Tuesday, September 29, 2015
The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.
The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.
The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.
The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.
The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."
The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:
We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."
Tuesday, September 22, 2015
The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.
The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.
The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).
Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)
The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")
The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.
Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."
Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."
Friday, September 18, 2015
The Second Circuit this week ruled that a state does not waive its general state sovereign immunity (as opposed to its Eleventh Amendment sovereign immunity) when it removes a case to federal court.
The ruling is a win for the states and adds to the apparent weight of authority in the circuits. Still, the Second Circuit noted that "there has . . . been some confusion in the Circuit Courts" on the question, inviting the Supreme Court to clarify.
The case started with state employees' Fair Labor Standards Act case against Vermont in state court. Vermont removed the case to federal court, declined to assert any form of sovereign immunity, and even at one point represented that it wouldn't assert Eleventh Amendment immunity (as a result of its removal to federal court). Then it asserted general common law state sovereign immunity and moved to dismiss.
The Second Circuit dismissed the case. The court said that while Vermont waived its Eleventh Amendment immunity by virtue of its removal to federal court (under Lapides v. Board of Regents), it did not waive its general state sovereign immunity by virtue of removal. The court noted that the state in Lapides had already waived its general state sovereign immunity, so did not support the plaintiffs' position that Vermont waived immunity (because Vermont had not previously waived its general state sovereign immunity). The court also said that the circuits that have considered the question have ruled that a state does not waive its general state sovereign immunity by virtue of removal (even if it waives Eleventh Amendment immunity by virtue of removal)--even while noting that there's some confusion in the circuits on how to apply Lapides.
The court said that both logic also supported its result:
A state defendant sued in state court, when entitled to remove the suit to federal court, may well wish to do so in the belief that its entitlement to have the suit dismissed by reason of the state's sovereign immunity, an entitlement largely elaborated by federal courts, will be better protected by the federal courts than by courts of the state.
The court also rejected the plaintiffs' arguments that Vermont's foot-dragging on asserting immunity amounted to a waiver and that Vermont expressly waived immunity.
Wednesday, September 9, 2015
Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.
The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.
But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.
And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.
The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.
As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.
As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)
The Secretaries filed a motion to dismiss for lack of standing.
Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:
Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.
As to the employer mandate claim, she said,
The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."
We'll watch this case on appeal.
September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, August 12, 2015
The D.C. Circuit ruled this week in PETA v. USDA that the animal-rights organization had standing to challenge the USDA's decade-long foot-dragging in regulating birds under the Animal Welfare Act. But at the same time, the court ruled against PETA on the merits. The case means that PETA's claim is dismissed; it's a significant set-back in the effort to get the USDA to regulate birds under the AWA.
PETA alleged that the USDA violated the Administrative Procedure Act by failing to write avian-specific animal welfare regulations under the AWA. PETA argued that the agency "unlawfully withheld" action in violation of section 706(1) of the APA. The USDA moved to dismiss for lack of standing and on the merits.
The D.C. Circuit ruled that PETA had organizational standing, because the USDA's inaction prevented PETA from protecting birds. The court explained:
Because PETA's alleged injuries--denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse--are "concrete and specific to the work in which they are engaged," we find that PETA has alleged a cognizable injury sufficient to support standing. In other words, the USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has "perceptibly impaired [PETA's] ability" to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public. Because PETA has expended resources to counter these injuries, it has established Article III organizational standing.
But even as the court said that PETA had standing, it ruled in favor of the USDA on the merits. The ruling means that PETA's complaint against the agency is dismissed.
Friday, July 24, 2015
The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.
The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.
We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)
The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.
Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)
Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.
Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.
The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).
But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."
The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.
July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)
Thursday, July 9, 2015
Judge Ellen Segal Huvelle (D.D.C.) yesterday reaffirmed that torture victims lack a remedy in the federal courts. Judge Huvelle applied circuit precedent and granted the government's motion to dismiss Mohammed Jawad's torture claims against government officials. The ruling ends Jawad's case, unless and until he appeals.
The case is not surprising, given the state of the law, but it is disturbing: it reaffirms (yet again) that torture victims lack a judicial remedy.
