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)

Thursday, March 17, 2016

Starger's Citation Maps

Check out Prof. Colin Starger's (U. Balt., U. Balt. Sup. Ct. Mapping Project) nifty new online Supreme Court citation network tool. This site, which Starger produced in collaboration with Free Law Project, allows you to map Supreme Court case citations against Spaeth data on the decision direction (liberal-conservative) in The Supreme Court Database, with links to the decisions and a ton more information. Starger already posted a bevy of maps, but you can create your own, too. Here's a sample, mapping from Buckley to McCutcheon:

 

March 17, 2016 in Campaign Finance, News, Scholarship | Permalink | Comments (0)

Can a State Pack Black Voters in a District to Comply with the Voting Rights Act?

The Court will hear oral arguments on Monday in Whittman v. Personhuballah, a case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Rights Act, but with the net effect of diluting black voters' influence, violates equal protection. This is the second time in two Terms that the Court has dealt with the issue: last Term the Court ruled in Alabama Legislative Black Caucus v. Alabama that the lower court applied the wrong standard and remanded the case for further proceedings. Whittman deals with a slightly different question, as described below. There's also a significant question of standing.

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

Does a redrawn congressional district, which is based on maintaining a minimum fixed percentage of black voters in a district and in fact increases the percentage, violate equal protection?

Case at a Glance

The Equal Protection Clause forbids a state legislature from unjustifiably using race as the predominate factor in redrawing state legislative and congressional districts. At the same time, some states were required under the Voting Rights Act to ensure against retrogression, the diminution of a minority group’s ability to elect a preferred candidate of their choice. This means that a covered state had to consider race in redistricting. This case tests how a covered state can consider race.

INTRODUCTION

The Virginia legislature adopted a redistricting plan that increased the percentage of black voters in a majority-minority congressional district. The legislature based the plan on maintaining a fixed percentage of black voters in a certain congressional district, supposedly to comply with the Voting Rights Act. A three-judge district court struck the plan as a racial gerrymander and ordered the implementation of its own map.

ISSUES

    1. Does a member of congress from an adjoining district have standing to challenge the court-ordered map, on the theory that the map may make it harder for him to win re-election?
    2. Did the Virginia legislature’s use of race predominate when it drew congressional district 3, and, if so, was its use of race justified in order to comply with the Voting Rights Act?

FACTS

In 1991, as part of its redistricting plan after the 1990 Census, Virginia created its Third Congressional District, or “CD3.” The state created CD3 as its only majority-minority district, so that racial minorities in the district could elect a candidate of their choice. At the time, CD3 had a black voting age population, or “BVAP,” of 61.17 percent. The U.S. Department of Justice, or “DOJ,” precleared the plan and CD3 under Section 5 of the Voting Rights Act, “VRA.”

In 1997, however, a three-judge court invalidated CD3 as a racial gerrymander. The court in Moon v. Meadows, 952 F. Supp. 1141 (E.D. Va. 1997), found the evidence “overwhelming that the creation of a safe black district predominated in the drawing of the boundaries.” As a result, the General Assembly redrew the district, and lowered its BVAP to 50.47 percent. DOJ precleared the plan, and CD3 was not challenged.

After the 2000 Census, the state redrew CD3 again, along with its other congressional districts. As part of this redistricting, the state shifted a number of black voters from CD4 into CD3 and CD5. As a result, the BVAP in CD3 increased to 53.1 percent. DOJ precleared the plan, and CD3 was not challenged. (This plan is sometimes called “the Benchmark Plan,” because it immediately preceded the challenged plan and thus sets the benchmark against which the challenged plan is measured.)

After the 2010 Census, the state once again undertook to redraw its congressional districts. This time, CD3 was underpopulated by 63,976 citizens, so it needed additional citizens in order to reach the state’s benchmark population for compliance with the one-person-one-vote principle. Delegate Bill Janis introduced a plan that added population to CD3 and increased its BVAP from 53.1 percent to 56.3 percent.

Janis said that he based his plan on several criteria. These included the one-person-one-vote principle, the VRA rule against retrogression of minority voter influence, respecting the will of the Virginia electorate as reflected in the November 2010 elections, and maintaining current boundaries as much as possible. Throughout the floor debates on the plan, Janis repeatedly said that Section 5 of the VRA prohibited retrogression of minority voter influence, that compliance with Section 5 was “nonnegotiable,” and that compliance with the non-retrogression mandate was a “paramount concern” in drafting the plan.

The Virginia legislature failed to enact a plan in its 2011 special session. But Janis’s plan was reintroduced in the 2012 session (although Janis was no longer a member). At least two members of the legislature (Senators Locke and McEachin) protested that the plan packed black voters into CD3 and some surrounding districts, leaving them “essentially disenfranchised.” The House and Senate nevertheless passed the Janis plan, and the governor signed it. The plan maintained an 8-3 partisan division in favor of Republicans in the state and protected all incumbent members of congress. DOJ precleared the plan in March 2012.

