Saturday, June 30, 2018
The Ninth Circuit ruled this week that environmental non-profits lacked standing to sue Ex-Im Bank for its failure to follow statutorily prescribed procedures before authorizing loans to private corporations for two liquid natural gas projects near the Great Barrier Reef in Australia.
The case is a cautionary tale for environmental groups (or others) suing for statutory procedural violations: Develop the record.
The ruling means that the case is dismissed.
The case, Center for Biological Diversity v. Export-Import Bank of the U.S., arose when Ex-Im Bank approved funding for two liquid natural gas projects near the Great Barrier Reef. Environmental organizations sued, arguing that Ex-Im Bank failed to consult as required by the Endangered Species Act and failed to take into account environmental impacts as required by the National Historical Preservation Act.
The Ninth Circuit dismissed the case for lack of standing. The court said that the plaintiffs didn't sufficiently connect the Bank's procedural failures to the harm to the Reef, especially given that the projects had begun by the time the Bank provided funding, and therefore failed to show causation and redressability. For one, the plaintiffs couldn't show "what action could be taken by the Ex-Im Bank to alter the course of the Projects, if the Bank were to perform the procedures" under the Acts. For another, the plaintiffs "have not established that the Ex-Im Bank was a necessary party without whom the Projects would not have been realized." Both problems resulted from the plaintiffs' failure to develop the record--the funding contracts themselves (to show what Ex-Im might do if the procedures were followed) and evidence of alternative project funding (to show the significance of Ex-Im's loans on the projects).
At the same time, the court held that the case was not moot. That's because the record didn't show whether Ex-Im continued to have some leverage over the borrowers, even though the project is now complete and at least some of the loans are fully repaid.
Thursday, June 28, 2018
The Seventh Circuit earlier this week narrowed the nationwide injunction against AG Sessions's crackdown on Chicago's sanctuary-cities practices so that it now only applies "as to the imposition of the conditions on the City of Chicago," and not the "geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court."
The ruling means that the injunction now applies only to Chicago, and not nationwide.
The ruling gave no reasons for restricting the injunction. Recall that on Tuesday, in the travel ban case, the Court declined to address the issue of whether a lower court can issue a nationwide injunction. (It didn't have to rule on this, because it upheld the travel ban.)
Sunday, June 24, 2018
Check out the back-and-forth between Joshua Matz (at Take Care) and Jonathan Adler (at Volokh) on Justice Kennedy's broadside in his Pereira concurrence this week against Chevron deference to administrative interpretations. Justice Kennedy wrote separately--joined by no one, but citing Chevron-critical opinions by Chief Justice Roberts and Justices Thomas and Gorsuch--that
it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.
Friday, June 22, 2018
The Supreme Court ruled today in Ortiz v. United States that a military officer could serve on both the military Court of Criminal Appeals (as an inferior officer) and the Court of Military Commission Review (as a principal officer) without violating the Appointments Clause. The ruling also says that the dual appointment didn't violate federal statutory law.
The ruling leaves in place a conviction upheld by a CCA panel that included an officer who also had an appointment on the CMCR (which reviews military commission decisions--different than court martial rulings--out of Guantanamo Bay).
But before the Court said anything about the dual appointment, it said quite a bit about its jurisdiction to hear the case. Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, wrote that the Court (the top of the Article III branch) had jurisdiction over the appeal from the military courts (located in Article I), because "the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." The Court thus rejected arguments by amicus Professor Aditya Bamzai that the Court lacked jurisdiction over military-court appeals because military courts aren't Article III courts. (The argument is substantially more complicated than that; check out the opinion, and Prof. Bamzai's brief.) Justice Thomas concurred, basing his conclusion that military courts exercise a judicial function (and therefore that the Court can exercise appellate jurisdiction over them) on his originalist argument that adjudicating "private" rights is a core judicial function. Justice Alito, joined by Justice Gorsuch, dissented, arguing that military courts can't exercise judicial power, because that would violate the separation of powers:
Today's decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests "[t]he Judicial Power of the United States"--every single drop of it--in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
On the merits, the Court held that the dual appointment didn't violate the Appointments Clause. The reason is easy: That Clause simply doesn't forbid dual service, even when one office is an "inferior office" and the other is a "principal office," especially so long as the two offices have nothing to do with each other:
The problem, [petitioner] suggests, is that the other (inferior officer) judges on the CCA will be "unduly influenced by" Judge Mitchell's principal-officer status on the CMCR.
