Friday, January 29, 2016
The D.C. Circuit ruled today in In Re: Idaho Conservation League that environmental organizations had standing to challenge EPA's failure to issue financial assurance regulations under CERCLA, and that the court could therefore grant the parties' joint motion for an order establishing an agreed upon schedule for rulemaking.
The upshot is that the court now approved the parties' agreement that the EPA will commence rulemaking to issue financial assurance regulations for the hardrock mining industry, and that the agency will consider whether other industries should be involved with financial assurance rulemaking.
The standing part of the ruling hinges on financial incentives: The plaintiffs had standing not because new regs would certainly redress their injuries, but because they created a financial incentive to.
The case involves a CERLCA requirement that EPA issue "financial assurance" regulations--so that entities potentially responsible for the release of hazardous substances can put aside funding, or demonstrate that funding is available, for cleanup. But despite the statutory requirement, EPA never got around to issuing the regs.
Enter the plaintiff environmental organizations. They sued, seeking a court order to force EPA to commence rulemaking. After oral argument, the parties agreed on a schedule for rulemaking for the hardrock mining industry, and a timetable for EPA to determine whether to engage in financial assurance rulemaking for any of three other industries under consideration.
But the court had to satisfy itself that it had jurisdiction before it would sign off. In particular, the court said it had to determine if at least one of the plaintiffs had standing.
The court said at least one did. The court said that at least one of the plaintiff organizations had at least one member who suffered harm, because the member was affected by hazardous releases from hardrocking mining. The court went on to say that EPA's financial assurances regs would redress that harm, because the regs would create a financial incentive to decrease pollution. Here's the court:
With respect to mitigating ongoing hazardous releases, the lack of financial assurance requirements causes mine operators to release more hazardous substances than they might if such financial assurance requirements were in place. . . . . In view of [mine operators' common practice of dodging cleanup costs by declaring bankruptcy and sheltering assets], financial assurances would strengthen hardrock mining operators' incentives to minimize ongoing hazardous releases. By making it more difficult for mine operators to avoid paying for the cleanup of their hazardous releases, basic economic self-interest means the operator will take cost-effective steps to minimize hazardous releases in order to minimize their environmental liabilities.
According to the court, it "has long relied on such economic and other incentives to find standing," and "[t]his incentives-based theory of standing is further supported by congressional and agency assessments." This is so, said the court, even though hardrock mining is already subject to some financial assurance requirements. That's because the new regs will fill the gaps in protection.
The court said that the regs would also expedite cleanup efforts, thus reducing the time that plaintiffs are exposed to hazards.
The ruling gives the force of a federal court order to the parties' agreement that EPA will commence rulemaking on financial assurances for hardrock mining, and will consider adding other industries.
Wednesday, January 20, 2016
The Supreme Court ruled today that a plaintiff's case does not become moot when the plaintiff rejects an offer of settlement for complete relief. The ruling means that a case can go on, even after a plaintiff rejects an offer of complete relief.
The ruling is a huge victory for plaintiffs, especially plaintiffs who might lead a class-action. It's also a sharp rebuke of the defense-side tactic to moot out a case or class action by offering full relief to the lead plaintiff--a tactic known as pick-off. By ruling for the plaintiff, and by rejecting the pick-off tactic, today's ruling is also a victory for access to justice, and stands in contrast to the spate of other Court rulings limiting access and favoring corporate defendants.
The case arose when Jose Gomez received an unwanted Navy recruitment text on his cell phone from Navy contractor Campbell-Ewald. Gomez sued Campbell-Ewald under the Telephone Consumer Protection Act. Before Gomez could move for class certification, however, the defendant offered complete relief; Gomez rejected the offer; and the defendant moved to dismiss the case as moot.
The Court ruled that the case was not moot. Justice Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote that under basic contract principles, Campbell-Ewald's offer, once rejected by Gomez, had no continuing effect. With no settlement offer on the table, the parties retained the adversity necessary for an Article III case or controversy--so the rejected offer didn't render the case moot.
