Tuesday, January 17, 2017

D.C. Circuit Rejects Free Speech Claim of Inauguration Protest Group

The D.C. Circuit rejected a claim today that the Park Service's set-aside of Freedom Plaza for the Inauguration Committee violated the free speech rights of a group that sought to protest in that space during President-Elect Trump's inauguration.

The ruling ends this challenge, and means that the group will have to find some other place to protest.

The case involves a 2008 Park Service regulation that authorizes a priority permit setting aside a portion of space along the Inaugural Parade route to the Presidential Inaugural Committee for ticketed spectator bleachers. (The set-aside amounts to about 13 percent of the space along the route. In total, about 30 percent of the space along the route is not open to the public; the other 70 percent is available on a first-come, first-served basis.) That area includes Freedom Plaza, a park along Pennsylvania Avenue.

The set-aside priority permit does not displace the regular permit process for protestor along the parade route. But it means that protestors can't use the area set aside for the Inaugural Committee.

That's where ANSWER (Act Now to Stop War and End Racism) comes in. ANSWER sought to protest on Freedom Plaza, but couldn't, because the space was reserved for the Inaugural Committee. ANSWER sued, arguing that the set-aside violated its free speech rights.

The D.C. Circuit rejected this claim. The court ruled that the Park Service set-aside was a content-neutral, time, place, manner regulation of speech in a public forum, that was narrowly tailored to achieve a significant government interest (celebrating the inauguration), and left open ample alternatives for speech.

The court rejected ANSWER's argument that the regulation was viewpoint based, because the group sought to protest against President-Elect Trump: "ANSWER's admittedly viewpoint-based reason for seeking access to the Plaza does not, however, make any rule that stands in its way content based."

January 17, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, December 28, 2016

Tenth Circuit Says SEC ALJs Violate Appointments Clause

A divided panel of the Tenth Circuit ruled yesterday that SEC Administrative Law Judges violate the Appointments Clause.

The important, pathbreaking ruling creates a circuit split--the D.C. Circuit went the other way earlier this fall--and tees the issue up for Supreme Court review.

The majority was careful to remind that its ruling extended only to SEC ALJs, not all ALJs, so it's not clear exactly how far the logic goes. It probably doesn't matter much, though, at least for now, because the case will almost surely go to the Supreme Court.

The case arose when David Bandimere challenged an SEC ruling against him, in part because the ALJ that issued the initial decision was appointed in violation of the Appointments Clause. The SEC rejected the argument, but the Tenth Circuit agreed with Bandimere. (The SEC ruled that the ALJ was an "employee," not subject to the Appointments Clause.)

The court ruled that SEC ALJs look just like the Tax Court Special Trial Judges at issue in Freytag v. Commissioner. In Freytag, the Supreme Court used a functional analysis to conclude that the STJs were inferior officers, to be appointed by "the President alone, in the Court of Law, or in the Heads of Department." The court said that SEC ALJs, like the STJs, (1) were "established by Law," (2) had "duties, salary, and means of appointment . . . specified by statute," and (3) "exercise significant discretion" in "carrying out . . . important functions." As inferior officers, the court said that they had to be appointed by the President, the courts, or a head of a department, and, because they weren't (this point wasn't contested), they violate the Appointments Clause.

The court parted ways with the D.C. Circuit on the same question, because, it said, the D.C. Circuit put too much emphasis on the third part of the Freytag analysis--in particular, that the ALJs didn't exercise final decisionmaking power: "We disagree with the SEC's reading of Freytag and its argument that final decision-making power is dispositive to the question at hand."

Judge McKay dissented, focusing on the differences between SEC ALJs and the STJs in Freytag ("Most importantly, the special trial judges at issue in Freytag had the sovereign power to bind the Government and third parties," while "the Commission is not bound--in any way--by an ALJ's recommendations") and the potentially sweeping implications of the ruling ("all federal ALJs are at risk of being declared inferior officers," and therefore in violation of the Appointments Clause).

December 28, 2016 in Appointment and Removal Powers, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, December 27, 2016

Yet More on Clinton E-Mails, in the Courts

The D.C. Circuit ruled today that a civil case involving the recovery of some unknown number of apparently not-yet-released Hillary Clinton e-mails is not moot. But the ruling carefully says nothing about the merits and other barriers to moving forward, so it's not yet clear that the ruling will result in any further investigation. It just means that the district court can move to the next steps.

