Thursday, August 31, 2017
Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.
But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.
In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.
Here's a more complete run-down:
Prohibition on Preventing Communication
Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:
(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.
(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:
a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;
b. Maintaining the information; or
c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.
(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.
(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.
The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).
But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).
Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."
The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).
Prohibitions on Local Pattern or Practice Limiting Enforcement
Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."
The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.
Detainer Requests and Detention
Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.
The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."
But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.
Wednesday, August 30, 2017
The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.
The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.
The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.
Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."
As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."
Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.
Wednesday, August 23, 2017
Ninth Circuit Says No Qualified Immunity for Off-Duty but Uniformed Officer Acting as Private Security Guard
In an apparent first in the circuits, the Ninth Circuit ruled today that an off-duty but uniformed police officer who was acting as a private security guard could not assert qualified immunity in a suit for a constitutional tort against him. The court went on to say that a reasonable jury could have found for the plaintiff on the merits, so remanded the case for further proceedings.
The case arose when the Kyo-ya Hotel and Resort hired Honolulu Police Department Officer Kinchung Chung as a "special duty" officer to provide security for a New Year's Eve party. Chung was off official duty, but he nevertheless wore his police uniform. During the party, Chung detained Dillon Bracken, a hotel patron who crashed the party, and stood by while hotel security guards assaulted Bracken.
Bracken sued Chung for constitutional torts under 42 U.S.C. Sec. 1983. Chung moved to dismiss, arguing that he enjoyed qualified immunity. The Ninth Circuit disagreed.
The court first noted that state action for the purpose of Section 1983 isn't coextensive with state action for the purpose of qualified immunity. That's because Section 1983 is designed "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims," whereas qualified immunity "protect[s] government's ability to perform its traditional functions."
That said, the court went on to rule that Chung couldn't claim qualified immunity. Applying the Supreme Court's two-part test, the court wrote,
First, he has shown no "firmly rooted" tradition of immunity for off-duty or special duty officers acting as private security guards. . . . Second, Chung has not shown that the policies underpinning qualified immunity warrant invoking the doctrine here. In detaining Bracken, Chung did not act "in performance of public duties" or to "carry out the work of government."
The case appears to be the first circuit court ruling on whether an off-duty police officer acting as a private security guard can claim qualified immunity.
The Third Circuit ruled yesterday that a plaintiff couldn't bring a First Amendment claim against a TSA officer after the officer caused the plaintiff to be detained and charged with making a bomb threat at airport security. The case, which applied the Supreme Court's recent Bivens ruling, Ziglar v. Abassi, walks back circuit law authorizing a Bivens claim for First Amendment violations, and leaves plaintiffs with no federal judicial remedy for a TSA officer's violation of First Amendment rights.
The ruling is a faithful application of Ziglar, but also illustrates the sweep and significance of that decision in restricting constitutional tort claims, especially in areas in any way touching on national security.
The case arose when Roger Vanderklok attempted to pass through Philadelphia airport security with a length of PVC pipe, capped at both ends and containing a watch and heart-monitor for a half-marathon that he intended to run in Miami. TSA employee Charles Kieser performed a secondary screening, which Vanderklok alleged was unduly aggressive. Vanderklok said that he intended to file a complaint; Kieser then called the Philadelphia police and falsely reported that Vanderklok threatened to bring a bomb to the airport. Vanderklook was arrested and charged, but later acquitted, after airport surveillance footage undermined Kieser's story.
Vanderklok sued Kieser for a variety of violations, including a First Amendment violation, pursuant to Bivens. (The Third Circuit only addressed the First Amendment claim.) The court walked back its own circuit law, which applied Bivens to First Amendment claims, and ruled that Bivens didn't "extend" to Vanderklok's First Amendment claim.
The court noted that airport security created a new Bivens context, and that Bivens law had changed:
Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue, as Vanderklok does, that First Amendment retaliation claims have been permitted under Bivens before. We must look at the issue anew in this particular context, airport security, and as it pertains to this particular category of defendants, TSA screeners.
Since Bivens was decided, judicial attitudes about the creation of new causes of action have changed considerably. Courts will no longer imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."
(Cites to Ziglar omitted.)
As to the Bivens analysis, the court said first that Vanderklok didn't have a remedy under the Federal Tort Claims Act, but may have had a remedy under the DHS Traveler Redress Inquiry Program.