In June 2013, in Shelby County v. Holder, 133 S. Ct. 2612, the Court invalidated the preclearance coverage formula in Section 4 of the VRA. This meant that Virginia (along with other previously covered jurisdictions) were no longer subject to the non-retrogression requirement in Section 5.

In October 2013, Dawn Curry Page, Gloria Personhuballah, and James Farkas, three voters in CD3, filed this case, seeking to invalidate CD3 as a racial gerrymander. Republican members of congress from districts surrounding CD3, including Representative Randy Forbes, Republican from CD4, intervened in the case to defend the plan.

The plaintiffs alleged that CD3 was designed to pack black voters in the district, which would dilute black voters’ influence in CD3 and in other districts. During trial, the plaintiffs called an expert, Dr. Michael McDonald, who testified that CD3 was drawn as a majority-black district for predominantly racial reasons. (McDonald based his conclusion in part on an Alternative Plan, produced by the plaintiffs, that resulted in a 50.1 percent BVAP in CD3. The parties disagree over the meaning of the Alternative Plan and whether it supports McDonald’s conclusion.) The state called its own expert, John Morgan, who testified that CD3 was explainable by race-neutral factors of politics and incumbency protection.

Importantly, evidence suggests the General Assembly applied a 55-percent-BVAP floor in drawing CD3. In particular, some evidence shows that at least some in the legislature thought that CD3 needed a 55 percent BVAP in order to pass DOJ preclearance under Section 5 of the VRA. (Remember, the state created CD3 before the Court ruled in Shelby County.)

The district court, by a 2-1 vote, concluded that CD3 was an unconstitutional racial gerrymander and enjoined the state from conducting any further congressional elections under the 2012 plan. The intervenors appealed, and the Supreme Court vacated the district court’s judgment and remanded the case in light of Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). (Alabama Legislative Black Caucus involved the same kind of challenge to a similar plan, which also packed black voters into a district supposedly to comply with Section 5 of the VRA. The Court held that the lower court used an incorrect standard for judging this kind of case and gave some guidance for applying the correct standard. As discussed below, a portion of this ruling is relevant here.)

On remand, the district court again ruled 2-1 that CD3 was an unconstitutional racial gerrymander. The court wrote that the “legislative record here is replete with statements indicating that race was the legislature’s paramount concern in enacting the 2012 Plan,” and that the legislature had impermissibly used “a 55% BVAP floor” in redrawing CD3. (Because race predominated in redrawing CD3, the court applied strict scrutiny. The court held that compliance with Section 5 was a compelling state interest, but that the state’s use of race to increase the BVAP from 53.1 percent to 56.3 percent was not narrowly tailored to avoid retrogression in CD3. That’s because Congressman Bobby Scott, “a Democrat supported by the majority of African-American voters,” had been repeatedly reelected under the prior BVAP by large margins.) The intervenors appealed to the Court.

Meanwhile, the remedial phase of the litigation proceeded in the district court. The court invited the parties and any interested non-parties to propose plans and appointed Dr. Bernard Grofman as special master. Grofman rejected the proposed plans and recommended his own. The court found that the Grofman plan cured the racial gerrymander by redrawing CD3 according to neutral districting criteria, and not race. The court also found that the plan complied with the VRA, despite the drop in CD3’s BVAP (to 45.3 percent), because the lower BVAP combined with significant white-crossover voting preserved “African-American voters’ ability to elect the representative of their choice.”

The court-ordered plan also changed CD4. The plan increased the BVAP in CD4 from 31.3 percent to 40.9 percent, creating a “realistic possibility,” according to Grofman, that black voters could elect a candidate of their choice. The plan also increased Democratic representation (as measured by the election results for the 2012 Presidential election) from 48.8 percent to 60.9 percent, turning a “safe seat for the Republican incumbent” into a “competitive” district, according to Grofman. (The current and previous maps, and alternative maps, are available at the web-site for the Virginia Division of Legislative Services, http://redistricting.dls.virginia.gov/2010/RedistrictingPlans.aspx#41,list.)

The intervenors again appealed to the Supreme Court. The plaintiffs in the original case (minus Dawn Curry Page, who was dismissed by stipulation) defend the court-ordered plan as appellees before the Court. The Virginia State Board of Elections also defends the plan as an appellee. The government defends the plan as amicus in support of the appellees. The Court divided oral argument to permit each of the parties and the government to participate.

CASE ANALYSIS

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

Standing

In order to bring a case in federal court, a plaintiff must demonstrate (1) that he or she suffered an “injury in fact,” (2) that the challenged action caused the injury, and (3) that the lawsuit will redress the injury. The injury-in-fact requirement means that a plaintiff must show “concrete” and “particularized” harm, “actual or imminent.” The causation requirement means that the plaintiff has to show that the challenged action (here, the district court ruling and the court-ordered map) caused the injury. And the redressibility requirement means that the plaintiff must show that a successful lawsuit would redress their harm.

Standing is a threshold requirement. This means that the Court has to be satisfied that the intervenors have standing before it will rule on the merits (the discrimination claim, discussed below). Here, the parties focus particularly on intervenor Forbes. If Forbes has standing, then the Court will consider the merits. If not, the Court will dismiss the case.

