Monday, November 9, 2015

President, DAPA Lose at Fifth Circuit

A sharply divided panel of the Fifth Circuit ruled today that states had a substantial likelihood of success on the merits in their case against the President's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The ruling affirms a nationwide injunction issued by the lower court and means that the government is barred from enforcing DAPA across the country--unless and until the government files for and wins a stay and appeals.

The ruling is a win for plaintiff-states that don't like DAPA and a loss, though perhaps not unexpected (at the conservative Fifth Circuit), for the government.

The dispute between the majority and the dissent on the merits comes down to whether DAPA is really an exercise of discretionary non-enforcement (majority says no; dissent says yes) and whether DAPA violates federal law (majority says yes; dissent says no). The majority and dissent also dispute the states' ability to bring the suit in the first place, or their standing.

This ruling is surely not the last say on the question; this case is undoubtedly going to the Supreme Court.

The court issued four key holdings. First, the court said that the states had standing, and that the case is justiciable. Next, the court said that DAPA likely violated notice-and-comment rules of the APA. Third, the court said that DAPA likely violated federal law (the Immigration and Naturalization Act) and therefore violated substantive APA requirements. Finally, the court said that the district court was within its discretion to issue a nationwide injunction.

The court did not address the plaintiffs' Take Care Clause challenge.

As to standing, the court said as an initial matter that the states were due "special solicitude" for standing under Massachusetts v. EPA. The court went on to say that the states had standing because DAPA would require them to issue drivers licenses to DAPA beneficiaries, because DAPA would "impos[e] substantial pressure on them to change their laws" for drivers licenses, and because the states "now rely on the federal government to protect their interests" in immigration matters.

On the procedural APA claim, the court ruled that the states "established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion," despite conflicting evidence on the point, apparently ignored by the lower court. The court also ruled that DAPA is a substantive rule (and not procedural), because "receipt of DAPA benefits implies a 'stamp of approval' from the government and 'encodes a substantive value judgment,' such that the program cannot be considered procedural." As a result, according to the court, DAPA was subject to APA notice-and-comment rulemaking, and, because the government didn't use notice and comment, the states had a substantial likelihood of success on their procedural APA claim.

On the substantive APA claim, the court said that DAPA is "manifestly contrary to the [Immigration and Naturalization Act]," in particular, the INA's "specific and intricate provisions" that "directly addressed the precise question at issue." The court rejected the government's claim that DAPA is consistent with historical practice.

Importantly, the court did not "address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA . . . ." It only concluded "that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens."

Finally, the court said that the district court could issue a nationwide injunction, because, in short, immigration is a nationwide issue that calls for uniform regulation.

Judge King wrote a lengthy and sharp dissent, challenging the majority at each turn.

November 9, 2015 in Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Monday, November 2, 2015

Standing, Access Case Meets Sharply Divided Court

The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.

The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.

(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)

The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).

Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.

Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:

Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."

And we distinguished that from procedural requirements in vacuo.

. . .

Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.

Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.

On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:

Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?

Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.

Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.

Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:

Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.

. . .

And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.

The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.

November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, October 30, 2015

D.C. Circuit Finds Competitor Standing in Case Against IRS

The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."

The ruling is a victory for the association and allows the case to go forward on the merits.

The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."

The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.

The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.

The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute[] the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."

You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:

To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.

The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.

October 30, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Tuesday, October 13, 2015

No Standing in Case for Constitutional Convention

Judge James E. Boasberg (D.D.C.) ruled today that an individual plaintiff lacked standing to sue House Speaker John Boehner and Senate Majority Leader Mitch McConnell to force them to call a constitutional convention. But the ruling doesn't end the matter: the case now goes back to D.C. Superior Court under the federal statute that allowed the defendants to remove to federal court in the first place.

Repeat plaintiff Montgomery Blair Sibley, described by the court as "a United States citizen with a propensity for filing unmeritorious lawsuits," sued Boehner and McConnell, arguing that thirty-five states have voiced their support for a constitutional convention, "some as far back as 1901 (Minnesota), some as recently as 1979 (Mississippi)." But Sibley argued that the congressional leaders failed to call a convention, as required by Article V. ("The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .")

