Monday, July 3, 2017
The D.C. Circuit on Friday dismissed a challenge to the government's drone strike program by the family of unintended, innocent victims. The court ruled that the case raised a political question.
The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.
The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.
The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:
It would be difficult to imagine precedent more directly adverse to Plaintiff's position. While Plaintiffs clearly assert claims under the TVPA and ATS, the precise grounds they raise in their Complaint call for a court to pass judgment on the wisdom of [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .
Plaintiffs will no doubt find this result unjust, but it stems from constitutional and pragmatic constraints on the Judiciary. In matters of political and military strategy, courts lack the competence necessary to determine whether the use of force was justified.
Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:
Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .
Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.
Thursday, June 29, 2017
The D.C. Circuit ruled yesterday that Fannie Mae, a government-sponsored but privately-owned corporation, but now under conservatorship of an independent government agency, cannot be sued for a First Amendment violation. The court said that the corporation, even under conservatorship, isn't a government actor.
The case involves a Fannie Mae contractor, Caroline Herron, who alleged that Fannie Mae officials retaliated against her for raising concerns about mismanagement at the corporation. Herron brought a Bivens claim against Fannie Mae officials for a free-speech violation, among other claims. But the Bivens claim hinges, of course, on Fannie Mae officials being government actors. Herron argued that they were, because Fannie Mae is under conservatorship of an independent federal agency, the Federal Housing Finance Agency. In other words, the conservatorship converted Fannie Mae (an otherwise private actor) into a government actor.
The D.C. Circuit rejected that argument. The court looked to the three-part test in Lebron v. National R.R. Passenger Corp. for determining whether a "[g]overnment-created and -controlled corporation" is a government actor for constitutional purposes. The court held that (1) the government created Fannie Mae (2) "for the furtherance of governmental objectives." But the court held that (3) under the terms of the conservatorship the government didn't permanently control it. "Although there is no specific termination date, the purpose of the conservatorship is to restore Fannie Mae to a stable condition. 'This is an inherently temporary purpose.'" For the court, it's the purpose of the indefinite conservatorship, not its internal self-destruct clause (which didn't exist), that matters.
The ruling ends Herron's case. (The course dismissed her other claims, too.)
Tuesday, June 27, 2017
With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.
The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)
But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.
This does not bode well for the plaintiffs. That's because the Court in Abbasi all but limited the Bivens "context" to cases that look exactly like the three cases in which the Court has found a Bivens remedy. Outside of that "context," the Court won't extend Bivens if "special factors" counsel against a Bivens remedy. And the Court defined "special factors" broadly enough that it'll be hard to show that they don't.
In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.
At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."
That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.
Monday, June 26, 2017
When the Supreme Court granted certiorari and modified the lower courts' injunctions halting President Trump's travel ban today, it also directed the parties to brief this question: "Whether the challenges to Section 2(c) became moot on June 14, 2017."
The question matters, because June 14, 2017, is the date on which the 90-day ban would have expired under the order's stated effective date, March 16, 2017. In other words, the cases should have become moot on June 14, because that's when the ban, by the order's own terms, would end, anyway.
But that same day, President Trump issued an order stating that the new effective date for each enjoined provision of the travel ban would be the date on which the injunctions in those cases "are lifted or stayed with respect to that provision." The government argues that the order solves the mootness problem, because the enjoined provisions, including the 90-day ban wouldn't start until the injunctions go away.
But President Trump's order purporting to extend the effective date doesn't un-moot the case as of June 14, and it won't un-moot it when it goes to the Court in October.
As to June 14: The stated purpose for the 90-day ban was "[t]o temporarily reduce investigative burdens on relevant agencies during the [20-day review period of foreign nations' practices], to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . ." But none of these reasons supports extending the effective date while injunctions remained in place. In other words, the government could move forward with all of those things while the injunctions were in place, thus securing the nation's safety against nationals from the six identified countries (the other reason for the 90-day ban), and obviating the need for 90 days after the injunctions go away.
As to October: Even if the government and Court take the position that the circuits' injunctions applied to "ensur[ing] the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals" and "ensur[ing] that adequate standards are established to prevent infiltrating by foreign terrorists"--in other words, that the injunctions halted even the government's own review of its own processes, so that President Trump's subsequent order really did un-moot the case as of June 14--the case would seem to be moot by the time the Court hears it in October. That's because President Trump's subsequent order--the one purporting to extend the effective date--says that the ban again becomes effective when the injunctions "are lifted or stayed . . . ." It seems that the Supreme Court just "lifted or stayed" them, at least insofar as the government can re-start any stalled process to review government vetting standards. (The Court itself seems to have suggested so, when it wrote that "we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the ban].") If so, 90 days will pass before the Court hears the case in October. In other words, it'll be moot in October.
