Wednesday, April 27, 2016

Base Campaign Contribution Limit Challenge Headed to Full D.C. Circuit

The D.C. Circuit ruled today in Holmes v. FEC that a lower court erred in not certifying a challenge to federal base contribution limits to the en banc D.C. Circuit.

The ruling means that the full D.C. Circuit will take up the question whether federal base contribution limits violate the First Amendment.

The case arose when the plaintiffs challenged the federal base contribution limit of $2,600 "per election" as violating free speech. They wanted to contribute $5,200 to a congressional candidate in the general election, but the "per election" limit prohibited this. (They could have contributed $2,600 in the primary, then another $2,600 in the general, but they didn't want to contribute in the primary.) They argued that language in the plurality opinion in McCutcheon supported their claim: "Congress's selection of a $5,200 base limit [the combined limit for a primary and general election, according to the plaintiffs] indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption."

The district court declined to certify the question to the D.C. Circuit, because the plaintiffs' argument contradicted "settled law," that is, Supreme Court precedent.

The D.C. Circuit reversed. The court said,

We therefore do not think a district court may decline to certify a constitutional question simply because the plaintiff is arguing against Supreme Court precedent so long as the plaintiff mounts a non-frivolous argument in favor of overturning that precedent. That the plaintiff will be fighting a losing battle in the lower courts does not necessarily make the question "obviously frivolous," or "wholly insubstantial," or "obviously without merit." The plaintiff has to raise the question to ensure that it is preserved for Supreme Court review. And certifying the question fulfills Section 30110's evident purpose of accelerating potential Supreme Court review.

At the same time, the court declined to order certification for a related Fifth Amendment claim against base limits. The court said that this claim was based on regulations, not the Act, and therefore not subject to certification.

April 27, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, April 20, 2016

Court Upholds Arizona Redistricting Plan

A unanimous Supreme Court today upheld a redistricting plan drawn by the Arizona Independent Redistricting Commission that included an 8.8% population deviation in order to comply with nonretrogression under the Voting Rights Act.

The ruling in Harris v. Arizona Independent Redistricting Commission is a win for the controversial Independent Commission and its state legislative map. It's also a mark in favor of allowing relatively greater population deviations (up to 10%) to comply with the VRA. And the case reaffirms the 10% threshold for allowable population deviations under the one-person-one-vote principle.

This is the case where the Redistricting Commission took an initial cut at a state legislative map by drawing cookie-cutter boundaries that yielded a 4.07% population deviation. The Commission then tinkered with the boundaries in order to comply with nonretrogression (that is, to ensure that there was no diminution in the number of districts in which minority groups could elect their preferred candidate of choice) under Section 5 of the VRA (when that Section still had force, pre-Shelby County). The result was a second-draft map that complied with the VRA, but also yielded an 8% population deviation (increased over the 4.07% deviation in the first cut), and put in play a previously solid Republican district. The Commission voted 3-2 in favor of the revised plan, with the two Republican members dissenting.

A group of Arizona voters sued, arguing that the plan violated the one-person-one-vote rule, because the Commission increased the population deviation for partisan purposes.

The Court disagreed. Justice Breyer wrote for the unanimous Court that the plan didn't violate equal protection. Justice Breyer wrote that the plan fell within the presumptively allowable 10% population deviation for the one-person-one-vote rule, and that the plaintiffs therefore had to show that the deviation reflected the predominance of illegitimate reapportionment factors. But the plaintiffs couldn't meet their burden here. In particular, Justice Breyer wrote that the record reflected that the deviation was the result of the Commission's efforts to comply with the VRA by retaining the number of ability-to-elect districts in the state--a legitimate reapportionment factor.

Justice Breyer wrote that Shelby County had no bearing on this case, because it came down after the Commission issued its plan.

April 20, 2016 in Cases and Case Materials, Elections and Voting, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0)

Court Says Congress Can Legislate to Impact Current Cases

The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).

The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.

This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.

While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."

In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.

The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.

But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."

Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."

Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.

Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.

April 20, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, April 15, 2016

Oral Argument Preview: The DAPA Challenge

The Supreme Court will hear oral arguments on Monday in United States v. Texas, the challenge to DAPA, the deferred action program for certain unauthorized aliens.The case involves two core issues: Does a state have standing to challenge DAPA; and does DAPA violate the APA or the Take Care Clause?

Here's my oral argument preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum (called “guidance” by the government) that announced “new policies for the use of deferred action” for certain aliens who are not removal priorities for the Department. The memo directed the U.S. Citizenship and Immigration Services (USCIS) “to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for certain parents of U.S. citizens or lawful permanent residents. The process is called Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.” To qualify, an applicant must (1) be the parent of a U.S. citizen or lawful permanent resident as of November 20, 2014; (2) have continuously resided in the United States since January 1, 2010, or before; (3) have been physically present here on November 20, 2014, and when applying for DAPA; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities (which the Secretary set out in a companion memo, and which include removing aliens who are serious criminals and terrorists); and (6) “present no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” The Secretary’s memo also expanded the criteria for deferred action under the earlier 2012 Deferred Action for Childhood Arrivals policy, or “DACA.”

The Secretary’s memo explained that DAPA would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported” given the Department’s “limited enforcement resources.” Moreover, it would advance “this Nation’s security and economic interests and make common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” The memo emphasized that DAPA does not establish any right to deferred action, and that deferred action “does not confer any form of legal status” and “may be terminated at any time at the agency’s discretion.”

Under longstanding federal law, which recognizes deferred action, an alien with deferred action may apply for work authorization based on economic need. In addition, an alien with deferred action may qualify for certain federal earned-benefit programs that come with lawful work, such as Social Security retirement and disability, Medicare, and railroad-worker programs. But an alien with deferred action is not eligible to receive food stamps, Supplemental Security Income, temporary aid for need families, and many other federal public benefits. And an alien with deferred action is not eligible for any “[s]tate or local public benefit,” although states may voluntarily extend certain benefits to aliens with deferred action. For example, Texas voluntarily permitted an alien with deferred action to apply for and receive a driver’s license, which Texas subsidized.