While Sibley filed first in D.C. Superior Court, Boehner and McConnell removed the case to federal court under a federal statutes that allows removal of suits in state court against any officer of either House of Congress. They then moved to dismiss, arguing that Sibley lacked standing, that they're protected by the Speech and Debate Clause, and that the case raises a non-justiciable political question.

Judge Boasberg ruled only on standing, and said that Sibley lacked it. (The ruling was even easier than it looks, as it turned out, because Sibley conceded the point early in the lawsuit.)

But Judge Boasberg also remanded the case to D.C. Superior Court, because the statues that allowed removal also required remand, and because Judge Boasberg held that there was no futility exception.

Still, the D.C. court is almost certain to dismiss the case, if only because D.C. law on standing follows the federal courts.

October 13, 2015 in Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Tuesday, September 22, 2015

Second Circuit Grants Standing to Challenge NY's Criminalization of "Gravity Knives"

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device,” according to New York Penal Law §265.00 (5).  It is clear that having one is criminal possession of a weapon in the fourth degree, a misdemeanor punishable by no more than one year in prison.  It is less clear, at least according to the plaintiffs in Knife Rights, Inc. v. Vance, exactly what a gravity knife is: what if a person possesses a "common folding knife" that he is unable to open with a "wrist flick," but that someone else (presumably more talented) can open with a "wrist flick."? 

The Second Circuit's opinion in Knife Rights, Inc. v. Vance, however, is concerned not with the due process challenge to the New York law, but the Article III standing of the plaintiffs seeking to challenge it. 

circa 1613 via

Almost two years after the district judge's opinion dismissing all plaintiffs, the Second Circuit has affirmed the lack of standing of the organizational plaintiffs, Knife Rights and Knife Rights Foundation, but reversed as to the individual plaintiffs, Copeland and Perez, as well as Native Leather, a retail knife store.

In applying the well-established test for Article III standing - - -(1)  ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood that the injury ‘will be redressed by a favorable decision.’ - - - the Second Circuit disagreed with the district judge that the plaintiffs had not established an injury in fact. 

Indeed, the three individual plaintiffs had been prosecuted under the statute.  Copeland and Perez, an artist and an art dealer, both carry knives for their work.  Perez was stopped by law enforcement in 2010 in Manhattan for a

metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez’s knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.

Copeland was similarly stopped in 2010, but although he had previously shown his knife to NYC police officers to inquire about the legality of its possession and those officers were "unable to flick open the knife and so returned it to Copeland, advising that its possession was legal," when he was stopped, the officers were "able to open the knife by “grasping the knife’s handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating the statute.

As to the store, Native Leather, it had entered into a deferred prosecution agreement with District Attorney Vance, which included the payment of fines and a "compliance program" to stop selling "gravity knives."

The Second Circuit easily found that the plaintiffs' alleged an imminent threat of prosecution.  The court rightly distinguished the controversial case of City of Los Angeles v. Lyons (1983) involving the police practice of choke-holds, by noting that the plaintiffs here seek to engage in the very conduct that is being subjected to criminalization.  The court denied the organization's standing by concluding that its monetary injury incurred by supporting persons prosecuted under the statute would not be adequately redressed by the injunctive relief sought in the complaint.  (The district court had denied leave to amend, which the Second Circuit affirmed).

The plaintiffs ability to move forward with the merits of their challenge to the New York statute criminalizing specific - - - or as alleged, not sufficiently specific - - - knives seems long overdue. 

September 22, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, September 17, 2015

Sixth Circuit Finds Standing in "Juggalo" Constitutional Challenge to Gang Designation

In its opinion in Parsons v. Department of Justice today, a panel of the Sixth Circuit reversed the district judge's dismissal of a complaint for lack of standing by individuals who identify as "Juggalos"  a group the FBI's National Gang Intelligence Center (NGIC) has identified as a "hybrid gang."  The individuals alleged that "they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang."

