Wednesday, April 20, 2016
The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).
The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.
This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.
While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."
In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.
The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.
But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."
Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."
Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.
Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.
Monday, April 18, 2016
In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.
The rule provides:
During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.
In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys.
During the trial, one of the defendant attorneys "suffered from a self-inflicted gunshot wound." The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets." Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.
The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available." The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.
While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.
Friday, April 15, 2016
The Supreme Court will hear oral arguments on Monday in United States v. Texas, the challenge to DAPA, the deferred action program for certain unauthorized aliens.The case involves two core issues: Does a state have standing to challenge DAPA; and does DAPA violate the APA or the Take Care Clause?
Here's my oral argument preview in the ABA Preview of United States Supreme Court Cases, with permission:
On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum (called “guidance” by the government) that announced “new policies for the use of deferred action” for certain aliens who are not removal priorities for the Department. The memo directed the U.S. Citizenship and Immigration Services (USCIS) “to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for certain parents of U.S. citizens or lawful permanent residents. The process is called Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.” To qualify, an applicant must (1) be the parent of a U.S. citizen or lawful permanent resident as of November 20, 2014; (2) have continuously resided in the United States since January 1, 2010, or before; (3) have been physically present here on November 20, 2014, and when applying for DAPA; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities (which the Secretary set out in a companion memo, and which include removing aliens who are serious criminals and terrorists); and (6) “present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.” The Secretary’s memo also expanded the criteria for deferred action under the earlier 2012 Deferred Action for Childhood Arrivals policy, or “DACA.”
The Secretary’s memo explained that DAPA would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported” given the Department’s “limited enforcement resources.” Moreover, it would advance “this Nation’s security and economic interests and make common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” The memo emphasized that DAPA does not establish any right to deferred action, and that deferred action “does not confer any form of legal status” and “may be terminated at any time at the agency’s discretion.”
Under longstanding federal law, which recognizes deferred action, an alien with deferred action may apply for work authorization based on economic need. In addition, an alien with deferred action may qualify for certain federal earned-benefit programs that come with lawful work, such as Social Security retirement and disability, Medicare, and railroad-worker programs. But an alien with deferred action is not eligible to receive food stamps, Supplemental Security Income, temporary aid for need families, and many other federal public benefits. And an alien with deferred action is not eligible for any “[s]tate or local public benefit,” although states may voluntarily extend certain benefits to aliens with deferred action. For example, Texas voluntarily permitted an alien with deferred action to apply for and receive a driver’s license, which Texas subsidized.
On December 3, 2014, Texas and other states sued the Department, seeking declaratory and injunctive relief against implementation of DAPA. The plaintiffs alleged that DAPA violated the Take Care Clause of the Constitution and the Administrative Procedures Act. The district court entered a nationwide preliminary injunction against implementation of DAPA.
A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The court ruled that at least one plaintiff, Texas, had standing, because state law would require it to subsidize a driver’s license for an alien with deferred action under DAPA. The court also ruled that the plaintiffs were substantially likely to succeed on their claim that the Department should have used notice-and-comment rulemaking (and not a mere memo by the Director) to implement DAPA. Finally, the court ruled that DAPA was “manifestly contrary” to the Immigration and Naturalization Act.
This appeal followed.
The case involves two principal issues. Let’s take them one at a time.
Under Article III of the Constitution, in order to bring this case in federal court, at least one state has to show (1) that it suffered an actual or imminent “injury in fact,” (2) that DAPA caused, or will cause, the injury, and (3) that the lawsuit will redress the injury. Moreover, in order to sue under the APA, the states’ interests have to fall within the “zone of interests” of the relevant statute, here the INA. The parties frame their arguments around these rules.
The government argues first that no state has Article III standing, because DAPA does not directly injure the states or require them to do anything. The government says that any injury that DAPA causes the states is only indirect and incidental, and that states cannot establish standing on the basis of an indirect or incidental injury from the operation of immigration law (which the Constitution assigns exclusively to the federal government). Moreover, the government asserts that the claimed injury here, Texas’s costs in subsidizing temporary visitor driver’s licenses for aliens, is entirely self-imposed. The government contends that recognizing these kinds of injuries would permit states to force cases over a wide swath of federal programs, essentially allowing states to challenge the federal government at nearly every turn.
