Friday, October 21, 2016
The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.
The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.
The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.
The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."
More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)
As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)
Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.
As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.
In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.
Wednesday, September 21, 2016
The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.
While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.
The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).
The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.
The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.
The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.
Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.
Friday, September 16, 2016
The Seventh Circuit ruled today that a service-dog owner can't challenge a state judge's order banning the dog from the courtroom in federal district court. The ruling leaves the owner with state-court remedies, but no remedy in federal district court, for this violation of the Americans with Disabilities Act.
The case arose when a state court probate judge ordered Gloria Jean Sykes to stop bringing her service dog, Shaggy, to probate proceedings. Sykes uses Shaggy for assistance with her post-traumatic stress disorder, but the judge nevertheless ordered Shaggy out.
Sykes sued in federal district court, arguing that the judge's behavior toward her (critically questioning her need for Shaggy) and the order violated the ADA. The district court dismissed the case, and Sykes appealed.
The Seventh Circuit ruled that the Rooker-Feldman doctrine barred the suit. The Rooker-Feldman doctrine says that a lower federal court cannot exercise jurisdiction over cases brought by state court losers challenging state court judgments rendered before the district court proceedings commenced. "Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. But even federal claims which were not raised in state court, or that do not on their face require review of a state court's decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment."
The court rejected Sykes's arguments that her ADA claim wasn't intertwined with the state court judgment (the Shaggy ban). In particular, the court rejected her argument that the judge's conduct, not just the order, violated the ADA, and that the practices in the courthouse violated the ADA (in the spirit of Tennesse v. Lane). The court said that the claim and the judgment were still intertwined: "[T]o provide any relief in response to the harm stemming from [the judge's] acts, her court order banning Shaggy would need to be set aside."
The court noted that Rooker-Feldman would permit the suit, for example, if the courthouse "had a policy of banning service animals." The court also noted that Sykes could have sought mandamus in the state courts, pursued an interlocutory appeal in the state courts, or filed a motion for a supervisory order under state court rules.
Thursday, September 15, 2016
Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.
The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.
NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.
The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."
The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.
The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.
Wednesday, September 7, 2016
The Sixth Circuit ruled yesterday that the courts lacked jurisdiction over an anonymous complaint about the lengths of voting lines in Ohio in the 2016 primary election. The ruling means that this strange case is dismissed, and the district court's preliminary injunction keeping polling places open an extra hour is vacated. (That extra hour turns out not to have mattered in the results, anyway.)
The case arose when the district court clerk's office received a late election-day phone call complaining that a traffic accident in the Cincinnati area was making it tough for voters to get to the polls by the 7:30 closing time. The clerk contacted a district court judge, and the judge ordered certain polling places to stay open an extra hour. (Some did, some didn't, because of communications issues.)
The Ohio Secretary of State and two counties covered in the order appealed.
But there was a problem: The case had no plaintiff. (It also had no complaint, no caption, no case.)
The Sixth Circuit ruled that the courts lacked jurisdiction over this kind of phantom suit, because there was no standing. As the court explained, in language that can now go in every Con Law and Fed Courts textbook, "There is no plaintiff with standing if there is no plaintiff."
The majority went on to say that it was impossible to rule on whether the case was moot (under the capable-of-repetition-but-evading-review exception), because "it is impossible to say that this complaining party would not be subjected to the same action again," because, well, there's no plaintiff. (The dissent took issue with this conclusion.)
The court had a pretty simple solution to the jurisdictional issues: The clerk simply could have asked "Who is it?" But, alas, that didn't happen.
Tuesday, September 6, 2016
The D.C. Circuit today dismissed a case challenging Federal Highway Administration guidance allowing digital billboards. The ruling says that Scenic America, a non-profit that "seeks to preserve and improve the visual character of America's communities and countryside," lacked standing to challenge the guidance as violating notice-and-comment rulemaking and that it lost on the merits of its claim that the guidance was promulgated "contrary to law" in violation of the APA.
The ruling means that FHWA guidance that allows digital billboards stays on the books.
Under the federal Highway Beautification Act, the FHWA enters into agreements with states that detail things like size, lighting, and spacing standards for billboards along the interstate highways. Every state has one of these federal-state agreements ("FSA"); most were written in the '60s and '70s. FHWA regs say that states have to implement standards in their FSAs and submit their laws to the FHWA's regional offices for approval.