The case arose when Judicial Watch sought a court order compelling Secretary of State Kerry to refer the effort to recover certain e-mails to the Attorney General. Judicial Watch relied on the Administrative Procedure Act and a portion of the Federal Records Act. That Act requires the relevant agency head (in mandatory, non-discretionary language), when he or she becomes aware of "any actual, impending, or threatened unlawful removal . . . or [] destruction of [agency] records," to "notify the Archivist . . . and with the assistance of the Archivist [to] initiate action through the Attorney General."

The district court tossed the case on mootness grounds, ruling that Secretary Kerry and the Archivist had made a "sustained effort" to recover the e-mails, yielding "a very substantial harvest," even if they failed to refer the effort to the AG.

The D.C. Circuit reversed. The court ruled that there may still be some un-recovered e-mails out there that the Secretary's and Archivist's efforts haven't revealed--and that therefore require referral to the AG, under the Records Act. In particular, the court said that Clinton used yet different e-mail accounts (other than her private server account) during part of her tenure as Secretary, and that e-mails on these accounts haven't been recovered.

If appellants had only sought emails from the server account, a mootness argument based on the recovery of hte server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. . . .

The complaints here sought to ensure recovery [of] all of the former Secretary's work emails, including [on these other accounts]. Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recover of a server that hosted only one account does not moot the suits.

The ruling sends the case back to the district court. But that doesn't necessarily mean that the court will, or can, order Secretary Kerry to refer the matter to the AG, or that the AG must do anything. As the court wrote,

[W]e express no opinion on whether the Attorney General's action or inaction in response to a referral would be reviewable. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command's constraint on their discretion; they have raised no such argument.

December 27, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Thursday, December 15, 2016

Fourth Circuit Finds Police Department's "Negative Comments" Social Media Violates First Amendment

In its unanimous opinion in Liverman v. City of Petersburg (Virginia), the Fourth Circuit has held that a police department's social media policy and its subsequent enforcement violated the First Amendment.

The opinion, authored by Judge J. Harvey Wilkinson, concerned the police department's "negative comments" policy which provided,

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.

The court further considered a related provision, the so-called "public concern provision, which provided:

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.

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Liverman, while off-duty, posted a comment to his Facebook page complaining about "rookie cops" becoming "instructors," writing in part, "Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers."  Another off-duty officer, Richards, wrote to "agree 110%" and furnish additional comments.  The officers each received an oral reprimand and probation for 6 months, with a new policy added that excluded officers on probation from being considered for promotion.

220px-F_icon.svgThe Fourth Circuit engaged in the familiar Pickering-Connick balancing test, first asking whether the speech related to a "matter of public concern," and then if so, balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

The court easily found that the "negative comments" ban related to matters of public concern, concluding that "the restraint is a virtual blanket prohibition on all speech critical of the government employer." As for the interest of the police department, the court was not only critical of the ban's breadth, but also contended it actually disserved the government interests:

We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.

Moreover, the department could not show any actual disruption to its mission.

The court did note that the department could craft a "narrower social media policy" that did not have "chilling effects," but as the negative comments policy was written, it did indeed violate the First Amendment.

 

December 15, 2016 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (1)

Seventh Circuit Walks Back Absolute Immunity for Liquor License Renewals

The Seventh Circuit ruled this week in Brunson v. Murray that an official is not entitled to absolute immunity for a liquor-license renewal decision, even though absolute immunity extends to suspension and revocation decisions.

The ruling reverses circuit precedent on the issue. The court said that changes in state law and federal law (Cleavinger, discussed below) compelled the change.

The difference between a renewal decision, on the one hand, and a suspension or revocation decision, on the other, is that the latter is judicial-like (which triggers absolute immunity), where the former is not. The court determined this based on how each decision operates under state law (a functional analysis) and the six factors "characteristic of the judicial process" in Cleavinger v. Saxner. In short: "Under state law, a local liquor commissioner's action on a license renewal lacks the procedural formalities and protections that apply to the same official's decision to suspend or revoke a license. The differences are great enough to produce different results for the availability of absolute immunity."

