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the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed.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)

Thursday, May 26, 2011

Civil Rights Appeals: The Court's Opinion in Camreta v. Greene

The Supreme Court ruled on Thursday in Camreta v. Greene that a prevailing official in a federal civil rights action can appeal the constitutional ruling of the lower court, but that the appeal was moot in this case.

The case involved state child protective service officers' interviews of a 9-year-old girl, S.G., about allegations that her father had sexually abused her.  S.G.'s mother sued under 42 U.S.C. Sec. 1983, claiming that the warrantless and permission-less interviews violated the Fourth Amendment's proscription on unreasonable searches and seizures.

The Ninth Circuit followed the two-step approach in Saucier v. Katz (2001) and Pearson v. Callahan (2009).  Under Saucier, a court asks two questions: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right (the constitutional question), and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct (the qualified immunity question).  Qualified immunity applies and protects an official unless the official's conduct violated such a right. 

Pearson held that the sequence of the two-step process is flexible--that lower courts could, e.g., ask the second question first.  If so, under Pearson, a lower court could also rule on the constitutional question, thus providing guidance to officials in their behavior and actions and advancing (not dodging) constitutional law in the area.  Strictly speaking, the ruling on the constitutional question would be dicta (and under the avoidance principle, really shouldn't be at all--thus the "Pearson permission" that lower courts possess to rule on the constitutional question).  But it would nevertheless be binding on officials, because it would reflect the lower court's judgment on the constitutional question--telling officials what is constitutional and what is not, and thus guiding their behavior.

This is exactly what the Ninth Circuit did.  That court ruled that the officials enjoyed qualified immunity (because their interview did not violate clearly established Fourth Amendment rights).  But it also ruled that the interviews violated the Fourth Amendment.  Thus the officials won on immunity but lost (sort of) on the constitutional question.  The officers appealed; S.G.'s mother did not.

The Supreme Court, by Justice Kagan (joined by Chief Justice Roberts and Justices Scalia, Ginsburg, and Alito) ruled that the officers could appeal, even though they won on qualified immunity.  The appeal satisfied the federal statute conferring on the Court unqualified power to grant cert. on the petition "of any party."  28 U.S.C. Sec. 1254(1).  And it satisfied the case-or-controversy requirement of Article III.

Moreover, the Court ruled that the constitutional question had now become moot: S.G. moved out of state and approached age 18, thus making a repeat of the interview unlikely in the extreme.  And "[b]ecause mootness has frustrated [the officer's] ability to challenge the Court of Appeal's ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school," op. at 18, the Court vacated the Ninth Circuit's constitutional ruling.

Justice Scalia concurred but wrote that he'd be willing to reconsider in an appropriate case whether "to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity."

Justice Sotomayor, joined by Justice Breyer, concurred, but would have avoided the question whether the officers could appeal.  Instead, they would simply have vacated the case in light of its mootness.

Justice Kennedy, joined by Justice Thomas, dissented.  Justice Kennedy argued that the Court's ruling wrongly treated dicta (the Ninth Circuit's constitutional ruling) as precedent, and he argued that an officer who won on qualified immunity could not appeal. 

Four Justices thus joined an opinion to maintain the Pearson permission of lower courts to rule on the constitutional question, even if they ruled that an officer enjoyed qualified immunity.  One of those, Justice Scalia, suggested that he would reconsider it in an appropriate case.  Two others, Justices Sotomayor and Breyer, were silent on the question, but gave no suggestion whatsoever that they would reassess Pearson.  Two others, Justices Kennedy and Thomas, objected that the Court wrongly treated the Pearson constitutional ruling as binding precedent in this case and suggested more generally that Pearson constitutional rulings raised difficulties, because they "could come to resemble declaratory judgments or injunctions" (and not just the obiter dicta they are).

The case likely leaves Pearson permission on solid ground, even if as many as three Justices may be willing to reconsider it, and even if it suggested that in some narrow class of cases (like this one) the constitutional question could become moot, thus undermining it.

SDS

May 26, 2011 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, May 1, 2011

No Backdoor Standing to Challenge Emissions Waiver

The D.C. Circuit ruled on Friday that the Chamber of Commerce and the National Automobile Dealers Association (NADA) lacked associational standing to sue the Environmental Protection Agency to block its waiver of greenhouse gas emissions standards to California and other states.  The court thus dismissed the case.

The plaintiffs' petition challenged the EPA's waiver, which allowed California and other states to adopt and enforce greenhouse gas emissions standards that exceeded the EPA's own standards.  (The Clean Air Act prohibits states from adopting more restrictive standards but allows the EPA to grant waivers.)

But last April, the EPA and the National Highway Transportation Safety Administration jointly issued a national program of greenhouse gas emissions and fuel economy standards for marketing years 2012 through 2016.  The standards grew out of an agreement with the agencies, the State of California, and major automobile manufacturers.  Under the agreement, California amended its regulations to deem compliance with the national standards compliance with its own standards for these years.  (For years 2009 through 2011, California adjusted its standards to make compliance somewhat easier.)

As a condition of the agreement, major auto manufacturers and their trade associations agreed not to sue to contest the new national standards or the California waiver.

But that agreement (alone) didn't stop the Chamber of Commerce and NADA to challenge the regs and waiver on behalf of auto dealers.

The D.C. Circuit nevertheless ruled that they lacked standing.  (The Chamber failed to allege that one of its members was affected and therefore lacked associational standing.  NADA, however, identified allegedly injured members.)  As to the years 2009 through 2011, the court ruled that the NADA failed to alleged with sufficient determinacy that manufacturers would adjust the "mix" of vehicles offered to dealers in waived states (thus affecting the dealers' sales) and that manufacturers would necessarily raise the price of vehicles (also affecting sales).  Part of NADA's problem was that Ford planned to raise its emissions standards on its own, even before the EPA granted California's waiver, thus undercutting any causation and redressibility.  (The two dealers that provided affidavits in support of standing sold Ford cars.)