Still, this can't be the result that the Court foresees. If it were, it wouldn't waste everybody's time and energy on briefing the mootness question as of June 14. So: Even if the case was, or becomes, technically moot, look for the Court to get to the merits.
Sunday, June 25, 2017
Fifth Circuit Says "Stigmatic" Harm Isn't Enough for Standing to Challenge State Opposite-Sex "Anti-Discrimination" Measure
The Fifth Circuit ruled last week that a group of plaintiffs lacked standing to challenge Mississippi's law that bans discrimination against those who believe that marriage is a union of one man and one woman. The court said that the plaintiffs pleaded only "stigmatic" harm, not concrete and particularized harm, and that this wasn't enough to get into federal course.
Mississippi's provision bans state "discriminatory action" against those whose "religious beliefs or moral convictions" say that marriage is a union between only one man and one woman. It applies to religious organizations when they make decisions regarding employment, housing, placement of children in foster or adoptive homes, or the "solemnization of a marriage based on a belief listed" in the provision. It also applies to parents if they raise their foster or adoptive children in accordance to the belief covered by the provision. And it applies to doctors, mental health counselors, and businesses that offer wedding-related services. The statute creates a private right of action for individuals for any violations by state officials and allows its use as a defense in private suits over conduct covered by the statute.
The plaintiffs are residents of Mississippi and two organizations (a church and a secular non-profit) that do not share the provision's belief that marriage is only between one man and one woman. They argued that "they are injured by the 'clear message' sent by [the provision] that the 'state government disapproves of and is hostile to same-sex couples, to unmarried people who engage in sexual relations, and to transgender people." They claimed that the provision violated the Establishment Clause and equal protection.
The Fifth Circuit tossed the case for lack of standing. The court said that the plaintiffs asserted only "stigmatic" harm, not concrete and particularized harm, and that the "stigmatic" harm simply wasn't enough to get into federal court. (The court held that the plaintiffs' asserted harm was nothing like the actual and concrete "exposure" harm in the monument, display, and prayer-at-football game cases. The court rejected the plaintiffs' argument that their case was just like the plaintiffs' case in Romer v. Evans, because the Romer Court didn't address standing, and lower courts therefore can't use it for that purpose.) The court also rejected the plaintiffs' theory of taxpayer standing (based on Flast v. Cohen), because the government hadn't yet spent money in support of the provision.
The ruling ends the case and leaves Mississippi's statute on the books--for now. Under the ruling, a viable challenger will probably have to wait for a concrete and particularized harm (discrimination) at the hands of a person or organization who falls within the protection of the provision, sue that person or organization, and argue that the provision violates the Constitution when the defendant raises it as a defense.
Saturday, June 24, 2017
The D.C. Circuit ruled yesterday that Millennium Pipeline Company lacked standing to sue the New York State Department of Environmental Conservation for its foot-dragging on Millennium's application for a water-quality certificate--a prerequisite for building a pipeline under the Clean Water Act.
The ruling means that Millennium's case against the state agency is dismissed. But it also means that Millennium can proceed directly to the Federal Energy Regulatory Commission to get direct approval for the pipeline, considering the state agency's consideration waived.
The case arose when Millennium petitioned the state agency for a water-quality certificate, required under the Clean Water Act as a first step in gaining FERC approval for the pipeline. The state agency sat on the petition for over a year, however, arguing that it was incomplete. Millennium then sued the state agency, asking for a court order to require the agency to act so that it could take its application on to FERC.
But the D.C. Circuit ruled that Millennium lacked standing. That's because under the Clean Water Act when a state agency delays a decision for a year, the agency is deemed to have waived its consideration, and the applicant can take the application directly to FERC. As a result, the court said that Millennium hadn't suffered any harm from the state agency; after all, the agency's inaction only meant that Millennium could go right to FERC. The court went on to say that Millennium could sue FERC if it rejects the application, but that's down the road.
None of this breaks new law--and Millennium surely would have known this--so why'd Millennium sue? Probably because it anticipated opposition from the state agency down the road, and it wanted to get state-agency approval on the record now in order to preempt later opposition. The court had an answer for that, too: FERC, not the state agency, has final say, and Millennium can later sue FERC for any disapproval or delay.
Friday, June 23, 2017
The D.C. Circuit ruled today that a class-action against the D.C. school system for failing to identify pre-school children with disabilities in violation of the Individuals with Disabilities Education Act was not moot just because the children were no longer toddlers with a personal stake in the requested relief. The court went on to affirm the district court's class certification and its comprehensive injunction designed to bring the District into compliance with the IDEA.
