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)

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)