                                                                                                                 image via

As the court explained, Juggalos are fans of Insane Clown Posse, a musical group, and its record label, Psychopathic Records, who often wear or display Insane Clown Posse tattoos or insignia, as well as paint their faces. The complaint alleged various actions by law enforcement, including detentions and inference with performances, as a result of the gang designation.

The court found that while their allegations of chilled expression were insufficient to rise to the requisite "injury in fact" required under standing doctrine,

The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.  As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action.

[citations omitted].  Thus, the court held that the injury in fact requirement was satisfied as to the First Amendment and due process claims.

As to causation, the court held that the Juggalos’ allegations "link" the gang report to their injuries "by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question."   Thus, at this initial stage of the case, the Juggalos’ allegations sufficed.

On the question of redressibility, the remedy sought included a finding that the gang report is invalid.  The court rejected the government's argument that such information about the Juggalos was available from other sources by stating that the test is not that the "harm be entirely redressed." "While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of" the government report.  The court seemingly found it pertinent that the DOJ's report gave the gang designation an impressive "imprimatur" of government authority.

As the Sixth Circuit made clear, the complaint remains subject to the motion to dismiss on other grounds, but this is an important victory for the Juggalo quest to remove its gang-identification.

September 17, 2015 in Due Process (Substantive), Fifth Amendment, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Friday, September 11, 2015

Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

Masonry circa 1425 via

After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

September 11, 2015 in Cases and Case Materials, Equal Protection, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, September 9, 2015

District Judge Says House of Representative Challenge to ACA Can Go Forward (in part)

Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.

The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.

But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.

And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.

The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.

As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.

As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)

The Secretaries filed a motion to dismiss for lack of standing.

Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:

Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.

As to the employer mandate claim, she said,

The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."

We'll watch this case on appeal.


September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, August 28, 2015

DC Circuit Finds No First Amendment Violation in Statute Limiting Expression at Supreme Court

In its substantial opinion in Hodge v. Talkin, a panel of the United States Court of Appeals for the DC Circuit upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza.  

40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

Hodge image
image of SCOTUS Building included in the opinion

Recall that almost two years ago, district judge Beryl Howell had found the statute unconstitutional in a well-reasoned and extensive opinion.  Judge Howell's ruling prompted the United States Supreme Court to swiftly respond by promulgating a new regulation that seemingly responded to at least some of the more problematical examples that Judge Howell identified such as preschoolers wearing a tee-shirt.  However, the DC Circuit's opinion reverses Judge Howell's decision without reliance on the limitations in the new policy.

Writing for a unanimous panel, Judge Sri Srinivasan notes that the United States Supreme Court's decision in United States v. Grace (1983) left the constitutional status of the plaza, when it decided that the sidewalks surrounding the perimeter of the Supreme Court building are public forums. However, Srinivasan relies on Grace for the distinction between the plaza and the sidewalks to conclude that the plaza is a nonpublic forum:

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” [Grace.; Id. at 183.].  The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

The opinion devotes attention to architectural description, which it admits in one case has "perhaps" a "degree of romanticism," and also likens the public forum characterization of the Supreme Court plaza to "the treatment of courthouses more generally" and to the controversial Lincoln Center plaza case; interestingly now-Justice Sotomayor was a judge on that panel.

As a nonpublic forum subject to the "lenient" First Amendment standard of reasonableness, the DC Circuit has little difficult in finding that the statute is "reasonable."  Interestingly, the United States Supreme Court's closely divided opinion last Term in Williams-Yulee v. The Florida Bar occupies a prominent role in this reasoning.  The opinion is discussed numerous times to support a conclusion that the government interests put forward here - - -  "the decorum and order befitting courthouses generally and the nation’s highest court in particular" and "the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure" - - - are both valid and being appropriately served.  Essentially, the DC Circuit's opinion embraces the "judiciary is special" sentiment and correctly notes that this prevailed in the strict scrutiny context of Williams-Yulee, so should suffice under the reasonableness standard.  

