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.
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
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.
Tuesday, October 28, 2014
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
Wednesday, May 21, 2014
The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman. The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.
The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed. The Prop 8 Committees challenged the requirement both on its face and as applied.
The court rejected the challenges. It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest. As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:
A state's interests in contribution disclosure do not necessarily end on election day. Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits. As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests. In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day. Absent post-election reporting requirements, California could not account for such late-in-the-day donations. And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.
As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe. Judge Wallace dissented on the as-applied challenge.
May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 2, 2014
The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).
While the case rests on an issue of statutory application, it raises two constitutional concerns.
First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter. The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting. Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury." The standing argument as to the organization plaintiffs -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.
The court likewise rejected the mootness argument. Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine. It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.
The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:
We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.
The panel opinion, written by Judge Beverly Martin, was not unanimous. While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.
Thursday, April 18, 2013
A sharply divided Supreme Court (5-4, along conventional ideological lines) ruled on Tuesday that when a lone plaintiff sues under the Fair Labor Standard Act on behalf of herself and all others "similarly situated," but then declines to answer a defendant's settlement offer in the case, the case--the entire thing--becomes moot.
The ruling in Genesis Healthcare v. Symczyk deals a significant blow to the FLSA's provision that allows an employee to sue on behalf of all others "similarly situated." That's because the ruling allows a defendant to moot an entire case by offering complete settlement to a lone lead plaintiff--whether the plaintiff accepts it, rejects it, or ignores it. But if the dissent is right, this is a one-off that should never happen again.
Symczyk sued Genesis Healthcare under the FLSA for backpay after Genesis docked its employees' pay for a half-hour lunch each day, even when employees worked through lunch. She sued on behalf of herself and all others "similarly situated." (The FLSA specifically provides for this class-action-like mechanism.) Genesis offered to settle for the full amount of monetary damages, but put a deadline on its offer of 10 days. Symczyk didn't respond, and the trial court dismissed her case. The Third Circuit reversed, but only as to the collective action. The Third Circuit said that the settlement offer mooted Symczyk's individual claim, but that it didn't moot her collective claim on behalf of others "similarly situated."
The Supreme Court ruled the entire case moot. The majority, by Justice Thomas, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito, assumed, but did not decide, that the Third Circuit was right about Symczyk's individual claim, but it reversed on her collective claim. The Court said that once it assumed that Symczyk's individual claim was moot, the ruling on the collective-action allegations turned on a "straightforward application of well-settled mootness principles." Basically: "the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied." The Court distinguished the "relation back" cases under Rule 23 class-action doctrine, saying that here "[t]here is simply no certification decision to which resondent's claim could have related back." It also distinguished the "inherently transitory" cases under class-action doctrine, saying that unlike those cases, which were for injunctive relief challenging ongoing conduct, this case was about monetary damages for past conduct. And it said that its ruling wouldn't undermine the purpose of the FLSA's collective-action provision, because the purpose of that provision is different than the purpose of class actions (on which Symczyk relied): the FLSA works differently than class certification--FLSA "conditional certification" simply isn't class certification--and that difference matters.
Justice Kagan wrote an animated dissent for herself and Justices Ginsburg, Breyer, and Sotomayor. She took aim at the majority's assumption that the settlement mooted Symczyk's claim and wrote that if the lower courts could get that right (that is, that Symczyk's claim wouldn't go moot just because she ignored a settlement offer) this case should never happen again. Here's just one among many gems in her dissent:
So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don't try this at home.
If the lower courts, which are currently split on the question, can work this out as Justice Kagan did, this case will, indeed, never happen again. But in the meantime, the Court's ruling deals a significant blow to FLSA plaintiffs who bring collective action claims in those circuits where a settlement offer moots an individual claim. Even more generally, it's yet another blow to access to justice.
Monday, March 11, 2013
Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.
Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions. Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.
Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:
This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided. These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court. Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent. Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.
Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:
Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987. The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.
Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."
This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well. It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story. Highly recommended.
[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]
Tuesday, February 19, 2013
A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S. The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.
