2018 in Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sunday, December 31, 2017

Chief Justice Roberts' Year End Report Highlights Disasters and Harassment

In his 2017 Year-End Report on the Federal Judiciary United States Supreme Court Chief Justice concentrated on disaster-preparedness, stating that

we cannot forget our fellow citizens in Texas, Florida, Puerto Rico, and the Virgin Islands who are continuing to recover from Hurricanes Harvey, Irma, and Maria, and those in California who continue to confront historic wildfires and their smoldering consequences. The courts cannot provide food, shelter, or medical aid, but they must stand ready to perform their judicial functions as part of the recovery effort.

As part of the effort to maintain judicial functions, Roberts' noted that the Administrative Office of the United States Courts has established an Emergency Management and Preparedness Branch, including having response teams. He added:

I recognize that this might sound like trying to fight fire with administrative jargon. But imagine yourself one of a handful of employees of the bankruptcy court in Santa Rosa, California, when raging wildfires suddenly approach the courthouse where you work and state officials order evacuation—as happened this past September. The staff members did not face the emergency alone; they had at their disposal a professional response team to assist in making quick decisions to protect personnel, relocate services, and ensure continuity of operations.

He also lauded the oft-forgotten territories in the United States that have been coping with the after-effects of disaster:

The hurricanes brought flooding, power outages, infrastructure damage, and individual hardship to Texas and Florida. But the judicial districts of the Virgin Islands and Puerto Rico were especially hard hit. Judges and court employees responded in dedicated and even heroic fashion. They continued to work even in the face of personal emergencies, demonstrating their commitment to their important public responsibilities.

800px-Official_roberts_CJAnd he pointed out that the obligation of the judicial system included persons subject to the courts’ continuing jurisdiction, including those who are imprisoned, as well as other challenges.

Roberts' ended the 16 page report with a segue to the "new challenge" of dealing with the "depth of sexual harassment."

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.

I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues. I expect the working group to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints. These concerns warrant serious attention from all quarters of the judicial branch. I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

Roberts' is undoubtedly responding to the high-profile resignation of Ninth Circuit Judge Alex Kozinski and public letters from former law clerks, professors, and others to address the issue of inappropriate conduct by federal judges.

What might have also been in the report?  The need for diversity among Article III judges, especially given the tendency of the recent and current nominations to be white and male.

December 31, 2017 in Courts and Judging, Gender, Jurisdiction of Federal Courts, News, Race | Permalink | Comments (0)

Wednesday, December 27, 2017

D.C. Circuit Declines to Halt Election Integrity Commission Request for Voter Information for Lack of Standing

The D.C. Circuit ruled that the Electronic Privacy Information Center lacked standing to obtain an injunction halting a request by the Presidential Advisory Commission on Election Integrity for voter information from the states. The district court ruled earlier that EPIC had standing, but was unlikely to succeed on the merits, because the Commission wasn't an "agency" under the Administrative Procedure Act. The D.C. Circuit ruling has the same effect--denial of a preliminary injunction--but for a different reason: EPIC hasn't demonstrated a substantial likelihood of standing.

The ruling is only on EPIC's motion for a preliminary injunction. But EPIC's lack of standing at this preliminary stage may also mean that it (later) lacks standing to bring the claim at all. Based on the D.C. Circuit's ruling, it seems that only voters themselves, or an organization that represents voters, would have standing to bring this kind of claim.

EPIC initially brought the case to challenge the Commission's request for voter information without first conducting, and producing, a privacy impact assessment under the E-Government Act. EPIC argued that it was entitled to the assessment, and that its failure to receive it formed the basis of its standing.

The D.C. Circuit rejected that argument. The court ruled that EPIC lacked both informational injury and organizational injury. As to the former, informational injury, the court said that EPIC "has not suffered the type of harm that section 208 of the E-Government Act seeks to prevent. Indeed, EPIC is not even the type of plaintiff that can suffer such harm." The court said that section 208 was designed to protect the privacy of individuals (here, voters), not an organization like EPIC, an organization that does not have members (much less voter members) and whose only interest is in "ensur[ing] public oversight of record systems."

As to organizational injury, the court said that, because the E-Government Act doesn't confer an informational interest on EPIC (as above), EPIC can't ground organizational injury on the Act. "It follows that any resources EPIC used to counteract the lack of a privacy impact assessment--an assessment in which it has no cognizable interest--were "a self-inflicted budgetary choice that cannot qualify as an injury in fact." Moreover, the Commission's request for voter information without an assessment didn't cause EPIC to take any particular measures.

Finally, the court said that halting the Commission's collection of voter data wouldn't likely redress any informational or organizational injury, anyway. That's because ordering the Commission to halt its collection of information--assuming the Commission is subject to the Act--"only negates the need (if any) to prepare an assessment, making it less likely that EPIC will obtain the information it says is essential to its mission of "focus[ing] public attention on emerging privacy and civil liberties issues."