Justice Thomas concurred separately to argue that the result should "rest instead on the common-law history of tenders," not contract principles.
Chief Justice Roberts, joined by Justices Scalia and Alito, dissented. The Chief wrote that the rejected settlement offer meant that there was no longer any real dispute in the case:
If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell agreed to fully satisfy Gomez's claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case.
Wednesday, January 6, 2016
Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."
Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage. After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue. Recall that the United States Supreme Court declined to stay the federal judge's judgment. Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.
Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions. Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.
January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)
Friday, December 18, 2015
Judge Royce Lamberth (D.D.C.) ruled yesterday that the district court lacked jurisdiction over a Guantanamo detainee's habeas claim seeking his periodic review, as ordered by President Obama.
The ruling in Salahi v. Obama leaves Guantanamo detainees without a way to enforce the Periodic Review Board process set by executive order by President Obama.
Recall that President created an interagency process in 2011 to periodically review whether continued detention of certain Guantanamo detainees was "necessary to protect against significant threat to the security of the United States." Under EO 13567, every detainee was to get a full hearing every three years from a PRB, plus interim review under certain circumstances.
Salahi has been detained at Guantanamo since 2002, without charges, and has yet to have a PRB hearing (or even have one scheduled). He filed a habeas claim in the D.C. District seeking, among other things, a scheduled PRB hearing.
The court rejected his claim. The court said that "probabilistic" claims--that is, claims that only might lead to release--don't fall within habeas, and that in any event the EO didn't create any substantive rights that a Guantanamo detainee might actually enforce in court.
The upshot is that while the President may order periodic review, that doesn't mean that detainees can actually get it.
Monday, November 9, 2015
A sharply divided panel of the Fifth Circuit ruled today that states had a substantial likelihood of success on the merits in their case against the President's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The ruling affirms a nationwide injunction issued by the lower court and means that the government is barred from enforcing DAPA across the country--unless and until the government files for and wins a stay and appeals.
The ruling is a win for plaintiff-states that don't like DAPA and a loss, though perhaps not unexpected (at the conservative Fifth Circuit), for the government.
The dispute between the majority and the dissent on the merits comes down to whether DAPA is really an exercise of discretionary non-enforcement (majority says no; dissent says yes) and whether DAPA violates federal law (majority says yes; dissent says no). The majority and dissent also dispute the states' ability to bring the suit in the first place, or their standing.
This ruling is surely not the last say on the question; this case is undoubtedly going to the Supreme Court.
The court issued four key holdings. First, the court said that the states had standing, and that the case is justiciable. Next, the court said that DAPA likely violated notice-and-comment rules of the APA. Third, the court said that DAPA likely violated federal law (the Immigration and Naturalization Act) and therefore violated substantive APA requirements. Finally, the court said that the district court was within its discretion to issue a nationwide injunction.
The court did not address the plaintiffs' Take Care Clause challenge.
As to standing, the court said as an initial matter that the states were due "special solicitude" for standing under Massachusetts v. EPA. The court went on to say that the states had standing because DAPA would require them to issue drivers licenses to DAPA beneficiaries, because DAPA would "impos[e] substantial pressure on them to change their laws" for drivers licenses, and because the states "now rely on the federal government to protect their interests" in immigration matters.
On the procedural APA claim, the court ruled that the states "established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion," despite conflicting evidence on the point, apparently ignored by the lower court. The court also ruled that DAPA is a substantive rule (and not procedural), because "receipt of DAPA benefits implies a 'stamp of approval' from the government and 'encodes a substantive value judgment,' such that the program cannot be considered procedural." As a result, according to the court, DAPA was subject to APA notice-and-comment rulemaking, and, because the government didn't use notice and comment, the states had a substantial likelihood of success on their procedural APA claim.
On the substantive APA claim, the court said that DAPA is "manifestly contrary to the [Immigration and Naturalization Act]," in particular, the INA's "specific and intricate provisions" that "directly addressed the precise question at issue." The court rejected the government's claim that DAPA is consistent with historical practice.