Nearly all of the FSAs contain a prohibition against "flashing," "intermittent," and "moving" lights.
In 2007, the national FHWA office issued a memo that said that this prohibition did not apply to digital billboards--those billboards lit by LED lights that change pictures every ten seconds or so. The effect of the guidance was to permit digital billboards under the FSAs. (Many states already permitted digital billboards, but at least two (Texas and Kentucky) did not. After the guidance came down, those two states also permitted digital billboards.)
Scenic America sued the FHWA, arguing that the 2007 guidance violated the APA's notice-and-comment requirement and that it violated the HBA.
As to the notice-and-comment claim, the D.C. Circuit ruled that Scenic America lacked standing (both organizational and representational). In particular, the court said that Scenic America's requested relief (vacating the guidance) wouldn't redress its injury (having to work harder to fight digital billboards), because other factors may have driven states to permit digital billboards, and vacating the guidance wouldn't necessarily mean that states would stop permitting digital billboards. In short: "Scenic asserts injuries that stem not directly from the FHWA's issuance of the 2007 Guidance, but from third parties not directly before the court--the Division Offices and the states."
As to the substantive HBA claim, the court ruled that Scenic America had standing, but lost on the merits. The court said that Scenic America had representational standing, because it had a member who was harmed by a digital billboard, and because
[i]f we were to find for Scenic on the merits of its claim, a point we must assume for standing purposes, we could only do so by effectively repudiating the FHWA's interpretation of the FSAs. Repudiation would provide much more robust relief than vacatur [the relief requested in the notice-and-comment claim]. Not only would it prohibit the agency from relying on that interpretation in any future rulemakings, it would also require the agency to subject extant billboards to either removal or an order requiring those billboards to operate in a manner that does not violate the FSAs, for instance by keeping the image displayed by the billboard constant and unchanging. Scenic's injury, clearly caused by the Guidance, is therefore redressable.
The court went on to reject the HBA claim on the merits, however, dealing Scenic America a complete loss in the case.
Friday, September 2, 2016
The Ninth Circuit ruled this week that the up-and-down case against the Native Hawaiian self-governance movement is now moot. The ruling ends the case, and the dispute--at least against Na'i Aupuni, the group supporting and sponsoring the self-governance effort--but leaves a draft constitution out there for potential future action (and likely accompanying future litigation).
The case started when the State of Hawaii enacted legislation and authorized funds to support a Native Hawaiian constitutional-drafting process. The State awarded a grant to Na'i Aupuni to convene a constitutional convention (including running an election for Native Hawaiian delegates) and running a vote on the draft constitution.
Plaintiffs sued, arguing that the process violated equal protection and the Voting Rights Act, because the delegate election discriminated by race. The plaintiffs moved for a preliminary injunction to stop defendants "from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiian." The trial court and Ninth Circuit denied an injunction, but the Supreme Court enjoined the counting of the ballots "pending final disposition of the appeal by" the Court.
At the same time, a separate group of Hawaii residents moved to intervene, arguing that the definition of "Native Hawaiian" was too restrictive.
Na'i Aupuni cancelled the delegate election and instead invited all 196 Native Hawaiian candidates to participate in the convention. (The plaintiffs filed a motion for civil contempt with the Supreme Court, but the Court denied it.) They produced a draft constitution for a Native Hawaiian government. But Na'i Aupuni decided not to run a ratification vote; instead, the group returned the unused grant money to the state and dissolved as an organization.
The plaintiffs then appealed the district court's order denying their motion for a preliminary injunction.
The Ninth Circuit this week ruled that the PI case was moot. The court said that Na'i Aupuni dissolved, and that there were currently no plans for any elections. The court said that it's not a case of voluntary cessation, because "the challenged conduct cannot be reasonably expected to start up again." The court also said that it's not capable-of-repetition-but-evading-review, because "[t]here is no reasonable expectation that the plaintiffs will be subject to the same injury again, given Na'i Aupuni's disavowal of any election."
The court did acknowledge that another group might move forward with a vote at some future time. But not Na'i Aupuni, and not now.
The court also denied the motion to intervene, saying that it, too, was moot. In any event, the prospective intervenors' interests weren't at stake in the litigation.
Saturday, July 16, 2016
The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.
The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.
The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.
The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.
After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:
NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.