Jawad claimed that government officials authorized his torture at Guantanamo Bay, before and after designating him an "enemy combatant" and before releasing him as no longer "legally detainable" after over six years in detention. Jawad claimed that officials violated the Alien Tort Claims Act, the Federal Tort Claims Act, the Torture Victims Protection Act, and the Fifth and Eighth Amendment.
Judge Huvelle rejected all these claims. Judge Huvelle denied Jawad's FTCA claims, because she said that government officials were acting within the scope of their employment--torture, evidently, is within the scope of employment to maintain order and discipline at Guantanamo--and because the government's waiver of immunity under the FTCA doesn't apply outside the United States. Judge Huvelle denied the TVPA claim, because U.S. officials weren't acting under the law of a foreign nation, as required by the TVPA. And she denied Jawad's constitutional claims, because she said that special factors counseled against extending a Bivens remedy.
Judge Huvelle also ruled that Jawad's claims are foreclosed by the Military Commissions Act, which bars non-habeas claims against the government or its agents related to "conditions of confinement of an alien . . . who was properly detained as an enemy combatant . . . ." Judge Huvelle said that the government never disavowed its classification of Jawad as an enemy combatant, even though the government later said that he was no longer legally detainable.
The ruling is hardly a surprise, given circuit precedent and the state of the law. But it is disturbing: It says (yet again) that torture victims don't have a judicial remedy.
Wednesday, June 17, 2015
The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.
The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.
Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."
The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.
The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."
The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.
The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.
Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.
The court concluded:
The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.
Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.
Judge Reena Raggi dissented.
June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)
Friday, June 12, 2015
The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."
The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.
But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.
The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.
The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.
The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.
Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:
The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.
But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.
Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:
My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.
June 12, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)
Thursday, June 11, 2015
The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.
The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.
Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.
The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:
In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.
The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."
The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.
The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.
Sunday, May 31, 2015
The D.C. Circuit declined to intervene to reverse a lower court ruling that requires the government to move toward releasing videos of forced-feeding of a Guantanamo detainee. The decision means that the government and attorneys for detainee Abu Wa'el (Jihad) Dhiab will have to work together to agree on redactions and a proposal as to "how the videotapes can be made available to the public most efficiently," pursuant to the earlier district court orders.
Still, it may be some time, if ever, before the videos are released. That's because the redaction process could take a long time, even assuming the government doesn't foot-drag or tie up the process in further litigation. Or: after redaction, there may be nothing of substance to release; or the district court might decline to order release pursuant to the agreed-upon process; or the appeals court might reject release when the case inevitably comes back. In short: this is a victory for those seeking release, but it doesn't mean that we'll see release any time soon.
The case, Dhiab v. Obama, grows out of Dhiab's habeas petition, his hunger strike, and the government's efforts to force-feed him. Dhiab moved to stop the forced-feeding, and, in considering that motion, the district court reviewed 32 classified videotapes of Dhiab's forced-feedings. News media organizations intervened to get copies of the tapes, and the district court ordered the parties (1) to cooperate to redact the tapes and (2) to propose how the videos could be released. The order did not specifically require release.
The government appealed, but the D.C. Circuit declined to hear the merits. The appeals court ruled that it lacked appellate jurisdiction over the case, because the district court's orders weren't final, appealable orders (because they didn't conclusively resolve the matter, and the government still had opportunities under the district court orders to challenge the release). The court also ruled that it didn't have mandamus jurisdiction (for largely the same reasons).
The ruling paves the way for the release of redacted videos. But don't expect that to happen any time soon. Redaction will take some time, and even if the government doesn't deliberately foot-drag, redactions and the joint proposal for release will undoubtedly get tied up in lengthy litigation at the district court, and again on appeal.
Friday, May 29, 2015
The Fifth Circuit this week denied the government's motion for a stay of Judge Hanen's nationwide injunction against the government's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The denial is not a final ruling on the merits (the court wrote that "we do not decide whether the Secretary has the authority to implement DAPA" at this "early stage of the case"); it says only that Texas's challenge to the program is sufficiently likely to succeed to withstand the government's motion for a stay. Still, the ruling presages the likely result on the merits and makes the case look even more likely to end up at the Supreme Court.
The court addressed two issues: Texas's standing to challenge DAPA, and the state's claim that DHS violated the Administrative Procedures Act in failing to use notice-and-comment rulemaking before implementing DAPA.