On December 3, 2014, Texas and other states sued the Department, seeking declaratory and injunctive relief against implementation of DAPA. The plaintiffs alleged that DAPA violated the Take Care Clause of the Constitution and the Administrative Procedures Act. The district court entered a nationwide preliminary injunction against implementation of DAPA.

A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The court ruled that at least one plaintiff, Texas, had standing, because state law would require it to subsidize a driver’s license for an alien with deferred action under DAPA. The court also ruled that the plaintiffs were substantially likely to succeed on their claim that the Department should have used notice-and-comment rulemaking (and not a mere memo by the Director) to implement DAPA. Finally, the court ruled that DAPA was “manifestly contrary” to the Immigration and Naturalization Act.

This appeal followed.

CASE ANALYSIS

The case involves two principal issues. Let’s take them one at a time.

Standing

Under Article III of the Constitution, in order to bring this case in federal court, at least one state has to show (1) that it suffered an actual or imminent “injury in fact,” (2) that DAPA caused, or will cause, the injury, and (3) that the lawsuit will redress the injury. Moreover, in order to sue under the APA, the states’ interests have to fall within the “zone of interests” of the relevant statute, here the INA. The parties frame their arguments around these rules.

The government argues first that no state has Article III standing, because DAPA does not directly injure the states or require them to do anything. The government says that any injury that DAPA causes the states is only indirect and incidental, and that states cannot establish standing on the basis of an indirect or incidental injury from the operation of immigration law (which the Constitution assigns exclusively to the federal government). Moreover, the government asserts that the claimed injury here, Texas’s costs in subsidizing temporary visitor driver’s licenses for aliens, is entirely self-imposed. The government contends that recognizing these kinds of injuries would permit states to force cases over a wide swath of federal programs, essentially allowing states to challenge the federal government at nearly every turn.

The government argues next that the states cannot sue under the APA, because their interests are not within the zone of interests under the INA. The government says that the states’ asserted interests—“reserving jobs for those lawfully entitled to work” and “comment[ing] on administrative decisionmaking”—are different than their interests in Article III standing (discussed above), and that they therefore impermissibly mix-and-match their interests for standing and APA purposes. The government also claims that the states’ asserted interests for their APA challenge, if accepted, would effectively eliminate the zone-of-interest requirement under the INA and open the door to a federal suit by any state that is unhappy with federal immigration policy.

Finally, the government argues that the executive’s enforcement discretion, including the enforcement discretion reflected in DAPA, is traditionally immune from judicial review. The government says that the decision to permit aliens to work, as an attribute of enforcement discretion, is similarly unreviewable in court.

The states argue that they have Article III standing, because DAPA requires at least one of them, Texas, to incur costs in subsidizing driver’s licenses. The states say that this injury is legitimate and not manufactured (because the driver’s license subsidy was already on the books), and therefore satisfies the Article III injury requirement. The states contend that DAPA also requires them to incur costs related to healthcare, education, and law enforcement. And they assert that they have standing to protect their citizens from “labor-market distortions, such as those caused by granting work authorization to millions of unauthorized aliens.” The states contend that they are entitled to “special solicitude” in the standing analysis under Massachusetts v. EPA. 549 U.S. 497 (2007).

The states argue next that they can challenge DAPA under the APA, because their interests fall squarely within the zone of interests in the INA. They say that DAPA grants lawful presence and eligibility for work authorization and other benefits, the crux of their interests. They say moreover that the INA does not grant the Department discretion to do this. Thus, they claim that their interests fall squarely within the zone of interests protected by the INA.

DAPA’s Lawfulness

Under basic separation-of-powers principles, Congress is charged with making the law, and the President is charged with executing it. This means that administrative action like DAPA cannot violate the INA. Under the APA, it also means that DAPA must go through notice-and-comment rulemaking, if DAPA is a new “rule” (although DAPA need not go through notice-and-comment rulemaking if it is merely a new policy). Finally, under the Take Care Clause, it means that DAPA must be a proper execution of federal law, again the INA. The parties touch on each of these principles.

The government argues that the INA provides the Secretary ample authority for DAPA. The government claims that under the INA Congress has directed the Secretary to focus limited resources on removing serious criminals and securing the border, and that DAPA, in deferring action for aliens who are not priorities for removal, is perfectly consistent with this. The government claims that DAPA serves the additional purposes of “extending a measure of repose to individuals who have long and strong ties to the community” and encouraging hard work, on the books, so as to minimize competitive harm to American workers.

The government argues next that DAPA has deep historical roots. It says that the Department and the Immigration and Naturalization Service before it have adopted more than 20 similar policies in the last 50 years, deferring deportation for large numbers of aliens in defined categories. Since the early 1970s, each of these actions has also resulted in eligibility for work authorization—a practice that was codified in formal regulations in 1981. The government contends that Congress has repeatedly ratified the Department’s authority, with full knowledge of these policies.

Third, the government argues that the states are wrong to say that DAPA violates the INA. The government claims that the INA itself and past practice refute the states’ assertion that the Secretary can only authorize deferred action and work authorization for categories of aliens that Congress has specifically identified. Moreover, it claims that even the states agree that the Secretary could provide separate temporary reprieve for every one of the individuals covered by DAPA, so DAPA itself cannot be “too big.” And the government points out that longstanding regulations permit the Secretary to authorize lawful work for aliens covered by deferred action.

Fourth, the government argues that DAPA is simply a policy statement regarding how the Department will exercise discretionary authority—and not a binding rule that requires notice-and-comment procedures. Indeed, the government points out that no prior deferred action policy has been subject to notice-and-comment requirements. The government says that DAPA requires Department agents to exercise discretion in granting deferred action, and that DAPA is no less a “policy” than one that gives individual agents authority to be less forgiving for specific reasons in any individual case.

Finally, the government argues that the Take Care Clause provides the states with no basis for relief. The government claims that the Take Care arguments are simply dressed-up versions of their statutory arguments, and that in any event the Take Care Clause is nonjusticiable. But even if the Take Care Clause requires something different than the statutory analysis, and even if it is justiciable, the government says that the Secretary has complied with it by enforcing and executing the INA (for the reasons stated above).

