Monday, August 15, 2016

Ninth Circuit Denies Rehearing in California Concealed Carry Case

The Ninth Circuit today denied rehearing of its en banc decision in Peruta v. County of San Diego, upholding California's "good cause" requirement for a concealed carry permit against a Second Amendment challenge.

The ruling is a significant win for advocates of restricted and regulated concealed carry.

Recall that the full Ninth Circuit rejected the Second Amendment challenge to the "good cause" requirement earlier this summer. Plaintiffs petitioned for a rehearing, but the court denied it.

The ruling ends the case at the Ninth Circuit. The plaintiff's only option now is to petition for Supreme Court review. But without a ninth justice, the Court (if it accepted the case) would almost surely split 4-4, leaving the Ninth Circuit ruling in place--that is, leaving things exactly as they are now.

The plaintiffs petitioned for rehearing by arguing that the en banc majority mistakenly ruled that the Second Amendment doesn't protect a right to concealed carry (when the case was in fact about whether the "good cause" requirement infringed on the plaintiffs' right to carry at all outside the home); that the majority's approach conflicts with other courts; that the majority's approach "impermissibly relegates the Second Amendment to Second-class Status"; and that the "Decision Unnecessarily Intrudes on the Prerogatives of the State."

Today's two-page Order doesn't specifically address those claims; it simply rejects the plaintiffs' petition for rehearing.

The Ninth Circuit's case page is here, with all appellate court filings.

August 15, 2016 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (2)

ACS Calls for Papers at Junior Scholars Public Law Workshop at AALS

This year the American Constitution Society is doing something new at the AALS annual meeting in San Francisco: a public law workshop for junior-ish scholars (legal academics with 10 years or less in full-time teaching).

The announcement explains: "A committee composed of members of ACS’s Board of Academic Advisors will select 10 papers and each selected author will have the opportunity to discuss his/her paper in depth with two experienced scholars, from a group that includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler."

It's the afternoon of January 5th in San Francisco. Submissions are due October 15th. More information is available here.

August 15, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Saturday, August 13, 2016

NYT on Executive Power in the Obama Administration

Check out the first of a planned six-part series on executive power under President Obama by Binyamin Appelbaum and Michael D. Shear at the NYT. The first part deals with federal regulations; here's a taste:

Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history.

Blocked for most of his presidency by Congress, Mr. Obama has sought to act however he could. In the process he created the kind of government neither he nor the Republicans wanted--one that depended on bureaucratic bulldozing rather than legislative transparency. But once Mr. Obama got the taste for it, he pursued his executive power without apology, and in ways that will shape the presidency for decades to come.

August 13, 2016 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, August 12, 2016

Sixth Circuit Foils FCC Effort to Expand Broadband Coverage through Preemption

The Sixth Circuit ruled this week in State of Tennessee v. FCC that the Federal Communications Commission lacked statutory authority to preempt states' laws that restricted municipalities from providing broadband Internet service outside their boundaries.

The ruling means that the FCC can't require states to permit municipalities to provide service outside their boundaries, at least in the Sixth Circuit, and at least unless and until Congress specifically authorizes the FCC to preempt in the Telecommunications Act of 1996.

Because areas outside the boundaries of these particular municipalities are unserved or under-served areas, the ruling also means that certain regions outside the municipalities' boundaries will continue to go with inadequate Internet service.

The case arose when Tennessee and North Carolina implemented restrictions on municipalities' ability to provide Internet service outside their territorial boundaries. Two municipalities in those states complained to the FCC, because they saw benefits to providing service, and thus wanted to provide service, outside their boundaries. The municipalities appealed to the FCC to preempt state laws restricting broader service.

The FCC responded by finding that broader service would serve the interests of the Telecommunications Act of 1996 (expanded broadband access, and all the benefits that this brings to communities), and by issuing an order preempting the portions of the state laws that prohibited municipalities from providing access beyond their boarders.