But that argument stretches too far. This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of "incongruity" or "incompatibility" to test the permissibility of holding two offices. As Ortiz [the petitioner] himself acknowledges, he can "cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service."
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell's service on the CMCR would result in "undue influence" on his CCA colleagues. The CMCR does not review the CCA's decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell's views because he also sat on the CMCR . . . . The CAAF put the point well: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." So there is no violation of the Appointments Clause.
The Court also ruled that the dual appointment didn't violate federal statutory law.
June 22, 2018 in Appointment and Removal Powers, Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Thursday, June 14, 2018
Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.
The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.
The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.
The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."
But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):
[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.
The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.
June 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, May 30, 2018
Judge Colleen Kollar-Kotelly (D.D.C.) today tossed two lawsuits filed by Kaspersky Lab arising out of the government's rejection of Kaspersky products. The ruling ends Kaspersky's challenges and means that the federal prohibition on government use of Kaspersky products stays on the books.
Kaspersky Lab, the Russian cyber-security firm, filed its first suit in response to the Department of Homeland Security's Binding Operative Directive that required all federal departments and agencies to stop using Kaspersky products. DHS issued the BOD out of concern that Kaspersky products on the government's networks and computer systems could create a security risk. Kaspersky argued that the BOD violated the Administrative Procedure Act and the Fifth Amendment.
Kaspersky filed its second suit in response to the National Defense Authorization Act, which also prohibited the government from using Kaspersky products. (The NDAA contained a somewhat broader prohibition, effective October 1, 2018.) Kaspersky argued that the NDAA was an unconstitutional bill of attainder.
The court ruled first that the NDAA did not violate the Bill of Attainder Clause, because the prohibition wasn't "punishment" under any of the three tests adopted by the D.C. Circuit (the "Historical Test," the "Functional Test," or the "Motivational Test"). The court dismissed this suit.
The court next ruled that Kaspersky lacked standing to challenge DHS's BOD, because any ruling in its favor wouldn't redress its harm. In particular, the court said that revoking the BOD wouldn't do anything to allow Kaspersky to sell its products to the government, because the (valid) prohibition in the NDAA would prohibit that. The court said that the government, knowing that the NDAA's ban takes effect on October 1, 2018, wouldn't purchase any Kaspersky products in the interim.
The ruling means that the bans on Kaspersky products stay on the books, and the government must remove all Kaspersky products from its systems.
Sunday, April 29, 2018
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed Paul Manafort's civil case challenging the appointment of Robert Mueller as special counsel, and therefore Meuller's authority to prosecute him. The ruling will almost certainly withstand any appeal and thus ends Manafort's civil challenge to Mueller's authority. It has no effect on Manafort's criminal case, or his ability to challenge Mueller's authority in that case.
Manafort original pleading challenged his indictment and future actions by Mueller, arguing that Mueller's appointment was invalid and that his indictment exceeded Mueller's authority. But Manafort subsequently refined his claim and sought only prospective relief: an order declaring Mueller's appointment order invalid (but only as to paragraph (b)(ii), authorizing the Special Counsel to investigate "any matters that arose or may arise directly from the investigation") and "enjoining the Special Counsel's future ultra vires exercise of authority under that Order." Manafort backed away from his earlier and much broader claims, because circuit law would certainly foreclose those. But by seeking only prospective relief, Manafort did himself in.
Judge Jackson ruled that "Manfort's situation falls squarely within the scope of" Deaver v. Seymour, the 1987 case in which the D.C. Circuit extended Younger abstention and held that the subject of a criminal investigation cannot bring a civil action to attack an impending federal prosecution (except when the criminal case chilled First Amendment rights, not applicable here). In short:
[A] civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.
Moreover, Judge Jackson ruled that Manafort lacked standing, because he couldn't plead imminent harm, and because his claim wasn't ripe. (Remember that he refined his case to ask for only prospective relief.)
Thursday, April 26, 2018
The Supreme Court this week upheld a congressionally authorized practice called "inter partes review" that allows for reconsideration and cancellation by the Patent and Trademark Office of an already-issued patent. The Court said that inter partes review didn't violate Article III (by assigning a role of the judiciary to the PTO) or the Seventh Amendment.