The states argue that DAPA violates the INA. They say that Congress has to expressly authorize the executive to defer removal for whole categories of aliens, because this question is so central to the INA’s statutory scheme. But they claim that Congress has not done this. They also contend that DAPA flouts the 1996 amendments to immigration statutes that deny certain benefits to unlawfully present aliens whom the executive elects not to remove. And they say that DAPA would render meaningless Congress’s comprehensive framework, which “define[s] numerous categories of aliens that are entitled to or eligible for work authorization.”

The states argue next that DAPA is invalid, because it was promulgated without notice-and-comment procedures. The states claim that DAPA is a substantive binding rule, not a policy, and was therefore subject to notice-and-comment requirements. They say that the President compared DAPA to a military order and promised consequences for officials who defied it. They also say that it gives no discretion to Department officials in its enforcement. Moreover, the states contend that DAPA is a rule because it affects individual rights and obligations, using legislative-type criteria to determine whether an alien qualifies for substantial government benefits. The states assert that “[t]his change is immensely important to the Nation and requires at least public participation through notice-and-comment procedure.”

Finally, the states argue that DAPA violates the Take Care Clause. They claim that DAPA declares conduct that Congress has determined unlawful to be lawful. They say that this is precisely the kind of power grab that the Take Care Clause was designed to prevent.

SIGNIFICANCE

At its core, this case is about the meaning and sweep of DAPA. By the Secretary’s reckoning, DAPA is merely a policy that guides the discretion of Department agents in enforcing the INA—the same way that any Department policy might guide an agent’s discretion, well within the discretion authorized by the INA. But by the states’ reckoning, DAPA is a new and binding rule that contradicts the INA: it represents the executive’s effort to change the law, not simply enforce it.

To sort this out, the Court will look at the precise language of the INA and DAPA itself, of course. But it will also look to other indicia of congressional intent to enforce the INA. These may include things like congressional awareness of and acquiescence to longstanding Department regulations that seem to assume that the Department may use deferred action, and which grant benefits as a result of it. These may also include congressional appropriations, which amounted to $6 billion in 2016. This was enough to deport only a small portion of the estimated 11 million undocumented aliens currently living in the United States, thus strongly suggesting that Congress intended the Department not to remove large populations of unlawfully present aliens. (The government points out that the Department has recently been setting records for removals in a year, but still only removing about 440,000 in 2013, for example.) Finally, the Court will look at the Department’s prior deferred action policies, which at different times since 1960 covered undocumented Cuban nationals after the Cuban Revolution, undocumented spouses and children of aliens with legalized status, individuals who sought lawful status as battered spouses or victims of human trafficking, foreign students affected by Hurricane Katrina, widows and widowers of U.S. citizens who had no other avenue of immigration relief, and certain aliens who came to the U.S. as children.

Here’s one thing the Court won’t look at: the Department’s actual enforcement of DAPA. That’s because the states filed suit before the Department implemented DAPA, and so there is no record of Department enforcement of DAPA. The states claim that Department agents will implement DAPA much as they implemented DACA, and that under DACA agents did not exercise discretion in individual cases (suggesting that DACA and DAPA are new rules, and not merely policies guiding individual agent’s discretion).

Aside from the merits, the first issue in the case, standing, could be dispositive. It is not at all obvious that the states have standing under Court precedent. In perhaps the closest case, Massachusetts v. EPA, the Court held that the state had standing to challenge the EPA’s failure to regulate greenhouse gases, based on the state’s loss of coastline due to rising sea levels (due to increased greenhouse gases). But Massachusetts is hardly on all fours with this case. Still, it will likely play an important role in oral argument.

But it’s easy to think that these doctrinal issues are really just cover for underlying policy and political disputes. On the policy side, the case raises the important and contested questions of whether and how to deal with some of the 11 million unauthorized aliens in the United States. In particular: Should we protect certain classes of unauthorized aliens from immediate deportation for economic reasons (because they provide a net benefit to our economy), humanitarian reasons (to keep families together, for example), or just plain fairness reasons? The case also raises the important and contested question of who decides—the federal government, or the states. The Court answered that question unequivocally in favor of the federal government just four years ago in Arizona v. United States, 567 U.S. ___ (2012), the SB 1070 case. This case gives the Court another crack at it.

On the political side, the case is (obviously) yet another battle in the continuing war between Republicans and President Obama over immigration and executive authority. All twenty-six states that brought the case are led by Republican governors. (Yet at least one state that has a far more sizeable portion of the unauthorized alien population in the U.S., California, led by a Democrat, is notably absent from the suit.) Moreover, President Obama said that he initiated DACA and DAPA in the first place as a reaction to congressional (Republican) failure to take up immigration reform. The case is thus at the center of the ongoing dispute between a Democratic President who in the face of congressional intransigence has governed by executive order, and the Republican opposition that claims that this represents “executive overreach.”

April 15, 2016 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0)

Seventh Circuit Says Data-Breached Diners Have Standing to Sue Restaurant

The Seventh Circuit ruled yesterday in Lewert v. P.F. Chang's China Bistro, Inc. that restaurant-goers had standing to pursue their case against the restaurant chain for actions they took to protect themselves after the chain revealed that it had been the victim of a computer-system hack.

The ruling is a win for consumers insofar as it lets them get beyond the pleadings in data-breach cases (so long as they plead that they took measures to protect themselves and will suffer an increased chance of fraudulent charges or stolen identity). (The plaintiffs here now have a chance to move the case forward.) But it says nothing on the merits.

The case arose after P.F. Chang's announced that its computer system had been breached and that some consumer credit- and debit-card data had been stolen. At first, the restaurant didn't know the extent of the breach, so switched to a manual card-processing system at all locations around the country. Later, it announced that data was stolen from just 33 restaurants, including one in Schaumburg, Illinois.

The plaintiffs, diners at P.F. Chang's Northbrook, Illinois, location, worried that their information may have been stolen. One of the plaintiffs noticed fraudulent charges on his card soon after P.F. Chang's announcement; he cancelled his card and purchased an identity-theft-protection service. The other plaintiff did not have fraudulent charges, but he took extra time to monitor his credit-card statement and credit report. Both plaintiffs claimed that they suffered an increased risk of fraudulent charges and stolen identity.

The plaintiffs brought a class action, and P.F. Chang's moved to dismiss for lack of standing. The Seventh Circuit sided with the plaintiffs.

