Wednesday, August 20, 2014

No Head-of-State Immunity for Finance Minister

Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister.  They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.

Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister.  The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out).  The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister.  But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.

Judge Boasberg ruled that Singh wasn't immune for those acts.  In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."

Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister.  Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.

The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.

August 20, 2014 in Cases and Case Materials, Courts and Judging, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2014

No Constitutional Damages for Victims of Rape in Military

The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action.  (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.)  The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.

The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments.  (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.)  The court said that "special factors" counseled against a Bivens remedy.  (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.)  In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."

The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy.  The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.

The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database.  The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.

The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld.  In other words, it adds to the well established body of law that says that courts defer entirely  to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.

July 19, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

D.C. Circuit Rejects Guantanamo Detainees' Mistreatment Claims

The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal.  The court also rejected the plaintiffs' request to remand the case to amend their complaint.

The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT.  The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.

As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government.  But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.

As to the Vienna Convention, the court said that the Convention confers a private right of action.

As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.

June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Ninth Circuit Upholds Contribution Disclosure Requirement

The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman.  The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.

The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed.  The Prop 8 Committees challenged the requirement both on its face and as applied.

The court rejected the challenges.  It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest.  As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:

A state's interests in contribution disclosure do not necessarily end on election day.  Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits.  As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests.  In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day.  Absent post-election reporting requirements, California could not account for such late-in-the-day donations.  And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.

As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe.  Judge Wallace dissented on the as-applied challenge.

 

May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

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voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, May 18, 2014

Court Temporarily Stops Force-Feeding at Guantanamo

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

May 18, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

D.C. Circuit Dodges Export Clause Claim, Allows Coal Tax, for Now

The D.C. Circuit ruled yesterday in Coal River v. Jewell that a coal company couldn't challenge a Department of Interior regulation imposing a fee on coal at the point of sale under the Export Clause.  The ruling means that the Interior regulation stays in place for now, and probably for good.

The case inolves a federal fee on coal extraction under the Reclamation Act.  Congress designed the fee, determined by the weight of extracted coal, to fund the restoration of land damaged by coal mining.  The Department of Interior, recognizing that coal at the point of extraction contains rocks and other non-coal debris (and thus weighs more than the coal alone), issued regulations imposing the fee on coal at the point of sale (after the weighty debris is removed).  The result of the Interior regulations is to impose a fee that is lower than it would have been at the point of extraction (because the coal weighs less at the point of sale than at the point of extraction).

Still, coal companies sued, arguing that the Interior regs violated the Export Clause.  That Clause says that "No Tax or Duty shall be laid on Articles exported from any state."

In an earlier round of litigation, the Federal Circuit used the canon of constitutional avoidance and rejected the challenge, interpreting the statutory phrase "coal produced" as referring to coal extracted and the regulation as a fee imposed on extraction but at a later date.

In this round, Coal River, a new coal company, sued in the D.C. District and appealed to the D.C. Circuit, seeking to create a split between the D.C. and Federal Circuits. 

The D.C. Circuit didn't bite.  It ruled that Coal River's suit was untimely.  That's because the Reclamation Act requires all challenges to regulations promulgated under the Act must be brought within sixty days of the rule's promulgation.  The court said that Coal River didn't satisfy a statutory "safety valve" that allowed later suits under certain circumstances.

The court said, however, that Coal River could bring this same suit in the Court of Federal Claims later, after Interior actually imposes the regulation and fee on it.  But that case would almost surely meet the same fate as the earlier case, where the Federal Circuit interpreted the regulation to impose a fee on extraction collected at a later date.

May 14, 2014 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Court to Rule on Separation of Powers in Foreign Affairs

The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits.  The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem.  Our latest post on the case, with links to earlier posts, is here.

The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel." 

The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question.  On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations. 

In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.

April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Friday, April 11, 2014

D.C. Circuit: No Standing to Sue EPA for (lack of) Carbon Monoxide Regs

The D.C. Circuit ruled today in Communities for a Better Environment v. EPA that a group of environmental organizations lacked standing to sue the EPA for its failure to regulate carbon monoxide based on its impact on "public welfare" under the Clearn Air Act.  In short, the court ruled that the plaintiffs couldn't demonstrate that the EPA's failure to issue secondary standards for carbon monoxide caused the effects of global warming that the plaintiffs complained about.