Importantly, the court did not "address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA . . . ." It only concluded "that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens."
Finally, the court said that the district court could issue a nationwide injunction, because, in short, immigration is a nationwide issue that calls for uniform regulation.
Judge King wrote a lengthy and sharp dissent, challenging the majority at each turn.
Monday, November 2, 2015
The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.
The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.
(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)
The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).
Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.
Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:
Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."
And we distinguished that from procedural requirements in vacuo.
. . .
Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.
Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.
On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:
Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?
Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.
Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.
Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:
Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.
. . .
And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.
The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.
November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Friday, October 30, 2015
The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."
The ruling is a victory for the association and allows the case to go forward on the merits.
The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."
The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.
The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.
The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."
You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:
To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.
The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.
Monday, October 26, 2015
The D.C. Circuit on Friday ruled in a fractured opinion that a U.S. citizen secretly detained, transferred involuntarily between countries, and threatened with torture by FBI agents did not have a claim for violation of the Fourth Amendment in federal courts. That's because "special factors" counseled against such a remedy under Bivens v. Six Unknown Agents.
The ruling means that Plaintiff Meshal's case is dismissed, and leaves him without a remedy. It also makes it yet even more difficult for plaintiffs like Meshal to get their cases heard in federal court.
The FBI originally detained and held Meshal because of his alleged connections to al Qaeda; it later released him without charges.
The court wrote that Meshal's claim involved a "new context" for Bivens--a strike against him right out of the gate:
Not only does Meshal's claim involve new circumstances--a criminal terrorism investigation conducted abroad--it also involves different legal components--the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both--another signal that this context is a novel one.
Because the case arose in a "new context," the court looked to special factors counseling against a Bivens remedy. And it found two, which, taken together, left Meshal without a Bivens cause of action: (1) the case involves "the military, national security, or intelligence," and (2) the conduct occurred outside the borders of the United States. The court also said that a host of "practical factors" counseled against a Bivens remedy, including requiring the court to second guest executive officials operating in foreign justice systems, unknown diplomatic consequences of the suit, and forcing the courts to answer hard questions about the extraterritorial application of the Constitution outside of peacetime.
Judge Kavanaugh wrote separately to especially emphasize the military, counter-terrorism, and foreign context of the suit--the "new context" that triggered the special factors analysis and weighted so heavily against a Bivens claim.
Judge Pillard wrote a lengthy and scathing dissent, dissecting the court's analysis point-by-point. Judge Pillard was particularly concerned about the blind judicial deference to the government's mere invocation, without reasonable explanation, of foreign policy and national security as special factors counseling against a Bivens remedy. She summed up the strange and deeply disturbing result:
Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.
Tuesday, October 13, 2015
Judge James E. Boasberg (D.D.C.) ruled today that an individual plaintiff lacked standing to sue House Speaker John Boehner and Senate Majority Leader Mitch McConnell to force them to call a constitutional convention. But the ruling doesn't end the matter: the case now goes back to D.C. Superior Court under the federal statute that allowed the defendants to remove to federal court in the first place.
Repeat plaintiff Montgomery Blair Sibley, described by the court as "a United States citizen with a propensity for filing unmeritorious lawsuits," sued Boehner and McConnell, arguing that thirty-five states have voiced their support for a constitutional convention, "some as far back as 1901 (Minnesota), some as recently as 1979 (Mississippi)." But Sibley argued that the congressional leaders failed to call a convention, as required by Article V. ("The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .")
While Sibley filed first in D.C. Superior Court, Boehner and McConnell removed the case to federal court under a federal statutes that allows removal of suits in state court against any officer of either House of Congress. They then moved to dismiss, arguing that Sibley lacked standing, that they're protected by the Speech and Debate Clause, and that the case raises a non-justiciable political question.
Judge Boasberg ruled only on standing, and said that Sibley lacked it. (The ruling was even easier than it looks, as it turned out, because Sibley conceded the point early in the lawsuit.)
But Judge Boasberg also remanded the case to D.C. Superior Court, because the statues that allowed removal also required remand, and because Judge Boasberg held that there was no futility exception.