The court said that the plaintiffs' actions to protect themselves were sufficient harms to establish standing: the plaintiffs suffered action harms by taking precautionary steps to protect themselves, and they suffered imminent harms of increased chances of fraudulent charges and stolen identities.

As to causation, the court said that any questions--whether the data breach caused the plaintiffs' injuries--went to the merits. As to redressability, the court said that monetary relief could redress the harms.

April 15, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, April 13, 2016

Ninth Circuit Rejects Latest Class Action Pick-Off Strategy

The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.

The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.

The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.

Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.

But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."

In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.

The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.

April 13, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Monday, April 11, 2016

Fifth Circuit Lets State AG Subpeona, Civil and Criminal Threats Against Google Stand

The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.

The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."

Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."

Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.

The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.

April 11, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness | Permalink | Comments (0)

American Immigration Council on DAPA Challenge

Check out the American Immigration Council's backgrounder on United States v. Texas, the case challenging DAPA, scheduled for oral arguments at the Court next Monday, April 18.

April 11, 2016 in Cases and Case Materials, News | Permalink | Comments (0)

Tuesday, April 5, 2016

Court Can't Second-Guess Prosecution's Charging Decisions

The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.

The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.

The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.

The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."

The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.

April 5, 2016 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

O'Neill on Roberts's Thayerian Justice

Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.

O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?

This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.

April 5, 2016 in Cases and Case Materials, Congressional Authority, News, Scholarship | Permalink | Comments (0)

Monday, April 4, 2016

Court Says States Can Use Total Population to Draw Legislative Districts

A unanimous Supreme Court ruled today in Evenwel v. Abbott that states can use total population--and need not use voter-eligible population--to comply with the one-person-one-vote principle in drawing legislative districts.

The ruling is a setback for a group of conservative Texas voters that argued that states must use voter-eligible population in drawing legislative districts. Using voter-eligible population (as compared to total population) would benefit rural, and conservative, areas in a state like Texas, because urban areas contain a higher proportion of non-voter-eligible persons (who would count in measuring total population, but not voter-eligible population).

The case arose when a group of Texas voters argued that their votes were diluted as compared to the votes of eligible voters in other state senate districts, thus violating the one-person-one-vote principle. The state drew its state senate map based on total population, but the voters claimed that this resulted in inequalities. In particular, the voters claimed that their senate district contained a far greater eligible-voter population than other districts of equal total population. (The state senate map had a deviation between districts of 8.04 percent when measured by total population--the population that the state used in drawing the maps. This deviation is within the 10 percent deviation range that is presumptively permissible under the one-person-one-vote principle. But when measured by voter-eligible population, the map had a deviation of 40 percent--well outside that presumptively permissible point.) The voters argued that the state must use voter-eligible population in drawing districts.

The unanimous Supreme Court disagreed. Justice Ginsburg, writing for the Court, said that constitutional history, precedent, and practice show that a state may use total population in drawing legislative districts. In short: we've always done it this way, and we've said it's OK, so it's OK.

The Court declined to say whether a state may use voter-eligible population.

April 4, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, March 29, 2016

Union Fair Share Fees Survive, by Equally Divided Court

An equally divided Supreme Court today affirmed the Ninth Circuit's ruling upholding public-sector union fair-share fees against a First Amendment challenge. The one-sentence per curiam ruling said nothing on the merits.

The case, Friedrichs v. California Teachers Association, almost surely represented the end of public-sector union fair-share fees. The Court had sent a couple signals in recent Terms that it was prepared to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair-share fees, and oral arguments earlier this year suggested that this was the case to do it.

But with Justice Scalia's passing (after oral arguments in the case), the Court divided four to four, upholding the lower court, which upheld fair-share fees.

The ruling today leaves fair-share fees on the books--at least for now, unless and until Justice Scalia's replacement votes with the four traditional conservatives to overturn it in a future case. But the Court's more recent cases--the ones that teed up the challenge in Friedrichs--also stay on the books. So Abood and the Ninth Circuit ruling in Friedrichs still represent the law, but under Harris and Knox, Abood is still hanging by a thread.

The new justice will be the swing vote on this issue, and will say whether public-sector union fair-share fees stay, or go.

March 29, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, March 28, 2016

Argument Preview: Access to Justice in the PLRA

The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.

The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.

On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.

Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.

The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.

Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)

Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)

Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.

Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.

The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.

CASE ANALYSIS

The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.

The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).

Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.

The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.

Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.

Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.

Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).

Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.

(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)

Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).

In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.

SIGNIFICANCE

This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.

Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.

March 28, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Friday, March 25, 2016

No Standing to Challenge Import Permits for Rhino Trophies

Judge Amy Berman Jackson ruled this week in Friends of Animals v. Ashe that Friends lacked standing to challenge a decision by the Fish and Wildlife Service to issue permits authorizing two American hunters to import the trophies they garnered in legal hunts of black rhinoceros in Namibia. The ruling means that the case is dismissed.

The ruling illustrates the barriers for plaintiffs in challenging this kind government action, even before they get to the merits. The core problem, according to the court, is that the Service didn't cause the rhino hunting--the government of Namibia did--and so the court was powerless to remedy the loss of rhinos.

Judge Jackson ruled that the plaintiff-organization demonstrated an injury, the first standing requirement, through one of its members--but barely. In particular, Judge Jackson wrote that a Friends of Animals member who lives in Namibia demonstrated an injury, because he claimed that he viewed, and would view, black rhinos in the Kunene region and Etosha National Park. But the rhinos in this case came from Mangetti National Park. Judge Jackson nevertheless said that the plaintiff alleged a sufficient injury--though "the thinnest reed of an injury"--based on the allegation that the import permits will affect rhinos in the future, throughout the country.

But Judge Jackson went on to rule that the injury lacked causation and redressibility. In particular, she said that the reduced viewing opportunities of rhinos was caused by the Namibian government's authorization of the hunt, not the Service's permits, and that an order halting the permits would do nothing to stop hunting (again, authorized by Namibia).

Finally, the court held that Friends' claim that the Service has a "policy and repeated practice of issuing permits to import sport-hunted trophies of endangered animals" in violation of the Endangered Species Act and the APA wasn't ripe for review.