The court held that Texas had standing, because it'll cost the state some $130 under state law to subsidize each driver license for each DAPA beneficiary. The government argued that Texas could avoid the economic injury by changing its license-fee structure, and that in any event the many economic benefits of the DAPA program would offset the costs for the state.
The court rejected the former argument, saying that the "forced choice" itself is an injury:
The flaw in the government's reasoning is that Texas's forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs. And being pressured to change state law constitutes an injury.
The court rejected the latter argument, saying that the economic offsets are of a different type--and that the injury therefore still stands, notwithstanding any economic benefits that the program may bring to the state.
Because the court said that Texas had standing based on its economic harm, it did not rule on Texas's claim that it had standing based on the district court's "abdication theory" (that Texas had standing because the federal government "abdicated" its "responsibility" to enforce the law in an area where it has exclusive authority).
The court said that Texas easily falls within the zone of interests of the INA, because "Congress permits states to deny many benefits to illegal aliens," and "the states seek only to be heard in the formulation of immigration policy before [the government] imposes substantial costs on them." The court also said that the INA doesn't bar judicial review.
The court held that DAPA amounts to "nonenforcement" of the INA, because it is the "affirmative act of conferring 'lawful presence' [quoting Johnson's memo] on a class of unlawfully present aliens." "[T]hat new designation triggers eligibility for federal and state benefits that would not otherwise be available."
On the merits, the court held that DAPA is not a mere policy statement (as the government argued), but rather is a "substantive" rule that requires notice and comment under the APA. According to the court, that's because DAPA doesn't really offer enforcement discretion, and it's more than internal procedural guidance (it's substantive, according to the court).
As to the nationwide injunction, the court only said that anything short of a nationwide ban would result in a "patchwork system" that would detract from the uniformity that Congress sought in the INA.
Judge Higginson dissented. He argued that "Supreme Court and Fifth Circuit caselaw forecloses plaintiffs' arguments challenging in court this internal executive enforcement guideline," and that "DHS is adhering to the law, not derogating from it." He argued that DAPA amounts to discretionary enforcement guidelines that aren't subject to notice-and-comment rulemaking under the APA.
Wednesday, May 27, 2015
The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.
The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.
The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.
The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.
Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.
Monday, May 18, 2015
The United States Supreme Court's opinion in City and County of San Francisco v. Sheehan arises from an incident in which two police officers shot Teresa Sheehan, a woman suffering from a schizoaffective disorder who was living in a group home for those with mental illness.
The seemingly primary issue upon which certiorari was granted was whether the Americans with Disabilities Act, ADA, 42 U. S. C. §12132, required law enforcement officers to "provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” The Court, in an opinion by Justice Alito, found fault with the attorneys litigating on behalf of San Francisco and dismissed this first question presented as improvidently granted. In a concurring and dissenting opinion, Justice Scalia, joined by Justice Kagan, also faulted the attorneys for San Francisco, noting that the Petition for Certiorari
assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question.”
But, Justice Scalia continued,
Imagine our surprise, then, when the petitioners’ principal brief, reply brief, and oral argument had nary a word to say about that subject.
Instead, the petitioners argued that "the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon."
We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari.
Scalia had especially harsh words for the attorneys for San Francisco, casting aspersion on their integrity:
Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari.
Scalia states that the Court would never have granted certiorari on the first question as it was argued in the briefs and would certainly have never granted certiorari on the"fact-bound" qualified immunity issue. Scalia, with Kagan, dissented from the Court's holding on the qualified immunity issue:
I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.
The Court, absent Justice Breyer who did not participate in the case, did "reward" San Francisco by finding that the police officers were protected by qualified immunity: "no precedent clearly established that there was not 'an objective need for immediate entry' here." The somewhat particular facts - - - the situation involved an entry and then a re-entry of Sheehan's room - - - nevertheless involved a "straightforward" and exceedingly brief qualified immunity analysis.
And a reversal of the Ninth Circuit.
While the attorneys for the City and County of San Francisco may have endured a scolding, Scalia is correct that the Court's decision is ultimately a reward.
Sunday, May 17, 2015
Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.
The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.
The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.
In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.
Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:
[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.
The ruling is consistent with similar rulings in other district courts.
May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Saturday, May 16, 2015
A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.