The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.
The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).
The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).
Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.
Thursday, July 7, 2016
The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.
At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.
The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.
But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.
Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.
The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.
The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.
The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.
The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.
Tuesday, June 28, 2016
Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales
Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.
The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).
The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)
In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.
Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).
But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:
While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.
Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.
In the meantime, the case can proceed on the merits, though without a preliminary injunction.
Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.
Thursday, June 23, 2016
The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)
While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):
Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.
Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.
The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).
Monday, May 23, 2016
A unanimous Supreme Court ruled today in Wittman v. Personhubalah that three members of Congress from Virginia lacked standing to appeal a federal court's rejection of the state's districting plan. The ruling means that the district court's decision stays in place, and that districting plan designed by a court-appointed special master and approved by the court now sets the lines for Virginia's congressional districts.
In this up-and-down, politically charged case, the Court not only avoided a thorny underlying question of race-based districting (and all the politics that go with it), but it also avoided the hardest standing issues in favor of resolving the case unanimously on narrower standing grounds.
The case involves the state's 2012 redistricting plan, which packed black voters into a certain congressional district. Sponsors of the measure said that they did this in order to comply with the one-person-one-vote principle and to comply with nonretrogression under Section 5 of the Voting Rights Act. A district court struck the plan (twice) as a racial gerrymander, and the state declined to appeal. But Republican members of Congress, who intervened on the side of the state, tried to take the case to the Supreme Court. (In the meantime, a court-appointed special master drew a new district map, and the court approved it.)
The Supreme Court rejected the appeal for lack of standing. The Court said that one member of Congress, who challenged the district court's ruling because it would have made it harder for him to get elected in his current district, lacked standing because he was already running, and would continue to run (irrespective of the Court's ruling), in another district. In other words, that member failed to show that a Court ruling would redress his harm. The Court said that two other members of Congress, who challenged the district court's ruling for the same reason, "have not identified record evidence establishing their alleged harm."
The Court dodged the harder standing issue--whether a representative has been sufficiently harmed based on district lines that would make it less likely that he or she could get elected.
The Court also dodged the underlying issue, whether a race impermissibly dominated when a state's redistricting plan packed black voters into a district for the stated reasons to comply with one-person-one-vote and non-retrogression. The last time the Court took up a similar question, almost exactly a year ago, in Alabama Legislative Black Caucus v. Alabama, the Court also avoided ruling squarely on the merits. Instead, the Court outlined some guiding principles and remanded the case for further proceedings.
Justice Breyer wrote the opinion for the unanimous Court.
Monday, May 16, 2016
The Court said no. It held that "Article III standing requires a concrete injury even in the context of a statutory violation" (emphasis added), but then sent the case back for determination whether there was a concrete injury in this case.
The ruling makes clear that if Robins, the plaintiff, can show a concrete harm, he will have standing. But it makes equally clear that Congress cannot simply create standing by authorizing a new individual cause of action. A plaintiff still has to show a particularized and concrete injury.
The case involves the congressionally-created individual cause of action under the Fair Credit Reporting Act. Under the FCRA, Congress granted adversely affected individuals a right to sue reporting agencies for failure to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Robins sued Spokeo under the provision, arguing that Spokeo posted incorrect information about him on its website. The Ninth Circuit held that Robins had standing.
The Supreme Court today vacated that decision and remanded. Justice Alito wrote for the Court and held that standing requires both a "particularized" injury and a "concrete" injury. The Ninth Circuit analyzed whether Robins's injury was particularized, but not whether it was concrete. Justice Alito wrote that a procedural harm--like the one here, because the FCRA establishes a procedure for reporting agencies to follow--could create a concrete injury, but the Ninth Circuit didn't analyze this in Robins's case. Therefore, the Court remanded to the Ninth Circuit to determine whether Robins sufficiently alleged a concrete harm.
At the same time, Justice Alito made clear that Congress could "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." But if so, a plaintiff still has to sufficiently allege both particularized and concrete injuries to meet the Article III standing requirement. This means that a plaintiff alleging a procedural injury alone wouldn't have standing, but a plaintiff alleging a procedural injury with a concrete and particularized harm would.
Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.
Justice Thomas concurred and reached the same result by drawing on the difference between suits vindicating private rights and suits vindicating public rights. (Justice Thomas's "public rights" are probably broader than procedural claims like Robins's, and so this approach is probably more restrictive on standing.)