March 25, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Thursday, March 24, 2016

Tenth Circuit Says No Standing to Challenge Colorado's Gun Laws

In a case that's just crazy enough to have come right out of a ConLaw exam, the Tenth Circuit ruled this week that a group of nonprofits and businesses lacked standing to challenge Colorado's background-check requirement and ban on the possession, sale, and transfer of large-capacity magazines under the Second Amendment and the ADA.

The ruling says nothing on the merits, of course. But it is a pretty good "how-to" on losing on standing (if you're looking for such a thing): the ruling recounts, in detail, the plaintiffs' numerous and surprising missteps and lost opportunities in pressing their standing arguments.

First, the court rejected the plaintiffs' economic injury claim. But this isn't (necessarily) because it's a bad claim; instead, it's because the plaintiffs don't make it. "While compelling arguments may exist as to why we should adopt [an accepted approach on economic burdens when compliance is coerced by the threat of enforcement], the plaintiffs fail to make those arguments in their opening brief, and we decline to make them on their behalf." So the Tenth Circuit denied the plaintiffs' newly generated economic injury theory and applied the district court's credible-threat-of-prosecution test.

Next, under that test, the court said that a number of plaintiffs simply waived their challenge to the district court's ruling as to the background-check requirement. As to those left over, these organizations could only show that they had standing to challenge the background check by showing that it was a burden to comply with the background check--which means, of course, that they couldn't satisfy the credible-threat-of-prosecution test. One organization that alleged that it previously violated the background-check requirement ran into another problem: the prosecutor declined to prosecute. And as to current or future violations: the head of the organization pleaded the Fifth and thus declined to give any details.

Third, a good number of plaintiffs failed to provide any evidence of standing to challenge the large-capacity-magazine ban at the district court. They didn't appeal, and the plaintiffs didn't appeal the district court's failure to address other plaintiffs below. That left just one group on appeal. But that group couldn't establish associational standing on behalf of its member, because her large-capacity magazine was grandfathered by the ban, and her claim that she might eventually want to buy another was too speculative an injury.

Finally, two individuals argued that the gun laws violated the ADA, but failed to allege anything other than that they were disabled. The court said that this may be enough to show standing under the ADA, but it's not enough to show that they had constitutional standing to challenge the gun laws at issue here.

There were other problems with the plaintiffs' case, equally baffling. Take a peek if you're trawling for a good standing fact pattern for your next exam, or if you're looking for a good example how not to argue standing.

March 24, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Second Amendment, Standing | Permalink | Comments (0)

Split Rulings for Illinois Public Employees

The Illinois Supreme Court today issued two opinions on state constitutional provisions as they relate to public employees' compensation. One went for the employees; the other went for the state.

In the first, Jones v. Municipal Employees' Annuity and Benefit Fund of Chicago, the court ruled that the state's effort to cut back on promised annuity payment increases under public-sector union contracts violated the state constitutional Pension Protection Clause. The case involved Public Act 98-641, which would have, among other things, cut the flat annual annuity increases under the contract in order to bring the funds back to solvency. Union members sued, arguing that the provision violated the state constitution's Pension Protection Clause, which says: "Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired."

The court agreed. It said that the Clause means what it says--"shall not be diminished" really means "shall not be diminished"--and that Public Act 98-641 therefore violates it. The court rejected the state's arguments that the Act, when read as a whole, actually provides a net benefit to members and that the Act was part of a bargained-for exchange supported by consideration.

While Jones is a win for public employees, the other case, State of Illinois v. AFSCME, most certainly is not. In AFSCME, the state legislature failed to fund a promised 2-percent raise for certain government employees, even though that raise itself was a concession by those employees, who were entitled to a 4-percent raise under their contract. (In order to meet the state's fiscal crisis, the union and state agreed to a 2-percent raise on schedule, and a later, additional 2-percent raise, for a total of 4 percent--the contractual amount.) AFSCME took the case to an arbitrator and won, but the court reversed. The court said that the state constitutional Appropriations Clause overrode the agreement. That Clause reads: "The General Assembly by law shall make appropriations for all expenditures of public funds by the State." Moreover, an Illinois statute qualifies all public-sector collective bargaining with this language: "Subject to the appropriation power of [the legislature] . . . ." The court said that the Appropriations Clause and Illinois law together mean that the legislature can effectively override a promised contractual raise by failing to fund it.

Justice Kilbride dissented on this point. He argued that the legislature's failure to fund the 2-percent raise constituted a violation of the state constitution's Contract Clause.

March 24, 2016 in Cases and Case Materials, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Not Much New in Oral Arguments in Contraceptive-Requirement Accommodation Case

The Supreme Court heard oral arguments yesterday in Zubik v. Burwell, the case testing whether the government's accommodation to the contraceptive requirement for religious nonprofits violates the Religious Freedom Restoration Act. Our preview is here.

The big news is, well, that there's no big news. Nothing new came out in oral arguments, and the justices' questions seemed only to put their positions on public display or to help them write their mostly-already-decided decisions. The Court spent plenty of time on how the accommodation works (and therefore whether it's a substantial burden), and whether there are other ways the government can achieve its interests (and therefore whether the accommodation is narrowly tailored). The number and types of exceptions already built into the requirement will clearly play a part in the decisions (because they show, or don't, how the accommodation isn't narrowly tailored, depending on your view). The question where the government does, or can, draw the line between religious nonprofits and churches will also be important (for the same reason). But none of this is really new.

The justices seemed to divide four-four, traditional progressives for the government and traditional conservatives for the nonprofits. Justice Kennedy may have left himself a small (very small) opening to go with the progressives; but if he does, it'll be on narrowly tailoring. (Justice Kennedy bought the nonprofits' theory that the government accommodation "hijacked" their insurance coverage--"hijack" being the word of the day for the nonprofits and the conservatives--and therefore created a substantial burden on their religious practice.)

If there's a four-four split, the lower courts' decisions will stand. This means, without some other action by the Court, that the accommodation will be invalid only in the Eighth Circuit--the only one to rule for the nonprofits so far--and valid in the rest of the country.