The intervenors argue that they have standing, because the court-ordered plan transforms at least one of their districts (CD4, Forbes’s district) from a majority-Republican district to a majority-Democratic district. (Indeed, they say that every proposed plan would have made at least one Republican district a majority-Democratic district, so that they would have standing under any of the proposed plans.) The intervenors contend that this injures at least one of them, because it harms his or her chances for reelection, replaces his or her “base electorate” with “unfavorable” Democratic voters, and undoes his or her recommendations for the district. (The Board sides with the intervenors on standing and makes similar arguments.)

The plaintiffs argue that the intervenors lack standing. They claim that the intervenors have no responsibility for drawing or enforcing the 2012 redistricting plan (and therefore cannot complain that they were harmed by losing their redistricting power), and that they do not live in or represent CD3, the only challenged district. The plaintiffs assert that the intervenors’ only claim to standing is that the court-ordered plan might make it harder for some of them to win, if they choose to run, and if they defeat their primary challengers. The plaintiffs say that this alleged harm is too speculative and not sufficiently connected to the court-ordered plan. And in any event, they say, there are many other factors that might contribute to this harm. (The government sides with the plaintiffs on standing. The government adds that the intervenors have no right to “fence out those voters to enhance their odds of electoral success,” and therefore no harm when that happens.)

Discrimination

State legislatures can use a variety of factors in redrawing state legislative and congressional districts. Most of these factors are neutral—for example, preserving the compactness of a district, preserving the contiguity of a district, maintaining communities with like interests within a single district, and even advancing political interests—and do not alone raise constitutional problems. But the Equal Protection Clause prohibits a state legislature from using race as a factor, when its use of race predominates over other race-neutral factors without a sufficient justification (that is, without satisfying strict scrutiny).

States that were subject to the preclearance requirement in Section 5 of the VRA, including Virginia, had to consider race in their redistricting decisions. That’s because in order to obtain preclearance under Section 5, a covered state had to show that its new map, as compared to the immediately preceding map, would not result in retrogression, that is, diminishment of a minority group’s ability to elect its preferred candidate. (No state is subject to the preclearance requirement today. The Supreme Court in Shelby County struck the coverage formula for preclearance. This means that preclearance remains on the books, but currently there are no covered jurisdictions.)

This raises an important question: If a state legislature uses race in redistricting in order to comply with Section 5, does that use of race violate equal protection? The Supreme Court gave us some guidance to work that out last Term in Alabama Legislative Black Caucus v. Alabama. As relevant here, the Court held that Section 5 does not require a state to maintain a particular minority percentage; instead, it requires the state to maintain a minority’s ability to elect a preferred candidate of choice. This means that when a state legislature uses race as a predominate factor in redistricting in order to comply with Section 5, it cannot use a mechanical percentage—because that’s not what Section 5 requires.

That principle would seem to answer the question in this case (in favor of the plaintiffs and the Board), except that this case involves an additional wrinkle. Here, the intervenors claim even if the legislature used race as a predominate factor, CD3 would have looked the same if the legislature hadn’t used race. The intervenors rely on language from Easley v. Cromartie, 552 U.S. 234 (2001), to argue that because CD3 would have come out the same under neutral principles (without considering race), then race couldn’t have predominated, and the 2012 map satisfies equal protection.

The parties and amicus frame their equal protection arguments around these principles.

The intervenors argue first that the district court erred in finding that race predominated in drawing CD3 in the 2012 plan. The intervenors concede that race was a factor in the 2012 plan—that the legislature recognized that compliance with Section 5 of the VRA was “non-negotiable” and “paramount.” But they say that this use of race was necessary (because the state had to comply with Section 5), and that if it is considered predominant, then every use of race to comply with the VRA will automatically be deemed predominant. Moreover, they contend that the legislature’s racial goals were coextensive with neutral redistricting principles that governed all districts (like protecting incumbents by preserving the cores of existing districts) and with the legislature’s political objectives. They say that because the use of race resulted in the same district lines that would have resulted without the use of race, race cannot have predominated over neutral redistricting principles. Finally, the intervenors contend that the district court’s approach requires the legislature to treat majority-minority districts differently than majority-white districts, because under the district court’s approach the legislature could not use neutral principles to draw CD3, so long as the VRA also required the legislature to draw CD3 the same way.

Next, the intervenors argue that the district court failed to properly determine whether the legislature’s racial considerations subordinated other neutral redistricting criteria. They claim that the legislature would have drawn CD3 the same based only on neutral criteria, and so race could not have predominated. (They even say that achieving a 55 percent BVAP floor was the best way to achieve the legislature’s neutral redistricting objectives, irrespective of any racial purpose in using that floor.) The intervenors contend that the district should have determined whether there was an inconsistency between the neutral motives and the racial motives in order to determine whether racial motives predominated. But they say that the court never looked at this question.

