Tuesday, October 28, 2014

Court Dismisses Challenge to IRS Non-Profit Process

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.

October 28, 2014 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Ninth Circuit Upholds Contribution Disclosure Requirement

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

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

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

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

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

 

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

Wednesday, April 2, 2014

Eleventh Circuit Invalidates Florida's Attempt to Remove Voters from Rolls

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.

800px-Ferdinand_de_Soto_Florida_map
Ferdinand DeSoto's Map of "Florida"

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.

April 2, 2014 in Courts and Judging, Fifteenth Amendment, Fundamental Rights, Interpretation, Mootness, Opinion Analysis, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Party's Non-Settlement Moots "Similarly Situated" Labor Case

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.

SDS

April 18, 2013 in Cases and Case Materials, Mootness, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Irons's Case for Repudiation of the Japanese American Internment Cases

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.

Evacuationorder

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.

Case for repudiation

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.

SDS

[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]

March 11, 2013 in Cases and Case Materials, Courts and Judging, History, Jurisdiction of Federal Courts, Mootness, News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 19, 2013

Supreme Court Rules Child Return Order Not Moot on Appeal

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.

SDS

February 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 15, 2013

Establishment Clause Challenge to Government Contract with Bishops Moot

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.

SDS

January 15, 2013 in Cases and Case Materials, Establishment Clause, Mootness, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Thursday, October 25, 2012

Doe v. Reed: Moot at Last?

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.

John_Hancock_Signature_DOI
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.

RR

October 25, 2012 in Cases and Case Materials, First Amendment, Mootness, Nondelegation Doctrine, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 16, 2012

D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"

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.

SDS

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

Court Permanently Enjoins NDAA Detention Authority

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.

SDS

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

Court Orders FEC to Reconsider Ruling on Access to Debates

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. 

SDS

September 6, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 4, 2012

Fifth Circuit: Challengers Have Standing in One-Person-One-Vote Suit, Remand for Mootness

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. 

SDS

September 4, 2012 in Cases and Case Materials, Mootness, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2012

Eleventh Circuit: Settlement Offer Without Judgment Does Not Moot Case

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).

SDS

August 27, 2012 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News | Permalink | Comments (0) | TrackBack (0)

Sunday, March 25, 2012

District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops

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. 

RR

March 25, 2012 in Abortion, Due Process (Substantive), Establishment Clause, First Amendment, Mootness, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

War Powers Resolution Challenge to Libyan Mission Moot

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).

SDS

February 27, 2012 in Cases and Case Materials, Congressional Authority, Executive Authority, Mootness, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2012

Wild Horses: Photojournalist's First Amendment Right to Access

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."

Baby021
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.

RR
[image via, used with permission of Laura Leigh].

February 15, 2012 in First Amendment, Mootness, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 11, 2012

Court Considers Opt-Out Options for Union Assessment

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.

SDS

January 11, 2012 in Association, Cases and Case Materials, First Amendment, Mootness, News, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 29, 2011

The End of DADT: Litigation Moot but Still Worth Discussing?

The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot.  This is absolutely predictable. 

Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell,"  regarding sexual minorities in the military was no longer law.  Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.

2011_07_25-dadt-sign_wide

[image: President Obama certifying the conditions of the Repeal Act, July 22, 2011, repealing DADT, via]

 

The Ninth Circuit opinion, however, is no so simple.  The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.  

First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be.  The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."

Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed.  The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception.  However, the panel went farther:

Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas:  "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."  

Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement.  It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.

RR

September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 28, 2011

Alabama Immigration Law HB56 Enjoined in Part by Federal Judge (Part I)

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama.   [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]

800px-Bama_Theatre_Sign_02 Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits. 

The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted.  Her opinion thus allows a few of the more controversial portions of HB56 to become effective.

Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:

H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.

H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.

H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.

H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

 In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded,  and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected.  However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56).  In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes.  However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.

Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted.  Blackburn's analysis here, especially distinguishing §10, is worth a look:

H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."   Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.

[Op. at 84, citations omitted].

Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.

Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.

RR
[image via]

 

September 28, 2011 in Cases and Case Materials, Current Affairs, Federalism, Mootness, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Sunday, July 24, 2011

D.C. Circuit Holds Former Detainees' Claims Moot

A three-judge panel of the D.C. Circuit ruled on Friday that former Guantanamo detainees' habeas claims are moot.  The ruling means that the former detainees cannot challenge their continued designation as "enemy combatants" and are stuck with that label, and all its baggage, even though the government released them from Guantanamo and returned them to their home countries.

The case, Gul v. Obama, follows a ruling in the Federal District Court for D.C. last year that dismissed over 100 then-pending habeas claims of former Guantanamo detainees.  Fifteen of those former detainees appealed to the D.C. Circuit; this case involves two.  (The D.C. Circuit consolidated the two and held the other thirteen in abeyance pending this ruling.)

When the government released the detainees, it notified them that they were "approved to leave Guantanamo," but that this approval "does not equate to a determination that [they were not enemy combatants], nor is it a determination that [they do] not pose a threat to the United States."

The detainees claimed that their designation as "enemy combatants" means that their home countries imposed travel restrictions upon them, that they are prohibited from entering the U.S., that they are subject to the recapture and even killing under the laws of war, and that their reputations have been damaged.

The court said that these "collateral consequences" didn't satisfy justiciability requirements under Article III.  It wrote that its ruling could not force a non-party, here a foreign government, to relax travel restrictions upon them.  It ruled that the appellants didn't even say they'd like to visit the U.S., and that any court order forcing the government to allow them to visit would run up against the various federal statutes excluding them.  It held that the appellants had no basis for believing they'd be targets for recapture or killing under the laws of war.  And it wrote that stigma alone isn't enough to establish their petitions as not moot.

The ruling means that these detainees are stuck with the designation "enemy combatant," even after the U.S. government released them from Guantanamo.  As they alleged, the designation is a significant burden and puts them at continued risk of recapture or even targeted killing.  The ruling applies not just to the two appellants here, but also to the thirteen other former detainees with pending habeas petitions who appealed last year's district court ruling.

This isn't the first time that a court ruled that detention policies overlapped with the law in a way to leave detainees in limbo.  Recall the case of the Uighur detainees--a group that everyone agreed was wrongly detained, but had no place to go other than Guantanamo. 

And the appellants' worry about recapture or killing isn't so far-fetched.  Recall the ordered targeted killing of Anwar al-Aulaqi.

SDS

July 24, 2011 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)