March 24, 2016 in Cases and Case Materials, News, Oral Argument Analysis, Religion | Permalink | Comments (0)

Wednesday, March 23, 2016

Argument Analysis: Court Splits on Viability of Bivens Claim After FTCA Dismissal

Here's my oral argument analysis in Simmons v. Himmelreich, re-posted from SCOTUSblog, with permission:

If you read the briefs in Simmons v. Himmelreich, you know that it could be tricky to figure out when a court’s dismissal of a federal prisoner’s Federal Tort Claims Act case forecloses his parallel Bivens claim. The issue involves no fewer than four interlocking FTCA provisions that together create quite a puzzle.

But for all the potential technicalities and complications in the case, the oral arguments turned on a surprisingly straightforward question: Does the plain language of just one FTCA provision, the “exceptions” provision, explicitly allow a parallel claim?

The question harkens back to the lead argument that Walter Himmelreich made in his merits brief. He pointed to Section 2680 of the FTCA, titled “Exceptions,” which says that “[t]he provisions of this chapter and section 1346(b) of this title shall not apply to” over a dozen different types of claims that are altogether exempt from the FTCA. (This includes Himmelreich’s FTCA claim, dismissed under the discretionary-function exception in Section 2680.) This means that the government has not waived immunity for these claims, and that the FTCA offers no cause of action, liability, or relief for them.

But by a literal reading, it also means that there is no bar to a non-FTCA claim arising out of the same events that falls within a Section 2680 exception. That’s because “the provisions of this chapter” in Section 2680 include the FTCA judgment bar itself. In other words, the plain language of Section 2680 exempts from the excepted claims (like Himmelreich’s FTCA claim) the very FTCA provision that bars a person like Himmelreich from filing a parallel claim. If this is right – and the plain language seems to support it – then the “exceptions” provision explicitly allows Himmelreich’s parallel Bivens claim. This may be the cleanest path to victory for Himmelreich, and it seemed to have the support of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

While the argument seems straightforward, there are some problems, according to the federal government. For example, if this reading of Section 2680 is right, then other key sections of the FTCA similarly wouldn’t apply to Section 2680 claims. In particular, the FTCA’s definitions section wouldn’t apply, and the section precluding state tort suits against federal agencies that could otherwise be subject to suit under their sue-and-be-sued authority wouldn’t apply. According to the government, this would lead to absurdities (in the case of the FTCA’s definitions section) and “massively expand[ed]” direct liability for the government, contrary to the intent of the FTCA (in the case of the section precluding state tort suits against federal agencies with sue-and-be-sued authority). (The provision applying the Federal Rules of Civil Procedure and the appellate review provision wouldn’t apply to Section 2680 claims, either. But it’s not clear that these lead to significant problems under the FTCA.) Chief Justice John Roberts pushed back against Christian Vergonis, arguing on Himmelreich’s behalf, on these points, suggesting that he wasn’t persuaded by Himmelreich’s literal reading of Section 2680.

The Court also spent significant time trying to figure out if Himmelreich’s Section 2680 argument runs contrary to the result in United States v. Smith. The government argued that if Section 2680 means precisely what it says (as Himmelreich claims), then Smith came out wrong. But Smith doesn’t address the question in this case, and it doesn’t compel the result. The arguments didn’t produce any further clarity on Smith or suggest that Smith might sway anyone’s vote. In the end, Smith is probably neutral: the government’s Smith argument alone doesn’t seem likely to change any positions on the Court.

Other arguments were in play, but barely. For example, Sotomayor opened with a line of questions for the government about why something as arbitrary as timing should matter – that is, why a plaintiff’s Bivens claim should be dismissed if filed after his FTCA claim, but not if filed before it. Ginsburg emphasized that the FTCA claim and the Bivens claim were different – the former looking to the government, but the latter looking to the individual officer – and why that means that Himmelreich’s Bivens claim is not subject to claim preclusion. And Justice Samuel Alito, leaning in the opposite direction, against Himmelreich, asked several times, and in several different ways, why a plain reading of the term “judgment” in the FTCA’s judgment bar didn’t answer the case. He also asked whether the Court should even address Himmelreich’s Section 2680 argument, given that the Sixth Circuit didn’t rule on it.

Based on the arguments, we could be looking at a four-to-four split, with the Court’s more liberal Justices siding with Himmelreich and his Section 2680 argument, and the more conservative Justices siding with the government and its judgment-bar argument. (Justice Anthony Kennedy asked just two questions, but they seemed to lean against Himmelreich.) That would leave the Sixth Circuit’s ruling in favor of Himmelreich in place. But it would also leave Himmelreich’s Section 2680 argument – and the larger question whether a prisoner’s dismissed FTCA claim can foreclose his parallel Bivens claim – open and on the table.

March 23, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0)

Argument Preview: Does the Accommodation to the Contraception Requirement Violate Religious Freedom?

The Court will hear oral arguments tomorrow in, Zubik v. Burwell, the case challenging the government's accommodation to the Affordable Care Act's contraception requirement under the Religious Freedom Restoration Act. Here's my preview of the case for the ABA Preview of U.S. Supreme Court Cases, with permission:

ISSUE

Does the federal accommodation to the contraceptive-coverage requirement for religious nonprofits substantially burden their religious practices, and, if so, is the accommodation the least restrictive way to promote a compelling government interest?

FACTS

The Patient Protection and Affordable Care Act (the “Act,” “Affordable Care Act,” or sometimes called “Obamacare”) requires health insurers and employer-sponsored group health plans to provide certain preventive services to their customers without imposing copayments, deductibles, or other cost-sharing charges. Congress included this requirement in order to encourage individuals to get appropriate preventive care and, as a result, to improve public health. But the Act did not specify the exact preventive services to be covered; instead, Congress provided for coverage of services according to recommendations of medical experts.

The requirement included preventive services specific to women’s health. Congress included these gender-specific services in order to remedy a particular problem—that women pay significantly more for preventive care and thus often fail to seek preventive services. As with the more general preventive services, the Act did not specify the exact gender-specific preventive services to be covered; instead, Congress left this task to the experts, providing for coverage of “preventive care and screenings” specified in “comprehensive guidelines support by the Health Resources and Services Administration” (or “HRSA”), a component of the U.S. Department of Health and Human Services (“HHS”).