The government argues next that the states cannot sue under the APA, because their interests are not within the zone of interests under the INA. The government says that the states’ asserted interests—“reserving jobs for those lawfully entitled to work” and “comment[ing] on administrative decisionmaking”—are different than their interests in Article III standing (discussed above), and that they therefore impermissibly mix-and-match their interests for standing and APA purposes. The government also claims that the states’ asserted interests for their APA challenge, if accepted, would effectively eliminate the zone-of-interest requirement under the INA and open the door to a federal suit by any state that is unhappy with federal immigration policy.
Finally, the government argues that the executive’s enforcement discretion, including the enforcement discretion reflected in DAPA, is traditionally immune from judicial review. The government says that the decision to permit aliens to work, as an attribute of enforcement discretion, is similarly unreviewable in court.
The states argue that they have Article III standing, because DAPA requires at least one of them, Texas, to incur costs in subsidizing driver’s licenses. The states say that this injury is legitimate and not manufactured (because the driver’s license subsidy was already on the books), and therefore satisfies the Article III injury requirement. The states contend that DAPA also requires them to incur costs related to healthcare, education, and law enforcement. And they assert that they have standing to protect their citizens from “labor-market distortions, such as those caused by granting work authorization to millions of unauthorized aliens.” The states contend that they are entitled to “special solicitude” in the standing analysis under Massachusetts v. EPA. 549 U.S. 497 (2007).
The states argue next that they can challenge DAPA under the APA, because their interests fall squarely within the zone of interests in the INA. They say that DAPA grants lawful presence and eligibility for work authorization and other benefits, the crux of their interests. They say moreover that the INA does not grant the Department discretion to do this. Thus, they claim that their interests fall squarely within the zone of interests protected by the INA.
Under basic separation-of-powers principles, Congress is charged with making the law, and the President is charged with executing it. This means that administrative action like DAPA cannot violate the INA. Under the APA, it also means that DAPA must go through notice-and-comment rulemaking, if DAPA is a new “rule” (although DAPA need not go through notice-and-comment rulemaking if it is merely a new policy). Finally, under the Take Care Clause, it means that DAPA must be a proper execution of federal law, again the INA. The parties touch on each of these principles.
The government argues that the INA provides the Secretary ample authority for DAPA. The government claims that under the INA Congress has directed the Secretary to focus limited resources on removing serious criminals and securing the border, and that DAPA, in deferring action for aliens who are not priorities for removal, is perfectly consistent with this. The government claims that DAPA serves the additional purposes of “extending a measure of repose to individuals who have long and strong ties to the community” and encouraging hard work, on the books, so as to minimize competitive harm to American workers.
The government argues next that DAPA has deep historical roots. It says that the Department and the Immigration and Naturalization Service before it have adopted more than 20 similar policies in the last 50 years, deferring deportation for large numbers of aliens in defined categories. Since the early 1970s, each of these actions has also resulted in eligibility for work authorization—a practice that was codified in formal regulations in 1981. The government contends that Congress has repeatedly ratified the Department’s authority, with full knowledge of these policies.
Third, the government argues that the states are wrong to say that DAPA violates the INA. The government claims that the INA itself and past practice refute the states’ assertion that the Secretary can only authorize deferred action and work authorization for categories of aliens that Congress has specifically identified. Moreover, it claims that even the states agree that the Secretary could provide separate temporary reprieve for every one of the individuals covered by DAPA, so DAPA itself cannot be “too big.” And the government points out that longstanding regulations permit the Secretary to authorize lawful work for aliens covered by deferred action.
Fourth, the government argues that DAPA is simply a policy statement regarding how the Department will exercise discretionary authority—and not a binding rule that requires notice-and-comment procedures. Indeed, the government points out that no prior deferred action policy has been subject to notice-and-comment requirements. The government says that DAPA requires Department agents to exercise discretion in granting deferred action, and that DAPA is no less a “policy” than one that gives individual agents authority to be less forgiving for specific reasons in any individual case.
Finally, the government argues that the Take Care Clause provides the states with no basis for relief. The government claims that the Take Care arguments are simply dressed-up versions of their statutory arguments, and that in any event the Take Care Clause is nonjusticiable. But even if the Take Care Clause requires something different than the statutory analysis, and even if it is justiciable, the government says that the Secretary has complied with it by enforcing and executing the INA (for the reasons stated above).