The case tested inter partes review against Article III, on the argument that inter partes review represents an impermissible delegation of a core judicial function to an executive agency.
The Court, drawing on precedent, said that patents fell within the "public-rights doctrine," which permits executive or legislative bodies to determine matters "arising between the government and others." And moreover, inter partes review "involves the same basic matter as the grant of a patent" in the first place, and is therefore only a kind of "second look at an earlier . . . grant" by the PTO.
Justice Breyer wrote a concurrence, joined by Justices Ginsburg and Sotomayor, saying that "the Court's opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts."
Justice Gorsuch, joined by Chief Justice Roberts, dissented, arguing that the practice cut into the unique Article III role and independence of the courts and impermissibly assigned the role to the PTO. (Chief Justice Roberts and Justice Gorsuch (joined by Justice Kennedy) also dissented in Patchak, the case earlier this Term holding that a congressional act instructing courts to dismiss a certain class of cases didn't violate Article III, even when the act was targeted at a particular pending case, for similar reasons. These dissents are well worth a read.)
Monday, April 23, 2018
The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.
The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of "monkey selfies." Naruto, through his next of friend PETA, sued for copyright infringement.
The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands--the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world's whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes--and went on to urge the Ninth Circuit to reverse that precedent.
But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn't permit a monkey to sue. It dismissed Naruto's case on this ground.
The court ruled that PETA didn't have next-of-friend standing, because it didn't assert a relationship with Naruto, and because "an animal cannot be represented, under our laws, by a 'next friend.'"
Thursday, April 19, 2018
The Seventh Circuit today affirmed a lower court's nationwide injunction against two portions of Attorney General Jeff Sessions's clamp-down on sanctuary cities. The ruling--a significant victory for Chicago and other sanctuary jurisdictions--means that the government cannot enforce the "notice" and "access" conditions on sanctuary cities' receipt of federal law-enforcement JAG grants.
Recall that the lower court ruled that Chicago demonstrated a likelihood of success in its challenge to two key conditions that AG Sessions imposed on sanctuary cities--the notice condition and the access condition--and imposed a nationwide preliminary injunction against the enforcement of those conditions. (The notice condition requires sanctuary jurisdictions to comply with a DHS request to provide advance notice of any scheduled release date and time for a particular alien. The access condition requires sanctuary jurisdictions to allow federal agents to have access to any correctional facility to meet with aliens and interrogate them.) (The lower court did not enjoin the enforcement of the third condition, that sanctuary jurisdictions certify compliance with 8 U.S.C. Sec. 1373.)
The government argued that the lower court erred on the merits and that it exceeded its authority in issuing a nationwide injunction. The Seventh Circuit disagreed on both counts.
The court ruled that AG Sessions lacked unilateral authority to impose the notice and access conditions on receipt of a federal grant, because that's Congress's job:
The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.
The court found nothing in the INA that authorized the AG to impose these conditions, and it rejected the government's claim that general statutory authority for the Assistant Attorney General, under 34 U.S.C. Sec. 10102(a)(6), authorized the AG to impose these conditions. That subsection says that "[t]he Assistant Attorney General shall . . . exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants." (Emphasis added.) The court said that "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open-ended authority to impose additional conditions."
Two judges went on to say that the district court was well within its authority to grant a nationwide injunction:
The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.
Judge Manion dissented from this portion of the ruling.
Wednesday, April 11, 2018
Judge Colleen Kollar-Kotelly (D.D.C.) ruled yesterday that an attorney appearing pro se lacked standing to sue President Trump for alleged deficiencies in his financial disclosure report that he was required to file as a candidate. The ruling ends this challenge.
The case, Lovitky v. Trump, arose when attorney Jeffrey Lovitky obtained a copy of then-candidate Trump's financial disclosure report from the Office of Government Ethics and discovered what he believed to be deficiencies in the reporting. Lovitky sued, arguing that the report included President Trump's personal debts and business debts, and that this "commingl[ing]" of personal and non-personal liabilities "mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [federal law]." Lovitky sought mandamus relief that would "direct the President to amend his financial disclosure report . . . for the purpose of specifically identifying any debts he owed during the [relevant] reporting period." Lovitky also sought declaratory relief.