Third, the intervenors argue that CD3 in the 2012 plan served permissible political purposes. They say that the 2012 plan treated CD3 the same as all other (majority-white) districts in the state, making only minor changes to district cores for the permissible purpose of benefitting incumbents. They claim moreover that changing CD3’s shape or reducing its BVAP would have sent a significant number of Democratic voters into the adjacent districts, all of which had Republican incumbents. Again, according to the intervenors, this means that CD3’s shape and BVAP serve the permissible purpose of benefitting incumbents. Finally, they contend that even the plaintiffs’ expert conceded that CD3 benefitted Republican incumbents and could be explained by a political purpose.

Fourth, the intervenors argue that the plaintiffs failed to show that the state could have achieved its political goals by drawing CD3 any other way. They contend that drawing CD3 with a BVAP of 56.3 percent was the only way for the state to retain all Republicans incumbents. They say that the plaintiffs’ alternative plan proves their point: this plan, which itself subordinated neutral redistricting principles to race, would have converted CD2 from a toss-up district with a Republican incumbent into a Democratic district, in order to achieve a lower BVAP.

Finally, the intervenors argue that CD3 in the 2012 plan meets the Alabama test. They claim that of all the alternatives, CD3 best advances the legislature’s political purposes and thus least subordinates those principles to race. In particular, they say that the court-ordered plan, with its reduction to a 30 percent BVAP, was not only based on race but likely would have failed DOJ preclearance. They contend that the legislature therefore had a “good reason” under Alabama to adopt the 2012 version of CD3.

The plaintiffs argue that race impermissibly predominated when the legislature redrew CD3 in 2012. They say that Janis, who originally introduced the plan, said as much, when he adopted the 55-percent-BVAP threshold based on a mistaken belief that any decrease in the BVAP would violate Section 5 of the VRA. They claim that circumstantial evidence shows this, too: the 2012 version of CD3 was the least compact district in the state, using water continuity to connect disparate black communities along the James River; it moved over 180,000 people to address underpopulation in CD3 of only 63,976; and the legislature disproportionately moved black voters into and white voters out of CD3.

The plaintiffs argue next that the intervenors are wrong to assert that the district court failed to apply Alabama—a legal error. Instead, the plaintiffs say that in truth the intervenors challenge the district court’s factual findings. But the plaintiffs contend that the intervenors cannot show that the district court’s findings were “clearly erroneous,” the standing for reversal on appeal.

The plaintiffs argue that the intervenors are also wrong to assert that the legislature’s use of race could not have predominated, because CD3 would have looked the same based on race-neutral redistricting criteria. The plaintiffs claim that if the legislature used race as a proxy for race-neutral criteria (as the intervenors seem to argue), then the legislature impermissibly used race. Moreover, the plaintiffs say that Comartie II is distinguishable: in that case, the direct evidence showed a partisan purpose, and the plaintiffs advanced a largely circumstantial case to prove otherwise; but in this case, the direct evidence (Janis’s statements) reveals a clear racial purpose behind the 2012 version of CD3.

Finally, the plaintiffs argue that Alabama supports their position. They say that the legislature made the same mistake as the legislature in Alabama, by focusing on how it could meet the arbitrary threshold of a 55 percent BVAP. But the plaintiffs argue that under Alabama the legislature should have focused on this question: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Alabama, 135 S. Ct. at 1274. The plaintiffs argue that the intervenors try to escape the plain factual record, but they cannot: the record clearly reflects that race was the predominate purpose in drawing the 2012 version of CD3.

The Virginia State Board of Elections (as appellees) and the government (as amicus) make substantially similar arguments. The government clarifies a couple of points, however. First, the government says that mere statements that the legislature has to comply with the VRA does not mean that race predominated; instead, the legislature’s use of the 55-percent-BVAP threshold, along with other circumstantial evidence, means that race predominated. And the government, like the plaintiffs and the Board, argues that the court made no clear error in finding these facts. Next, the government contends, contrary to the intervenors, that a racial gerrymandering claim does not depend on a showing that race and politics conflicted. Instead, the government says that the constitutional harm comes from the predominate use of race, and that a plaintiff who can show that race predominated need not also show that the district’s actual configuration was different than an alternative configuration under race-neutral criteria. Finally, the government emphasizes that “Section 5 does not require jurisdictions to adhere to mechanical and factually unsupported racial targets, uninformed by a functional analysis of a minority group’s ability to elect.” And because that is exactly what the legislature did here, race impermissibly predominated.

SIGNIFICANCE

This is the second time in two years that the Court will consider a case of a previously covered jurisdiction packing black voters into a district supposedly to comply with Section 5 of the VRA. The Court limited this practice last Term in Alabama by ruling that (as relevant here) a state legislature cannot use mechanical percentages in order to comply with the VRA; instead, it must use the retrogression standard. That principle seems to answer the question in this case (because the Virginia legislature used a mechanical percentage), except that the intervenors claim that CD3 would have looked the same even without race—and therefore that race did not predominate in drawing CD3. Look for the Court to test this claim at oral argument.