Still, the D.C. court is almost certain to dismiss the case, if only because D.C. law on standing follows the federal courts.
Tuesday, September 29, 2015
The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.
The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.
The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.
The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.
The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."
The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:
We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."
Tuesday, September 22, 2015
The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.
The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.
The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).
Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)
The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")
The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.
Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."
Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."
Friday, September 18, 2015
The Second Circuit this week ruled that a state does not waive its general state sovereign immunity (as opposed to its Eleventh Amendment sovereign immunity) when it removes a case to federal court.
The ruling is a win for the states and adds to the apparent weight of authority in the circuits. Still, the Second Circuit noted that "there has . . . been some confusion in the Circuit Courts" on the question, inviting the Supreme Court to clarify.
The case started with state employees' Fair Labor Standards Act case against Vermont in state court. Vermont removed the case to federal court, declined to assert any form of sovereign immunity, and even at one point represented that it wouldn't assert Eleventh Amendment immunity (as a result of its removal to federal court). Then it asserted general common law state sovereign immunity and moved to dismiss.
The Second Circuit dismissed the case. The court said that while Vermont waived its Eleventh Amendment immunity by virtue of its removal to federal court (under Lapides v. Board of Regents), it did not waive its general state sovereign immunity by virtue of removal. The court noted that the state in Lapides had already waived its general state sovereign immunity, so did not support the plaintiffs' position that Vermont waived immunity (because Vermont had not previously waived its general state sovereign immunity). The court also said that the circuits that have considered the question have ruled that a state does not waive its general state sovereign immunity by virtue of removal (even if it waives Eleventh Amendment immunity by virtue of removal)--even while noting that there's some confusion in the circuits on how to apply Lapides.
The court said that both logic also supported its result:
A state defendant sued in state court, when entitled to remove the suit to federal court, may well wish to do so in the belief that its entitlement to have the suit dismissed by reason of the state's sovereign immunity, an entitlement largely elaborated by federal courts, will be better protected by the federal courts than by courts of the state.
The court also rejected the plaintiffs' arguments that Vermont's foot-dragging on asserting immunity amounted to a waiver and that Vermont expressly waived immunity.
Wednesday, September 9, 2015
Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.
The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.
But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.
And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.
The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.
As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.
As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)
The Secretaries filed a motion to dismiss for lack of standing.
Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:
Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.
As to the employer mandate claim, she said,
The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."
We'll watch this case on appeal.
September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, August 12, 2015
The D.C. Circuit ruled this week in PETA v. USDA that the animal-rights organization had standing to challenge the USDA's decade-long foot-dragging in regulating birds under the Animal Welfare Act. But at the same time, the court ruled against PETA on the merits. The case means that PETA's claim is dismissed; it's a significant set-back in the effort to get the USDA to regulate birds under the AWA.
PETA alleged that the USDA violated the Administrative Procedure Act by failing to write avian-specific animal welfare regulations under the AWA. PETA argued that the agency "unlawfully withheld" action in violation of section 706(1) of the APA. The USDA moved to dismiss for lack of standing and on the merits.
The D.C. Circuit ruled that PETA had organizational standing, because the USDA's inaction prevented PETA from protecting birds. The court explained:
Because PETA's alleged injuries--denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse--are "concrete and specific to the work in which they are engaged," we find that PETA has alleged a cognizable injury sufficient to support standing. In other words, the USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has "perceptibly impaired [PETA's] ability" to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public. Because PETA has expended resources to counter these injuries, it has established Article III organizational standing.
But even as the court said that PETA had standing, it ruled in favor of the USDA on the merits. The ruling means that PETA's complaint against the agency is dismissed.
Friday, July 24, 2015
The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.
The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.
We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)
The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.
Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)
Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.
Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.
The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).
But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."
The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.
July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)
Thursday, July 9, 2015
Judge Ellen Segal Huvelle (D.D.C.) yesterday reaffirmed that torture victims lack a remedy in the federal courts. Judge Huvelle applied circuit precedent and granted the government's motion to dismiss Mohammed Jawad's torture claims against government officials. The ruling ends Jawad's case, unless and until he appeals.