Ultimately, it didn't matter, though, because Vanderklok's claim failed on the second Bivens inquiry. In particular, the court said second that the special factor of national security counseled against a Bivens remedy here:
A special factor counseling hesitation in implying a Bivens action here is that Vanderklok's claims can be seen as implicating "the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security." In language laden with separation-of-powers concerns in the context of foreign affairs, national security, and defense, the court wrote that it's up to Congress, not the courts, to create a remedy for constitutional violations in this kind of situation.
The court added a final "practical concern" to authorizing a Bivens remedy. It wrote that because TSA employees aren't typically law enforcement officers, they aren't trained in probable cause determinations of the type that would've been necessary here. Therefore, the court said, "a Bivens claim is poorly suited to address wrongs by line TSA employees. Indeed, the inherent uncertainty surrounding the probable cause standard is itself a factor counseling hesitation."
The ruling ends Vanderklok's First-Amendment portion of his lawsuit.
Saturday, August 19, 2017
The Fifth Circuit ruled this week that an organization had standing to challenge Texas's restriction on a voter's use of an interpreter under the Voting Rights Act. But at the same time, the court said that the district court's injunction was too broad. The ruling, a victory for the plaintiffs, nevertheless sends the case back to the district court for a more narrowly tailored injunction.
The case arose when the Organization for Chinese Americans stepped-in to a lawsuit challenging Texas's law that limits a non-English-speaking voter's use of an interpreter at the polls. Texas law says that such a voter can use an interpreter "outside the ballot box," but that the interpreter must "be a registered voter of the county in which the voter needing the interpreter resides." OCA argued that the provision violated Section 208 of the VRA, which says that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union."
The court ruled that OCA had organizational standing, because, as an educational organization, it had to ramp up its educational efforts in response to Texas's law. In particular,
OCA calibrated its outreach efforts to spend extra time and money educating its members about these Texas provisions and how to avoid their negative effects. Specifically, OCA employees and volunteers must carefully explain to those it contacts, in the language they understand, that when they bring an interpreter to a Texas polling location, the interpreter must identify his or herself as an "assistor" rather than as an "interpreter" to avoid being turned away under Texas law . . . .
The court went on to reject Texas's claim of sovereign immunity, because OCA sought only declaratory and injunctive relief (and not monetary damages).
On the merits, the court concluded that the Texas provision violated Section 208 of the VRA, but that the district court went too far in enjoining "any provision of its Election Code to the extent it is inconsistent with the VRA." The court remanded the case for a more narrowly tailored injunction.
The Sixth Circuit ruled yesterday that a group of plaintiffs, including taxpayers with overseas accounts and Senator Rand Paul, lacked standing to challenge the reporting and penalty provisions under the Foreign Account Tax Compliance Act. The ruling ends this challenge.
The FATCA imposes certain reporting requirements, and provides for penalties for noncompliance, on individual taxpayers and foreign financial institutions ("FFIs") with overseas accounts. It also requires FFIs to withhold 30% of every payment made by the FFI to a noncompliant account holder.
In order to implement the FATCA and facilitate the FFIs' disclosure of financial-account information to the IRS, the IRS has entered into a number of intergovernmental agreements ("IGAs").
Separately, the Bank Secrecy Act imposes a foreign account reporting requirement on U.S. citizens living abroad who have aggregate foreign-account balances over $10,000. The Act also imposes a penalty of 50% of the value of the reportable accounts, or $100,000, whichever is greater.
Several individuals with foreign accounts and U.S. Senator Rand Paul sued, arguing that the provisions violate equal protection (by treating citizens living overseas differently than citizens living in the U.S.); that the penalties constitute excessive fines; that the reporting requirements violate the plaintiffs' right to privacy; and that the IRS lacked authority to enter into the IGAs without Senate advice and consent.
The Sixth Circuit didn't touch the merits, however, and instead ruled that the plaintiffs lacked standing. As to most of the plaintiffs, the court said that they weren't actually harmed, because "no Plaintiff has alleged any actual enforcement of FATCA such as a demand for compliance with the individual-reporting requirement, the imposition of a penalty for noncompliance, or an FFI's deduction of the Passthru Penalty from a payment to or from a foreign account."
Moreover, the court said that no plaintiff could satisfy the standard for a preenforcement challenge, because "no Plaintiff claims to hold enough foreign assets to be subject to the individual-reporting, and, as a result, no Plaintiff can claim that there is a 'credible threat' of" enforcement against them.