The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom. Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there. Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief. What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective
The Supreme Court disagreed. Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect.
Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.
Op. at 8-9 (citations omitted).
Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.
Tuesday, January 15, 2013
The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract. The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.
The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act. USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract. The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.
The district court ruled for the ACLUM on the merits. It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others. As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.
The First Circuit reversed. It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review. Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.
The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.
Thursday, October 25, 2012
In what should be the final opinion in the extended saga of the quest for anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiatives. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
Subsequently, on remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. The Ninth Circuit denied the request for an emergency stay last year.
Now, the Ninth Circuit panel unanimously finds the case moot. The panel discussed an exception to the mootness doctrine under a two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.
Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information. However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments. He reasoned that Protect Marriage's "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways."
While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.
Tuesday, October 16, 2012
A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated. The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.
Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld. After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism. Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism. He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.
The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems). This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war."
In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission. The court wrote that
neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime. Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.
Op. at 25. The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.
Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.
Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place. Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.
October 16, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, September 13, 2012
Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague. Judge Forrest issued a permanent injunction against its enforcement.
The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case. The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead. Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along. According to Judge Forrest, it didn't. And still doesn't. The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself. Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.
Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment. That Section provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."
Judge Forrest agreed. She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority. Here are some key points from the ruling:
- Standing. Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment. Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention. For Judge Forrest, this wasn't enough. The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
- AUMF Authority. Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF. Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces." She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021. (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ." Compare that language to the language of Section 1021(b)(2), above.)
- Alternative Use of AUMF. Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention. She wrote,
If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.
Op. at 14.
- Habeas. Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court. She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.
September 13, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Mootness, News, Opinion Analysis, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, September 6, 2012
Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence. Judge Contreras sent the case back to the FEC for further consideration.
La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio. He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs. The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs. La Botz sued.
Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review). Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.
The ruling means that the FEC will have another crack at it. But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run. At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around.
Tuesday, September 4, 2012
The Fifth Circuit ruled last week in Hancock County Board of Supervisors v. Ruhr that the NAACP and individual plaintiffs had standing to challenge Mississippi county Board of Supervisor districts as violating one-person-one-vote and remanded the case to the district court to determine whether the case is moot.
The ruling means that the case goes back to the district court to determine whether it's moot--and, in particular, whether it's capable of repetition, yet evading review, given that (1) Board of Supervisors elections already happened but (2) the counties may run into this same problem ten years from now, when the 2020 census comes out.
The plaintiffs--individuals and the NAACP--sued Mississippi counties, claiming that county Board of Supervisor districts failed the one-person-one-vote rule in light of the 2010 census results. The district court dismissed some of the claims for lack of standing, and the plaintiffs appealed.
The Fifth Circuit ruled that the plaintiffs had individual and associational standing. But the court also wondered whether the case was moot--because the elections are over. Here's the court:
Based on the record before us, however, we are unable to determine whether this controversy is live. To illustrate, because the district court has not evaluated mootness in the first instance, we lack access to factual findings with which to determine whether the "capable of repetition, yet evading review" exception to mootness is applicable to this case. Although we could assume that this controversy will reoccur every twenty years when the election cycle and census publication coincide, we decline the invitation to engage in such speculation.
Monday, August 27, 2012
The Eleventh Circuit ruled in Zinni v. ER Solutions, Inc. that the defendants' settlement offer for the full amount available under federal law, but not including an offer of a judgment, did not moot the plaintiffs' Fair Debt Collection Practices Act case.
The plaintiffs sued defendants in federal court for harassing debt collection calls in violation of the FDCPA and sought monetary damages and a judgment against the defendants. The defendants offered $1,001 to each plaintiff--one dollar more than the maximum damage award under the FDCPA--plus unspecified attorneys' fees and costs. But they didn't offer a judgment against them.