The states argue that DAPA violates the INA. They say that Congress has to expressly authorize the executive to defer removal for whole categories of aliens, because this question is so central to the INA’s statutory scheme. But they claim that Congress has not done this. They also contend that DAPA flouts the 1996 amendments to immigration statutes that deny certain benefits to unlawfully present aliens whom the executive elects not to remove. And they say that DAPA would render meaningless Congress’s comprehensive framework, which “define[s] numerous categories of aliens that are entitled to or eligible for work authorization.”
The states argue next that DAPA is invalid, because it was promulgated without notice-and-comment procedures. The states claim that DAPA is a substantive binding rule, not a policy, and was therefore subject to notice-and-comment requirements. They say that the President compared DAPA to a military order and promised consequences for officials who defied it. They also say that it gives no discretion to Department officials in its enforcement. Moreover, the states contend that DAPA is a rule because it affects individual rights and obligations, using legislative-type criteria to determine whether an alien qualifies for substantial government benefits. The states assert that “[t]his change is immensely important to the Nation and requires at least public participation through notice-and-comment procedure.”
Finally, the states argue that DAPA violates the Take Care Clause. They claim that DAPA declares conduct that Congress has determined unlawful to be lawful. They say that this is precisely the kind of power grab that the Take Care Clause was designed to prevent.
At its core, this case is about the meaning and sweep of DAPA. By the Secretary’s reckoning, DAPA is merely a policy that guides the discretion of Department agents in enforcing the INA—the same way that any Department policy might guide an agent’s discretion, well within the discretion authorized by the INA. But by the states’ reckoning, DAPA is a new and binding rule that contradicts the INA: it represents the executive’s effort to change the law, not simply enforce it.
To sort this out, the Court will look at the precise language of the INA and DAPA itself, of course. But it will also look to other indicia of congressional intent to enforce the INA. These may include things like congressional awareness of and acquiescence to longstanding Department regulations that seem to assume that the Department may use deferred action, and which grant benefits as a result of it. These may also include congressional appropriations, which amounted to $6 billion in 2016. This was enough to deport only a small portion of the estimated 11 million undocumented aliens currently living in the United States, thus strongly suggesting that Congress intended the Department not to remove large populations of unlawfully present aliens. (The government points out that the Department has recently been setting records for removals in a year, but still only removing about 440,000 in 2013, for example.) Finally, the Court will look at the Department’s prior deferred action policies, which at different times since 1960 covered undocumented Cuban nationals after the Cuban Revolution, undocumented spouses and children of aliens with legalized status, individuals who sought lawful status as battered spouses or victims of human trafficking, foreign students affected by Hurricane Katrina, widows and widowers of U.S. citizens who had no other avenue of immigration relief, and certain aliens who came to the U.S. as children.
Here’s one thing the Court won’t look at: the Department’s actual enforcement of DAPA. That’s because the states filed suit before the Department implemented DAPA, and so there is no record of Department enforcement of DAPA. The states claim that Department agents will implement DAPA much as they implemented DACA, and that under DACA agents did not exercise discretion in individual cases (suggesting that DACA and DAPA are new rules, and not merely policies guiding individual agent’s discretion).
Aside from the merits, the first issue in the case, standing, could be dispositive. It is not at all obvious that the states have standing under Court precedent. In perhaps the closest case, Massachusetts v. EPA, the Court held that the state had standing to challenge the EPA’s failure to regulate greenhouse gases, based on the state’s loss of coastline due to rising sea levels (due to increased greenhouse gases). But Massachusetts is hardly on all fours with this case. Still, it will likely play an important role in oral argument.
But it’s easy to think that these doctrinal issues are really just cover for underlying policy and political disputes. On the policy side, the case raises the important and contested questions of whether and how to deal with some of the 11 million unauthorized aliens in the United States. In particular: Should we protect certain classes of unauthorized aliens from immediate deportation for economic reasons (because they provide a net benefit to our economy), humanitarian reasons (to keep families together, for example), or just plain fairness reasons? The case also raises the important and contested question of who decides—the federal government, or the states. The Court answered that question unequivocally in favor of the federal government just four years ago in Arizona v. United States, 567 U.S. ___ (2012), the SB 1070 case. This case gives the Court another crack at it.