The states sued, arguing that the FCC lacked authority to preempt under the Act's preemption provision, Section 706. The court agreed.

The court said that the FCC's order ran headlong into the "Clear Statement Rule" and Nixon. Under the Clear Statement Rule, the FCC can't preempt a state action that allocates state decision-making; under Nixon v. Missouri Municipal League, that rule applies when a federal government preemption action "interpos[es] federal authority between a State and its municipal subdivisions," which, the Court said, "are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion." As the Sixth Circuit said,

Any attempt by the federal government to interpose itself into this state-subdivision relationship therefore must come about by a clear directive from Congress, and the FCC can only pick the decision maker here if there exists a clear statement to do so in Section 706.

According to the court, Section 706 contains no such clear statement.

So despite the Act's ambitious goals and broad delegation to the FCC to achieve those goals, the court said that the Act stops short of authorizing the FCC to preempt state laws restricting Internet access beyond a municipality's boarders.

Nothing in the ruling requires a state to adopt this kind of restriction, however, or forbids a state from specifically authorizing a municipality to expand access. But when it does--as Tennessee and North Carolina have done--the FCC cannot preempt it, at least in the Sixth Circuit, and at least unless and until Congress gives the FCC specific authorization to do so.

(The North Carolina case was in the Fourth Circuit when that court transferred it to the Sixth Circuit for consolidation with the Tennessee case.)

August 12, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Thursday, August 11, 2016

Officer's Allegations of Misconduct are Protected Speech

The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.

The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.

The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.

Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.

The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.

But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.

The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.

August 11, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 10, 2016

D.C. Circuit Rejects Appointments-Clause Challenge to SEC ALJs

The D.C. Circuit yesterday rejected a constitutional challenge to Security and Exchange Commission Administrative Law Judges, ruling that SEC ALJs are not "officers" or "inferior officers" whose appointments need to meet the requirements of the Appointments Clause.

The court also rejected a broadside attack against the way the D.C. Circuit analyzes whether any ALJ (SEC or not) is subject to the Appointments Clause.

The petitioner's challenge was novel and sweeping. A ruling in its favor could have been quite significant, potentially threatening the authority of SEC ALJs, certain ALJs in other agencies, and possibly even ALJs across the board (at least insofar as their appointments don't satisfy the Appointments Clause). But the petitioner's novel claims ran up against circuit law. The ruling is thus a decisive win, if not a totally unpredictable one, for the government.

The case turned on whether SEC ALJs are "officers" (who, under Article II, require presidential nomination and advice and consent of the Senate), "inferior officers" (who, under Article II, may be appointed by the President alone, the courts, or the head of a department, depending on what Congress says), or just employees (who are not covered by the Appointments Clause). Under circuit law, the line between "inferior officers" and employees, in turn, depends on (1) the significance of the matters resolved by the officials, (2) the discretion they exercise, and (3) the finality of their decisions.

The court said that decisions of SEC ALJs are not final under the third prong, and therefore SEC ALJs are employees, not subject to the Appointments Clause. That's because under the law the SEC itself makes the final decision, even if only by passively adopting an ALJ's decision. The court explained:

Until the Commission determines not to order review, within the time allowed by its rules, there is no final decision that can "be deemed the action of the Commission." As the Commission has emphasized, the initial decision becomes final when, and only when, the Commission issues the finality order, and not before then. Thus, the Commission must affirmatively act--by issuing the order--in every case. The Commission's final action is either in the form of a new decision after de novo review, or, by declining to grant or order review, its embrace of the ALJ's initial decision as its own. In either event, the Commission has retained full decision-making powers, and the mere passage of time is not enough to establish finality. And even when there is not full review by the Commission, it is the act of issuing the finality order that makes the initial decision the action of the Commission within the meaning of the delegation statute. . . .

Put otherwise, the Commission's ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit.

The court went on to uphold the Commission's finding of liability and sanctions against the petitioner on other grounds.