As to years 2012 through 2016, the court wrote that Ford planned to up its own standards, independent of federal regulation, and that the case was moot.  Why moot?  Because starting in 2012, manufacturers will have to comply with federal standards, and compliance with those standards will also satisfy California under the 2010 agreement.  In other words, manufacturers will have to meet the federal standards, anyway, and their meeting the exact same California standards cannot possible harm dealers.

SDS

May 1, 2011 in Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 8, 2009

Court Rules Alvarez v. Smith Moot

The Supreme Court yesterday ruled that the plaintiffs' procedural due process claim in Alvarez v. Smith was moot, after the parties resolved their property disputes during the course of the litigation.

The case involved the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes.  Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings.  Authorities can hold property worth less than $20,000 for up to 187 days before the state's attorney files forfeiture proceedings.

Six plaintiffs who had cars and cash seized under the DAFPA sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in U.S. v. James Daniel Good Real Property and Mathews v. Eldridge.  The Seventh Circuit ruled for the plaintiffs.

The Supreme Court asked the parties to brief mootness, and, at oral argument, learned that the parties resolved the property dispute: the state returned all seized cars, and individual property owners either forfeited the cash or accepted the state's partial return as final.  A unanimous Court rejected the plaintiffs' argument that they sought certification as a class (because plaintiffs did not appeal the denial of class certification) and the argument that the practice was "capable of repetition" while "evading review" (because the plaintiffs failed to show that they were likely again to be subject to the DAFPA, citing Los Angeles v. Lyons) and ruled the claim moot.

Justice Stevens filed a partial dissent in the case, arguing that the Court should not have vacated the Seventh Circuit's judgment.

SDS

December 8, 2009 in Fourteenth Amendment, Mootness, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, December 6, 2008

Court Grants Cert. in Al-Marri

The Supreme Court announced on Friday that it will review the Fourth Circuit ruling in Al-Marri v. Pucciarelli upholding the president's authority under the AUMF to indefinitely detain a lawful U.S. resident who was both captured and detained in the U.S. as an enemy combatant, without criminal charges.  I've posted before on the case here, here, here, and here; the NYT reports here; SCOTUSblog reports here.

Briefs won't be due until after President-Elect Obama's inauguration.  Between his inauguration and briefing, Obama could (1) do nothing (and maintain the Bush administration position, supported by the Fourth Circuit, before the Supreme Court); (2) charge Al-Marri in an Article III court under federal criminal law, thus (maybe) mooting the case at the Supreme Court; (3) same as (2), but charge Al-Marri in a military tribunal; (4) reverse the Bush administration position in full and release Al-Marri, (maybe) mooting the case.

(Why "(maybe)" moot?  Because it's a classic case of "capable of repitition but evading review."  The last time something like this happened--Padilla v. Hanft--the Court denied cert. after Padilla was transferred to civilian custody after an adminsitration-favorable Fourth Circuit decision, rebuffing Padilla's claim that the controversey was capable of repitition but evading review.  (Kennedy's opinion here; Ginsburg's here.)  Here, the Court has already granted cert., knowing well that it won't hear the case until Obama is president; this could change things.)

(Another interesting issue:  How much should--and how much will--the Bush administration defer to Obama's position in formulating strategy at the Court?)

Any of the first three options probably ensure that Al-Marri will remain in detention, at least until the case is decided or until he's served a sentence. 

This is a significant--and tough--test for Obama.  His decision will signal his position on executive authority in the war on terror in a deeply troubling and far-reaching case.  It would be difficult for Obama to maintain the Bush administration's vast claims of executive authority here: The implications of the administration's position--and the Fourth Circuit's ruling--are staggering.  But if he backtracks (and if this moots the case at the Supreme Court), the Fourth Circuit ruling stands, and he could be seen as weak on executive authority and weak on terror.

I'll update as we get more.

SDS

December 6, 2008 in Executive Authority, Mootness, News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2008

Justiciability and Summers v. Earth Island Institute

The Court heard oral arguments yesterday in Summers v. Earth Island Institute, a case dealing with standing, ripeness, and mootness in a facial challenge to agency procedural rules.  The plaintiffs originally brought two types of claims: Plaintiffs challenged the Forest Service's Burnt Ridge Project, a proposed timber sale in the Sequoia National Forest; and they challenged the validity of Forest Service regulations that exempt certain Forest Service actions, including the Burnt Ridge Project, from administrative notice, comment, and appeal procedures.

The parties settled the first set of claims, dealing with the Burnt Ridge Project.  But the government then argued that plaintiffs' facial challenge of the Forest Service regulations was nonjusticiable: the plaintiffs lacked standing, claimed the government, because they merely alleged an inability to participate in governmental decisionmaking (and not a sufficient cognizable injury); and the claim was not ripe, because plaintiffs didn't wait for the Forest Service to apply the regulations in a concrete setting--that the case was a preenforcement challenge.  Plaintiffs argued that they had standing and that their claim was ripe when filed (because of the their harm from the Burnt Ridge Project), and that it is ripe now (because the Forest Service continued to apply the regulations to other projects).

The argument transcript is here; check out pages 26 to 52 (the plaintiff-respondents' argument) for nice exchanges on standing.  Several law professors filed an amicus, which puts the justiciability issues into particularly good focus.

SDS 

October 9, 2008 in Mootness, Recent Cases, Ripeness, Standing | Permalink | Comments (0) | TrackBack (1)