On the political side, the case is (obviously) yet another battle in the continuing war between Republicans and President Obama over immigration and executive authority. All twenty-six states that brought the case are led by Republican governors. (Yet at least one state that has a far more sizeable portion of the unauthorized alien population in the U.S., California, led by a Democrat, is notably absent from the suit.) Moreover, President Obama said that he initiated DACA and DAPA in the first place as a reaction to congressional (Republican) failure to take up immigration reform. The case is thus at the center of the ongoing dispute between a Democratic President who in the face of congressional intransigence has governed by executive order, and the Republican opposition that claims that this represents “executive overreach.”
The Ninth Circuit ruled yesterday in CFPB v. Gordon that Consumer Financial Protection Bureau Chief Richard Cordray had authority and standing to bring an enforcement claim against Chance Gordon, a California attorney and putative provider of home loan modification services.
The ruling is a win for the hotly contested CFPB and Cordray's authority during the period after his recess appointment but before his Senate confirmation.
President Obama initially appointed Cordray by recess appointment on January 4, 2012--the same day that he appointed three individuals to the NLRB by recess appointment, an act that the Supreme Court ruled invalid in Noel Canning. President Obama later renominated Cordray, and he was confirmed by the Senate on July 16, 2013. A month and a half later, the CFPB issued a Notice of Ratification, ratifying all of Cordray's actions from January 4, 2012, through July 17, 2013.
The CFPB filed a civil enforcement action against Gordon in July 2012, apparently in this ratification period. Gordon moved to dismiss for lack of standing and for a violation of the Appointments Clause. A split panel of the Ninth Circuit rejected his claims.
The court ruled first that Cordray's appointment has nothing to do with Article III standing, because executive enforcement is independent of Article III. The court explained:
Here, Congress authorized the CFPB to bring actions in federal court to enforce certain consumer protection statutes and regulations. And with this authorization, the Executive Branch, through the CFPB, need not suffer a "particularized injury"--it is charged under Article II to enforce federal law. That its director was improperly appointed does not alter the Executive Branch's interest or power in having federal law enforced . . . . While the failure to have a properly confirmed director may raise Article II Appointments Clause issues, it does not implicate our Article III jurisdiction to hear this case.
Moreover, the court held that Cordray's ratification cures any Appointments Clause deficiencies that might otherwise destroy the CFPB's enforcement action against Gordon. In other words, Cordray ratified all his prior actions after his recess appointment but before his Senate confirmation, including the civil enforcement action against Gordon, and that solved any problems that he might have had for actions taken during that period.
Judge Ikuta dissented, arguing that because Cordray's recess appointment was invalid, "no one could claim the Executive's unique Article III standing. Because the plaintiff here lacked executive power and therefore lacked Article III standing, the district court was bound to dismiss the action."
The Seventh Circuit ruled yesterday in Lewert v. P.F. Chang's China Bistro, Inc. that restaurant-goers had standing to pursue their case against the restaurant chain for actions they took to protect themselves after the chain revealed that it had been the victim of a computer-system hack.
The ruling is a win for consumers insofar as it lets them get beyond the pleadings in data-breach cases (so long as they plead that they took measures to protect themselves and will suffer an increased chance of fraudulent charges or stolen identity). (The plaintiffs here now have a chance to move the case forward.) But it says nothing on the merits.
The case arose after P.F. Chang's announced that its computer system had been breached and that some consumer credit- and debit-card data had been stolen. At first, the restaurant didn't know the extent of the breach, so switched to a manual card-processing system at all locations around the country. Later, it announced that data was stolen from just 33 restaurants, including one in Schaumburg, Illinois.
The plaintiffs, diners at P.F. Chang's Northbrook, Illinois, location, worried that their information may have been stolen. One of the plaintiffs noticed fraudulent charges on his card soon after P.F. Chang's announcement; he cancelled his card and purchased an identity-theft-protection service. The other plaintiff did not have fraudulent charges, but he took extra time to monitor his credit-card statement and credit report. Both plaintiffs claimed that they suffered an increased risk of fraudulent charges and stolen identity.
The plaintiffs brought a class action, and P.F. Chang's moved to dismiss for lack of standing. The Seventh Circuit sided with the plaintiffs.
The court said that the plaintiffs' actions to protect themselves were sufficient harms to establish standing: the plaintiffs suffered action harms by taking precautionary steps to protect themselves, and they suffered imminent harms of increased chances of fraudulent charges and stolen identities.
As to causation, the court said that any questions--whether the data breach caused the plaintiffs' injuries--went to the merits. As to redressability, the court said that monetary relief could redress the harms.