The court remanded the plaintiff's claim for the renewal decision, remanded some other claims, and dismissed yet others in this strange and sordid case involving conflicts of interests and apparent vendettas by local public officials against a liquor store owner.

December 15, 2016 in Cases and Case Materials, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, December 14, 2016

Ninth Circuit Upholds California's Ten-Day Waiting Period for Gun Purchasers

The Ninth Circuit this week upheld California's ten-day waiting period for gun purchasers against a Second Amendment challenge, even as to those purchasers who already had a concealed carry permit and to those who had cleared a background check in less than ten days.

The ruling is a significant defeat for gun-rights advocates. It means that California's ten-day waiting period stays in place for all gun purchasers as a "reasonable safety precaution" against impulsive gun buys.

The Ninth Circuit applied the familiar two-part test for Second Amendment challenges now used by most of the federal circuits: (1) does the law burden conduct protected by the Second Amendment; and, if so, (2) does the law satisfy the appropriate level of scrutiny? As to the first step, the Ninth Circuit applies an "historical understanding" test--"[l]aws restricting conduct that can be traced to the founding era and are historically understood to fall outside of the Second Amendment's scope may be upheld without further analysis." As to the second step, the Ninth Circuit applies a sliding scale based on how close the law comes to the core of the Second Amendment and how much it burdens Second Amendment rights.

The court said that it didn't need to address step 1 (the historical understanding), because the ten-day waiting period satisfied the appropriate level of review, intermediate scrutiny. (The court used its sliding scale test to arrive at intermediate scrutiny, because "[t]he actual effect of the [waiting period] on Plaintiffs is very small.") The court held that the law providing a cooling off period to promote safety and to reduce gun violence, even for purchasers who already had a gun (because the purchasers may seek "to purchase a larger capacity weapon that will do more damage when fired into a crowd.") "A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home . . . ."

Judge Thomas concurred: "I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California's ten-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under [Heller], a ten-day waiting period is presumptively lawful."

December 14, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, December 9, 2016

Arkansas Supreme Court Upholds Birth Certificate Denial Listing Both Same-Sex Parents

In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents. 

Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion.  In a well-wrought dissent by Justice Paul Danielson, he argues:

[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.”  Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status.  Thus, the majority is clearly wrong in holding that Obergefell has no application here.   Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married   couple   who   challenged   the   Tennessee   law   providing   that   their   child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.

Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”    The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.

[citations to Obergefell omitted].

For the majority, biology was the paramount "truth" that vital records should reflect.  Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.  

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However, the relevance of Smith v. Pavan even in Arkansas is unclear.  As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:

Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.

Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:

First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.

It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.

  Front of Justice Building (5)

 

[image: Arkansas Supreme Court building]

December 9, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Thursday, December 1, 2016

Eleventh Circuit Denies Immunity in Police Officer's Free Speech Case

The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.

The ruling means that the officer's First Amendment case can move forward on the merits.

The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)

Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.

As to the second part, adversely affected, the court explained:

Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.

The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.

The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.

The ruling sends the case back to the trial court to go forward on the merits.

December 1, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, November 29, 2016

Seventh Circuit Issues Mixed Ruling in Important Prisoner-Rights Case

The Seventh Circuit today dismissed a state prisoner's First Amendment claim, but ruled that his Eighth Amendment claim can go forward.

Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).

The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.

Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.

The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.

As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.

Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.

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

Monday, November 28, 2016

Court Rebuffs State Challenge to Treasury Regs on Abandoned Bonds

Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.

The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.

The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.

As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.

Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.

As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."

As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."

Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.

(The court also rejected the plaintiffs' APA claim.)

 

November 28, 2016 in Appointment and Removal Powers, Cases and Case Materials, Federalism, News, Opinion Analysis, Tenth Amendment | Permalink | Comments (0)

Friday, November 25, 2016

Ninth Circuit Says State Environmental Law is Preempted in Railway Repair

The Ninth Circuit ruled this week that the Interstate Commerce Commission Termination Act preempted an Oregon state environmental measure as it related to repairs on a tourist rail line.

The ruling means that the state "removal-fill law," which requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat, does not apply to the repair project.