The DC Circuit's opinion similarly rejects the overbreadth and vagueness arguments that the statute is unconstitutional.

In essence, the DC Circuit finds the inclusion of the "grounds" in the statute as a place where assembly or "display" of opinion can be prohibited is appropriate line-drawing:

In the end, unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. But where? At the front doors themselves? At the edge of the portico? At the bottom of the stairs ascending from the plaza to the portico? Or perhaps somewhere in the middle of the plaza? Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza, where the “physical and symbolic pathway to [the] chamber begins.” [citation to architectural work]

While the odds are increasingly low that the United States Supreme Court will accept any case on certiorari, the odds seem to approach nil that the Court will exercise its discretion to review this opinion.

August 28, 2015 in First Amendment, Opinion Analysis, Speech, Standing, Supreme Court (US) | Permalink | Comments (0)

Wednesday, August 12, 2015

PETA Has Standing to Challenge Agency Inaction on Bird Regulation

The D.C. Circuit ruled this week in PETA v. USDA that the animal-rights organization had standing to challenge the USDA's decade-long foot-dragging in regulating birds under the Animal Welfare Act. But at the same time, the court ruled against PETA on the merits. The case means that PETA's claim is dismissed; it's a significant set-back in the effort to get the USDA to regulate birds under the AWA.

PETA alleged that the USDA violated the Administrative Procedure Act by failing to write avian-specific animal welfare regulations under the AWA. PETA argued that the agency "unlawfully withheld" action in violation of section 706(1) of the APA. The USDA moved to dismiss for lack of standing and on the merits.

The D.C. Circuit ruled that PETA had organizational standing, because the USDA's inaction prevented PETA from protecting birds. The court explained:

Because PETA's alleged injuries--denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse--are "concrete and specific to the work in which they are engaged," we find that PETA has alleged a cognizable injury sufficient to support standing. In other words, the USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has "perceptibly impaired [PETA's] ability" to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public. Because PETA has expended resources to counter these injuries, it has established Article III organizational standing.

But even as the court said that PETA had standing, it ruled in favor of the USDA on the merits. The ruling means that PETA's complaint against the agency is dismissed.

August 12, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, July 24, 2015

D.C. Circuit OKs Case Against Consumer Financial Protection Bureau

The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.

The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.

We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)

The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.

Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)

Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.

Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.

The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).

But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."

The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.

July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)

Thursday, June 11, 2015

Crossroads GPS Has Standing to Defend FEC Non-Action

The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.

The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.

Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.

The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:

In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.

The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."

The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.

The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.

June 11, 2015 in Campaign Finance, Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Wednesday, May 27, 2015

No Standing for Homebuilders to Challenge Endangered Species Designation

The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.

The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.

The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.

The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.

Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.

May 27, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2015

Obamacare Opponents Lack Standing--Again

Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.

The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.

The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.

In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.

Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:

[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.

The ruling is consistent with similar rulings in other district courts.

May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 16, 2015

DC Circuit Says No Standing to Challenge Clean Water Act Determination

A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.

But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)

Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.

Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:

the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.

Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.

The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.

But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:

And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.


May 16, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

Second Circuit Finds NSA's Bulk Telephony Metadata Collection Not Authorized by Congress

In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A).   After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme.  Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.

CallwaitingThe Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records.  The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program."  The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures.  The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities."  Instead:

appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.

The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.

However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding." 

What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215."  After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue.  The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."

[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.

The court likewise held that there was no implicit preclusion.  

On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad.  The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history.  Yet for the court, the government's argument faltered on this very ground:

Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.

Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow.  Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Again, the court squarely rests its conclusion on §215 and avoids the constitutional issues.  Nevertheless, it does discuss them.  It largely relegates the First Amendment issue to a footnote (footnote 12).  Its discussion of the Fourth Amendment issue is more robust, including a discussion of  Smith v. Maryland, the 1979 pen register case, and United States v. Jones, the 2012 GPS case.
These constitutional issues would - - - should? - - - shape any understanding by Congress according to the court.
Concurring, Judge Robert Sack, emphasizes that the role of the courts should not be minimized.  Judge Sack's concurrence is also worth reading its more robust discussion of the First Amendment issues.
Perhaps unexpectedly, the court does not enjoin the metadata collection program.  The court notes that §215 is set to expire and that it is "prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape."   Yet, it strongly implies, it remains ready and able to reach the constitutional issues if necessary.
[image "Call Waiting" via]

May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2015

D.C. Circuit Rebuffs Challenge to CFPB

The D.C. Circuit last week dismissed a case challenging the Consumer Financial Protection Bureau under separation of powers. The ruling in Morgan Drexen, Inc. v. CFPB held that the plaintiffs lacked standing and should pursue their constitutional claims against the CFPB in a CFPB enforcement action pending in another federal district court.

The ruling ends this particular challenge to the CFPB (for now), but allows the plaintiff to pursue its challenge in the enforcement action.

Morgan Drexen filed the claim after the CFPB threatened enforcement action against the firm for violations of the Consumer Financial Protection Act and the Telemarketing Sales Rule in its bankruptcy and debt-relief services. Kimberly Pisinski, an attorney who contracts with Morgan Drexen for paralegal services, joined the suit on the theory that the CFPB's enforcement action against Morgan Drexen would affect her own law practice.

Morgan Drexen and Pisinski sought declaratory and injunctive relief, arguing that the CFPB is unconstitutional because its powers are overbroad, it's headed by a single director who is removable only for cause, it is funded outside the ordinary appropriations process, and judicial review of its actions is limited.

But soon after Morgan Drexen and Pisinski sued in the D.C. District, the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Pisinski, who apparently really, really wanted to be a part of the action, moved to intervene in that suit, too. (The court denied her motion. The court also recently granted the CFPB's motion for sanction and default judgment against Morgan Drexen, finding that "[d]efendants willfully and in bad faith engaged in a coordinated and extensive effort to deceive the Court and opposing counsel" and having "blatantly falsified evidence . . . concealing this fact from the Court, opposing counsel, and even their own counsel at every turn.")

The D.C. Circuit ruled that Morgan Drexen could lodge its constitutional claims against the CFPB in the enforcement case in the Central District of California instead of in its case in the D.C. District. The court said that Morgan Drexen wouldn't suffer any harm in harm in doing so, and that it'd support judicial economy.

The court also ruled that Pisinski lacked standing. That's because she didn't allege a CFPB enforcement action would harm her practice, or that she engaged in any illegal conduct as a Morgan Drexen contractor:

In sum, Pisinski has failed to proffer evidence in support of any of her theories of standing: that she was responsible for Morgan Drexen's allegedly illegal conduct, that her practice is or will be economically harmed by the Bureau's enforcement action against Morgan Drexen, or that implicit accusations by the Bureau that she exercised too little control over Morgan Drexen or engaged in illegal conduct herself could damage her professional standing. The record evidence does not show that she used Morgan Drexen's allegedly illegal services or that there is a substantial risk that the Bureau's enforcement action will cause harms to her practice or professional reputation that she has asserted.

Judge Kavanaugh dissented, arguing that Pisinsky had standing, and that the majority's approach is "more complicated than it needs to be."

May 6, 2015 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2015

Obamacare Survives Origination Challenge

The Fifth Circuit on Friday dismissed a case challenging both the individual and employer mandates in the Affordable Care Act under the Origination Clause. The court said that the individual plaintiff challenging the individual mandate lacked standing, and that the corporation challenging the employer mandate was barred by the Anti-Injunction Act. The ruling dismisses the case, with little or no chance of a successful appeal.