In developing the guidelines, HRSA relied on recommendations from the Institute of Medicine (“IOM”), a part of the National Academy of Sciences. IOM recommended including the full range of contraceptive methods approved by the Food and Drug Administration (“FDA”), including oral contraceptive pills, diaphragms, injections and implants, emergency contraceptive drugs, and intrauterine devices. IOM based this recommendation on extensive medical literature establishing that contraceptives greatly decrease the risk of unintended pregnancies and negative health outcomes. IOM cited the deterrent effect of copayments on the use of contraception, and concluded that “[t]he elimination of cost sharing for contraception therefore could greatly increase its use, including the more effective and longer-acting methods.”

HRSA adopted IOM’s recommendations and included all FDA-approved prescription contraceptive methods in its guidelines. The relevant federal agencies (HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury) incorporated the HRSA guidelines in their regulations.

The Act’s preventive-services requirement applies to individual health insurance plans and employer-sponsored group plans. (The Act exempts a small and declining percentage of plans from certain reforms, including the preventive-services requirement. About 25 percent of plans were exempt in 2015.) The requirement is enforced against health insurers by state insurance regulators and HHS; it is enforced against employer-sponsored group health plans through the Employee Retirement Income Security Act (“ERISA”) and a tax penalty on employers with noncompliant plans.

Recognizing that some employers have religious objections to contraceptives, but at the same time that their employees should receive the same access to FDA-approved contraceptives as other individuals in employer-sponsored plans, the relevant departments created an accommodation. This accommodation applied specifically to religious nonprofits that opposed covering contraceptive services on religious grounds. The regulations allowed an objecting employer to opt out of any requirement by sending a simple form (EBSA Form 700) to the plan’s health insurer or third-party administrator (for self-insured plans), or by providing written notification to the Secretary of HHS. (The government adopted the latter procedure in light of the Court’s ruling in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). In that case, the Court granted an injunction pending appeal to Wheaton College, halting the use of the form, but requiring the plaintiff to inform HHS in writing that it satisfied the requirements for the accommodation. The latter procedure (the letter) is simply an extension of this procedure to all religious nonprofits.) Either method (EBSA Form 700, or written notification to the Secretary) requires an objecting employer to provide only essential information—the basis for its accommodation, the type of plan it offers, and contact information for the plan’s insurer or third-party administrator.

If an objecting employer opts out of the contraceptive-coverage requirement, either the employer’s insurer (for insured plans) or third-party administrator (for self-insured plans) must provide contraceptive coverage to the employer’s employees directly, independently of the objecting employer, and without additional cost to the employees. (Health insurers have to provide contraceptive services, anyway. But the accommodation requires them to provide those services under a plan that is separate and distinct from the objecting employer’s plan. As to third-party administrators to objecting employers: the Act gives them sole legal responsibility for providing contraceptive coverage under ERISA.)

A good number of religious nonprofits have taken advantage of the accommodation. In 2014, HHS provided user-fee reductions to compensate TPAs for making contraceptive coverage available to over 600,000 employees and beneficiaries. In 2015, more than 10 percent of all nonprofit organizations with 1,000 or more employees took advantage of the accommodation.

At the same time, however, more than two-dozen nonprofits objected. These included religious colleges and universities, other religious nonprofits (like Little Sisters), and three Catholic dioceses. (The Catholic dioceses are automatically exempt from the contraceptive-coverage requirement as houses of worship.) They brought nine separate suits in various federal courts around the country, arguing that the accommodation violated the federal Religious Freedom Restoration Act, or “RFRA.” The U.S. Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits rejected these claims. (The U.S. Courts of Appeals for the Second, Sixth, and Seventh Circuits agreed, although those cases are not part of this consolidated appeal.) Only the Eighth Circuit ruled for the plaintiffs.

CASE ANALYSIS

The federal RFRA says that the government cannot “substantially burden a person’s exercise of religion” unless the burden is “the least restrictive means of furthering [a] compelling government interest.” 42 U.S.C. Sec. 2000bb-1(a) and (b)(2). The Act thus has two prongs: the “substantial burden” prong, and (2) the “fitness” prong, which requires a close fit between the means (here, the accommodation) and the government interest. The courts only consider the fitness prong if the plaintiffs can satisfy the substantial burden prong.

All the lower courts (with the sole exception of the Eighth Circuit) have ruled that the accommodation is not a “substantial burden” under RFRA. As a result, those courts have not even considered whether the accommodation is the least restrictive means to further a compelling interest. Here, the parties argue both.

The plaintiffs argue first that the accommodation is a substantial burden on their religious exercise, because it implicates them in the provision of contraception, contrary to their religious beliefs. In particular, the plaintiffs claim that the accommodation requires them to submit a document that authorizes their own insurance companies or TPAs to provide contraceptive coverage to their own employees and students, in violation of their religious beliefs. They say that the accommodation then requires them to maintain an ongoing relationship with an insurer or TPA that continues to provide contraceptive coverage, again in violation of their religious beliefs. The plaintiffs contend that the accommodation violates their sincerely held religious belief, and that the Court should defer to them on this question.

The plaintiffs argue next that the accommodation is not the least restrictive way that the government can further a compelling government interest. They claim that the government has already granted a number of exemptions from the contraceptive-coverage requirement, leaving out millions of people, for both religious and other, less important, and nonreligious reasons. They say that this shows that the government’s interest in applying the requirement to them (even with the accommodation) cannot be compelling. Moreover, they contend that the government has other ways to provide contraceptive coverage. For example, they claim that the government could provide contraceptive coverage through insurance exchanges, certain existing federal programs, or tax subsidies. Because the government has no compelling interest, and because it has alternative ways to provide contraceptive coverage, the accommodation fails the second prong of the RFRA test.

The government argues first that the accommodation is not a substantial burden on the plaintiffs’ religious beliefs. The government claims that the accommodation allows the plaintiffs to entirely opt out of the contraceptive-coverage requirement, and that the government itself then directly requires insurers or TPAs to provide contraceptive coverage, completely independently and separately from the coverage provided by the plaintiffs. (In this way, according to the government, the accommodation doesn’t force the plaintiffs to authorize the coverage; instead, the law itself requires coverage.) Moreover, the government contends that the plaintiffs’ sincere objections to the government’s independent requirement of third parties (the insurers and TPAs) cannot constitute a substantial burden under the RFRA. If it were otherwise, any religious accommodation could subject countless government programs to RFRA’s stringent second prong and “profoundly impair the government’s ability to accommodate religious objections.”