But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)
Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.
Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:
the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.
Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.
The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.
But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:
And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.
Wednesday, May 6, 2015
The D.C. Circuit last week dismissed a case challenging the Consumer Financial Protection Bureau under separation of powers. The ruling in Morgan Drexen, Inc. v. CFPB held that the plaintiffs lacked standing and should pursue their constitutional claims against the CFPB in a CFPB enforcement action pending in another federal district court.
The ruling ends this particular challenge to the CFPB (for now), but allows the plaintiff to pursue its challenge in the enforcement action.
Morgan Drexen filed the claim after the CFPB threatened enforcement action against the firm for violations of the Consumer Financial Protection Act and the Telemarketing Sales Rule in its bankruptcy and debt-relief services. Kimberly Pisinski, an attorney who contracts with Morgan Drexen for paralegal services, joined the suit on the theory that the CFPB's enforcement action against Morgan Drexen would affect her own law practice.
Morgan Drexen and Pisinski sought declaratory and injunctive relief, arguing that the CFPB is unconstitutional because its powers are overbroad, it's headed by a single director who is removable only for cause, it is funded outside the ordinary appropriations process, and judicial review of its actions is limited.
But soon after Morgan Drexen and Pisinski sued in the D.C. District, the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Pisinski, who apparently really, really wanted to be a part of the action, moved to intervene in that suit, too. (The court denied her motion. The court also recently granted the CFPB's motion for sanction and default judgment against Morgan Drexen, finding that "[d]efendants willfully and in bad faith engaged in a coordinated and extensive effort to deceive the Court and opposing counsel" and having "blatantly falsified evidence . . . concealing this fact from the Court, opposing counsel, and even their own counsel at every turn.")
The D.C. Circuit ruled that Morgan Drexen could lodge its constitutional claims against the CFPB in the enforcement case in the Central District of California instead of in its case in the D.C. District. The court said that Morgan Drexen wouldn't suffer any harm in harm in doing so, and that it'd support judicial economy.
The court also ruled that Pisinski lacked standing. That's because she didn't allege a CFPB enforcement action would harm her practice, or that she engaged in any illegal conduct as a Morgan Drexen contractor:
In sum, Pisinski has failed to proffer evidence in support of any of her theories of standing: that she was responsible for Morgan Drexen's allegedly illegal conduct, that her practice is or will be economically harmed by the Bureau's enforcement action against Morgan Drexen, or that implicit accusations by the Bureau that she exercised too little control over Morgan Drexen or engaged in illegal conduct herself could damage her professional standing. The record evidence does not show that she used Morgan Drexen's allegedly illegal services or that there is a substantial risk that the Bureau's enforcement action will cause harms to her practice or professional reputation that she has asserted.
Judge Kavanaugh dissented, arguing that Pisinsky had standing, and that the majority's approach is "more complicated than it needs to be."
Monday, April 27, 2015
The Fifth Circuit on Friday dismissed a case challenging both the individual and employer mandates in the Affordable Care Act under the Origination Clause. The court said that the individual plaintiff challenging the individual mandate lacked standing, and that the corporation challenging the employer mandate was barred by the Anti-Injunction Act. The ruling dismisses the case, with little or no chance of a successful appeal.
The case, Hotze v. Burwell, was brought by a medical doctor, Steven Hotze, and his employer, Braidwood Management. The plaintiffs argued that the ACA's individual and employer mandates violated the Origination Clause, because they are "bills for raising Revenue" that did not "originate in the House." Their theory: The ACA was a Senate amendment to a shell of a House bill that already passed, so that in fact the ACA really originated in the Senate. If so--and if the individual mandate is authorized by the Taxing Clause (and not the Commerce Clause), as the Court held--then, they claimed, the whole ACA should have started in the House. Because it really didn't, it violated the Origination Clause.
But there was a problem even before the court got to the merits: Hotze already had health insurance through Braidwood, and so would not have to purchase insurance or pay the tax penalty. This meant that he didn't suffer a harm.
Hotze neglected to say in his complaint that his insurance wasn't up to ACA snuff (and that he'd have to drop it and buy new insurance or pay the tax penalty), so all he had for an injury was that the ACA forced him to make hard health-insurance choices. The court said that this wasn't enough for standing.