The case is not surprising, given the state of the law, but it is disturbing: it reaffirms (yet again) that torture victims lack a judicial remedy.
Jawad claimed that government officials authorized his torture at Guantanamo Bay, before and after designating him an "enemy combatant" and before releasing him as no longer "legally detainable" after over six years in detention. Jawad claimed that officials violated the Alien Tort Claims Act, the Federal Tort Claims Act, the Torture Victims Protection Act, and the Fifth and Eighth Amendment.
Judge Huvelle rejected all these claims. Judge Huvelle denied Jawad's FTCA claims, because she said that government officials were acting within the scope of their employment--torture, evidently, is within the scope of employment to maintain order and discipline at Guantanamo--and because the government's waiver of immunity under the FTCA doesn't apply outside the United States. Judge Huvelle denied the TVPA claim, because U.S. officials weren't acting under the law of a foreign nation, as required by the TVPA. And she denied Jawad's constitutional claims, because she said that special factors counseled against extending a Bivens remedy.
Judge Huvelle also ruled that Jawad's claims are foreclosed by the Military Commissions Act, which bars non-habeas claims against the government or its agents related to "conditions of confinement of an alien . . . who was properly detained as an enemy combatant . . . ." Judge Huvelle said that the government never disavowed its classification of Jawad as an enemy combatant, even though the government later said that he was no longer legally detainable.
The ruling is hardly a surprise, given circuit precedent and the state of the law. But it is disturbing: It says (yet again) that torture victims don't have a judicial remedy.
Wednesday, June 17, 2015
The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.
The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.
Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."
The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.
The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."
The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.
The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.
Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.
The court concluded:
The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.
Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.
Judge Reena Raggi dissented.
June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)
Friday, June 12, 2015
The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."
The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.
But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.
The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.
The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.
The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.
Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:
The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.
But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.
Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:
My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.
June 12, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)
Thursday, June 11, 2015
The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.
The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.
Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.
The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:
In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.
The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."
The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.
The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.
Sunday, May 31, 2015
The D.C. Circuit declined to intervene to reverse a lower court ruling that requires the government to move toward releasing videos of forced-feeding of a Guantanamo detainee. The decision means that the government and attorneys for detainee Abu Wa'el (Jihad) Dhiab will have to work together to agree on redactions and a proposal as to "how the videotapes can be made available to the public most efficiently," pursuant to the earlier district court orders.
Still, it may be some time, if ever, before the videos are released. That's because the redaction process could take a long time, even assuming the government doesn't foot-drag or tie up the process in further litigation. Or: after redaction, there may be nothing of substance to release; or the district court might decline to order release pursuant to the agreed-upon process; or the appeals court might reject release when the case inevitably comes back. In short: this is a victory for those seeking release, but it doesn't mean that we'll see release any time soon.
The case, Dhiab v. Obama, grows out of Dhiab's habeas petition, his hunger strike, and the government's efforts to force-feed him. Dhiab moved to stop the forced-feeding, and, in considering that motion, the district court reviewed 32 classified videotapes of Dhiab's forced-feedings. News media organizations intervened to get copies of the tapes, and the district court ordered the parties (1) to cooperate to redact the tapes and (2) to propose how the videos could be released. The order did not specifically require release.
The government appealed, but the D.C. Circuit declined to hear the merits. The appeals court ruled that it lacked appellate jurisdiction over the case, because the district court's orders weren't final, appealable orders (because they didn't conclusively resolve the matter, and the government still had opportunities under the district court orders to challenge the release). The court also ruled that it didn't have mandamus jurisdiction (for largely the same reasons).
The ruling paves the way for the release of redacted videos. But don't expect that to happen any time soon. Redaction will take some time, and even if the government doesn't deliberately foot-drag, redactions and the joint proposal for release will undoubtedly get tied up in lengthy litigation at the district court, and again on appeal.