The ruling contrasts with Massachusetts v. EPA, where the Supreme Court ruled that a state had standing to challenge the EPA's denial of a petition asking the EPA to regulate carbon dioxide.  The Court said that the state sufficiently demonstrated that it stood to suffer harms resulting from global warming (like loss of coastline from rising sea levels) if the EPA did not regulate carbon dioxide.

This case involved a different kind of regulation and a different air pollutant, but the same core theory of standing.  The Clean Air Act directs the EPA to set secondary standards for one of six air pollutants (including carbon monoxide) at a level "requisite to protect the public welfare."  The "public welfare" includes welfare of animals, the environment, and climate, among other things.  (The Act also requires the EPA to set primary standards for the six air pollutants at a level "requisite to protect the public health," that is, human health.)  The EPA decided in 2011 not to issue secondary standards for carbon monoxide, because the Agency determined that secondary standards for carbon monoxide were not needed to protect the public welfare--that standards for carbon monoxide wouldn't protect animals, the environment, or climate.  The EPA issue primary standards for carbon monoxide, however.

The plaintiffs sued, challenging (1) the EPA's primary standards for cabon monoxide and (2) the EPA's decision not to set secondary standards. 

In response to the government's motion to dismiss on the second claim, the plaintiffs argued that they had standing under Massachusetts v. EPA.  The court disagreed, saying that the plaintiffs didn't demonstrate the connection between the EPA's decision not to set standards and the harm they alleged.  The court explained:

But even assuming for the sake of argument that Massachusetts v. EPA grants standing for plaintiffs other than States, petitioners here have failed to establish the causation element of standing.  Petitioners claim that EPA's decision not to set a secondary standard for carbon monoxide will worsen global warming and in turn displace birds that one of petitioners' members observes for recreational purposes.  But petitioners have not presented a sufficient showing that carbon monoxide emissions in the United States--at the level allowed by EPA--will worsen global warming as compared to what would happen if EPA set the secondary standards in accordance with the law as petitioners see it.  Moreover, citing and analyzing many scientific studies, EPA explained that carbon monoxide's effects on climate change involve "significant uncertainties."

The court also rejected the plaintiffs' claims against the primary standards on the merits.

 

April 11, 2014 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Muller on Standing and Political Question in Kerr

Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper.  Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question.  We posted here.

Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":

It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands.  Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years.  Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.

The Tenth Circuit remanded the case, and the district court is preparing for trial.  We'll surely see this one again.

April 10, 2014 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

Force-Feeding As Torture at Guantanamo

Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure.  Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm.  He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."

Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement.  This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement. 

But the court also ruled that Aamer was not likely to succeed on the merits of his claim.  Eisenberg explains why that was wrong.

The government hasn't said whether it'll appeal the Aamer ruling.  In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.

March 23, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

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

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

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

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Obamacare Tax Credit Survives Lawsuit

Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare.  The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts.  We wrote on some of those cases and issues most recently herePolitico reports on this case here.

The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges.  That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.

In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ."  (Emphasis added.)  But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.

A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange). 

You might wonder about standing, given that the rule is designed to make insurance cheaper.  The court said at least one plaintiff had standing.  That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan.  That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption.  But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption.  As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance).  Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing.  The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State."  That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so.  When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State."  "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act. 

January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Court Dismisses Rangel's Censure Case

Judge John D. Bates (D.D.C.) earlier this week dismissed Rep. Charles Rangel's suit against House Speaker John Boehner and others growing out of Rangel's censure in 2010 for a variety of improprieties.

Rangel sued Boehner and others after politico.com posted a memo purportedly written by the chief counsel of the House Ethics Committee.  Rangel argued that that memo undermined the integrity of his censure proceeding--so much so that he had a cause of action.

The defendants moved to dismiss the case, arguing that Rangel lacked standing, the case raised a political question, the defendants enjoyed immunity from suit under the Speech and Debate Clause, Rangel's complaint failed to state a claim upon which relief could be granted, and even if the court had jurisdiction it should exercise its discretion not to reach the merits.

