Sunday, April 29, 2018
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed Paul Manafort's civil case challenging the appointment of Robert Mueller as special counsel, and therefore Meuller's authority to prosecute him. The ruling will almost certainly withstand any appeal and thus ends Manafort's civil challenge to Mueller's authority. It has no effect on Manafort's criminal case, or his ability to challenge Mueller's authority in that case.
Manafort original pleading challenged his indictment and future actions by Mueller, arguing that Mueller's appointment was invalid and that his indictment exceeded Mueller's authority. But Manafort subsequently refined his claim and sought only prospective relief: an order declaring Mueller's appointment order invalid (but only as to paragraph (b)(ii), authorizing the Special Counsel to investigate "any matters that arose or may arise directly from the investigation") and "enjoining the Special Counsel's future ultra vires exercise of authority under that Order." Manafort backed away from his earlier and much broader claims, because circuit law would certainly foreclose those. But by seeking only prospective relief, Manafort did himself in.
Judge Jackson ruled that "Manfort's situation falls squarely within the scope of" Deaver v. Seymour, the 1987 case in which the D.C. Circuit extended Younger abstention and held that the subject of a criminal investigation cannot bring a civil action to attack an impending federal prosecution (except when the criminal case chilled First Amendment rights, not applicable here). In short:
[A] civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.
Moreover, Judge Jackson ruled that Manafort lacked standing, because he couldn't plead imminent harm, and because his claim wasn't ripe. (Remember that he refined his case to ask for only prospective relief.)
Wednesday, April 25, 2018
In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."
Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.
Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."
Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."
Thus, Judge Bates gave DHS more time to makes it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.
Monday, April 23, 2018
The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.
The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of "monkey selfies." Naruto, through his next of friend PETA, sued for copyright infringement.
The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands--the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world's whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes--and went on to urge the Ninth Circuit to reverse that precedent.
But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn't permit a monkey to sue. It dismissed Naruto's case on this ground.
The court ruled that PETA didn't have next-of-friend standing, because it didn't assert a relationship with Naruto, and because "an animal cannot be represented, under our laws, by a 'next friend.'"
Friday, April 20, 2018
Here's the Democratic National Committee's complaint against President Trump, the Trump campaign and aides, Russia, Russian agents, Julian Assange, and others for hacking into the DNC servers and releasing electronic communications in aid of then-candidate Trump.
The complaint, filed today in the Southern District of New York, alleges violations of the Computer Fraud and Abuse Act, RICO, the Wiretap Act, the Stored Communications Act, the Digital Millennium Copyright Act, the Trade Secrets Act, and state torts.
The DNC claims harms to its computer systems, harms to its communications and relations with various constituencies, threats against employees, and "significant interruption and disruption of its political and fundraising activities throughout the United States."
Saturday, April 14, 2018
In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).
The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum
purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”
Rejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.
Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.
Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:
- whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
- whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
- whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
- whether the class is “a minority or politically powerless.”
After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it "must satisfy strict scrutiny if it is to survive."
However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that
On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.
However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.
Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."
[image, Revolutionary War era soldier, NYPL, via]
April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)
Thursday, March 29, 2018
Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.
The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.
As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,
Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"
Wednesday, March 28, 2018
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.
The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.
The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.
The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."
The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.
The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.
But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.
Monday, March 19, 2018
Judge Trevor McFadden (D.D.C.) ruled that two organizations lacked standing to challenge the FDA's failure to act on their petition to regulate hair-straightening products that contain formaldehyde. The ruling dismisses the plaintiffs' challenge.
The case arose when the plaintiff-organizations petitioned the FDA to regulate formaldehyde-containing hair-straighteners. The FDA looked into it, but ultimately declined to issue new regs. So the organizations sued. The FDA argued that they lacked standing, and the court agreed.
The court ruled that the plaintiff-organizations lacked organizational standing, because the only harms they alleged were increased educational expenses (to educate the public about the products) and lobbying expenses. As to the educational expenses, the court said they don't count for standing purposes, because public education is what the organizations do, anyway. As to lobbying expenses, the court said that "injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any issue to take the Government to court."
The court also ruled that the plaintiffs lacked associational standing. That's because they sought only injunctive relief, but only alleged that their members suffered prior harm (so that their remedy wouldn't redress the harm). The court noted that the organizations couldn't really allege likely future harm on behalf of their members, anyway, because they don't know that the harm will happen.
While the court dismissed the case for lack of standing, it also provided a pretty good roadmap under circuit law for pleading a case like this, where an agency fails to take action, based on an organization's increased workload as a result of the inaction, or an organization's inability to obtain information based on agency inaction.