The court rejected some plaintiffs' claims of harms that arose apart from FATCA's reporting requirements and penalties, because those harms weren't fairly traceable to the FATCA. Finally, the court said that Senator Paul lacked standing under the no-legislator-standing rule. "Rather, Senator Paul has a remedy in the legislature, which is to seek repeal or amendment of FATCA itself, under the aegis of which Treasury is executing the IGAs.
Friday, August 18, 2017
The Eighth Circuit ruled this week that Planned Parenthood patients didn't have an individual right to sue Arkansas when the state terminated its Medicaid provider agreement with the organization. But the two judges in the majority differed as to their reasoning, and a third judge sharply dissented. The ruling creates a circuit split on the question and sets the case up for possible en banc review or even cert.
The issue in the case was whether Planned Parenthood patients could sue the state under Section 23(A) of the Medicaid Act and Section 1983. Here's how it works: The Medicaid Act requires the Secretary of HHS to "approve any plan which fulfills the conditions specified in subsection (a)." Subsection (a), in turn, says that "[a] State plan for medical assistance must" satisfy certain conditions, including the one at issue here, Section 23(A), that is, that the state plan must "provide that . . . any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services requires . . . who undertakes to provide him such services."
So the issue was whether this last provision created a private right of action for the patients. The court said no.
Judge Colloton wrote that the provision didn't create a private right of action, because recent Supreme Court doctrine set a higher standard for determining whether a congressional act created an individual cause of action, and that standard wasn't met here. Judge Colloton explained:
There was a time, illustrated by Wilder v. Virginia Hospital Association when the Medicaid Act was deemed to create an enforceable right if the provision in question was "intend[ed] to benefit the putative plaintiff." Starting from that premise, Wilder held that the Boren Amendment to Section 13(A) of the Medicaid Act created a federal right for providers that was enforceable under Section 1938.
Later decisions, however, show that the governing standard for identifying enforceable federal rights in spending statutes is more rigorous. It is not enough, as Wilder and Blessing v. Freestone might have suggested, to show simply that a plaintiff "falls within the general zone of interest that the statute is intended to protect." It is now settled that nothign "short of an unambiguously conferred right" will support a cause of action under Section 1983.
Judge Colloton went on to argue that the Court's recent ruling in Armstrong v. Exceptional Child Ctr. repudiated Wilder and thus supported this conclusion. Judge Colloton went on to argue that this higher standard wasn't met here, because "the focus of the Act [a directive to HHS to approve certain state Medicaid plans] is two steps removed from the interests of the patients"; Congress authorized other ways of enforcing the Act (by withdrawing federal funds); and the Medicaid Act, with its "aggregate focus," "do[es] not give rise to individual rights." Judge Colloton also noted that there's an administrative appeal process for Planned Parenthood (which it did not pursue here).
Judge Shepherd concurred, but for a different reason. Judge Shepherd argued that even if Section 23(A) provided a substantive right to sue under Section 1983, "the right provided is to a range of qualified providers--not the right to a particular provider the State has decertified."
Judge Melloy dissented, siding with the several circuits and district courts that have found an individual right of action under Section 23(A). Judge Melloy wrote that Blessing established a three-part test--(1) whether Congress intended that the provision benefit the plaintiff, (2) whether the right "is not so vague and amorphous that is enforcement would strain judicial competence," and whether the provision "impose[s] a binding obligation of the States"--that Gonzaga simply amended the first part (by heightening the requirement, to an "unambiguously conferred right"), and that the plaintiffs satisfied the test here.
Thursday, August 17, 2017
The New York Times reported today that the torture case against two psychologists who designed the CIA torture program settled. We last posted here, when the district court ruled against the defendants' motion to dismiss and rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.
Wednesday, August 16, 2017
The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.
California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).
Tuesday, August 15, 2017
The Ninth Circuit ruled today that Thomas Robins suffered a sufficiently concrete injury to establish Article III standing in his case against the consumer data website Spokeo, Inc. The case was on remand from the Supreme Court.
The case arose when Robins learned that Spokeo published false information about his age, marital status, wealth, educational level, and profession, and published a photo of a different person. Robins claimed that the false report affected his employment prospects. He sued under the Fair Credit Reporting Act, which authorizes consumers affected by a violation to sue, even if the consumer cannot show that the violation caused actual damages.