Justice Ginsburg dissented, joined by Justice Sotomayor. She argued that Robins sufficiently alleged a concrete harm, and that remand wasn't necessary.
Friday, April 15, 2016
The Supreme Court will hear oral arguments on Monday in United States v. Texas, the challenge to DAPA, the deferred action program for certain unauthorized aliens.The case involves two core issues: Does a state have standing to challenge DAPA; and does DAPA violate the APA or the Take Care Clause?
Here's my oral argument preview in the ABA Preview of United States Supreme Court Cases, with permission:
On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum (called “guidance” by the government) that announced “new policies for the use of deferred action” for certain aliens who are not removal priorities for the Department. The memo directed the U.S. Citizenship and Immigration Services (USCIS) “to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for certain parents of U.S. citizens or lawful permanent residents. The process is called Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.” To qualify, an applicant must (1) be the parent of a U.S. citizen or lawful permanent resident as of November 20, 2014; (2) have continuously resided in the United States since January 1, 2010, or before; (3) have been physically present here on November 20, 2014, and when applying for DAPA; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities (which the Secretary set out in a companion memo, and which include removing aliens who are serious criminals and terrorists); and (6) “present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.” The Secretary’s memo also expanded the criteria for deferred action under the earlier 2012 Deferred Action for Childhood Arrivals policy, or “DACA.”
The Secretary’s memo explained that DAPA would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported” given the Department’s “limited enforcement resources.” Moreover, it would advance “this Nation’s security and economic interests and make common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” The memo emphasized that DAPA does not establish any right to deferred action, and that deferred action “does not confer any form of legal status” and “may be terminated at any time at the agency’s discretion.”
Under longstanding federal law, which recognizes deferred action, an alien with deferred action may apply for work authorization based on economic need. In addition, an alien with deferred action may qualify for certain federal earned-benefit programs that come with lawful work, such as Social Security retirement and disability, Medicare, and railroad-worker programs. But an alien with deferred action is not eligible to receive food stamps, Supplemental Security Income, temporary aid for need families, and many other federal public benefits. And an alien with deferred action is not eligible for any “[s]tate or local public benefit,” although states may voluntarily extend certain benefits to aliens with deferred action. For example, Texas voluntarily permitted an alien with deferred action to apply for and receive a driver’s license, which Texas subsidized.
On December 3, 2014, Texas and other states sued the Department, seeking declaratory and injunctive relief against implementation of DAPA. The plaintiffs alleged that DAPA violated the Take Care Clause of the Constitution and the Administrative Procedures Act. The district court entered a nationwide preliminary injunction against implementation of DAPA.
A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The court ruled that at least one plaintiff, Texas, had standing, because state law would require it to subsidize a driver’s license for an alien with deferred action under DAPA. The court also ruled that the plaintiffs were substantially likely to succeed on their claim that the Department should have used notice-and-comment rulemaking (and not a mere memo by the Director) to implement DAPA. Finally, the court ruled that DAPA was “manifestly contrary” to the Immigration and Naturalization Act.
This appeal followed.
The case involves two principal issues. Let’s take them one at a time.
Under Article III of the Constitution, in order to bring this case in federal court, at least one state has to show (1) that it suffered an actual or imminent “injury in fact,” (2) that DAPA caused, or will cause, the injury, and (3) that the lawsuit will redress the injury. Moreover, in order to sue under the APA, the states’ interests have to fall within the “zone of interests” of the relevant statute, here the INA. The parties frame their arguments around these rules.
The government argues first that no state has Article III standing, because DAPA does not directly injure the states or require them to do anything. The government says that any injury that DAPA causes the states is only indirect and incidental, and that states cannot establish standing on the basis of an indirect or incidental injury from the operation of immigration law (which the Constitution assigns exclusively to the federal government). Moreover, the government asserts that the claimed injury here, Texas’s costs in subsidizing temporary visitor driver’s licenses for aliens, is entirely self-imposed. The government contends that recognizing these kinds of injuries would permit states to force cases over a wide swath of federal programs, essentially allowing states to challenge the federal government at nearly every turn.