The case arose when the Port of Tillamook Bay, which owns railways in Oregon, contracted with the Oregon Coast Scenic Railroad, which operates tourist trains on a portion of the Port's tracks, to repair some of the track. But when Oregon Coast started work, the Department of State Lands sent Oregon Coast a cease and desist order, alleging that the repair work would violate the state's removal-fill law. Oregon Coast sued, arguing that the federal ICCTA preempted Oregon's removal-fill law.

The Ninth Circuit agreed. The court ruled that the ICCTA preempts if an activity is (1) "transportation" (2) "by rail carrier" and (3) "as part of the interstate rail network." The court noted that the parties agreed that the activity was "transportation" under the ICCTA. It went on to say that the work was "by rail carrier," because "the repair work performed by Oregon Coast is 'an integral part of [the Port's] provision of transportation by rail carrier.'" Finally, the court held that the work was "part of the interstate rail network," because the line, while not currently attached to an interstate rail line, once was attached to an interstate rail line, and, when the repairs were finished, would once again be attached to an interstate rail line.

The court said that under ICCTA preemption, the work falls under the exclusive jurisdiction of the federal Surface Transportation Board, and that state regulation--including environmental regulation--is preempted.

November 25, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Tuesday, November 22, 2016

Court Halts President Obama's Overtime Rules, but Rebuffs Effort to Overturn Garcia

Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.

The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.

At the same time, the new Trump Administration will almost surely undo these rules, anyway.

So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)

The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.

Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.

States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.

The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.

As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)

Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.

November 22, 2016 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Monday, November 21, 2016

Court Punts on President's Authority to Fight ISIS

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

November 21, 2016 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Friday, November 18, 2016

Sixth Circuit Issues Mixed Preemption Ruling in Labor-Rights Case

The Sixth Circuit ruled today that a local "right-to-work" ordinance was not preempted under the National Labor Relations Act, but that provisions banning hiring-hall agreements and dues-checkoff requirements are preempted.

The mixed ruling hands a partial victory to union opponents (by upholding the local "right-to-work" ordinance) and a partial victory to unions (by striking the hiring-hall and dues-checkoff bans).

Hardin County, Kentucky, enacted a so-called "right-to-work" ordinance, which prohibited employers and unions from requiring union membership or dues as a condition of employment. The ordinance also prohibited "hiring-hall" agreements (which require prospective employees to be recommended, approved, referred, or cleared by a union) and "dues-checkoff" provisions (which require employers to automatically deduct union dues and fees). Unions sued, arguing that the ordinance was preempted.

The Sixth Circuit disagreed on "right-to-work" and agreed on hiring-hall and dues-checkoff provisions.

The court ruled that the "right-to-work" provision was saved from preemption and was not field-preempted. The court looked to Section 14(b) of the NLRA:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The court held that Hardin County law is "State law" under this provision, and so saved from preemption by the plain terms of the Act. The court went on to say that it couldn't be field-preempted under the NLRA, because, well, it was saved under Section 14(b). ("It follows that Section 14(b)'s explicit exception of the state right-to-work laws from preemption trumps operation of implicit field preemption.")

As to the hiring-hall and dues-checkoff bans, the court held that these did not fall within the Section 14(b) exception. It held that the dues-checkoff ban was preempted by the Labor Management Relations Act, and that hiring-hall ban was explicitly permitted under the NLRA.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Local Effort to Ban Genetically Engineered Crops Preempted

The Ninth Circuit ruled today in Atay v. County of Maui that a local initiative to ban genetically engineered crops was preempted by federal and state law. The ruling ends this effort in Maui County, Hawaii, to ban GE crops.

The citizens of Maui County voted for an ordinance that banned the cultivation and testing of GE plants. The ordinance was designed "to protect organic and non-GE farmers and the County's environment from transgenic contamination and pesticides, preserve the right of Maui County residents to reject GE agriculture, and protect the County's vulnerable ecosystems and indigenous cultural heritage."

The Ninth Circuit ruled that the ordinance was preempted. The court held that the federal Plant Protection Act expressly preempted the GE ban as to crops that the Animal and Plant Health Inspection Service has deregulated. The PPA preemption provision says that "no State or political subdivision of a State may regulate the movement in interstate commerce of any . . . plant . . . plant pest, noxious weed, or plant product in order to control . . . eradicate . . . or prevent the introduction or dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a regulation or order to prevent the dissemination of the . . . plant pest, or noxious weed within the United States." The Secretary, through the APHIS, has done just that, so the court said that Maui's ban was preempted. (As to the interstate commerce element, the court said that GE seeds and plants flow across state lines, and that Congress specifically recognized in the PPA that "all plant pests, noxious weeds, plant products, articles capable of harboring plant pests or noxious weeds regulated under this chapter are in or affect interstate commerce.")