Judge Bates agreed.  He concluded that Rangel lacked standing based on injury to his reputation (causation was too attenuated), his loss of status on the House Ways and Means Committee (again, no causation, because the Democrats lost seats on the Committee after the 2010 election, and it wasn't clear that Rangel's censure caused him to lose a subcommittee seat), the political exploitation of his censure by a primary opponent (because that's not an injury), or a due process injury (again, no injury).

Judge Bates also concluded that Rangel's claims were political questions, and that each defendant is immune under the Speech or Debate Clause.

December 13, 2013 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, December 2, 2013

Reconsidering Tribal Sovereign Immunity

The Supreme Court today heard oral arguments in Michigan v. Bay Mills Indian Community, the case asking whether a Native American Indian tribe enjoys tribal sovereign immunity against a state's suit against it for operating an illegal casino outside of Indian lands.

One thing seemed clear: the Court is prepared to reconsider the scope of tribal sovereign immunity.

One problem is the odd result under the Tribe's position that a state could sue a tribe for operating a casino on its lands, but not off its lands.  The Tribe's position is that the state has a number of other ways to regulate a casino outside Indian lands, short of a suit against the Tribe, which would require relinquishing tribal sovereign immunity.  For example, the state could deal with the problem under the required compact between the state and the Tribe; it could sue Tribal officials for injunctive relief under an Ex Parte Young theory; the state could prosecute individuals who work at or frequent the casino; or it could get the federal government to enforce federal law against an illegal, off-Indian land casino.  But it's not clear that any of these alternatives would be effective--and the Court seemed skeptical of each of them.  In other words, practically speaking, relinquishing tribal sovereign immunity may be the only way that the state could regulate an off-Indian land casino.  (The Tribe and federal government both noted that the casino isn't currently operating--that it's waiting for a defiinitive answer to the question whether it can operate legally.)

At the end of the day, this problem may come down to the state's ability to collect money damages--something it can't do if the Tribe enjoys tribal sovereign immunity.  Justice Kagan proposed this modification to tribal sovereign immunity to the Tribe's attorney, Neal Katyal:

JUSTICE KAGAN: Mr. Katyal, what is the difference--the State can really--it can shut down these gambling operations easily if it's off Indian lands.  What the State can't do is get any kind of damages or money remedies; is't that really the difference?

MR. KATYAL: I do think so.  I think that's--I think that that's underlying some of this, absolutely.

JUSTICE KAGAN: Maybe that's an important difference.  I mean, maybe we should give the State the ability to collect damages.

Justice Kennedy came at it from a different angle, the problem with the definition of the land where the casino is located:

But if the tribe takes such an obscure position, such a changing position, as to whether or not we are dealing with . . . Indian land, maybe that's a reason why we should confine and limit [tribal immunity as defined in] Kiowa so that it doesn't apply to Indian gaming and we won't have this problem.

Another problem is the odd result that under the Tribe's theory a Native American Indian tribe would enjoy wider sovereign immunity than other states and foreign sovereigns.  Chief Justice Roberts put this fine point on the problem:

[Native American Indian tribes are] [d]ependent sovereigns, which is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.

Combining the two problems, Justice Ginsburg proposed this to the Deputy Solicitor General:

Mr. Kneedler, you went through the development of foreign sovereign immunity, and whether the courts were influenced by the government, it was the courts that recognized this distinction between commercial activity and governmental activity.

Why couldn't the court extend that same distinction to Indian tribes and say it makes sense in the foreign country context, it also makes sense in the context of the tribes, to distinguish commercial from governmental?

Finally, there's the problem of who decides on tribal sovereign immunity.  Both the Tribe and the federal government argues that Congress should decide.  But that didn't sit well with the Court.  Justice Ginsburg said this on the question:

Mr. Katyal, isn't it odd to say that when this is the Court--the doctrine of tribal immunity is something that was announced by this Court.  Congress never passed a law that said the tribes have immunity.  It's all this Court.  And then you say what this Court made only Congress can unmake.  That seems strange to me.

In all, it seems likely that the Court will redefine the scope of tribal sovereign immunity.  It's less clear exactly how: whether the Court will carve out a limited exception to tribal sovereign immunity for off-Indian land commercial activity, or whether it will more substantially restrict tribal sovereign immunity.