The government argues next that the states cannot sue under the APA, because their interests are not within the zone of interests under the INA. The government says that the states’ asserted interests—“reserving jobs for those lawfully entitled to work” and “comment[ing] on administrative decisionmaking”—are different than their interests in Article III standing (discussed above), and that they therefore impermissibly mix-and-match their interests for standing and APA purposes. The government also claims that the states’ asserted interests for their APA challenge, if accepted, would effectively eliminate the zone-of-interest requirement under the INA and open the door to a federal suit by any state that is unhappy with federal immigration policy.
Finally, the government argues that the executive’s enforcement discretion, including the enforcement discretion reflected in DAPA, is traditionally immune from judicial review. The government says that the decision to permit aliens to work, as an attribute of enforcement discretion, is similarly unreviewable in court.
The states argue that they have Article III standing, because DAPA requires at least one of them, Texas, to incur costs in subsidizing driver’s licenses. The states say that this injury is legitimate and not manufactured (because the driver’s license subsidy was already on the books), and therefore satisfies the Article III injury requirement. The states contend that DAPA also requires them to incur costs related to healthcare, education, and law enforcement. And they assert that they have standing to protect their citizens from “labor-market distortions, such as those caused by granting work authorization to millions of unauthorized aliens.” The states contend that they are entitled to “special solicitude” in the standing analysis under Massachusetts v. EPA. 549 U.S. 497 (2007).
The states argue next that they can challenge DAPA under the APA, because their interests fall squarely within the zone of interests in the INA. They say that DAPA grants lawful presence and eligibility for work authorization and other benefits, the crux of their interests. They say moreover that the INA does not grant the Department discretion to do this. Thus, they claim that their interests fall squarely within the zone of interests protected by the INA.
Under basic separation-of-powers principles, Congress is charged with making the law, and the President is charged with executing it. This means that administrative action like DAPA cannot violate the INA. Under the APA, it also means that DAPA must go through notice-and-comment rulemaking, if DAPA is a new “rule” (although DAPA need not go through notice-and-comment rulemaking if it is merely a new policy). Finally, under the Take Care Clause, it means that DAPA must be a proper execution of federal law, again the INA. The parties touch on each of these principles.
The government argues that the INA provides the Secretary ample authority for DAPA. The government claims that under the INA Congress has directed the Secretary to focus limited resources on removing serious criminals and securing the border, and that DAPA, in deferring action for aliens who are not priorities for removal, is perfectly consistent with this. The government claims that DAPA serves the additional purposes of “extending a measure of repose to individuals who have long and strong ties to the community” and encouraging hard work, on the books, so as to minimize competitive harm to American workers.
The government argues next that DAPA has deep historical roots. It says that the Department and the Immigration and Naturalization Service before it have adopted more than 20 similar policies in the last 50 years, deferring deportation for large numbers of aliens in defined categories. Since the early 1970s, each of these actions has also resulted in eligibility for work authorization—a practice that was codified in formal regulations in 1981. The government contends that Congress has repeatedly ratified the Department’s authority, with full knowledge of these policies.
Third, the government argues that the states are wrong to say that DAPA violates the INA. The government claims that the INA itself and past practice refute the states’ assertion that the Secretary can only authorize deferred action and work authorization for categories of aliens that Congress has specifically identified. Moreover, it claims that even the states agree that the Secretary could provide separate temporary reprieve for every one of the individuals covered by DAPA, so DAPA itself cannot be “too big.” And the government points out that longstanding regulations permit the Secretary to authorize lawful work for aliens covered by deferred action.
Fourth, the government argues that DAPA is simply a policy statement regarding how the Department will exercise discretionary authority—and not a binding rule that requires notice-and-comment procedures. Indeed, the government points out that no prior deferred action policy has been subject to notice-and-comment requirements. The government says that DAPA requires Department agents to exercise discretion in granting deferred action, and that DAPA is no less a “policy” than one that gives individual agents authority to be less forgiving for specific reasons in any individual case.
Finally, the government argues that the Take Care Clause provides the states with no basis for relief. The government claims that the Take Care arguments are simply dressed-up versions of their statutory arguments, and that in any event the Take Care Clause is nonjusticiable. But even if the Take Care Clause requires something different than the statutory analysis, and even if it is justiciable, the government says that the Secretary has complied with it by enforcing and executing the INA (for the reasons stated above).