Thursday, April 14, 2016
In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
In a nutshell, the appellate court found:
Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
The appellate court implied that the trial judge had misconstrued his constitutional task:
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion. In its own analysis, the appellate court considered the plaintiffs' original contentions that:
the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.
The unanimous panel found that there was no "identifiable class" for equal protection purposes: the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers. As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth." While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.
While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes.
The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence. It is likely to stand.
Wednesday, April 13, 2016
The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.
The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.
The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.
Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.
But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."
In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.
The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
Monday, April 11, 2016
The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.
The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."
Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."
Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.
The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.
Friday, April 8, 2016
In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
The panel stated:
The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.
In any event, for present purposes we need not gild the lily. Our prior mandate was clear . . .
[citations and footnote omitted].
After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course." Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."
The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable. But the First Circuit did cite contrary authority and made clear its disagreement. The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.
April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Thursday, April 7, 2016
In its opinion in Arizona Dream Act Coalition v. Brewer, the Ninth Circuit has found unconstitutional an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States.
Recall that the Ninth Circuit had earlier reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim. The United States Supreme denied Arizona's application for a stay. On remand, the district judge had found that the plaintiffs prevailed on their equal protection claim, applying a rational basis standard of review, and entered a permanent injunction.
In this appeal by the Arizona state defendants, the same Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in the opinion again authored by Judge Pregerson, not surprisingly found equal protection "problems" but decided to resolve the case on the "nonconstitutional grounds" of preemption, explaining (in footnote 5),
Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance.
Yet the panel's opinion spends more than half of its analysis on the equal protection question. The court's opinion states that the judges "remain of the view" that "Arizona's policy may well fail even rational basis review" and rejected all of Arizona's asserted government interests. Moreover, the opinion stated that it "bears noting, once again" that "the record does suggest" that Arizona's policy was motivated by "a dogged animus against DACA recipients," and as the Supreme Court has "made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice," citing cases including United States v. Windsor.
The opinion continued
Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an alternative to resting our decision on the Equal Protection Clause. Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.
While the court's final opinion is of questionable precedential value concerning the equal protection conclusion, the previous opinion's equal protection conclusion remains of high precedential value, and certainly the ultimate conclusion - - - here based on the Supremacy Clause preemption - - - is definitive.
Tuesday, April 5, 2016
The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.
The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.
The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.
The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."
The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.
Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.
O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?
This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.
Monday, April 4, 2016
A unanimous Supreme Court ruled today in Evenwel v. Abbott that states can use total population--and need not use voter-eligible population--to comply with the one-person-one-vote principle in drawing legislative districts.
The ruling is a setback for a group of conservative Texas voters that argued that states must use voter-eligible population in drawing legislative districts. Using voter-eligible population (as compared to total population) would benefit rural, and conservative, areas in a state like Texas, because urban areas contain a higher proportion of non-voter-eligible persons (who would count in measuring total population, but not voter-eligible population).
The case arose when a group of Texas voters argued that their votes were diluted as compared to the votes of eligible voters in other state senate districts, thus violating the one-person-one-vote principle. The state drew its state senate map based on total population, but the voters claimed that this resulted in inequalities. In particular, the voters claimed that their senate district contained a far greater eligible-voter population than other districts of equal total population. (The state senate map had a deviation between districts of 8.04 percent when measured by total population--the population that the state used in drawing the maps. This deviation is within the 10 percent deviation range that is presumptively permissible under the one-person-one-vote principle. But when measured by voter-eligible population, the map had a deviation of 40 percent--well outside that presumptively permissible point.) The voters argued that the state must use voter-eligible population in drawing districts.
The unanimous Supreme Court disagreed. Justice Ginsburg, writing for the Court, said that constitutional history, precedent, and practice show that a state may use total population in drawing legislative districts. In short: we've always done it this way, and we've said it's OK, so it's OK.
The Court declined to say whether a state may use voter-eligible population.
Friday, April 1, 2016
In his opinion in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.
The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges. However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.
On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:
Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).
In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).
While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).
Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”
While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).
The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:
Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).
In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.
Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.
The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.
Thursday, March 31, 2016
South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution
The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense.
Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.
The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government.
The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power
a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
b. to report on that conduct; and
c. to take appropriate remedial action.
In this case, the Public Protector, investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly.
The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability." Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement. Thus, the decision in the case is not surprising.