December 2, 2013 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (1) | TrackBack (0)

Can a State Sue a Tribe for Off-Reservation Gambling?

That's the question before the Supreme Court today in Michigan v. Bay Mills Indian Community.  More particularly, the case asks whether the federal courts have jurisdiction to hear a state's claim that a Native American tribe's off-reservation casino violates the Indian Gaming Regulatory Act, and whether the tribe enjoys immunity from such a suit.

With the rapid proliferation of tribal gaming, including off-reservation gaming, the case could make an important statement about the regulatory authority of the tribe, the state, and the federal government over off-reservation gaming.  It could also make an important statement about federal court jurisdiction over a state's claim that a tribe's off-reservation gaming violates federal law, and about tribal immunity for such gaming.

Here's my oral argument preview of the case, republished, with permission, from the ABA Preview of U.S. Supreme Court Cases:

FACTS

Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) in order to regulate gaming activities on “Indian lands.” The IGRA divides gaming into three separate classes and specifies how each class is regulated. Class I gaming includes social games and traditional tribal games; it is under the exclusive jurisdiction of the tribe. Class II gaming includes bingo and certain card games like poker; it is primarily within the jurisdiction of the tribe but subject to federal oversight.

Class III gaming, the class at issue here, includes everything else, such as slot machines and casino-style games. Class III gaming is not regulated by a uniform structure. Instead, an Indian tribe wishing to conduct Class III gaming has to adopt a gaming ordinance that is approved by the National Indian Gaming Commission (NIGC), a federal agency. The tribe also has to negotiate with the state where it is located and enter into a compact that will govern the gambling.

The Bay Mills Indian Community, a federally-recognized Indian tribe with a reservation in Michigan’s northern peninsula, entered into a compact with Michigan in 1993. Soon after the compact was finalized, the NIGC approved Bay Mills’s gaming ordinance. Bay Mills then proceeded to establish its own Gaming Commission. Bay Mills has continuously operated one or more gaming facilities on its reservation ever since.

In 1997, Congress passed the Michigan Indian Land Claims Settlement Act. The Act appropriated funds to Bay Mills and other Michigan Indian tribes to satisfy judgments that the Indian Claims Commission had entered in favor of the tribes. The Settlement Act directed that 20 percent of the funds awarded to Bay Mills be deposited in a “Land Trust” and required that earnings from the Trust “be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase and exchange.” It also said that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”

In August 2010, Bay Mills used the funds from the Settlement Act land trust to purchase approximately 40 acres of land in Vanderbilt, Michigan, about 100 miles from the Tribe’s reservation. Bay Mills constructed a small casino on the property (initially with 38 electronic gaming machines, but later expanded to 84 machines) and began operating it on November 3, 2010. The U.S. Department of the Interior and the NIGC later issued letters concluding that the Vanderbilt casino was not located on “Indian lands” as defined by the IGRA, that it was therefore not eligible for gaming under the IGRA, and that the NIGC had no jurisdiction over it.

The state filed suit against Bay Mills in federal court. The state’s counts I and II alleged that the Vanderbilt land did not constitute “Indian lands” under the IGRA, and that Bay Mills therefore violated the compact. The state’s count III alleged that Bay Mills violated the IGRA by conducting gaming outside of Indian lands and that even if the Vanderbilt land constituted “Indian lands,” Bay Mills violated 25 U.S.C. § 2719 (and therefore the compact’s requirement that gaming comply with federal law) by operating a gaming facility on land acquired after October 17, 1988, that does not satisfy any statutory exception. The Little Traverse Bay Bands of Odawa Indians, which operated a competing casino about 40 miles away, filed a separate suit with similar claims the next day.

The district court consolidated the cases and entered a preliminary injunction halting the Bay Mills casino. Bay Mills appealed and moved for a stay of the injunction; the district court and the United States Court of Appeals for the Sixth Circuit both denied a stay.

While Bay Mills’s appeal was pending, the state amended its complaint to add three additional claims. Count IV alleged that Bay Mills violated federal common law by operating a casino that exceeds the scope of its authority. Count V alleged that Bay Mills failed to obtain a state license for a gaming facility in violation of Michigan law. Count VI alleged that the casino was a public nuisance under state law. The state also added several defendants—the Bay Mills Tribal Gaming Commission, the Commission’s members in their official capacities, and the members of the Bay Mills Executive Council in their official capacities.