The history of this case and the result in Alabama both suggest that the Court may lean toward the plaintiffs and the Board (and against the intervenors). First, the Court denied the intervenors’ application for a stay of the lower court’s decision pending appeal. Ordinarily, that would not (necessarily) suggest anything about the likely outcome. But in this case, Virginia has to know the shape of its districts, because it has to conduct 2016 elections. Because Virginia is set to run its elections based on the court-ordered map, the Court would throw a real wrench into Virginia politics by reversing course. (For one, it could affect Forbes himself. Forbes has announced that he will run for re-election in 2016 in CD2, not CD4, his current district. That’s because under the court-ordered map, CD4 leans much more Democratic. If the Court reversed the lower court, this could affect Forbes and the new representative in CD4, among others. It’ll be interesting to see if Forbes’s decision to run in CD2 becomes a factor for standing purposes.) Second, Alabama was a 5-4 decision, with Justice Kennedy siding with the progressives. This is a different case, to be sure, but it could turn on a similar line-up.

If the Court gets to the merits, look for it to rule narrowly. Given the Court’s approach in Alabama and given certain features of this case, this case seems an unlikely vehicle for the Court to make a grand statement about the constitutionality of the practice of packing districts for the supposed purpose of complying with the VRA, but with the effect of diluting the impact of all black voters in the state.

But that’s only if the Court rules on the merits. Indeed, we have good reason to think it might not, or at least that the Court will take the standing issue very seriously. The Court itself introduced the issue and ordered the parties to file supplemental briefs on it—twice. The first time, the Court simply asked the parties to brief whether the intervenors had standing. This apparently didn’t satisfy the Court, however, because it then asked the parties to brief whether they had standing because none of them lived in or represented CD3. These orders raise the real possibility that the Court could simply dismiss the case based on lack of standing, and not even address the merits.

March 17, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Wednesday, March 16, 2016

President Obama's Nomination to the United States Supreme Court

Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee. 

The New Yorker analyzes Garland as a "sensible choice."

NPR says "Reputation Of Collegiality, Record Of Republican Support."

First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture.  Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.

 

 


Merrick_Garland

March 16, 2016 in Congressional Authority, Courts and Judging, Executive Authority, News, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 15, 2016

When Does a Court's Dismissal of a Prisoner's FTCA Case Foreclose a Parallel Bivens Claim?

Here's my argument preview in Simmons v. Himmelreich, originally posted at SCOTUSblog. The case is scheduled for oral argument next Tuesday.

Federal prisoners who seek redress for civil rights violations face an infamous thicket of rules, regulations, statutes, and case law. Prisoners have to navigate often-complicated prison rules and regulations to file an administrative claim in the first instance. They have to check to see that they have exhausted all administrative options before filing in federal court. And they have to choose and plead their federal claims carefully. (And that’s just the beginning.) This thicket sometimes seems especially designed only to thwart prisoners’ claims entirely, creating an access barrier that restricts and even prohibits a federal prisoner from obtaining a remedy for a civil rights violation.

On the other hand, this thicket serves some important governmental interests. It helps ensure that a prison itself gets a first crack at providing relief to a prisoner. It helps narrow the issues and streamline a case for the federal court. And it ensures that a federal employee and the government itself need only defend against a single lawsuit arising out of the same incident.

This case tests the push and pull between the rules in this thicket. And while the case deals in the technical and sometimes complicated interplay between different statutory provisions, it really comes down to this simple question: When a federal prisoner seeks redress for a civil rights violation, does federal law favor relatively more open access to the courts, or does it favor protection of federal employees and the government?

The facts

In October 2008, Walter Himmelreich was serving a 240-month sentence at the Federal Correctional Institution in Elkton, Ohio, for the production of child pornography. Himmelreich’s crime didn’t sit well with another inmate at Elkton, a prisoner who was housed in the Special Housing Unit because of his disciplinary violations. That prisoner told officials that he was “not able to live with pedophiles” and that if he were released into the general compound he “will smash a pedophile.” Just four days after this prisoner made these claims, prison officials nevertheless transferred him back into the general compound where, perhaps unsurprisingly, he assaulted Himmelreich. Himmelreich suffered serious injuries, including internal bruising, external injuries, permanent ringing in the ears, persistent headaches, and a pinched nerve.

Himmelreich filed and lost an administrative tort claim. He then filed two separate suits in federal court – one under the Federal Tort Claims Act, and the other under Bivens, which allows a plaintiff to sue a federal officer for a constitutional violation, in this case the Eighth Amendment. The court dismissed the FTCA case and then the Bivens case. Himmelreich appealed the Bivens ruling, and after the case went up to the Sixth Circuit twice (where Himmelreich won both times), this question is now before the Court: Does a court’s dismissal of a prisoner’s FTCA case under the FTCA’s “discretionary act” exception foreclose that prisoner’s separate Bivens claim?

The law

The case sits at the intersection of four provisions of the FTCA. The first is the FTCA’s jurisdictional provision, Section 1346(b). This provision waives the United States’s sovereign immunity and grants district courts “exclusive jurisdiction” over claims against the United States for torts by government employees arising out the scope of their employment. In practice, this section operates like ordinary tort claims against a private employer who concedes respondeat superior liability, that is, liability on behalf of its employees for acts within the scope of their employment.