Friday, March 16, 2018
The Fourth Circuit ruled this week in Kenny v. Wilson that a group of primary and secondary school students had standing to lodge a facial First Amendment challenge against South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law." The ruling says nothing about the merits, however; that's for remand. (Although it's kind of hard to see how these laws aren't unconstitutionally vague.)
The laws are basically what their titles imply. The Disturbing Schools Law makes it unlawful
(1) for any person willfully or unnecessarily (a) to intefere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) or loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
The Disorderly Conduct Law says:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
Plaintiffs-students lodged facial vagueness challenges to the laws, after they were disciplined for violations. But they sought declaratory and injunctive relief, not damages, so standing became an issue.
The court said that they had standing, for two independent reasons. First, the court said that they had standing under Babbitt v. Farm Workers, because "[t]hey attend school without knowing which of their actions could lead to a criminal conviction," and "there is a credible threat of future enforcement" that's not "imaginary or wholly speculative." Next, the court said they had standing because the plaintiffs alleged an "ongoing injury in fact" based on a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression."
Friday, March 9, 2018
The Ninth Circuit ruled this week that victims of a commercial web-site hacking have standing to sue the site for failure to secure their personal information, even though their information hasn't (yet) been used for identity theft. Importantly, the court distinguished Clapper v. Amnesty International. The ruling aligns with similar cases out the D.C. and Seventh Circuits.
The case, Stevens v. Zappos.com, arose when hackers stole personal information from the retailer-web-site. Victims brought two kinds of claims against the retailer: claims based on theft of their personal information that led to actual financial loses from identity theft; and claims based on theft of their personal information without allegations of actual financial losses from identity theft. The lower court held that the first group had standing, but the second did not. So they appealed.
The Ninth Circuit reversed. The court said that its own case, Krottner v. Starbucks Corp., controlled. Krottner held that employees of Starbucks had standing to sue based on "the increased risk risk of future identity theft" after a company laptop containing their personal information was stolen.
The court explained why Krottner was still good law after Clapper v. Amnesty International:
Unlike in Clapper, the plaintiffs' alleged injury in Krottner did not require a speculative multi-link chain of inferences. The Krottner laptop thief had all the information he needed to open accounts or spend money in the plaintiffs' names--actions that Krottner collectively treats as "identity theft." Moreover, Clapper's standing analysis was "especially rigorous" because the case arose in a sensitive national security context involving intelligence gathering and foreign affairs, and because the plaintiffs were asking the courts to declare actions of the executive and legislative branches unconstitutional. Krottner presented no such national security or separation of powers concerns.
And although the Supreme Court focused in Clapper on whether the injury was "certainly impending," it acknowledged that the other cases had focused on whether there was a "substantial risk" of injury. Since Clapper, the Court reemphasized in Susan B. Anthony List v. Driehaus that "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending,' or if there is a 'substantial risk that the harm will occur.'"
Monday, February 26, 2018
Judge Randolph D. Moss (D.D.C.) today (almost) dismissed the challenge to President Trump's executive order that requires agencies to repeal two regulations for every new one they adopt. Judge Moss ruled that the plaintiffs lacked standing . . . for now, at least.
Recall that Public Citizen and others sued President Trump, arguing that the EO violated the separation of powers, the Take Care Clause, and the Administrative Procedure Act. The government moved to dismiss for lack of standing. Today the court agreed.
The court ruled that the plaintiffs lacked associational standing, because they failed to identify particular members who would be harmed, to plead facts sufficient to show that the relevant agency would've issued a new rule even without the EO, and to allege that any delay of the regulatory action attributable to the EO would substantially increase the risk of harm to their members. The court also ruled that they lacked organizational standing, because "[t]he burden of merely considering [the cost of the EO], however, is insufficient to establish organizational standing."
But the court stopped short of entering a final judgment. Instead, Judge Moss set a March 1 hearing where the parties and the court can determine what to do next, including, possibly, dismissing the complaint with leave to file a new one.
Judge William Q. Hayes (S.D. Cal.) on Friday dismissed a challenge to a city's new single-member districts for its city council elections for lack of standing. The ruling means that the city's new districting plan stays in place.
The case, Higginson v. Becerra, arose when the City of Poway switched from at at-large system to a single-member-district system of elections for its four-member city council. The City made the change reluctantly, and only in response to threatened litigation by a private attorney, who wrote to the council that its at-large system violated the California Voting Rights Act. (The attorney argued that the at-large system, along with racially polarized voting in the City, effectively prevented Latinos from electing a candidate of their choice.) The council vigorously disagreed that its at-large system violated the CVRA, but agreed to change, anyway, in order to avoid litigation costs.