On appeal, the Sixth Circuit reversed and vacated the preliminary injunction. The court held that the district court lacked jurisdiction as to counts I, II, and III. The court held that the district court had jurisdiction as to counts IV, V, and VI against Bay Mills, but that those counts were barred by tribal sovereign immunity. The court remanded the case to the district court to address the state’s counts IV-VI against the additional individual defendants.

The state brought this appeal. Little Traverse is not a party to it; neither are the individuals named in the state’s amended complaint.

CASE ANALYSIS

Federal courts are courts of limited jurisdiction. This means that their jurisdiction must be defined by statute. One common source of federal jurisdiction is found in 28 U.S.C. § 1331, which creates the so-called “federal question” jurisdiction. Under § 1331, federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”

Another source of federal jurisdiction—one that goes particularly to gaming on Indian lands—is found in 25 U.S.C. § 2710(d)(7)(A)(ii), part of the NIGC. That provision says that federal district courts have jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . .”

The parties here dispute whether the federal courts have jurisdiction over the state’s claims. In particular, they dispute whether the state’s claims arising out of the Bay Mills’s alleged violation of the compact fall under § 1331 (because these claims might amount to a violation of the IGRA, a federal statute), and whether the Vanderbilt casino is “a class III gaming activity located on Indian lands” under § 2710.

But even if a federal court has jurisdiction (under §§ 1331, 2710, or some other federal statute), certain parties, like Indian tribes, enjoy immunity from suit. The Supreme Court has recognized tribal sovereign immunity, and both parties agree that “the doctrine is now part of this Court’s settled precedent . . . .” But they disagree sharply over the extent of that immunity.

The state argues first that the district court has jurisdiction over its suit pursuant to § 2710. The state says that the Vanderbilt casino is “a class III gaming activity located on Indian lands,” because Bay Mills authorized, licensed, and operated the casino from its reservation. More particularly, it contends that § 2710 extends federal court jurisdiction to the gaming itself, but also to the gaming activity, which, the state argues, includes authorizing, licensing, and operating the casino. The state claims that its interpretation of the text is consistent with the congressional intent.

The state argues next that the district court has jurisdiction over its federal claims pursuant to § 1331. The state says that it alleged a violation of the IGRA, a federal statute, when it claimed that Bay Mills violated the compact (in counts I, II, and III). It also says that nothing in the IGRA limits the federal courts’ federal question jurisdiction under § 1331.

The state argues that tribal sovereign immunity does not bar its suit for two independent reasons. First, the state contends that the IGRA abrogated tribal sovereign immunity. The state says that the Court uses a “more holistic approach” in determining whether a federal statute abrogates tribal sovereign immunity, and that the IGRA viewed as a whole (and not just § 2710) makes clear that Congress intended that a state could enforce its gaming laws in federal court against an Indian tribe engaged in off-reservation gaming. The state claims that the opposite rule would lead to an absurd result—that the state could obtain a federal court injunction to stop illegal gaming on Indian lands, but not on its own sovereign state lands. The state says that Congress could not have intended this result.

Second, the state argues that even if the IGRA does not abrogate tribal sovereign immunity, the Court should decline to extend immunity here. The state says that the Court has never expressly extended tribal immunity to a tribe’s off-reservation commercial activities, and, especially given tribal immunity’s “dubious foundation,” the Court should decline to extend it to those activities in this case.

In response, Bay Mills first argues that the state cannot claim that the Vanderbilt casino is “on Indian lands,” as it does in its first point. Bay Mills says that that argument falls outside the questions presented, which speak solely to gaming activities “outside of Indian lands.” But even if this argument were properly before the Court, Bay Mills contends that the state is wrong: the IGRA itself says that a tribe’s decision to open a gaming facility is not a “class III gaming activity.”

Next, Bay Mills argues that it is immune from Michigan’s suit under § 1710. Bay Mills claims that § 1710 only abrogates tribal sovereign immunity “on Indian lands,” and that the whole premise of the state’s claim is that the Vanderbilt casino is off Indian lands. Bay Mills says that under the plain language of § 1710, “Michigan has simply pled itself out of court.”