The second provision is the FTCA’s list of exceptions in Section 2680. This provision contains several categories of claims to which the FTCA does not apply. One of those categories encompasses what is commonly known as the “discretionary function” exception: any claim based on a federal employee’s “exercise or performance or the failure to exercise or perform a discretionary function or duty.”

The third is the FTCA’s judgment bar in Section 2676. The judgment bar provides that:

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

In practice, the judgment bar forecloses a plaintiff’s ability to pursue other kinds of claims against government employees arising from the same underlying incident. Congress enacted the judgment bar to protect federal employees and the government itself from multiple suits by the same plaintiff for the same injuries. At the time of its adoption, this provision served primarily to bar parallel state-law tort claims filed against federal employees in state court. But since 1971, when the Court recognized a federal constitutional-tort cause of action against federal employees in Bivens, the judgment bar has also foreclosed a parallel Bivens cause of action.

The final provision is the Westfall Act. That act, enacted in 1988, after the FTCA, makes the FTCA the “exclusive” remedy for a tort claim against a federal employee. It also precludes state-tort claims against federal employees and provides for the prompt substitution of the United States for the employee-defendants in those state-tort cases. Because the Westfall Act bars state-tort suits directly against federal employees, the judgment bar now functions primarily to foreclose parallel federal Bivens claims.

The case

After Himmelreich filed his first case (the FTCA case), the federal government moved to dismiss pursuant to the FTCA’s discretionary-function exception. The court granted the motion, noting that Section 2680 is an exception to the FTCA’s general waiver of sovereign immunity, and that the court therefore “lacks subject matter jurisdiction over acts falling within the discretionary function exception.” The court issued a document titled “JUDGMENT ENTRY” in which the court “ORDERED, ADJUDGED and DECREED” that the case was dismissed.

The court then dismissed Himmelreich’s second case, the Bivens case, for failure to state a claim. The Sixth Circuit reversed and remanded. The district court again dismissed the case, this time based on two alternative theories: Himmelreich’s failure to exhaust administrative remedies and the FTCA’s judgment bar. The Sixth Circuit again reversed, ruling that Himmelreich’s failure to exhaust administrative remedies was excused (an issue that is not now before the Court), and that the judgment bar did not foreclose Himmelreich’s Bivens claim. As to the latter, the court of appeals said that the district court’s dismissal under Section 2680 amounted to a dismissal for lack of subject matter jurisdiction, and that it was therefore not a “judgment” subject to the judgment bar. This is the question now before the Court.

The arguments

The government argues that the district court’s dismissal of Himmelreich’s FTCA case was a “judgment” under the FTCA judgment bar and thus forecloses his Bivens claim against the individual prison officials. The government says that this interpretation comports with the plain definition of the term, Congress’s use of the term in other portions of the FTCA, and the congressional purpose of the judgment bar. The government contends that Himmelreich is wrong to argue that the judgment bar applies only to the subset of judgments that is capable of having some preclusive effect under the principle of res judicata. According to the government, the term “judgment” is nowhere confined only to judgments having preclusive effect. But even if the term “judgment” is so confined, the government claims that the district court’s dismissal under Section 2680 is still a “judgment” under the judgment bar. That’s because Section 2680 imposes “substantive limitations” on FTCA liability, which makes the dismissal a ruling “on the merits” and therefore (under claim preclusion) precludes another case raising the same claim. It’s also because the district court actually determined that Section 2680 applies, and so (under issue preclusion) the ruling precludes Himmelreich from relitigating the issue. (This argument hinges on Himmelreich’s claim that the judgment bar extends the same res judicata preclusive effect that the government has under the FTCA to a government employee.) Finally, the government says that Himmelreich is wrong to argue that the judgment bar does not apply to an FTCA action dismissed under Section 2680 (because the judgment bar covers any FTCA action), and that he is wrong to claim that the introductory language to Section 2680 prevents Section 2680 dismissals from triggering the judgment bar (because the Court has ruled otherwise in a related context).

Himmelreich counters that the judgment bar does not foreclose his Bivens claim against the individual officials. As an initial matter, he says that the judgment bar does not even apply here, because the plain terms of Section 2680 say that the FTCA’s other provisions, including the judgment bar, “shall not apply” to the categories of exceptions in Section 2680. It’s also because the judgment bar is only triggered by a “judgment” in a suit “under section 1346(b).” But he says that Section 1346(b) does not apply to the “claims” enumerated in Section 2680, so that his FTCA action was not even “under” Section 1346(b) in the first place.

Himmelreich argues next that the court’s dismissal for lack of jurisdiction is not a “judgment” under the judgment bar, because the court’s dismissal carries no res judicata effect (and thus does not shield the government employee from suit). Finally, Himmelreich claims that the government’s approach would lead to absurdities, including lower courts blocking Bivens claims based on technical defects (that result in dismissal) in a plaintiff’s FTCA case, encouraging personal-capacity lawsuits (before FTCA claims, which the FTCA was designed, in part, to prevent), and depriving plaintiffs of a remedy for civil rights violations.