August 10, 2016 in Appointment and Removal Powers, Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0)

Monday, August 8, 2016

Court Boots Case by Libertarians and Greens to Participate in Presidential Debates

Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.

The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.

The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.

Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).

Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).

Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.

Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.

August 8, 2016 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Thursday, July 21, 2016

Fifth Circuit Says Texas Voter ID Violates the Voting Rights Act

The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.

The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)

The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.

We last posted on the case here.

Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.

This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.

The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.

Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."

The Fifth Circuit did not rule on the constitutional claims.

 

July 21, 2016 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0)

Monday, July 18, 2016

Court Rebuffs Challenge to Consumer Protection Chief, but Punts on Bureau Itself

Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.

The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.

This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.

The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.

But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.

But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.

Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.

July 18, 2016 in Appointment and Removal Powers, Cases and Case Materials, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, July 16, 2016

No Dice for Native American Casino Challenger

The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.

The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.

The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.

The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.

After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:

NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.

The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).

The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).

Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.

July 16, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).

But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce.  The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries.  Both Scalia and Kennedy dissented.  Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC

Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:

General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.

That... that is prohibited by this.

But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.

Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?

A few moments later, Kennedy follows:

All right.

Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.

Louis J. Caruso:  Well, the thing of it is--

Anthony M. Kennedy:  And it has to be answered in the terms of a compelling interest that is narrowly tailored.

 Did Justice Kennedy actually call Donald Trump a "danger" in 1989?

 

h/t Navid Khazanei

July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, July 11, 2016

Daily Read: Black Lives Matter, Respectability Politics, and News Reporting

In a just-published article, Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment, 2016 Wisconsin Law Review 541, ConLawProf Osagie K. Obasogie (pictured below) and UC Hastings law student Zachary Newman present a compelling discussion of how news media - - - and by extension the general public - - - engage in the politics of respectability with regard to allegations of police misconduct, focusing on the conduct or character of the victim. 

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The authors argue that although " sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force."

In looking at news reports from 2013 until July 2015, the authors conclude that

overall, as a qualitative matter, there is a notable discursive consistency across pre– and post–Black Lives Matter reporting on officer-involved killings, suggesting that the movement’s concerns over race and respectability are not reflected in journalists’ accounts. This overall finding is empirically supported by three persistent themes throughout the data: (1) a strong commitment to colorblindness in discussing the race of the parties involved, (2) the dominance of the police perspective in reporting these incidents, and (3) continued use of criminalizing language unrelated to the incident itself to characterize the victim’s respectability.

The authors insights could be extended to more recent events, including those of this past week, which will be sure to still be on the minds of law students in our classes and  this article could be a great introductory reading for 1L students.

Additionally, more must-read discussions of respectability politics including the events of the last week is over at Race and the Law Prof Blog, including Atiba Ellis's, On Respectability, the Dallas Shootings, #BlackLivesMatter, and Reasoned Discourse which links to that blog's online symposium on Respectability Politics.

July 11, 2016 in Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (4)

Thursday, July 7, 2016

Prosecutor Gets No Absolute Immunity for False Declaration in Support of Subpoena

The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.

At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.

The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.

But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.

Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.

The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.

The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.

The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.

The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.

July 7, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (1)

Tuesday, June 28, 2016

Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales

Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.

The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).

The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)

In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.

Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).

But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:

While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.

Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.

In the meantime, the case can proceed on the merits, though without a preliminary injunction.

Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.

June 28, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, June 23, 2016

Court Deadlocks on President's Immigration Plan

The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)

While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):

Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.

Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).

We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.

The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).

June 23, 2016 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (2)

Thursday, June 9, 2016

Divided Ninth Circuit Says Second Amendment Doesn't Protect Concealed Carry

A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.

The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.

It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).

The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.

The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).

The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."

The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.

The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.

Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."

June 9, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (1)

Monday, June 6, 2016

Federal Civil Rights Ruling Keeps Claim Alive

The Supreme Court ruled today in Simmons v. Himmelreich that a federal prison can maintain his Bivens claim against individual prison officials for Eighth Amendment violations, even though the district court threw out his earlier Federal Tort Claims Act case for the same incident under the FTCA's "discretionary function" exception.