As to those crops not regulated by the APHIS, the court said that the PPA didn't impliedly preempt the ban, but Hawaii state law did. The court looked to Hawaii preemption law, which applies a "comprehensive statutory scheme" test to determine field-preemption, and held that Hawaii's statutory scheme fit the bill. (The Ninth Circuit handed down another case today with a similar state preemption holding, that one striking Kauai County's pesticide regulations.)

The ruling ends this local effort to ban GE crops.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

States Lack Standing to Sue Over California's Egg Law

The Ninth Circuit ruled in Missouri ex rel. Koster v. Harris that six states lacked standing to sue California over its laws protecting hens that lay eggs. The ruling dismisses the case in favor of California (and its egg laws), unless and until the plaintiffs amend their complaint.

The plaintiffs, six egg-producing states, sued California after that state enacted a law setting certain standards for egg-laying hens. (The law bans the sale of eggs in the state by hens that are kept in cages where they can't lay down, stand up, extend their limbs, and turn around.) The plaintiffs alleged parens patriae standing on behalf of egg farmers in their states.

The Ninth Circuit ruled against them. The court said that the states couldn't show "an interest apart from the interests of particular private parties," the first of two additional elements of parens patriae standing (over and above the normal elements of standing). (The second additional element, not at issue here, is "[t]he State must express a quasi-sovereign interest.") The court held that the states didn't allege that California's law harmed their entire population, and that those affected (the egg farmers) could bring their own suit against California. The court rejected the plaintiffs' claim that the California law would cause a fluctuation in the price of eggs and thereby harm all consumers. It also rejected the claim that the plaintiffs had standing because California's law was discriminatory. (It wasn't; it applies to all hens, wherever they live. The lack of discrimination in the law also goes to the merits (although not at issue yet): under the Dormant Commerce Clause, a nondiscriminatory law is upheld only if its burdens on interstate commerce outweigh its benefits--a relatively low standard.)

The court instructed the district court to dismiss the case without prejudice, however, allowing the states to amend their complaint.

November 18, 2016 in Cases and Case Materials, Dormant Commerce Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Citizen Lacks Standing to Sue Senators Over Scuttled Supreme Court Nomination

Judge Rudolph Contreras (D.D.C.) ruled that a private citizen lacked standing to sue Senators McConnell and Grassley for failing to give President Obama's Supreme Court nominee, Judge Merrick Garland, a vote in the Senate.

Plaintiff Steven Michel brought the action under the Seventeenth Amendment, arguing that McConnell's and Grassley's stonewalling resulted in a loss of voice of his own home-state senators, and therefore a violation of his own right to vote for his home-state senators under the Seventeenth Amendment.

The court said that Michel lacked standing:

Mr. Michel has not shown that he has suffered an individualized injury such that he can maintain this action. This alleged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state Senators have been frustrated by the rules and leadership of the United States Senate. This is far from the type of direct, individualized harm that warrants judicial review of a "case or controversy."

November 18, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, November 17, 2016

Ten Commandments at City Hall Violates Establishment Clause (even with other secular monuments)

The Tenth Circuit ruled last week in Felix v. City of Bloomfield that the city's monument to the Ten Commandments violated the Establishment Clause, even though the overall display included other, later-erected secular monuments.

The case arose when a city council member obtained council permission to place a Ten Commandments monument in front of city hall, along with other monuments that would celebrate the city's "history of law and government." The council member raised private money for the Ten Commandments monument (from churches, among other sources), and, after some fits and starts, placed the massive monument (over five feet tall, 3,400 pounds, sunk 14 inches into the ground) right in front of city hall. The city held an unveiling ceremony, which included religious references, statements, and the like, and some secular ones, too.

After this suit was filed, arguing that the Ten Commandments monument violated the Establishment Clause, the council member arranged for other monuments at city hall, including one for the Declaration of Independence, one for the Gettysburg Address, and one for the Bill of Rights.