After the council drew its new single-member districts, Don Higginson, a voter in the new District 2, sued, arguing that the CVRA violated equal protection. His theory was a little unusual: "The CVRA makes race the predominant factor in drawing electoral districts. Indeed, it makes race the only factor given that a political subdivision, such as the City, must abandon its at-large system based on the existence of racially polarized voting and nothing more." (In other words: according to Higgerson, because there was racially polarized voting, any CVRA requirement to undo the effects of that voting in an at-large system violated equal protection.)
Higginson sued AG Becerra for injunctive relief (to stop him from enforcing the CVRA) and the City for injunctive relief (to stop it from using its single-member district map, as required by the CVRA (according to Higgerson)).
The court dismissed the case for lack of standing. The court said that Higginson's harm in not being able to vote for council-members in three of the four districts (because the CVRA required the change to single-member districts)--assuming this was even a cognizable harm--wasn't traceable to AG Becerra or the City. As to AG Becerra, the court said that the AG had not enforced the CVRA against the City, and therefore couldn't have caused Higginson's alleged harm. As to the City, the court said that it acted out of a desire to avoid litigation costs, not because it thought its at-large system violated the CVRA, and therefore it couldn't have caused his alleged harm in the name of CVRA compliance. (For the same reasons, the court said that Higginson failed to demonstrate that his requested relief would redress his alleged harm.)
Without causation and redressability, Higginson lacked standing, and the court dismissed the case.
Friday, February 16, 2018
The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.
The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)
The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.
The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)
The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:
Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."
We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.
The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.
The ruling means that the Hagys' case is dismissed.
Thursday, January 18, 2018
The Seventh Circuit ruled that a Wisconsin claimant who was convicted of rape, sexual assault, and kidnapping in 1983 in Illinois had standing to challenge his designation under a 2011 Illinois law as a "sexual predator," but that the restrictions that went with his new designation didn't violate the Ex Post Facto Clause.
The case arose when Illinois amended its Sex Offender Registration Act to define "sexual predator" as a person who had been convicted of any felony offense after July 1, 2011, and had been required to register as a sex offender under a conviction that required registration for more than ten years. Under the amendment, sexual predators had increased reporting requirements and certain new restrictions. Anthony Johnson fell into the new classification, because he was convicted of rape in 1983 (and was required to register for ten years) and of felony theft in 2013. Johnson was therefore subject to the reporting requirements and restrictions.
When Johnson moved to Wisconsin, he discovered that he had to meet certain heightened registration requirements there, too--but only because he was designated a "sexual predator" in Illinois. In other words, Wisconsin piggy-backed on Illinois's sexual predator requirements for someone like Johnson. Without his designation as a sexual predator in Illinois, Johnson wouldn't have to meet these requirements in Wisconsin.
Johnson sued Illinois officials, arguing that the 2011 amendments violated the Ex Post Facto Clause. The defendants moved to dismiss for lack of standing.
The Seventh Circuit ruled that Johnson had standing, but that the new requirements didn't violate the Ex Post Facto Clause.
As to standing, the court said that Johnson only had reporting requirements in Wisconsin because of his designation under Illinois law (and that he therefore demonstrated causation), and that if he won his case against Illinois officials, he'd no longer have to meet Wisconsin's requirements (and that he therefore demonstrated redressability).
As to the Ex Post Facto Clause, the court said that the new requirements under Illinois law were a function of his 2013 felony theft conviction, not his 1983 rape conviction: "Had Mr. Johnson not committed a felony after the Act went into effect, he wouldn't be classified as a sexual predator today. But he committed that later felony, and that conviction produced the sexual predator classification of which he complains."
Or, as Justice Jackson wrote in a similar enhanced-penalty case, nearly 70 years ago, Gryger v. Burke (and quoted by the Seventh Circuit):
The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.
Tuesday, January 9, 2018
Judge Trevor McFadden (D.D.C.) ruled today that Cause of Action Institute has standing to sue to seek former Secretary of State Colin Powell's work-related e-mails on his personal AOL account. The ruling means that the case can move forward.
Cause of Action Institute first sought the Powell e-mails through a FOIA request. But after the State Department said that the e-mails no longer exist, the organization sued under the Federal Records Act and the Administrative Procedure Act. State and the Archivist moved to dismiss, arguing that Cause's harm (not getting the e-mails) couldn't be redressed by a favorable court ruling, because, after all, the e-mails no longer exist. Without redressibility, there's no standing.