The Ninth Circuit previously ruled that Robins had standing, because he alleged that Spokeo violated his statutory rights under the FCRA. But the Supreme Court vacated that ruling, saying that even if Robins had statutory standing under the FCRA, he still had to show Article III standing--in particular, a concrete harm--and that the Ninth Circuit didn't engage with that question. The Court remanded the case for a determination.
The Ninth Circuit said today that Robins demonstrated a concrete harm and therefore satisfied Article III standing. The court drew on language in Spokeo that said that sometimes Congress enacts procedural rights to guard against a "risk of real harm, the violation of which may be sufficient in some circumstances to constitute injury in fact" under Article III. Congress may do this, the court explained, "[i]n some areas . . . where injuries are difficult to prove or measure." "Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm." According to the court, the test is when the congressionally conferred procedural right protects a plaintiff's concrete interests and where the procedural violation presents "a risk of real harm" to that concrete interest.
The Ninth Circuit ruled that Robins met that test. The court said that "Congress established the FCRA provisions at issue to protect consumers' concrete interests." Moreover, even though trivial (but technical) violations of the FCRA won't give rise to concrete harm under Article III (and therefore the plaintiff would need to allege more), in this case
it is clear to us that Robins's allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court's example of an incorrect zip code. Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is. It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins's life could be deemed a real harm.
The court rejected Spokeo's argument that Robins's harm was too speculative, because Robins met the court's risk-of-real-harm standard.
The ruling means that Robins's case against Spokeo can proceed to the merits.
The Seventh Circuit ruled that state workers' compensation arbitrators did not have a free-speech claim against the governor for not re-appointing them in retaliation for their earlier lawsuit against the governor for changes to the worker-compensation system.
The case is notable, because the court applied restrictive circuit law on policymakers' First Amendment retaliation claim (and not the more general, and more speech-friendly, Pickering test for most public employees), and because the court applied this law to a claim for retaliation for a lawsuit (and not a more familiar form of public speech, like an op-ed).
The case arose when Illinois changed its workers' compensation law. Among other changes, the state changed the appointment schedule for workers' compensation arbitrators. In particular, it terminated all arbitrators' six-year appointments effective July 1, 2011, and provided for executive appointments (with advice and consent of the state senate) for staggered three-year terms for future arbitrators.
Some of the arbitrators sued, arguing that the change violated due process. While that suit was pending, the governor appointed and reappointed arbitrators, but not the plaintiffs in the due-process suit. So they sued again, this time for retaliation for exercising their First Amendment rights in bringing the original due-process suit. They claimed that the governor declined to reappointment them only because they filed that earlier suit, which, they claimed, was "important to, in a public forum, hash out concerns . . . regarding the workers' compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution."
The district court tossed the suit, concluding, under Pickering, that the earlier due-process suit was not speech on a matter of public concern.
The Seventh Circuit affirmed, but on a slightly different ground. The Seventh Circuit applied its "policymaker corollary" to Pickering--a circuit rule that derives from Elrod v. Burns and Branti v. Finkel. In those two cases, the Supreme Court said that as a general matter government employers can't fire public employees on the basis of political affiliation. But the Court also recognized an exception for employees who occupy policymaking or confidential positions, thus ensuring that elected officials wouldn't be "undercut by tactics obstructing the implementation of policies . . . presumably sanctioned by the electorate."
The Seventh Circuit's "policymaking corollary" takes the Elrod and Branti exception a step farther, to policymakers' speech:
Instead, under the "policy-maker corollary to the Pickering analysis, the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies."
The court concluded that the arbitrators were "policymakers," because "the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement," and because "the position entails the exercise of a substantial amount of political (as distinct from professional) discretion." It further concluded that the due-process lawsuit amounted to "speech . . . in a manner that is critical of superiors or their stated policies."
The ruling ends the arbitrators' case.
Friday, August 11, 2017
The Eighth Circuit ruled this week that a dump truck driver lacked standing to bring a facial challenge to a state's roving-stop statute against the governor and state attorney general. But at the same time the court said that the plaintiff could move forward on his as-applied claim against the superintendent of the state highway patrol for declaratory and injunctive relief.
The case challenges Missouri's law that authorizes the highway patrol to stop commercial vehicles and inspect them for compliance with size- and weight-requirements, even without probable cause. Calzone, a dump-truck driver who was stopped under the act, sued the governor, state AG, and superintendent of the highway patrol in their official capacities for nominal monetary damages and injunctive and declaratory relief, arguing that the law was unconstitutional on its face and as applied.