The Tenth Circuit ruled that the Ten Commandments monument violated the Establishment Clause. The court wrote that an objective observer, reasonably informed about the monument, would have concluded that the city was endorsing religion. The court said that the text on the monument, its prominent location, the religious circumstances surrounding its financing and unveiling, and the timing of this lawsuit (just seven months after the monument's unveiling) all pointed toward endorsement.

The court recognized the city's effort to secularize the display with later, secular monuments, but said that this wasn't enough to scrub the religious history behind it.

November 17, 2016 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Tenth Circuit: State is Immune From Federal Slavery Claim

The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.

The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.

The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")

The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.

Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.

November 17, 2016 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis, Thirteenth Amendment | Permalink | Comments (1)

Wednesday, November 16, 2016

Sixth Circuit Says Bankruptcy Gives Detroit a Free Pass on Civil Rights

The Sixth Circuit ruled this week that the Bankruptcy Code prevented citizens and organizations in Detroit, which is is Chapter 9 bankruptcy proceedings, from suing the city for certain constitutional violations.

The ruling gives Detroit a free pass on certain civil rights--because it is in bankruptcy. Indeed, the court goes so far as to say (based on almost no authority) that because the financial conditions in Detroit are so bad, federalism considerations even more support a reading of the Bankruptcy Code that bars certain civil rights actions against the city.

The lesson: If you're out to have your constitutional rights violated, do it in a city that's not in bankruptcy, with really big financial problems.

The case arose when Detroit citizens and organizations sued the city in the Eastern District of Michigan for turning off thousands of residents' water for nonpayment and refusing to negotiate. The plaintiffs sought declaratory and injunctive relief; they brought due process and equal protection claims (among others) under 42 U.S.C. Sec. 1983 and Monell.

The district court then transferred the case to bankruptcy court and consolidated it with Detroit's Chapter 9 case. The plaintiffs moved for a TRO, and the city moved to dismiss pursuant to 11 U.S.C. Sec. 904 (in the Bankruptcy Code). That section says:

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with--

(1) any of the political or governmental powers of the debtor;

(2) any of the property or revenues of the debtor; or

(3) the debtor's use or enjoyment of any income-producing property.

The Sixth Circuit ruled, with little analysis, that each of these three conditions applied, and therefore the bankruptcy court had no power to issue declaratory or injunctive relief, and therefore the case must be dismissed.

Along the way, the court had some pretty surprising things to say about federalism and protection of rights. For example, the court wrote that Section 904 is essentially a federalism protection for a city like Detroit, and a city in bankruptcy--and especially one with really bad financial problems--ought (perhaps paradoxically) to have more protection against constitutional-rights claims (than a city in a regular district court) because of it. Here's how the court put it:

That a federal court's power should be more constrained in the chapter 9 context than in a typical Monell action also makes sense. Monell plaintiffs may claim damages and prospective injunctive relief, such as the implementation of a training program that better protects citizens' constitutional rights, provided they make the appropriate showing. We agree that the Tenth Amendment is not a barrier to a federal court's authority over a municipality in that setting.

But a discrete change in policy in a particular office or department of local government is far removed from the complete financial overhaul undertaken in a municipal reorganization. Detroit's case is a good example. "At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow," failing infrastructure, and "a crumbling water and sewer system." The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. Concerns for state sovereignty loom larger with so much at stake. "As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries." The massive scale of a municipal bankruptcy simply provides more opportunities for excessive federal court interference.

Apparently only one other court, a bankruptcy court, had used federalism in the way the Sixth Circuit did to support its Section 904 analysis, because that's the only case (in two versions) that the Sixth Circuit cited in support of its federalism claims.

Surprisingly, the court said that this reasoning applies equally to the plaintiffs' request for declaratory relief. (It's not entirely clear how declaratory relief alone interferes with any of the three categories in Section 904.)

All this said, the ruling probably doesn't extend to other civil rights claims that don't involve a "contract" with the government. This case ended up in the bankruptcy court because the residents had a water-services "contract" with the city that fell under the city's bankruptcy. A different kind of claim (police brutality, for example) wouldn't involve a "contract," (hopefully) wouldn't get kicked to bankruptcy, and therefore wouldn't get dismissed under Section 904.

November 16, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)