In the end – as technical and complicated as this thicket can be – the bottom line is pretty simple: the Court will either favor more access to justice for federal prisoners who seek redress for civil rights violations, or it will favor the government’s interest in protecting its employees from lawsuits.

March 15, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

DOJ Guidance on Court Fines and Fees

The U.S. Department of Justice issued guidance and resources yesterday for state courts on the assessment and enforcement of fines and fees--and how to avoid access barriers, the criminalization of poverty, and other constitutional problems for those who can't pay. The move addresses a disturbing trend in state courts to use fines and fees to raise revenue and line the pockets of private corporations, while at the same time barring access to justice and jailing people because they're poor.

The Civil Rights Division and Office for Access to Justice issued a "Dear Colleague" letter and Resource Guide, and announced $2.5 million in grants and support for a task force to address these issues.

The Dear Colleague letter outlines the problem:

Recent years have seen increased attention on the illegal enforcement of fines and fees in certain jurisdictions around the country--often with respect to individuals accused of misdemeanors, quasi-criminal ordinance violations, or civil infractions. Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape. Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.

The letter outlines seven actions that state courts must take to bring their fine- and fee-practices in line with Bearden v. Georgia, Boddie v. Connecticut, and, most recently, Turner v. Rogers, among other due process and equal protection cases protecting access and barring the criminalization of poverty.

March 15, 2016 in Equal Protection, News, Procedural Due Process | Permalink | Comments (0)

Friday, March 11, 2016

Eighth Circuit Says No Standing to Challenge Ban on Disclosing Execution Team

The Eighth Circuit ruled today that the ACLU lacked standing to bring a case against the director of the Missouri Department of Corrections to stop him from enforcing the state's ban on revealing the identities of execution team members. The ruling is a set-back for the ACLU and its efforts to disclose information about the state's executions, and, in particular, who provides the drugs. (Publicizing the providers has been an effective strategy by anti-death-penalty advocates to get those providers to stop providing.)

The case arose when the ACLU realized that it may have posted information about Missouri's executions (obtained under the Missouri Sunshine Law) that included "the identity of a current or former member of an execution team" in violation of a state law that prohibits revealing this information. The organization only realized the potential violation after it saw how the Department defined the members of the team--to include "anyone selected by the department director who provides direct support for the administration of lethal chemical, including individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals for use in the lethal injection procedure." So the organization removed the material from its web-site and moved quickly to sue the director for declaratory and injunctive relief, arguing that the law violated free speech, free press, and due process.

The director moved to dismiss, claiming that he was immune under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.

The Eighth Circuit today sided with the director on immunity and standing (and didn't say anything on the merits). The court ruled that the director was immune, because under the law he has no role in enforcing the prohibition, even if he has authority to define the members of the execution team. But the court said that defining the members wasn't an enforcement action within the meaning of Ex Parte Young.

The court also ruled that the ACLU lacked standing. That's (again) because the director has no authority to enforce the prohibition. (Instead, the law provides for a civil cause of action by any execution team member against anyone who reveals his or her identity.) The court said that this means that the director's action (defining the execution team) didn't cause the ACLU's injury, and an injunction against the director wouldn't redress it.

But the court did recognize that the ACLU suffered an injury--an objectively reasonable fear of legal action that chills its speech. Because this fear derives from the possibility of a team member's suit, the organization could probably could sue a team member who appears in its materials for the same relief. Or it could post the material, wait to be sued, and then raise the constitutional defenses.

March 11, 2016 in Cases and Case Materials, Eleventh Amendment, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, March 2, 2016

Tenth Circuit Strikes Disclosure Requirements as to Small Scale Issue Organization

The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.

The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.

The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.

At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.

 

March 2, 2016 in Association, Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, March 1, 2016

D.C. Circuit Sends Disclosure Requirement Challenge to 3-Judge Court

The D.C. Circuit ruled today in Independence Institute v. FEC that a nonprofit organization's First Amendment challenge to federal electioneering disclosure requirements must go to a three-judge court (and not be dismissed). The ruling keeps alive the nonprofit's challenge to disclosure requirements for its "electioneering communication" under the Bipartisan Campaign Finance Reform Act--even if its constitutional arguments seem, well, weak.

Independence Institute, a 501(c)(3), sought to run a radio ad in favor of a federal statute that would reform federal sentencing, and to encourage citizens to express their support for the law to Colorado's Senator Mark Udall. But Udall was running for re-election at the time, so the radio spot would qualify as an electioneering communication under BCRA. That would trigger disclosure requirements, forcing Independence Institute to disclose its donors to the FEC.

Independence Institute complained, arguing that forced disclosure violated the First Amendment, and sought review by a three-judge court. The district judge denied the request, concluding that the plaintiff's claims were foreclosed by McConnell v. FEC and Citizens United, both of which upheld disclosure requirements against a facial challenge and against one particular as-applied challenge.