The government argues next that even if the accommodation amounts to a substantial burden, the accommodation serves a compelling government interest. In particular, the government says that it has a compelling interest in protecting the health of female employees, and that contraceptive coverage advances that interest. The government claims that the plaintiffs are wrong to argue that other exemptions mean that the government lacks a serious compelling interest. After all, it says, most laws have exceptions, and they don’t take away from a law’s purposes. Moreover, the government contends that other exemptions to the contraceptive mandate do not undermine its core purpose and compelling interest. Finally, the government argues that the accommodation serves its interest in the least restrictive way, because it ensures that female employees can automatically receive contraceptive coverage and that they can receive contraceptive services through their regular medical care, without having to sign up for a new and different plan or program (which does not currently exist in federal law).

SIGNIFICANCE

This is a strange case to wrap one’s head around. That’s because the plaintiffs are not complaining that the contraceptive coverage requirement itself violates their religious freedom. That claim might be understandable. And it would probably be an easy case, in light of the Court’s decision just two Terms ago in Burwell v. Hobby Lobby, holding that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act as to a closely-held for-profit corporation.

But instead, the plaintiffs claim that the government’s effort to exempt them from the contraceptive-coverage mandate violates their religious beliefs. More particularly, they claim that the accommodation violates their religious beliefs, because it triggers the offending government policy. On the face of it, this kind of claim seems to turn the idea of an accommodation on its head. And moreover, as the government argues, it potentially subjects other religious accommodations in other policy areas to similar religious freedom challenges. This could put the government between the Scylla of a policy that might burden a religious practice and the Charybdis of an accommodation to that policy—with a result of forcing the government ship in the future to turn away from a policy altogether. It seems strange and surprising that the RFRA could frustrate this and other government policies this way.

Still, the question is open. The Supreme Court in Hobby Lobby identified the accommodation (the very one at issue here) as an example of how the government might exempt a closely-held, for-profit corporation from the contraceptive-coverage requirement. (The Court used this to show that the government had other, less restrictive ways to further its purpose under the fitness prong of RFRA.) But the Court consciously declined to say whether the accommodation violated the RFRA. As a result, the Court seemed to sanction the accommodation, even as it also seemed to invite this challenge to it.

And speaking of challenges, this is the fourth challenge to the ACA to reach the Court. The first involved challenges to the individual coverage requirement and Medicaid expansion. The Court in NFIB v. Sebelius, 567 U.S. __ (2012), upheld those provisions, with one caveat: the government could not withhold a state’s entire Medicaid budget if the state declined to expand Medicaid (although the government could withhold additional funding for the expansion itself). The second involved a challenge to the contraceptive coverage requirement. The Court in Hobby Lobby ruled that the requirement violated the First Amendment as applied to closely-held, for-profit corporations, although the government could create an accommodation. The most recent challenge involved the subsidies to help lower-income individuals purchase health insurance on the government exchanges. The Court in King v. Burwell, 576 U.S. __ (2015), upheld those subsidies. As a result, ACA challengers have gone 0 and 3, even as they have forced some important changes to implementation of the Act along the way.

There are more challenges in the pipeline, however. One of those involves a challenge to the tax penalty that enforces the individual coverage requirement. Challengers argue that the ACA did not originate in the House of Representatives (as the Constitution requires for revenue-raising bills), and thus the tax penalty is unconstitutional. Another involves a challenge to the government’s subsidies to health insurers to offset their costs in providing certain benefits under the Act. Challengers in the House of Representatives argue that the government spent money for this program without a congressional appropriation. There are others, too.

None of these (including the present case) is likely to threaten the Act in its entirety. But each one (again, including the present case) has the potential to chip away at, or significantly alter, a portion.

March 23, 2016 in Cases and Case Materials, News, Religion | Permalink | Comments (0)

Monday, March 21, 2016

Racial Redistricting, District Packing, and an Outsider's Interests in Reelection

The Supreme Court heard oral arguments today in Whittman v. Personhuballah, the case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Right Act, but with the effect of diluting black voters' influence, violates equal protection.

Our preview is here.

Not surprisingly, the justices spent a good deal of time on standing, in particular, whether Representative Forbes, a congressman who had a lock on reelection in District 4, had standing to challenge the lower court's redistricting plan, because it made it tougher for him to get reelected in District 4. (Indeed, he's running in District 2, where he has a better chance of election, for this reason.) Justices Sotomayor and Kagan seemed to take strong positions that Forbes lacked standing; Justice Breyer staked out an only somewhat weaker position. The conservatives, along with Justice Kennedy, seemed to lean the other way.

On the merits, Justice Kagan put the finest point on the challengers' theory: If a legislature redistricts based malign racial intent, but the map also perfectly promotes acceptable political interests, is it subject to strict scrutiny? Michael Carvin, attorney for the challengers, said no. Justice Kagan went right to the point: "that sounds to me as though it's a harmless error rule for racial discrimination. And we've never had a harmless error rule for racial discrimination."

Chief Justice Roberts put a similar question to all the attorneys, but his hypo did not include any other evidence of racial motive: "If race and partisanship are co-extensive, then . . . which one predominates?" Opponents of the legislature's map had to concede that it'd be a tie; and under a tie, race could not predominate.

The difference between Justice Kagan's hypo and Chief Justice Roberts's hypo is the evidence of the 55-percent BVAP floor. But Chief Justice Roberts didn't seem inclined to look to that evidence to show that race predominated with the legislature. He asked: How do we determine the intent of the legislature? By 10 percent say-so? By 80 percent say-so? What if most of the legislators were only interested in protecting their own party, even though the sponsor of the legislature's redistricting plan used a 55-percent-BVAP (race-based) floor? If the direct evidence of a 55-percent-BVAP floor doesn't persuade that race predominated, then it's a tie, and then race didn't predominate--and the legislature's plan stands.

Chief Justice Roberts was also troubled that the lower court didn't require the plaintiffs to show that a map based on partisanship interests would be different.

With Justice Kennedy seeming to lean with the conservatives, the case could be headed for a 4-4 split, which would uphold the lower court's ruling that District 3 was an unconstitutional racial gerrymander.

March 21, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0)