December 27, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, December 21, 2017

CREW's Emoluments Case Kicked for Lack of Standing

A federal judge ruled today that CREW and other plaintiffs lacked standing to sue President Trump for Emoluments Clause violations. We posted most recently on the case here.

The ruling ends the case, unless and until it's appealed.

The case arose when CREW and other plaintiffs (including hotel- and restaurant-owners who compete with Trump properties) sued the President for accepting gifts and emoluments from foreign and domestic sources without congressional approval, in violation of the Emoluments Clause. The plaintiffs sought declaratory and injunctive relief.

The government argued that the plaintiffs lacked standing and that the case should be dismissed. Today Judge George B. Daniels (S.D.N.Y.) agreed.

The court said the "hospitality plaintiffs" lacked competitive standing, because they didn't sufficiently allege that President Trump's Emoluments Clause violations caused their injuries (lack of business due to competition with Trump properties) and that a successful suit would redress those injuries. The court explained:

Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." Yet . . . it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article III's causation requirement.

***

[Moreover,] Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers--government and non-government customers alike--and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. . . .  [T]he Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs.

The court went on to hold that the Hospitality Plaintiffs weren't within the zone of interests protected by the Emoluments Clause.

The court also held that CREW lacked standing, because its alleged harm (diversion of resources to monitor and respond to the President's Emoluments Clause violations) wasn't sufficient. "Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. CREW . . . may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources."

Finally, the court ruled that the case raised a nonjusticiable political question (because of the Emolument Clause's textual commitment to a coordinate branch of government, Congress) and that the case wasn't ripe (because "a conflict between two coordinate branches of government . . . has yet to mature").

December 21, 2017 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (1)

Wednesday, December 20, 2017

Group Lacks Standing to Initiate Review of Mueller Investigation

Judge Amy Berman Jackson (D.D.C.) ruled today that Freedom Watch, Inc., lacked standing to bring a mandamus action to force Justice Department review of Special Counsel Robert Mueller's investigation and, ultimately, to terminate Mueller and his staff.

Freedom Watch alleged that Mueller's team engaged in a "torrent of leaks" and has "unethical conflicts of interest." The organization asked the court to order various DOJ offices to investigate Mueller's team and, if the allegations prove true, to fire them.

Judge Jackson ruled that Freedom Watch lacked standing to sue. In particular, the court said that Freedom Watch only alleged generalized grievances, not specific harm to itself or its members:

The fact that plaintiff has taken on the mantel of seeking to shine light on alleged governmental wrongdoing does not mean that it is affected by that wrongdoing in any particularized way--what plaintiff alleges is that the wrongdoing harms its objectives, not it. This is exactly the sort of abstract injury that does not rise to the level of an injury-in-fact.

The court also said that Freedom Watch's complaint lacked redressability:

While plaintiff has detailed the source of defendants' authority to undertake investigations, and the reasons why, in plaintiff's view, they should act, it points to no legal source of a mandatory duty owed to plaintiff to act, and therefore supplies no basis for the Court's power to order defendants to do so.

The ruling means that the case is dismissed.

December 20, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Monday, December 11, 2017

Bray on Nationwide Injunctions

Check out Prof. Samuel L. Bray's piece, Multiple Chancellors: Reforming the National Injunction, in the Harvard Law Review. Bray argues that the national injunction--issued in key cases challenging policies of the Trump Administration and, earlier, the Obama Administration--is a recent development in equity that comes with negative consequences, including more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices in the federal courts. Bray offers a "single clear rule" for injunctions: the "plaintiff-protective injunction," which enjoins the defendant's conduct only as to the plaintiff.

December 11, 2017 in Courts and Judging, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Wednesday, November 29, 2017

District Court Lets Post-Abbasi Bivens Claim Move Forward

Judge Colleen Kollar-Kotelly (D.D.C.) denied individual defendants' renewed motion to dismiss a plaintiff's Bivens claim for retaliatory prosecution in violation of the First Amendment. The ruling, which applies the Supreme Court's ruling from this summer in Ziglar v. Abbasi, means that the plaintiff's First Amendment Bivens action can move forward. (This isn't a ruling on the merits; it only says that the plaintiff's claim survives a motion to dismiss in light of Abbasi.)

The ruling is notable, because the Court appeared to substantially restrict Bivens actions in Abbasi essentially to those very few situations where the Court has allowed a Bivens action. (We posted on this here.) But this ruling reads Abbasi differently--not to prohibit a Bivens action under the First Amendment.