A divided panel of the D.C. Circuit reversed. The court said that Independence Institute's arguments passed the low standard the Court recently set in Shapiro v. McManus--denying a three-judge court only when a claim is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." In particular, Independence Institute argued that its as-applied claim against the disclosure requirement was different than the as-applied claim that the Court rejected in Citizens United, because Citizens United was a 501(c)(4) organization (not a (c)(3), like Independence), and that Citizens United therefore had a lesser interest in privacy, and that the government had a greater interest in publicly identifying Citizens United's donors. (Independence also argued that the First Amendment bars compelled disclosure unless the electioneering communication is unambiguously campaign-related (not an issue ad, as here). The court didn't address this.)

That seems pretty weak, but not "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit," according to the court.

Judge Wilkins dissented, arguing that the issue's been settled by the Court.

The ruling sends the case to a three-judge court for further proceedings. While this isn't a ruling on the merits--and seems like a poor test case to challenge disclosure requirements--the ruling nevertheless keeps the case alive.

March 1, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Thursday, February 25, 2016

Apple Responds to Order to "Unlock" IPhone

In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional. 

The constitutional arguments are basically three:

First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers.  Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role. 

For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).

[citations abbreviated].  Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962). 

Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny.  Apple also contends that this compelled speech would be viewpoint discrimination:

When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.

Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment.  Here is the argument in full:

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

Interestingly, there is no Fourth Amendment argument.

The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon.  Apple disputes the burden placed on Apple that the Order would place.  Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary." 

Iphonex

 

February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)

Monday, February 22, 2016

District Court Says Drone Strike Case Raises a Political Question

Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.

The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.

Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."

Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."

Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."

February 22, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Court Denies Stay in North Carolina Districting Case

The Supreme Court on Friday denied a stay of a three-judge district court order requiring North Carolina to redraw two congressional districts because they violated equal protection.

The brief denial (without opinion) came after the state developed a new districting plan--which wouldn't have gone into effect if the Court granted a stay, but which will now go into effect for the state's primaries.

Recall that the lower court ruled that North Carolina impermissibly used race to draw the districts, by packing black voters into these two districts. The court rejected the state's claim that it used race in one of the districts to comply with preclearance under the Voting Rights Act. The court said that even assuming (without deciding) that compliance with the VRA is a compelling government interest, the state failed to show that its use of race was narrowly tailored to achieve that interest.

February 22, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Loyola's Colloquium 2016

Loyola University Chicago just announced the dates for its very popular--and very good--annual Constitutional Law Colloquium: November 4 and 5, 2016. Mark your calendars! Click here for more info.

February 22, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Thursday, February 18, 2016

Symposium: Does Quebec Need a Written Constitution?

Check out this symposium on March 31, 2016, at Yale:  Does Quebec Need a Written Constitution? Organizers have assembled a terrific line-up, with a key-note by Jean Charest, 29th Premier of Quebec (2003-2012).

February 18, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Abbott's Case Against the CFPB

Check this out: Alden Abbott outlines the case against the Consumer Financial Protection Bureau over at Heritage.

The CFPB, an independent regulatory agency created under Dodd-Frank that's charged with doing just what its name says, has been subject to a non-stop barrage of attacks from the right ever since its creation--for policy reasons, and for violations of separation of powers. Abbott summarizes the latter, drawing on Free Enterprise Fund:

The Free Enterprise Fund case strongly indicates that the CFPB's degree of independence goes beyond constitutionally acceptable norms.

First, the CFPB is more than one level removed from presidential oversight. Its director is independent from management supervision by the institution within which the bureau sits--the Federal Reserve System--and the Federal Reserve System is independent from presidential control.

Second, the bureau's independence from congressional appropriations or budgetary review prevents Congress from exercising its key means of oversight: the power of the purse.

Taken as a whole, these features grant the bureau greater autonomy than is allowed to any regulatory institution whose structure has been reviewed by the Court.

But neither feature of the CFPB is problematic. As to supervisory independence, Abbott's claim is simply wrong, on his own terms. He earlier says, correctly, that the head of the CFPB serves for five years, and can be removed by the President for cause. This isn't the kind of double-insulation that the Court found offensive in Free Enterprise Fund; instead, it's a direct line of accountability to the President that the Court has long approved. It doesn't matter that the CFPB sits within the Federal Reserve System, because the head of the CFPB answers to the President.

As to financial independence, it's hardly novel for an agency to self-fund outside the regular appropriations process, through fees or fines. Indeed, the Congressional Research Service says (correctly) that CFPB's funding--which comes from the Fed's combined earnings (and not regular appropriations)--"give the Bureau less flexibility than the OCC, FDIC, and other banking regulators that are able to increase assessments on the institutions within their jurisdiction to raise revenue, as needed to carry out their responsibilities." And Congress still has oversight: the CFPB reports regularly and is subject to audits by the Comptroller General, and the director must testify at least twice a year before Congress.

We'll continue to see challenges to the CFPB in the courts. But unless the Court changes its approach to independent agencies, or unless Congress changes things, don't expect the CFPB to go away.

 

February 18, 2016 in News, Separation of Powers | Permalink | Comments (0)