The case arose when the parents of six children, then ages three to six, sued D.C., arguing that the District failed to identify children with disabilities in violation of the IDEA. The district court granted class certification to a broad class of "[a]ll children [between three and five] who are or may be eligible for special education and related services" in D.C. and whom the District failed or would fail to "identify, locate, evaluate or offer special education and related services." The D.C. Circuit, however, vacated the class certification in light of Wal-Mart v. Dukes, the Supreme Court case rejecting "one of the most expansive class[es] ever," and which came down during the district court trial. The district court then certified four subclasses, all including three-to-five year-olds alleging different IDEA violations. The court then issued a comprehensive injunction to bring the District in line with the IDEA.
On appeal, the district argued that the case was moot, because all of the plaintiffs had moved beyond preschool.
The D.C. Circuit rejected that argument. The court held that the relation-back exception to the mootness doctrine in United States Parole Commission v. Geraghty applied, because the district court erroneously granted class certification, causing the litigation delay that resulted in the children aging out of their relief. The court explained: "Like the plaintiffs in Geraghty, the parents had live claims when they sought certification, and but for the district court's error, could have obtained proper class certification before their individual claims became moot."
The court noted that in Geraghty the district court erroneously denied class certification, whereas here the district court erroneously granted it. But the court said it didn't make a difference:
The point in Geraghty was that claims relate back when a trial court's error prevents a class from gaining independent status under Rule 23. Whether that error is the erroneous denial of class certification (as in Geraghty) or the erroneous certification of an excessively broad class (as here) makes no difference. What matters it that the named plaintiffs' claim became moot--and their class therefore never 'acquired . . . independent legal status'--due to the district court's mistake. In other words, but for the district court's error--certifying an overly broad class--the parents' claims would not have become moot. There is no legally relevant difference between this case and Geraghty.
Thursday, June 22, 2017
The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.
The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."
The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.
The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.
But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).
The ruling sends the case back to the district court for consideration of the merits.
Tuesday, June 20, 2017
The International Academy of Comparative Law invites younger scholars (no more than ten years of tenure-track faculty experience) to participate in the first-ever Younger Scholars Forum in Comparative Law, on Wednesday, July 25, 2018, in Fukuoka, Japan.
Submit an abstract between 150 and 500 words to the appropriate moderator of one of eight workshops or the Director of the Speakers' Corner by September 15, 2017.
The program includes workshops on the Separation of Powers and its Challenges in Comparative Perspectives; Populism and Comparative Approaches to Democratic Theory; Comparative Public and Private Law Responses to Religious Diversity; Methodological Approaches to Comparative Constitutional Law; and more.
Check out the detailed call for papers for more information and contacts.
Monday, June 19, 2017
The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)
The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.
The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
As to context, the Court set out this test:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.
In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.
As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.
Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.
On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."
Justice Breyer dissented, joined by Justice Ginsburg.
Wednesday, June 14, 2017
The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.
The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)
While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.
The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.
The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.
Along the way, the governor ordered a special election, and Sarauw won.
Monday, June 5, 2017
The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.
But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.
The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.
Laroe moved to intervene as of right pursuant to Rule 24(a)(2).
The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.
If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.
Friday, June 2, 2017
The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.
The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.
The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)
The court said that the fee easily met intermediate scrutiny:
Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.
The ruling means that the fee stays on the books.
Wednesday, May 24, 2017
The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.
In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.
In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.
The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)
The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.
But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)
Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."
Tuesday, May 23, 2017
AG Jeff Sessions issued a memo yesterday tightening President Trumps "sanctuary cities" executive order. The government then asked Judge Orrick to reconsider his earlier preliminary injunction halting the EO.
We posted on Judge Orrick's order here, with links to earlier posts.
Sessions's memo specifies that the government can only withhold certain DOJ and DHS grants (and not all federal grants) from sanctuary cities. Moreover, he wrote that DOJ will apply a certification requirement (putting the grant recipients on notice that they could lose funds if they "willfully refuse to comply with 8 U.S.C. 1373" (see below)) "to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition."
This portion of the memo is designed to satisfy the clear-notice requirement, the relatedness requirement, and no-pressure-into-compulsion requirement for conditioned federal spending.
Sessions's memo also defined "sanctuary jurisdiction" (for the first time) as "jurisdictions that 'willfully refuse to comply with section 1373.'" This portion of the memo is designed to exempt jurisdictions that do not "willfully refuse to comply with section 1373," including some that have sued the government.
At the same time, the government asked Judge Orrick to revise or lift his earlier preliminary injunction. The government's argument is that Sessions's memo takes care of all the likely legal problems that Judge Orrick identified (the conditions for federal spending, mentioned above) and leaves the plaintiffs with no standing.