The court ruled that Calzone didn't have standing to sue the governor or AG, because they weren't directly responsible and authorized to enforce the statute. The court said that he did have standing to sue the superintendent for declaratory and injunctive, however, because she was directly responsible for enforcement.
The court went on to rule that the statute wasn't facially unconstitutional, because it satisfied the three-part test for searches in "closely regulated industries" under New York v. Burger.
That leaves only Calzone's as-applied claim for declaratory and injunctive relief against the superintendent. (Calzone sued the superintendent in her official capacity, so couldn't recover damages under Section 1983.) The court remanded this claim to the district court for further proceedings.
The Third Circuit ruled this week that a case challenging Delaware's escheat law, prior to an investigation under the law, was ripe in one respect, even though it mostly was unripe. The ruling allows just one piece of the case to move forward--an as-applied procedural due process challenge.
The case arose when Delaware appointed a private auditing firm, Kelmar Associates, to investigate Plains All American Pipeline under the state's escheat law. Kelmar sent Plains a document request to initiate the investigation; Plains complained to the state; the state backed Kelmar; and Plains sued. Plains argued that the escheat law violated the Fourth Amendment, and the Ex Post Facto, Equal Protection, and Takings Clauses on their face, and the Due Process Clause as applied; it also argued that the law was void for vagueness and was preempted by federal law. It sought declaratory and injunctive relief.
The court applied its own "refined" test for ripeness, which looks to (1) the adversity of the parties' interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment. As to adversity, the court said that Plains couldn't demonstrate a sufficient harm, and that Plains didn't face an Abbott Labs Hobson's choice, to establish adversity. As to conclusiveness, the court said that Plains's challenges required further factual development for a ruling. And as to utility, the court said that the investigation currently requires Plains to do nothing: "Plains 'would take the same steps whether or not it was granted a declaratory judgment.'"
But, in contrast, the court ruled that Plains's as-applied procedural due process claim was ripe for review. The difference: Plains challenged the appointment of Kelmar as a violation of procedural due process. And because that harm already occurred, Plains could move forward to the merits. (Success on the merits, of course, is a different question.)
Thursday, August 10, 2017
Judge Quackenbush (E.D. Wash.) ruled earlier this week that the torture case against psychologists who helped design and implement the CIA's "enhanced interrogation techniques" can move forward. The jury trial is set to commence on September 5.
Judge Quckenbush rejected the defendant's argument that the case raises a political question; that the defendants enjoy absolute derivative sovereign immunity; that the Alien Tort Statute doesn't confer jurisdiction over the plaintiffs' claims; and that the defendants are not liable for violating international law. The court also rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.
At the same time, the court rejected the plaintiffs' motion for partial summary judgment on the ATS claim. The court said that "the issue of aiding and abetting liability under the ATS present complicated issues of both fact and law. Neither side has demonstrated judgment as a matter of law is appropriate."
The ruling keeps the case on track for trial on the merits.
Sunday, August 6, 2017
A divided three-judge panel of the Third Circuit last week rejected a challenge to the contraception requirement under the Affordable Care Act by a self-described non-religious, anti-abortion nonprofit and three of its employees. The case represents the next generation of challenges to the requirement--after Hobby Lobby (a for-profit corporation with a religious objection) and Zubik v. Burwell (dealing with religious non-profits).
The plaintiff, Real Alternatives, is a non-profit, self-described non-religious, anti-abortion organization that objected to the contraception requirement on Equal Protection and statutory grounds. In particular, the organization and three of its employees argued that the requirement violates equal protection, because "if a religious organization may be exempted from the Contraceptive Mandate, then non-religious entities with an identical stance on contraceptives must be exempted as well." They also challenged the requirement under the Administrative Procedures Act. The three employees also argued that the requirement violated the Church Amendment and the RFRA.
The court rejected all of these challenges. As to equal protection, the court said, quite simply, that Real Alternatives, as a non-religious group, is not "similarly situated to a religious employer, such that the Exemption must be available to the group . . . ." In other words, Real Alternatives can't shoehorn itself into an exemption created for religious employers by way of the Equal Protection Clause, because, well, it's not religious. The court went on to say that "respecting church autonomy" by creating an exemption for churches (and not secular non-profits) is a "legitimate purpose--one that not only satisfies rational basis review but also is enshrined in the constitutional fabric of this country."