The case, Hotze v. Burwell, was brought by a medical doctor, Steven Hotze, and his employer, Braidwood Management. The plaintiffs argued that the ACA's individual and employer mandates violated the Origination Clause, because they are "bills for raising Revenue" that did not "originate in the House." Their theory: The ACA was a Senate amendment to a shell of a House bill that already passed, so that in fact the ACA really originated in the Senate. If so--and if the individual mandate is authorized by the Taxing Clause (and not the Commerce Clause), as the Court held--then, they claimed, the whole ACA should have started in the House. Because it really didn't, it violated the Origination Clause.

But there was a problem even before the court got to the merits: Hotze already had health insurance through Braidwood, and so would not have to purchase insurance or pay the tax penalty. This meant that he didn't suffer a harm.

Hotze neglected to say in his complaint that his insurance wasn't up to ACA snuff (and that he'd have to drop it and buy new insurance or pay the tax penalty), so all he had for an injury was that the ACA forced him to make hard health-insurance choices. The court said that this wasn't enough for standing.

Hotze also argued that when the employer mandate takes effect, Braidwood would have to offer him less desirable insurance. The court said that this theory wasn't tightly enough tied (or at all tied) to the individual mandate, however, so this didn't support standing, either.

Finally, Hotze said that the ACA forced his insurance premiums up. The court rejected this theory, too, saying that it amounts to a generalized grievance.

The court also dismissed Braidwood's challenge to the employer mandate, but this time under the Anti-Injunction Act. The AIA bars courts from hearing any challenge to restrain the assessment or collection of any tax.

Even if the court had addressed the merits, however, this case didn't appear to be going anywhere. That's because the ACA did originate in the House, even if in a shell bill later amended by the Senate to include the full ACA. The plaintiffs argued that the Senate amendment wasn't germane to the House bill (and was thus an unconstitutional end-run around the Origination Clause), but the government argued that the Origination Clause didn't contain a germane-ness requirement--a point the district court found convincing.

The district court dismissed the case on the merits, ruling that the ACA didn't violate the Origination Clause. Good bet the Fifth Circuit would have, too.

April 27, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

No Gas in Auto Emission Standard Suit

The D.C. Circuit ruled today that plaintiffs lacked standing to challenge EPA and NHTSA's standards for greenhouse gas emissions from cars and trucks. The ruling means that the case is dismissed, and the standards stay in place.

The case, Delta Construction v. EPA, tests a joint effort by the EPA and NHTSA to regulate greenhouse gas emissions from automobiles and trucks. The agencies issued coordinated rules, one set of rules for cars and, later, one set for trucks. (The D.C. Circuit previously upheld the car rules, and the Supreme Court denied review.)

The plaintiffs--business, associations, and individuals in California, and Plant Oil Powered Diesel (or POP Diesel), a company that promotes the use of vegetable oil in place of traditional diesel fuel--sued, arguing that the regulations were arbitrary and capricious in violation of the Administrative Procedures Act. The California plaintiffs challenged the EPA rules only; POP Diesel challenged both the EPA and NHTSA rules. The California plaintiffs argued that the regs jacked up the price of cars and trucks in the state; POP Diesel argued that the truck rule makes its product economically unfeasible.

The court held that the California plaintiffs lacked standing, because they couldn't show causation and redressability. That's because even if they won on the merits--and the court struck the EPA rules--the NHTSA rules would still drive the prices of their vehicles up. In other words, because both agencies' sets of rules did the same thing, defeating one wouldn't solve their alleged problem.

As to POP Diesel, the court said that it didn't fall within the zone of interests protected by the portion of the Clean Air Act governing emissions standards for motor vehicles. The court said that economic interests, like POP Diesel's, without more, aren't within the congressional goals of the Act, and that POP Diesel's green approach alone doesn't put it within the Act's zone of interests.

The court dismissed the case and ended the plaintiffs' challenge to the emissions regs.

April 24, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of  NFIB v. Sebelius attracted 136 amicus briefs.]

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]  149 [updated]  LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.

 76  77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

 An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


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April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)