Sunday, May 21, 2017
Deputy AG Rod Rosenstein's press release announcing the appointment of former FBI Director Robert S. Mueller III to serve as Special Counsel is here. The appointment order is here. The order includes the following authority:
to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 CFR Sec. 600.4(a).
Rosenstein is acting AG for the purpose of the appointment, because AG Sessions recused himself. As Acting AG, Rosenstein has the AG's authority to appoint a special counsel under 28 USC 515.
DOJ regs on special counsel are at 28 CFR 600.1 - 600.10. Section 600.4 says that the special counsel's jurisdiction is set by the AG (or in this case the Acting AG) and provides for additional jurisdiction, with permission of the AG. Section 600.6 sets out the special counsel's power and authority, and provides for its independence. Section 600.7 says who the special counsel reports to ("The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department."), when and how the AG can intervene in the Special Counsel's operations (when the AG concludes that "the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued."), and when and how the Special Counsel can be disciplined or removed ("for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.").
Wednesday, May 17, 2017
The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.
The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.
In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."
The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."
The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.
The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.
In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.
The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.
The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.
Tuesday, May 16, 2017
The Supreme Court ruled yesterday that the federal scheme covering service-member retirement and disability pay preempts a state court divorce decree that granted the former spouse of a retired service-member a portion of his disability benefits.
The ruling in Howell v. Howell settles a split in the state courts.
The case involves the way that federal law provides for veterans' retirement and disability pay, and the way that state courts can divide that pay in a divorce. Under federal law, a qualified veteran receives taxable retirement pay. A qualified veteran can also receive nontaxable disability pay. But if a veteran opts to receive disability pay, the disability pay off-sets his or her retirement pay dollar for dollar, so that the total amount of pay remains the same. Still, most veterans who qualify for disability pay opt for disability pay, because it's not taxed.
Under the federal Uniformed Services Former Spouses' Protection Act of 1982, a state may treat a veteran's retirement pay as divisible property in a divorce. But the Act explicitly excludes disability pay from divisible retirement pay. The Supreme Court ruled in Mansell v. Mansell that a state court cannot divide disability pay in a divorce when the veteran received both retirement pay and disability pay before the divorce. (The Court held that the Act preempted a state court ruling to the contrary.) Howell tested whether the Act compelled this same result when a veteran opted for disability pay well after the divorce. (The difference matters, because the spouse in Howell would take a cut in total payments if the same rule applied when the veteran spouse opted for disability pay after the divorce.)
The unanimous Court (Justice Gorsuch recused) held that the same rule applied, whether the veteran spouse opted for disability pay before the divorce or after. The Court said that Mansell dictated the result, and that the different timing didn't matter: "the temporal difference highlights only that John's military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled)."
The Court also rejected the theory that the state court could "reimburse" or "indemnify" the spouse, rather than outright dividing the disability pay: "The difference is semantic and nothing more. . . . Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." (Justice Thomas concurred but wrote separately to disagree with this latter portion of the ruling--on "purposes and objectives" pre-emption. "As I have previously explained, '[t]hat framework is an illegitimate basis for finding the pre-emption of state law.'")
The Court recognized the "hardship" that this result may "work on divorcing spouses," and noted that state courts might take this into account when it calculates the need for spousal support.
Tuesday, May 9, 2017
President Trump fired FBI Director James Comey today in a move that some are comparing to President Nixon's Saturday Night Massacre in the Watergate investigation. That's because Comey is leading a criminal investigation into whether Trump advisors worked with the Russian government to influence the 2016 presidential election.
The timing of the sacking--amid the Russia investigation, and for things that happened as far back as July 2016--raises significant questions about President Trump's reasons for firing Comey. It also raises questions whether a future FBI director can aggressively pursue the Russia investigation, or any other investigation that the administration disfavors, without fear of retribution.
As a result, President Trump's move elicited a new round of calls from congressional Democrats for an independent counsel into any Russian collusion.
Here's a document that includes a statement from the White House, President Trump's letter to Comey, AG Sessions' letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey.
Deputy AG Rod Rosenstein, who penned the DOJ memo, wrote that Comey "usurp[ed] the Attorney General's authority on July 5, 2016, and announce[d] his conclusion the [Clinton e-mail] case should be closed without prosecution," and that Comey held "press conferences to release derogatory information about the subject of a declined criminal investigation," Clinton, in violation of "another longstanding principle." Rosenstein wrote that his "perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties."
Thursday, May 4, 2017
President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.
So: Is the ACLU right? Is there even enough in Trump's EO to sue over?
Probably not. Consider it, section by section:
Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.
Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.
Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.
The balance of the EO is just dressing.
In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.
The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).
But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.