To the extent that Michigan and its amici argue for a Court-created exception to tribal sovereign immunity, Bay Mills argues that the Court has already rejected the proposed exceptions. Bay Mills also says that the Court has rejected pleas to overrule its tribal sovereignty immunity precedents. Bay Mills contends that it is Congress’s prerogative, not the Court’s, to alter the scope of tribal sovereign immunity, and that Congress has only reaffirmed it. Bay Mills claims that tribal sovereign immunity “has deep roots in this country’s jurisprudence,” and that there is no reason for the Court to abrogate it now.

Finally, Bay Mills argues that the Ninth Circuit decision will not leave the state without a remedy, as the state argues. Bay Mills says that Michigan most obviously can invoke the dispute resolution procedure in the compact. Bay Mills claims that Michigan could also sue tribal officials for injunctive relief. Additionally, Bay Mills argues that the state could negotiate a waiver of sovereign immunity in the next round of compact negotiations, seek federal intervention in the dispute, or even outlaw gaming throughout the state.  

The federal government, as amicus in support of Bay Mills, also argues that the federal courts lack jurisdiction over Michigan’s claims. The federal government says that § 2710 does not extend jurisdiction of the state’s claims to the district court. Contrary to the state’s argument, the federal government says that numerous provisions in the IGRA demonstrate that the phrase “class III gaming activities” refers to the games themselves, and not to authorizing, licensing, and operating games. And because the games themselves are not located on Indian lands, § 2710 is not a basis for jurisdiction. Moreover, the federal government says that § 1331 does not extend jurisdiction, because the state’s federal claims (counts I, II, and III) do not fall within § 2710, and because the compact does not contain a provision agreeing to federal court review of the state’s other claims.

Next, the federal government argues that Bay Mills enjoys tribal sovereign immunity. The federal government says that § 2710 did not abrogate sovereign immunity, because the state alleged that the Vanderbilt casino is not on Indian lands. The federal government contends that 18 U.S.C. § 1166 also does not abrogate sovereign immunity, because that statute gives the federal government (not the states) enforcement authority in Indian lands for violations of assimilated state gambling laws. The federal government says that § 1166 does not give states authority to enforce state gambling laws outside Indian lands, and even less to sue the tribe itself. The government contends that tribal sovereign immunity already extends to a tribe’s commercial activities wherever they take place, and that the Court should leave it to Congress to balance the interests of the tribes and the states and to determine the scope of immunity.

Finally, the federal government argues that Michigan has other remedies. Like Bay Mills, the federal government says that the state could seek injunctive relief against an individual tribal official. The federal government claims that the state could also negotiate a waiver of sovereign immunity in the compact. Moreover, the federal government contends that the state could request approval from the NIGC of a site-specific gaming ordinance for the Vanderbilt casino, forcing the NIGC to determine whether the site is eligible for gaming, and appeal the decision in court. Finally, the federal government notes that the state can enforce its own gaming laws against individuals involved in gaming at the Vanderbilt casino. With all these options, the federal government argues that there is no need to diminish tribal sovereign immunity to create a remedy that would resolve this dispute.

SIGNIFICANCE

At its core, this case is about the allocation of power between states and Indian tribes over the operation of an activity, tribal-sponsored gambling, that has seen astonishing growth in recent decades and today is worth tens of billions of dollars nationwide. (The NIGC tracks this growth in Gaming Revenue Reports, available at http://www.nigc.gov/Gaming_Revenue_Reports.aspx.) Both Indian tribes and states use legalized gaming more and more for revenue, economic development, and economic activity and opportunity. Within this broader context, the regulation of tribal gaming, even at the margins, is itself a high-stakes game.

To be sure, this case deals with only a small part of this larger question, that is: off-reservation gambling. And it involves only special federal jurisdictional and immunity questions that come up in the particular case when an Indian tribe purchases land to build an off-reservation casino.

Still, in the rapidly growing sector of Indian gaming, the case already matters. As Michigan indicates, it “is already aware of at least three additional lawsuits where parties have cited the Sixth Circuit’s decision here in support of a tribe’s operation (or planned operation) of a casino in violation of IGRA or tribal-state gaming compacts.” The state notes that “[a]s tribes continue to look for better casino locations . . . or new ways to profit from the explosion of casino gaming, the friction between state authority and tribal immunity will inevitably increase.” That’s not to say that Michigan’s positions in the case are (necessarily) right, but only that the issues are already significant, and only likely to grow in importance.