The court rejected the APA claim based on the same standard (under a different name): the requirement isn't "arbitrary and capricious" under the APA, for the same reasons that it satisfies rational basis review under equal protection.
As to the Church Amendment, the court said that the plaintiffs lacked standing, because they "purchase their health insurance from a company in the health insurance market, not from HHS or an HHS-administered health insurance program that falls under the purview of the Church Amendment."
Finally, as to RFRA, the court said the requirement didn't create a substantial burden on the employees' religious exercise, because merely being covered by insurance only gives the employees a choice to access a service, not a substantial burden on their religious exercise:
It is still up to the employee to decide what to do with those options, to seek out relevant providers, to submit claims for reimbursement for the service he or she selects, and so on. The act complained of--the filling out of a form that triggers eligibility for reimbursement for services the employee chooses to use (or not)--has not changed, and it in no way amounts to the sort of "substantial" burden consistently found contrary to RFRA. And the possibility that others might avail themselves of services that the employees find objectionable is no more burdensome than filling out the form . . . .
Judge Jordan dissented, arguing that the employees "adequately pled and provided sufficient evidence to demonstrate that the Contraceptive Mandate is a substantial burden on their free exercise of religion" under RFRA. (Judge Jordan joined the other parts of the majority opinion.)
The Eighth Circuit last week rejected a plaintiff's request for a temporary injunction against a Minnesota statute restricting robocalls. The court ruled that the plaintiff wasn't likely to succeed on his First Amendment claim.
The statute bans robocalls, except "(1) messages from school districts to students, parents, or employers, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules." A later amendment also exempts "messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind."
A political consultant challenged the law, arguing that, given the exceptions, it was an illegal content-based restriction on speech.
The Eighth Circuit disagreed, at least at this preliminary stage. The court first severed the military-veteran-donation exception from the rest of the statute. It then ruled that the other exceptions weren't content-based; instead, they were based on assumed implied consent of the target of the robocall:
[T]he permissions granted in the Minnesota statute do not reflect a content preference; they are based on an assumption of implied consent. The State does justify the statute in part based on an interest in protecting residential privacy against disruptive calls, but this interest is not grounded in a preference for certain content. Where a subscriber has impliedly consented to receipt of pre-recorded mesages, the caller may place a robocall about political campaigns, work schedules, or any other topic. Where there is no such implied consent, automated calls are banned entirely, regardless of their content. [The plaintiff] does not contend that the statute forbids him to communicate with any subscriber who has impliedly consented to receipt of his robocalls.
The court rejected the plaintiff's argument that Citizens United, Reed v. Town of Gilbert, or Matal v. Tam change this result. "[T]he statute does not prefer certain speech based on content, and does not disfavor certain ideas over others. The statute as a whole disfavors robocalls to strangers, but it allows them with consent. . . . The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say."
The Seventh Circuit ruled last week that plaintiffs were unlikely to succeed on the merits of their challenge to Illinois's same-day voter-registration law. The ruling sends the case back to the district court for proceedings on the merits, although the ruling strongly suggests that the law is constitutional.
The case, brought by a Republican congressional candidate in the 2016 election and a county Republican party, alleged that Illinois's same-day registration law violated the Equal Protection Clause, because an opt-out provision would disadvantage voters in smaller counties, and thus comparatively boost Democratic voter turnout.
The law requires counties to provide same-day voter registration. But it includes an opt-out for smaller counties that don't have an electronic pollbook. Still, the law requires those counties to offer election-day registration at "the election authority's main office," as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality."
The plaintiffs sought and received a preliminary injunction in the district court, but the Seventh Circuit stayed it before the 2016 election. Last week the Seventh Circuit vacated the injunction altogether.
The court said that the law didn't severely burden voters' constitutional right to vote, and so the district court improperly applied strict scrutiny. The court went on to say that the plaintiffs didn't demonstrate a likely success on the merits even under the less rigorous balancing test under Burdick v. Takushi. It concluded:
Even though [the Illinois law] does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, couples with the lack of any data about which groups are disadvantaged and how, dooms the injunction.
The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.
The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."
The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.
Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."
The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.
In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.
The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."
As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.
But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)
Friday, August 4, 2017
The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.
The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.
Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)
House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.
But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.
Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).
In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.
The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.
But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.
For now, the ball's in the President's court.
Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.
The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.
AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.
Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.
AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:
In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:
1. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?
2. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?
3. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?
AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)