The court ruled that Lovitky lacked standing to sue, because his requested relief wouldn't redress his claimed injuries. (The court didn't address whether he had a sufficient injury for standing purposes, because he lacked redressability.) As to mandamus, the court surveyed circuit law allowing mandamus against the president as to a ministerial duty, but, quoting the D.C. Circuit, noted that "[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good law after [the Supreme Court's plurality opinion in Franklin v. Massachusetts]." Ultimately, the court said that because of this ambiguity it "would hesitate to issue mandamus even if Defendant's duty to specifically disclose personal liabilities were ministerial, but because the Court has found that it is a discretionary duty, the Court cannot do so."
As to declaratory relief, the court noted that it, too, wasn't obviously available against the president post Franklin. Regardless, the court said that because mandamus wasn't available, and because the Declaratory Judgment Act doesn't create an independent basis for jurisdiction, declaratory relief had no jurisdictional hook, and the court therefore lacked jurisdiction.
Thursday, March 29, 2018
Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.
The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.
As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,
Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"
Wednesday, March 28, 2018
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.
The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.
The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.
The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."
The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.
The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.
But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.
Monday, March 19, 2018
Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.
The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.
The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."
The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.
While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.
Friday, March 16, 2018
The Fourth Circuit ruled this week in Kenny v. Wilson that a group of primary and secondary school students had standing to lodge a facial First Amendment challenge against South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law." The ruling says nothing about the merits, however; that's for remand. (Although it's kind of hard to see how these laws aren't unconstitutionally vague.)
The laws are basically what their titles imply. The Disturbing Schools Law makes it unlawful
(1) for any person willfully or unnecessarily (a) to intefere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) or loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
The Disorderly Conduct Law says:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
Plaintiffs-students lodged facial vagueness challenges to the laws, after they were disciplined for violations. But they sought declaratory and injunctive relief, not damages, so standing became an issue.
The court said that they had standing, for two independent reasons. First, the court said that they had standing under Babbitt v. Farm Workers, because "[t]hey attend school without knowing which of their actions could lead to a criminal conviction," and "there is a credible threat of future enforcement" that's not "imaginary or wholly speculative." Next, the court said they had standing because the plaintiffs alleged an "ongoing injury in fact" based on a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression."
Friday, March 9, 2018
The Ninth Circuit ruled this week that victims of a commercial web-site hacking have standing to sue the site for failure to secure their personal information, even though their information hasn't (yet) been used for identity theft. Importantly, the court distinguished Clapper v. Amnesty International. The ruling aligns with similar cases out the D.C. and Seventh Circuits.
The case, Stevens v. Zappos.com, arose when hackers stole personal information from the retailer-web-site. Victims brought two kinds of claims against the retailer: claims based on theft of their personal information that led to actual financial loses from identity theft; and claims based on theft of their personal information without allegations of actual financial losses from identity theft. The lower court held that the first group had standing, but the second did not. So they appealed.
The Ninth Circuit reversed. The court said that its own case, Krottner v. Starbucks Corp., controlled. Krottner held that employees of Starbucks had standing to sue based on "the increased risk risk of future identity theft" after a company laptop containing their personal information was stolen.
The court explained why Krottner was still good law after Clapper v. Amnesty International:
Unlike in Clapper, the plaintiffs' alleged injury in Krottner did not require a speculative multi-link chain of inferences. The Krottner laptop thief had all the information he needed to open accounts or spend money in the plaintiffs' names--actions that Krottner collectively treats as "identity theft." Moreover, Clapper's standing analysis was "especially rigorous" because the case arose in a sensitive national security context involving intelligence gathering and foreign affairs, and because the plaintiffs were asking the courts to declare actions of the executive and legislative branches unconstitutional. Krottner presented no such national security or separation of powers concerns.
And although the Supreme Court focused in Clapper on whether the injury was "certainly impending," it acknowledged that the other cases had focused on whether there was a "substantial risk" of injury. Since Clapper, the Court reemphasized in Susan B. Anthony List v. Driehaus that "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending,' or if there is a 'substantial risk that the harm will occur.'"