Moreover, the issues are highly controversial. On the one hand, many favor expanding off-reservation gaming opportunities, because Indian tribes and states can use off-reservation gaming to generate more revenue and economic development in more attractive locations off the reservations (like closer to urban centers). On the other hand, many oppose off-reservation gaming, because it encroaches on local communities. The debate is playing out in communities across the country where Indian tribes are seeking permission to conduct off-reservation gaming. The debate is also playing out in Washington, where the Obama administration moved in 2011 to loosen requirements for some off-reservation gaming, and where some in Congress have introduced legislation to tighten them. Again, this case sits right at the center of these debates.

Whatever happens in this case, though, it cannot change the basic statutory framework under the IGRA: Indian tribes will still have to adopt a gaming ordinance and negotiate a compact with the state. The compact requirement ensures that both states and Indian tribes will have a significant hand in regulating casino-like tribal gaming. But the outcome of the case may affect how Indian tribes and states negotiate their compacts and the terms they include in them.

It is important to remember that the Department of the Interior and the NIGC issued opinions that the Vanderbilt casino was not on “Indian lands” and was therefore not eligible for gaming under the NGRA. The federal government does not disavow these opinions. Indeed, the federal government sets out an array of options for Michigan to regulate the Vanderbilt casino (and other future casinos), notwithstanding (as the federal government argues) the federal courts’ lack jurisdiction over the state’s claims and Bay Mills’s immunity from suit. In other words, the Sixth Circuit ruling does not mean that Bay Mills can operate its casino, or that other tribes could operate like casinos off reservation, without at least some state and federal oversight and permission.

Finally, the case is significant because it will resolve splits in the circuits. There is disagreement among the circuits on both questions presented—the scope of federal jurisdiction, and the scope of tribal sovereign immunity.

December 2, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Second Circuit Clarifies Its Opinion to Remove District Judge

Bench_and_Bar_Vanity_Fair_5_December_1891In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here.   Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."

In a separate order and opinion, the panel denied the motion of Judge Scheindlin's attorneys to appear.

Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York  regarding the NYPD's implementation of stop and frisk as violative of equal protection. 

In today's opinion, the panel 

"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”

The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin."  Again, this appearance of partiality is twofold.  First, there are the judge's statements on the record in a related case.  After quoting some of the statements, the panel concluded:

We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.

(emphasis added).

Second, the panel considered - - - as the  "statements described below" - - - the judge's statements to the press.  While the panel noted the judge  "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical.  And while "nothing prohibits a judge from giving an interview to the media,"

judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”

The panel opinion does not reference the First Amendment.  The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order.  Here, the Second Circuit panel of judges wrote,

We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .

But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy.  Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit."  In support of this, the panel cited nine cases from 1999 - 2011.  The panel also noted it occurs in other circuits.  [UPDATE: For scholarship on this topic, see here].

Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy.  If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.

[image via]

November 13, 2013 in Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Daily Read: The Meaning of "United States"

The meaning of "United States" if often not as clear as one might assume, demonstrated by much of the litigation surrounding Guantanamo Bay (which is geographically if not politically in Cuba).

  594px-1854_Map_of_USA_Mexico

Over at Lawfare, law student Raffaela Wakeman has a good description (and audio) of the oral arguments in Al Janko v. Gates before the DC Circuit.  She also has a good preview of the argument.  Al Janko is seeking damages for his detention at Guantanamo Bay, which was determined to be unlawful by a federal district judge.   

This requires the court to construe the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

In short, does a federal judge's determination that Al Janko was not properly detained count as a determination by "the United States"?   The Government argues that it does not and that in this statute, United States means only the Executive (Al Janko's detention was determined to be proper by Combatant Status Review Tribunals). 

There are constitutional issues raised by the Bivens claim, but these tend to be backgrounded by the statutory interpretation issue of the meaning of "United States."

[image: map via]

 

October 22, 2013 in Current Affairs, Executive Authority, Interpretation, Jurisdiction of Federal Courts | Permalink | Comments (0) | TrackBack (0)