The states argue that DAPA violates the INA. They say that Congress has to expressly authorize the executive to defer removal for whole categories of aliens, because this question is so central to the INA’s statutory scheme. But they claim that Congress has not done this. They also contend that DAPA flouts the 1996 amendments to immigration statutes that deny certain benefits to unlawfully present aliens whom the executive elects not to remove. And they say that DAPA would render meaningless Congress’s comprehensive framework, which “define[s] numerous categories of aliens that are entitled to or eligible for work authorization.”
The states argue next that DAPA is invalid, because it was promulgated without notice-and-comment procedures. The states claim that DAPA is a substantive binding rule, not a policy, and was therefore subject to notice-and-comment requirements. They say that the President compared DAPA to a military order and promised consequences for officials who defied it. They also say that it gives no discretion to Department officials in its enforcement. Moreover, the states contend that DAPA is a rule because it affects individual rights and obligations, using legislative-type criteria to determine whether an alien qualifies for substantial government benefits. The states assert that “[t]his change is immensely important to the Nation and requires at least public participation through notice-and-comment procedure.”
Finally, the states argue that DAPA violates the Take Care Clause. They claim that DAPA declares conduct that Congress has determined unlawful to be lawful. They say that this is precisely the kind of power grab that the Take Care Clause was designed to prevent.
At its core, this case is about the meaning and sweep of DAPA. By the Secretary’s reckoning, DAPA is merely a policy that guides the discretion of Department agents in enforcing the INA—the same way that any Department policy might guide an agent’s discretion, well within the discretion authorized by the INA. But by the states’ reckoning, DAPA is a new and binding rule that contradicts the INA: it represents the executive’s effort to change the law, not simply enforce it.
To sort this out, the Court will look at the precise language of the INA and DAPA itself, of course. But it will also look to other indicia of congressional intent to enforce the INA. These may include things like congressional awareness of and acquiescence to longstanding Department regulations that seem to assume that the Department may use deferred action, and which grant benefits as a result of it. These may also include congressional appropriations, which amounted to $6 billion in 2016. This was enough to deport only a small portion of the estimated 11 million undocumented aliens currently living in the United States, thus strongly suggesting that Congress intended the Department not to remove large populations of unlawfully present aliens. (The government points out that the Department has recently been setting records for removals in a year, but still only removing about 440,000 in 2013, for example.) Finally, the Court will look at the Department’s prior deferred action policies, which at different times since 1960 covered undocumented Cuban nationals after the Cuban Revolution, undocumented spouses and children of aliens with legalized status, individuals who sought lawful status as battered spouses or victims of human trafficking, foreign students affected by Hurricane Katrina, widows and widowers of U.S. citizens who had no other avenue of immigration relief, and certain aliens who came to the U.S. as children.
Here’s one thing the Court won’t look at: the Department’s actual enforcement of DAPA. That’s because the states filed suit before the Department implemented DAPA, and so there is no record of Department enforcement of DAPA. The states claim that Department agents will implement DAPA much as they implemented DACA, and that under DACA agents did not exercise discretion in individual cases (suggesting that DACA and DAPA are new rules, and not merely policies guiding individual agent’s discretion).
Aside from the merits, the first issue in the case, standing, could be dispositive. It is not at all obvious that the states have standing under Court precedent. In perhaps the closest case, Massachusetts v. EPA, the Court held that the state had standing to challenge the EPA’s failure to regulate greenhouse gases, based on the state’s loss of coastline due to rising sea levels (due to increased greenhouse gases). But Massachusetts is hardly on all fours with this case. Still, it will likely play an important role in oral argument.
But it’s easy to think that these doctrinal issues are really just cover for underlying policy and political disputes. On the policy side, the case raises the important and contested questions of whether and how to deal with some of the 11 million unauthorized aliens in the United States. In particular: Should we protect certain classes of unauthorized aliens from immediate deportation for economic reasons (because they provide a net benefit to our economy), humanitarian reasons (to keep families together, for example), or just plain fairness reasons? The case also raises the important and contested question of who decides—the federal government, or the states. The Court answered that question unequivocally in favor of the federal government just four years ago in Arizona v. United States, 567 U.S. ___ (2012), the SB 1070 case. This case gives the Court another crack at it.