The case, Loumiet v. United States, arose when an attorney for a target of an investigation by the Office of the Comptroller of the Currency complained to the OCC Inspector General that OCC investigators engaged in "highly unusual and disturbing" behavior during their investigation, including making racist comments to the target's staff. The OCC then initiated an enforcement proceeding against the plaintiff pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, claiming that the plaintiff had "knowingly or recklessly . . . breach[ed his] fiduciary duty," and as a result "caused . . . a significant adverse effect" on the target of the investigation. An ALJ recommended dropping the matter, and the OCC agreed. The plaintiff filed for attorney's fees under the Equal Access to Justice Act and won in the D.C. Circuit. That court ruled that "the Comptroller was not 'substantially justified' in bringing the underlying administrative proceedings against [the plaintiff]."

The plaintiff then brought a Bivens claim for retaliatory prosecution in violation of the First Amendment, among other claims. The court earlier declined to dismiss the case, but the individual defendants asked the court to reconsider after Abbasi came down this summer.

The court in this ruling again declined to dismiss the case.

The court assumed, without deciding, that the case raised a "new context" under Bivens. (The court said that the D.C. Circuit hadn't yet had an opportunity to rule on Abbasi, so it couldn't really say what a "new context" was in the post-Abbasi world of Bivens--in particular, whether Abbasi set a new standard for "new context.") The court went on to say that special factors did not counsel against a Bivens remedy:

Unlike the facts in Abbasi, this is not a case in which "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis." Rather, Plaintiff's prosecution was separate from, and subsequent to, the OCC's enforcement action against his bank client; the prosecution against Plaintiff does not seem to have been "urgent," driven by "crisis," or, for that matter, necessary to the underlying enforcement action against Plaintiff's client. Indeed, the Court already made a fact-specific inquiry that a Bivens claim will not deter lawful enforcement activity.

Finally, the court said that the defendants couldn't show that the plaintiff had alternative relief, here under the FIRREA, the Administrative Procedure Act, or the Equal Justice Act.

November 29, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, November 9, 2017

FISA Court Says Groups Have Standing To Seek Court Rulings on Data Collection

A sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School's Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. The ruling means that the movants' efforts to obtain the rulings can move forward, although it does not say anything about the merits.

The case arose after two newspapers in June 2013 released classified information about a surveillance program run by the government since 2006. The DNI then declassified further details about the bulk-data-collection program and acknowledge that the FISC approved much of it under Section 215 of the Patriot Act, the "business records" provision.

The movants filed a motion with the FISC, asking the FISC to unseal its opinions on Section 215. They argued that because officials had revealed key details of the program, there was no need to keep the legal justification for it secret, and moreover that they had a First Amendment right of access under Richmond Newspapers v. Virginia.

The government released more information about the program, including a white paper that explained how FISC judges periodically approved the directives to telecommunications providers to produce bulk telephonic metadata. At the same time, the FISC asked the government to review several of its opinions and then released redacted versions of those opinions relating to Section 215.

The movants then filed another motion to unseal classified sections of the FISC rulings. The government provided yet more redacted FISC opinions and moved to dismiss the second motion. The government argued that it would merely duplicate already-released opinions, and that the movants lacked standing.

As to standing, the FISC disagreed. In particular, the court said that the movants had a concrete and actual harm, "because the opinions are currently not available to them. . . . [M]oreover, it is sufficiently 'particularized' from that of the public because of Movants' active participation in ongoing debates about the legal validity of the bulk-data-collection program." The court emphasized that for the purpose of determining standing, it "must . . . assume that Movants are correct that they have a constitutional right of access--so long as that right is cognizable." In other words, the court said that the movants' standing couldn't turn on the viability of their substantive claim.

The dissent argued that "[n]o member of the public would have any 'right' under the First Amendment to ask to observe a hearing in a FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances." Moreover, the dissent said that the movants, instead of seeking access to judicial proceedings, really only wanted the FISC "to rule that they have a 'right' of access to the information classified by the Executive Branch and that Executive Branch agencies must defend each redaction in the face of Movants' challenge." The dissent said that the movants therefore had no legally protected interests.

November 9, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, October 11, 2017

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.

The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.

The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.

Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.

About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.

The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."

The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."

Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.

Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.

October 11, 2017 in Cases and Case Materials, Dormant Commerce Clause, Federalism, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, September 25, 2017

Court Takes Travel Ban Arguments Off Calendar

The Supreme Court today took the travel ban arguments off its oral argument calendar. The Court also ordered the parties to submit short briefs on whether the case is moot in light of President Trump's new proclamation on travel restrictions.

September 25, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)

Wednesday, August 30, 2017

D.C. Circuit Tosses Antitrust, First Amendment Claims of Third Party Presidential Candidates

The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.

The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.

The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.

Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."

As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."

Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.

August 30, 2017 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)