The Eleventh Circuit ruled that the offer didn't moot the plaintiffs' case. The court said that the defendants' offer wasn't the full relief requested by the plaintiffs (because the plaintiffs also asked for a judgment), and that a settlement for monetary damages without a judgment could simply lead to more litigation--for state law breach-of-contract--while at the same time divesting the federal court of jurisdiction over the claim. In other words: If the court dismissed the case as moot, the plaintiffs had only the defendants' promise to pay, and no means of enforcement in the federal courts. (With no judgment, the federal court where the plaintiffs brought the case would lack jurisdiction to enforcement a settlement. The plaintiffs could only enforce it in state court, on a breach-of-contract claim.)
The court distinguished two Seventh Circuit cases that held that an offer of full settlement did moot the claims, because the offer in those cases included a court-enforceable judgment.
The ruling allows the case to move forward, presumably on the issue of the judgment alone (assuming that the plaintiffs accept the offer of monetary damages).
Sunday, March 25, 2012
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.
Monday, February 27, 2012
Judge Richard W. Roberts (D.D.C.) on Tuesday dismissed as moot Whitney v. Obama, a civil case seeking a declaration and injunction against President Obama's commitment of U.S. troops to Libya last year. We previously posted on House Members' claim against the President here (with links to our past posts on the Libyan mission). (Judge Walton dismissed that case, Kucinich v. Obama, for lack of standing.)
The plaintiff brought the case under the War Powers Resolution. Judge Roberts declined to address the merits but instead ruled the case moot because the operation ended in 2011:
"[T]he [U.S.] ceased air operations in support of" NATO's Operation Unified Protector on October 31, 2011, and Whitney cites no authority for the proposition that the War Powers Resolution covers the continued presence of peaceful troops. Because "[t]he clash . . . has subsided, and what occurred during the dispute cannot be undone[,] "the court can grant no meaningful relief[.]" The declaratory judgment Whitney seeks would constitute an "improper advisory opinion" since no live dispute remains. Granting injunctive relief likewise would prove ineffectual, as the challenged actions have long since ceased. Accordingly, Whitney's claims are moot.
Op. at 6-7 (citations omitted). Judge Roberts also ruled that the action was neither capable of repetition (because there's no reasonable expectation that Whitney will suffer the same alleged violation of the WPR again), nor evading review (because "offensive wars initiated without congressional approval are not in th[is] category[,]" and neither are military missions "inherently short in duration," Campbell v. Clinton, 203 F.3d 19, 34 (D.C. Cir. 2000).
Wednesday, February 15, 2012
The Wild Free-Roaming Horses and Burros Act gives the Bureau of Land Management (BLM) authority over wild horses on federal lands. The BLM controls overpopulation by conducting horse gathers, also known as roundups, and although the BLM "allows the public to observe horse gathers" it "restricts the viewing locations to protect the public from wild horses, helicopters, and vehicles."
Laura Leigh is a photojournalist and wild horse advocate who sought access to a gather at Silver King (in Nevada) but was limited to a designated viewing area. She sought a preliminary injunction, arguing a violation of her First Amendment rights, which the district judge denied on grounds of mootness and unlikelihood to prevail on the merits. In its opinion in Leigh v. Salazar, the Ninth Circuit reversed and remanded.
On the mootness issue, the panel found that Leigh's complaint was not limited to the 2010 gather, but all gathers at Silver King, and given the fact that the BLM did not capture all the horses, there was a "real possibility" of another gather at Silver King pursuant to the BLM's responsibility to "“immediately remove” "excess horses from overpopulated federal lands."
On the substantive First Amendment claim, a majority of the panel held that the district judge needed to conduct the rigorous scrutiny demanded by Press-Enterprise Co. v. Superior Court, generally known as “Press-Enterprise II” (1986). the Ninth Circuit rejected any limitation of Press-Enterprise II to criminal trials, and found the proper standard to be:
First, the court must determine whether a right of access attaches to the government
proceeding or activity by considering 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.”
Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Judge Wallace concurring and dissenting in part, agreeing as to the Free Enterprise II standard, but finding that Leigh did not show the gathers were "historically open to the press and public." On that basis, Judge Wallace argued that the remand should be to decide the permanent rather than preliminary injunction.
[image via, used with permission of Laura Leigh].
Wednesday, January 11, 2012
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.