Monday, February 26, 2018
Judge Randolph D. Moss (D.D.C.) today (almost) dismissed the challenge to President Trump's executive order that requires agencies to repeal two regulations for every new one they adopt. Judge Moss ruled that the plaintiffs lacked standing . . . for now, at least.
Recall that Public Citizen and others sued President Trump, arguing that the EO violated the separation of powers, the Take Care Clause, and the Administrative Procedure Act. The government moved to dismiss for lack of standing. Today the court agreed.
The court ruled that the plaintiffs lacked associational standing, because they failed to identify particular members who would be harmed, to plead facts sufficient to show that the relevant agency would've issued a new rule even without the EO, and to allege that any delay of the regulatory action attributable to the EO would substantially increase the risk of harm to their members. The court also ruled that they lacked organizational standing, because "[t]he burden of merely considering [the cost of the EO], however, is insufficient to establish organizational standing."
But the court stopped short of entering a final judgment. Instead, Judge Moss set a March 1 hearing where the parties and the court can determine what to do next, including, possibly, dismissing the complaint with leave to file a new one.
Judge William Q. Hayes (S.D. Cal.) on Friday dismissed a challenge to a city's new single-member districts for its city council elections for lack of standing. The ruling means that the city's new districting plan stays in place.
The case, Higginson v. Becerra, arose when the City of Poway switched from at at-large system to a single-member-district system of elections for its four-member city council. The City made the change reluctantly, and only in response to threatened litigation by a private attorney, who wrote to the council that its at-large system violated the California Voting Rights Act. (The attorney argued that the at-large system, along with racially polarized voting in the City, effectively prevented Latinos from electing a candidate of their choice.) The council vigorously disagreed that its at-large system violated the CVRA, but agreed to change, anyway, in order to avoid litigation costs.
After the council drew its new single-member districts, Don Higginson, a voter in the new District 2, sued, arguing that the CVRA violated equal protection. His theory was a little unusual: "The CVRA makes race the predominant factor in drawing electoral districts. Indeed, it makes race the only factor given that a political subdivision, such as the City, must abandon its at-large system based on the existence of racially polarized voting and nothing more." (In other words: according to Higgerson, because there was racially polarized voting, any CVRA requirement to undo the effects of that voting in an at-large system violated equal protection.)
Higginson sued AG Becerra for injunctive relief (to stop him from enforcing the CVRA) and the City for injunctive relief (to stop it from using its single-member district map, as required by the CVRA (according to Higgerson)).
The court dismissed the case for lack of standing. The court said that Higginson's harm in not being able to vote for council-members in three of the four districts (because the CVRA required the change to single-member districts)--assuming this was even a cognizable harm--wasn't traceable to AG Becerra or the City. As to AG Becerra, the court said that the AG had not enforced the CVRA against the City, and therefore couldn't have caused Higginson's alleged harm. As to the City, the court said that it acted out of a desire to avoid litigation costs, not because it thought its at-large system violated the CVRA, and therefore it couldn't have caused his alleged harm in the name of CVRA compliance. (For the same reasons, the court said that Higginson failed to demonstrate that his requested relief would redress his alleged harm.)
Without causation and redressability, Higginson lacked standing, and the court dismissed the case.
The Supreme Court today declined to weigh in on a district court's preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the recession on September 5, 2017." We posted on that injunction here; we posted on a similar injunction out of the Eastern District of New York here.
DOJ asked the Court to review Judge Alsup's injunction, even before the Ninth Circuit had its own say--a request that the Court only rarely grants. Today the Court denied the request.
The Court's brief order simply denied certiorari before judgment, without dissent. It also sent this signal to the Ninth Circuit: "It is assumed that the Court of Appeals will proceed expeditiously to decide this case."
This means that the Court will almost certainly weigh in eventually, but only after the Ninth Circuit has had its own bite at the apple. In other words: today's denial telegraphs nothing about the Court's views on the merits.
The government will press its appeal at the Ninth Circuit. But in the meantime, Judge Alsup's injunction stays in place, and Dreamers can continue to renew. (DOJ didn't seek a stay of Judge Alsup's ruling, so it remains effective unless and until it's stayed or overturned.)
Friday, February 16, 2018
The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.
The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)
The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.
The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)
The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:
Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."
We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.
The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.
The ruling means that the Hagys' case is dismissed.