Hotze also argued that when the employer mandate takes effect, Braidwood would have to offer him less desirable insurance. The court said that this theory wasn't tightly enough tied (or at all tied) to the individual mandate, however, so this didn't support standing, either.
Finally, Hotze said that the ACA forced his insurance premiums up. The court rejected this theory, too, saying that it amounts to a generalized grievance.
The court also dismissed Braidwood's challenge to the employer mandate, but this time under the Anti-Injunction Act. The AIA bars courts from hearing any challenge to restrain the assessment or collection of any tax.
Even if the court had addressed the merits, however, this case didn't appear to be going anywhere. That's because the ACA did originate in the House, even if in a shell bill later amended by the Senate to include the full ACA. The plaintiffs argued that the Senate amendment wasn't germane to the House bill (and was thus an unconstitutional end-run around the Origination Clause), but the government argued that the Origination Clause didn't contain a germane-ness requirement--a point the district court found convincing.
The district court dismissed the case on the merits, ruling that the ACA didn't violate the Origination Clause. Good bet the Fifth Circuit would have, too.
Friday, April 24, 2015
The D.C. Circuit ruled today that plaintiffs lacked standing to challenge EPA and NHTSA's standards for greenhouse gas emissions from cars and trucks. The ruling means that the case is dismissed, and the standards stay in place.
The case, Delta Construction v. EPA, tests a joint effort by the EPA and NHTSA to regulate greenhouse gas emissions from automobiles and trucks. The agencies issued coordinated rules, one set of rules for cars and, later, one set for trucks. (The D.C. Circuit previously upheld the car rules, and the Supreme Court denied review.)
The plaintiffs--business, associations, and individuals in California, and Plant Oil Powered Diesel (or POP Diesel), a company that promotes the use of vegetable oil in place of traditional diesel fuel--sued, arguing that the regulations were arbitrary and capricious in violation of the Administrative Procedures Act. The California plaintiffs challenged the EPA rules only; POP Diesel challenged both the EPA and NHTSA rules. The California plaintiffs argued that the regs jacked up the price of cars and trucks in the state; POP Diesel argued that the truck rule makes its product economically unfeasible.
The court held that the California plaintiffs lacked standing, because they couldn't show causation and redressability. That's because even if they won on the merits--and the court struck the EPA rules--the NHTSA rules would still drive the prices of their vehicles up. In other words, because both agencies' sets of rules did the same thing, defeating one wouldn't solve their alleged problem.
As to POP Diesel, the court said that it didn't fall within the zone of interests protected by the portion of the Clean Air Act governing emissions standards for motor vehicles. The court said that economic interests, like POP Diesel's, without more, aren't within the congressional goals of the Act, and that POP Diesel's green approach alone doesn't put it within the Act's zone of interests.
The court dismissed the case and ended the plaintiffs' challenge to the emissions regs.
Tuesday, April 7, 2015
The Fifth Circuit today affirmed the dismissal of a challenge to the Deferred Action for Childhood Arrivals, or "DACA," program by a group of ICE agents and deportation officers and the State of Mississippi. We previously posted on the suit here.
The plaintiffs lodged several claims against the DACA program, including a separation-of-powers and a violation of the Take Care Clause. They claimed that they had standing because Mississippi incurred expenses for state benefits for "illegal aliens" and because DACA forced the officers to violate the law, change the way they enforced the law, and face job sanctions for not deferring.
The court today rejected these standing claims and affirmed the dismissal of case. As to Mississippi, the court said that any injury was "purely speculative because there was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA." As to the officers, the court said that a violation of their oath to uphold the laws was not a sufficient injury for standing purposes; that their burden to comply with DACA also wasn't a sufficient injury and that in any event they failed to allege specific facts to support it; and that any threat of employment sanctions for not enforcing DACA was too speculative.
As to this last point, the court emphasized that DACA requires individual officers to "exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis." This feature of DACA, of course, also goes to the merits by hard-wiring DACA with prosecutorial discretion and putting the program squarely within executive discretionary authority. As to standing, the court said that this feature makes it unlikely that an officer would be sanctioned for exercising discretion to deport.
Today's ruling says nothing about the merits of DACA. But it does illustrate why it's so hard to bring a challenge to DACA in court.