The ruling is a win for Himmelreich and similarly situated federal civil rights plaintiffs. It means that the FTCA doesn't foreclose this kind of claim, and that Himmelreich will have his day in federal court, after all.

The unanimous ruling turned on a very plain, and very simple, reading of the FTCA exceptions provision. In short, the exceptions provision says that the FTCA judgment bar (which ordinarily would have foreclosed Himmelreich's suit against the individual officers, because the district court threw his FTCA claim out) doesn't apply to claims claims dismissed under the exceptions. And because the district court threw his first case out under the exceptions clause, the judgment bar didn't foreclose his subsequent Bivens claim.

Here's my post on the case at SCOTUSblog, with permission:

Prisoner-rights litigation can often raise some tricky issues. Navigating them can mean the difference between keeping a claim alive in federal court, and losing it – and thus the difference between enforcing federal civil rights, and not.

One of these tricky issues was on full display in Simmons v. Himmelreich. But despite the potentially complicated questions in the case, a unanimous Supreme Court held today that one of the rules for prisoner-rights suits simply means exactly what it says: A prisoner can bring a constitutional tort claim against individual prison officials even after a court dismissed his earlier Federal Tort Claims Act suit because the officials acted in a “discretionary” capacity.

The ruling, penned by Justice Sonia Sotomayor, is a decisive win for prisoner-rights advocates. It means that Walter Himmelreich and other, similarly situated civil rights litigants retain a critical tool – the constitutional tort claim against individual officers – in enforcing civil rights and deterring their abuses. More generally, it means that there is now one less tricky issue in prisoner-rights litigation, and it is just a little bit easier, at least in the narrow circumstances of this case, to retain a claim and enforce federal civil rights.

The case involved Himmelreich’s suit against federal prison officials for violations of his Eighth Amendment rights. Himmelreich was serving time for producing child pornography when prison officials transferred another prisoner from special housing into the general population. The transferred prisoner had previously threatened to “smash a pedophile” if given the chance, so it was hardly a surprise when the transferred prisoner severely beat Himmelreich.

Himmelreich sued the government under the Federal Tort Claims Act, which waives sovereign immunity for tort claims against the federal government for the acts of its employees. It also gives federal district courts exclusive jurisdiction over those claims, subject to certain procedural requirements in Chapter 171 (which becomes relevant below, in Himmelreich’s second suit). But the FTCA also contains a list of exceptions, in particular, a “discretionary function” exception that exempts “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function” from the FTCA. This means that someone (like Himmelreich) who has been injured has no FTCA claim against the government for injuries that result from a discretionary act of a government employee. The district court thus dismissed Himmelreich’s FTCA claim under this exception, ruling that the prison officials’ decision as to where to house inmates was a discretionary function. The parties did not challenge this ruling.

While Himmelreich’s FTCA case was still pending, he filed a second suit against the individual prison officials for violating his Eighth Amendment rights. After the district court dismissed Himmelreich’s first suit, the officials then moved to dismiss this second suit under yet a different part of the FTCA. In particular, the officials argued that the FTCA’s “judgment bar” foreclosed this second case. The judgment bar, in Section 2676, says that once a plaintiff receives a judgment in an FTCA suit, he generally cannot bring another suit against an individual employee based on the same incident. It reads:

The judgment in any action [under the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

In other words, the government argued that the district court’s dismissal of Himmelreich’s FTCA case amounted to a “judgment,” and that the FTCA judgment bar therefore foreclosed Himmelreich’s second case against the individual officers.