Nevertheless, the Constitutional Court's decision is an important one. It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding." Additionally, it finds that both the President and the National Assembly acted unconstitutionally:
The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.
Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.
Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.
Tuesday, March 29, 2016
An equally divided Supreme Court today affirmed the Ninth Circuit's ruling upholding public-sector union fair-share fees against a First Amendment challenge. The one-sentence per curiam ruling said nothing on the merits.
The case, Friedrichs v. California Teachers Association, almost surely represented the end of public-sector union fair-share fees. The Court had sent a couple signals in recent Terms that it was prepared to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair-share fees, and oral arguments earlier this year suggested that this was the case to do it.
But with Justice Scalia's passing (after oral arguments in the case), the Court divided four to four, upholding the lower court, which upheld fair-share fees.
The ruling today leaves fair-share fees on the books--at least for now, unless and until Justice Scalia's replacement votes with the four traditional conservatives to overturn it in a future case. But the Court's more recent cases--the ones that teed up the challenge in Friedrichs--also stay on the books. So Abood and the Ninth Circuit ruling in Friedrichs still represent the law, but under Harris and Knox, Abood is still hanging by a thread.
The new justice will be the swing vote on this issue, and will say whether public-sector union fair-share fees stay, or go.
Monday, March 28, 2016
The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.
The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.
On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.
Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.
The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.
Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)
Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)
Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.
Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.
The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.
The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.
The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.
The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.
Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.
Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.
Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).
Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.
(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)
Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).
In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.
This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.
Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.
The controversial North Carolina statute passed last week, known as HB2, entitled "An Act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations," has been challenged in a Complaint filed this morning, Carcaño v. McCrory, in the Middle District of North Carolina. The plaintiffs are three individuals as well as the organizations ACLU North Carolina and Equality North Carolina.
As the Act's title and the complaint's description note, HB2 has two distinct aspects relating to LGBT issues.
First, it mandates that school boards and state agencies, including the university and community college systems, "shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex."
Second, in Part III of the bill, it will "supersede and preempt" any "ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment." The bill amended the state-wide policy prohibiting discrimination on the basis of "sex" to read "biological sex," thus making the intent clear. As the complaint alleges, the city of Charlotte had passed a non-discrimination ordinance on the basis of sexual orientation and gender identity, prompting the legislative action.
(Interestingly, Part II of the bill supersedes and preempts local ordinances relating to wage and hour provisions.)
Not surprisingly, the first count of the Complaint challenges HB2 based on the Equal Protection Clause of the Fourteenth Amendment. It argues that HB2 violates the equality rights of transgendered persons and sexual orientation minorities and that such classifications should be evaluated under heightened scrutiny. It also contends that the North Carolina act was based on animus. Recall that in Romer v. Evans the United States Supreme Court held that Colorado's Amendment 2, which similarly banned all local laws that prohibited discrimination on the basis of sexual orientation, violated the Equal Protection Clause, reasoning that the animus of the law was not a legitimate government purpose. The Complaint here contains several expressions by legislators - - - for example,“You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are in there" - - - that would presumably go to animus.
The Complaint also alleges violations of substantive due process under the Fourteenth Amendment. In Count II, the claim is a right to privacy for transgendered individuals. In Count III, the claim is a more novel one based on the right to refuse medical treatment:
- H.B. 2 forces transgender people to undergo medical procedures that may not be medically appropriate or available in order to access facilities consistent with their gender identity.
- Not all transgender individuals undergo gender confirmation surgery. For some, the surgery is not medically necessary, while for others it is medically impossible. For example, because medical treatment for gender dysphoria is individualized, hormone treatment may be sufficient to manage the distress associated with gender dysphoria for some individuals. Surgery may be medically necessary for others who do not have health insurance coverage for it and cannot afford to pay for the surgery out-of-pocket.
- Some states require proof of surgery before they will allow the gender marker on a birth certificate to be changed. For those born in North Carolina, state law requires proof of “sex reassignment surgery.” N.C. Gen. Stat. § 130A-11B.
Recall that the United States Supreme Court recognized a substantive due process right to refuse medical treatment in Cruzan v. Director, Missouri Department of Health (1990).
The remaining counts, four and five, are statutory ones under Title IX, based on sex discrimination in educational facilities.
Given the constitutional precedents, it does seem as if North Carolina will have a difficult time defending the statute.