On the political side, the case is (obviously) yet another battle in the continuing war between Republicans and President Obama over immigration and executive authority. All twenty-six states that brought the case are led by Republican governors. (Yet at least one state that has a far more sizeable portion of the unauthorized alien population in the U.S., California, led by a Democrat, is notably absent from the suit.) Moreover, President Obama said that he initiated DACA and DAPA in the first place as a reaction to congressional (Republican) failure to take up immigration reform. The case is thus at the center of the ongoing dispute between a Democratic President who in the face of congressional intransigence has governed by executive order, and the Republican opposition that claims that this represents “executive overreach.”
The Seventh Circuit ruled yesterday in Lewert v. P.F. Chang's China Bistro, Inc. that restaurant-goers had standing to pursue their case against the restaurant chain for actions they took to protect themselves after the chain revealed that it had been the victim of a computer-system hack.
The ruling is a win for consumers insofar as it lets them get beyond the pleadings in data-breach cases (so long as they plead that they took measures to protect themselves and will suffer an increased chance of fraudulent charges or stolen identity). (The plaintiffs here now have a chance to move the case forward.) But it says nothing on the merits.
The case arose after P.F. Chang's announced that its computer system had been breached and that some consumer credit- and debit-card data had been stolen. At first, the restaurant didn't know the extent of the breach, so switched to a manual card-processing system at all locations around the country. Later, it announced that data was stolen from just 33 restaurants, including one in Schaumburg, Illinois.
The plaintiffs, diners at P.F. Chang's Northbrook, Illinois, location, worried that their information may have been stolen. One of the plaintiffs noticed fraudulent charges on his card soon after P.F. Chang's announcement; he cancelled his card and purchased an identity-theft-protection service. The other plaintiff did not have fraudulent charges, but he took extra time to monitor his credit-card statement and credit report. Both plaintiffs claimed that they suffered an increased risk of fraudulent charges and stolen identity.
The plaintiffs brought a class action, and P.F. Chang's moved to dismiss for lack of standing. The Seventh Circuit sided with the plaintiffs.
The court said that the plaintiffs' actions to protect themselves were sufficient harms to establish standing: the plaintiffs suffered action harms by taking precautionary steps to protect themselves, and they suffered imminent harms of increased chances of fraudulent charges and stolen identities.
As to causation, the court said that any questions--whether the data breach caused the plaintiffs' injuries--went to the merits. As to redressability, the court said that monetary relief could redress the harms.
Wednesday, April 13, 2016
The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.
The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.
The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.
Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.
But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."
In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.
The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.
Monday, April 11, 2016
The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.
The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."
Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."
Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.
The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.
Tuesday, April 5, 2016
The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.
The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.
The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.
The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."
The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.
Monday, March 28, 2016
The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.
The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.
On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.
Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.
The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.
Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)
Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)
Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.
Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.
The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.
The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.
The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.
The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.
Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.
Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.
Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).
Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.
(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)
Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).
In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.
This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.
Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.
Friday, March 25, 2016
Judge Amy Berman Jackson ruled this week in Friends of Animals v. Ashe that Friends lacked standing to challenge a decision by the Fish and Wildlife Service to issue permits authorizing two American hunters to import the trophies they garnered in legal hunts of black rhinoceros in Namibia. The ruling means that the case is dismissed.
The ruling illustrates the barriers for plaintiffs in challenging this kind government action, even before they get to the merits. The core problem, according to the court, is that the Service didn't cause the rhino hunting--the government of Namibia did--and so the court was powerless to remedy the loss of rhinos.
Judge Jackson ruled that the plaintiff-organization demonstrated an injury, the first standing requirement, through one of its members--but barely. In particular, Judge Jackson wrote that a Friends of Animals member who lives in Namibia demonstrated an injury, because he claimed that he viewed, and would view, black rhinos in the Kunene region and Etosha National Park. But the rhinos in this case came from Mangetti National Park. Judge Jackson nevertheless said that the plaintiff alleged a sufficient injury--though "the thinnest reed of an injury"--based on the allegation that the import permits will affect rhinos in the future, throughout the country.
But Judge Jackson went on to rule that the injury lacked causation and redressibility. In particular, she said that the reduced viewing opportunities of rhinos was caused by the Namibian government's authorization of the hunt, not the Service's permits, and that an order halting the permits would do nothing to stop hunting (again, authorized by Namibia).
Finally, the court held that Friends' claim that the Service has a "policy and repeated practice of issuing permits to import sport-hunted trophies of endangered animals" in violation of the Endangered Species Act and the APA wasn't ripe for review.