This is where things get a little complicated. Himmelreich countered that the judgment bar did not apply to cases dismissed under the FTCA exceptions provision (the same one that the district court used to dismiss Himmelreich’s first case). That’s because the exceptions provision says that “[t]he provisions of this chapter” shall not apply to claims dismissed under the exceptions (including the discretionary function exception). “The provisions of this chapter,” in turn, refer to Chapter 171, the list of procedural requirements (mentioned above). And Chapter 171, in turn, includes the judgment bar. The upshot is that a case dismissed on the judgment bar (like Himmelreich’s first case) does not foreclose a case against individual officers arising out of the same incident (like Himmelreich’s second case).

The Supreme Court agreed. In a statutory analysis that required all of two paragraphs, the Court said that Himmelreich’s plain reading of the FTCA was correct, and that the FTCA created no bar to his second case against the individual officers. The Court noted that result made sense:

If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple . . . .

Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.

The Court also roundly rejected the government’s non-textual arguments. It said that United States v. Smith, in which the Court held that another provision of Chapter 171 (the exclusive remedies provision) foreclosed a suit against an individual employee, did not control. That’s because Smith didn’t even discuss the “shall not apply” language in the exceptions provision. Moreover, the exclusive-remedies provision in Smith (unlike the judgment bar) was specifically designed to apply to the exceptions in the FTCA. The Court also said that it didn’t need to address the government’s parade of horribles that would result if every provision of Chapter 171 “shall not apply” to the FTCA’s exceptions. “If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”

At the end of the day, the ruling means that Himmelreich can pursue his civil rights claim against the individual officers, even after the district court dismissed his earlier FTCA claim based on the “discretionary function” exception. More generally, it probably also means that a plaintiff can similarly pursue a civil rights claim against individual officials, even after a district court dismissed an FTCA claim based on other procedural grounds that have nothing to do with “whether an employee can be held liable instead.”

This is a clear win for Himmelreich and other, similarly situated civil rights plaintiffs, because it preserves their constitutional claims against individual officers. This is no small thing: These individual claims, more than any FTCA claim, help enforce civil rights by holding individual officers accountable and by creating a strong deterrent against civil rights abuses by other officers. Thus, today’s ruling, while dealing with just a narrow statutory issue under the FTCA, is nevertheless an important victory for Himmelreich, an important victory for access to justice, and an important victory for civil rights enforcement.

June 6, 2016 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Mixed Result in State Prisoner-Rights Case

The Supreme Court ruled today in Ross v. Blake that a state prisoner wasn't excused from exhausting administrative remedies under the Prisoner Litigation Reform Act because of "special circumstances," but that he may be excused if administrative remedies are unavailable.

The ruling walks back a lower-court-created exception to the PLRA exhaustion requirement, but at the same time recognizes that PLRA statutory exhaustion only applies to "available" remedies. This is probably a net loss for state prisoners (because they can no longer excuse failure to exhaust based on "special circumstances"), but it means that the plaintiff's claim in this case will stay alive, at least through remand to the lower courts, on the question whether remedies were actually "available" to him. The ruling also gives some good language on what it means to be "available" under the PLRA--fodder, no doubt, for future prisoners defending against PLRA-failure-to-exhaust claims.

While the case is not directly constitutional, it certainly has implications for prisoner civil rights and access-to-justice.

Our argument preview is here.

In short, the plaintiff in the case, Shaidon Blake, brought a civil rights claim against a state prison official. The official moved to dismiss for failure to exhaust administrative remedies under the PLRA. Blake countered that he did exhaust. As the case moved to the Supreme Court, it became clear that the administrative remedial scheme itself was, well, confused, and nobody could really say whether Blake exhausted or not.

The Fourth Circuit ruled in favor of Blake, saying that court-created "special circumstances" excused any failure to exhaust, especially where an inmate, as here, reasonably believed that he had sufficiently exhausted his remedies.

But a unanimous Supreme Court rejected the Fourth Circuit's "special circumstances" approach. Justice Kagan, writing for the Court, said that the PLRA contained no "special circumstances" exception, and that the courts couldn't make it up.

But at the same time, the Court said that the PLRA itself required that a plaintiff exhaust only "available" remedies, and that there were serious questions in this case whether the remedies were, in fact, available. Indeed, the Court went on at some length describing why remedies may not have been available--providing a strong prompt to the lower court on remand to hold that they were not available (and therefore to excuse Blake's failure to exhaust).

The Court said that "special circumstances" and "availability" were two different questions. Because it's probably harder to show that a remedy is unavailable than that "special circumstances" excuse exhaustion, the ruling is probably a net loss for prisoners. But at the same time, the Court remanded Blake's case with pretty specific instructions and guidance for the lower court to determine that remedies were not available, and therefore that Blake's failure to exhaust (if any) was excused. In other words, Blake may well end up at the same place he was before his case went to the Court: Exhaustion excused, but this time for lack of available administrative remedies.

June 6, 2016 in Cases and Case Materials, News, Opinion Analysis | Permalink | Comments (0)

Friday, June 3, 2016

No Separation of Powers Problem With Captive-Bred Exemption under Endangered Species Act

The D.C. Circuit ruled today in Friends of Animals v. Jewell that Congress did not violate separation of powers when it enacted legislation ordering the Fish and Wildlife Service to reinstate a categorical exemption for captive-bred animals under the Endangered Species Act.

The ruling is a blow to endangered-species advocates, because it permits the FWS to grant an exemption to the ESA's prohibition on taking or possessing an endangered species without going through the previous individualized-exemption application process. In other words, FWS can now grant a blanket exemption to all holders of captive-bred endangered species without publicizing individual applications and individual exemptions--and also without allowing interested parties to weigh in.

The case arose when the FWS issued the Captive-Bred Exemption to the ESA's general prohibition on taking or possessing an endangered species. The Exemption meant that all captive-bred herds of three antelope species got an automatic pass, without having to go through the individual-application process in Section 10(c) of the ESA.

But Friends sued, arguing that the Exemption violated Section 10(c) of the ESA. The district court agreed, citing the plain language of Section 10(c), which says, "[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." (Emphasis added.)

After the district court struck the Exemption, the FWS backed off and withdrew the Exemption. But then Congress passed "Section 127," which ordered the FWS to "reissue the final rule published on September 2005," that is, the Exemption.

Friends sued again, this time arguing that Section 127 violated separation of powers--in particular, the rules in Plaut v. Spendthrift Farm, Inc. and United States v. Klein. (These cases were on full view in the Court's recent ruling in Bank Markazi.) The lower court dismissed the case, and the D.C. Circuit today affirmed (although on slightly different grounds).

The court rejected Friends' argument that Section 127 violated Plaut, because Section 127 is prospective legislation (and not a retroactive revival of a dismissed case, in violation of Plaut):

Section 127 is not retroactive legislation because it does not establish what the law was at an earlier time. Likewise, Section 127 does not apply to a case already decided and does not overturn the court's determination in [the earlier case]--it simply alters the prospective effect of [the ESA's prohibition on taking or possessing an endangered species without an individual exemption] by exempting U.S. captive-bred herds of the three antelope species from the Act's . . . prohibitions going forward.

The court rejected Friends' argument that Section 27 violate Klein, because Section 127 simply "amends applicable law":

On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption "without regard to any other provision of statute or regulation that applies to issuance of such rule." By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by [the ESA].

The court also held that Friends had informational standing, based on the language of the ESA, which says that "[i]nformation received by the Secretary as part of any application [for an exemption] shall be available to the public as a matter of public record at every stage of the proceeding." According to the court, this was enough for Friends, an endangered-species advocacy organization, to assert informational standing.

June 3, 2016 in Cases and Case Materials, Congressional Authority, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Daily (Re)Reads: Judicial Impartiality

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.”  Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

Nypl.digitalcollections.94398bd0-6987-0130-fdaa-58d385a7b928.001.wBut while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new. 

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay.  As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary. 

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant. 

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult.  Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions). 

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage.  If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge. 

 [image via]

June 3, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Elections and Voting, News, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)