The court disagreed. Judge McFadden ruled, in short, that the government hadn't tried hard enough to obtain the missing e-mails, given its mandatory obligations to recover missing records under the FRA. The court followed the D.C. Circuit's lead in Judicial Watch, Inc. v. Kerry, which held that a similar case seeking former Secretary Clinton's missing e-mails wasn't moot, and noted that further government investigation in that case led to the discovery of many of those e-mails. The same could be true here, the court reasoned, meaning that Cause could show that a court order for the government to investigate further could lead to the discovery of the e-mails--and that it therefore has standing.
Today's ruling--again, backed by the D.C. Circuit's ruling in Judicial Watch--means that Cause's case can move forward and seek a court order for the government to initiate action under the FRA through the Attorney General for recovery of the e-mails.
Wednesday, December 27, 2017
D.C. Circuit Declines to Halt Election Integrity Commission Request for Voter Information for Lack of Standing
The D.C. Circuit ruled that the Electronic Privacy Information Center lacked standing to obtain an injunction halting a request by the Presidential Advisory Commission on Election Integrity for voter information from the states. The district court ruled earlier that EPIC had standing, but was unlikely to succeed on the merits, because the Commission wasn't an "agency" under the Administrative Procedure Act. The D.C. Circuit ruling has the same effect--denial of a preliminary injunction--but for a different reason: EPIC hasn't demonstrated a substantial likelihood of standing.
The ruling is only on EPIC's motion for a preliminary injunction. But EPIC's lack of standing at this preliminary stage may also mean that it (later) lacks standing to bring the claim at all. Based on the D.C. Circuit's ruling, it seems that only voters themselves, or an organization that represents voters, would have standing to bring this kind of claim.
EPIC initially brought the case to challenge the Commission's request for voter information without first conducting, and producing, a privacy impact assessment under the E-Government Act. EPIC argued that it was entitled to the assessment, and that its failure to receive it formed the basis of its standing.
The D.C. Circuit rejected that argument. The court ruled that EPIC lacked both informational injury and organizational injury. As to the former, informational injury, the court said that EPIC "has not suffered the type of harm that section 208 of the E-Government Act seeks to prevent. Indeed, EPIC is not even the type of plaintiff that can suffer such harm." The court said that section 208 was designed to protect the privacy of individuals (here, voters), not an organization like EPIC, an organization that does not have members (much less voter members) and whose only interest is in "ensur[ing] public oversight of record systems."
As to organizational injury, the court said that, because the E-Government Act doesn't confer an informational interest on EPIC (as above), EPIC can't ground organizational injury on the Act. "It follows that any resources EPIC used to counteract the lack of a privacy impact assessment--an assessment in which it has no cognizable interest--were "a self-inflicted budgetary choice that cannot qualify as an injury in fact." Moreover, the Commission's request for voter information without an assessment didn't cause EPIC to take any particular measures.
Finally, the court said that halting the Commission's collection of voter data wouldn't likely redress any informational or organizational injury, anyway. That's because ordering the Commission to halt its collection of information--assuming the Commission is subject to the Act--"only negates the need (if any) to prepare an assessment, making it less likely that EPIC will obtain the information it says is essential to its mission of "focus[ing] public attention on emerging privacy and civil liberties issues."
Thursday, December 21, 2017
The ruling ends the case, unless and until it's appealed.
The case arose when CREW and other plaintiffs (including hotel- and restaurant-owners who compete with Trump properties) sued the President for accepting gifts and emoluments from foreign and domestic sources without congressional approval, in violation of the Emoluments Clause. The plaintiffs sought declaratory and injunctive relief.
The government argued that the plaintiffs lacked standing and that the case should be dismissed. Today Judge George B. Daniels (S.D.N.Y.) agreed.
The court said the "hospitality plaintiffs" lacked competitive standing, because they didn't sufficiently allege that President Trump's Emoluments Clause violations caused their injuries (lack of business due to competition with Trump properties) and that a successful suit would redress those injuries. The court explained:
Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." Yet . . . it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article III's causation requirement.
[Moreover,] Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers--government and non-government customers alike--and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. . . . [T]he Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs.
The court went on to hold that the Hospitality Plaintiffs weren't within the zone of interests protected by the Emoluments Clause.
The court also held that CREW lacked standing, because its alleged harm (diversion of resources to monitor and respond to the President's Emoluments Clause violations) wasn't sufficient. "Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. CREW . . . may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources."
Finally, the court ruled that the case raised a nonjusticiable political question (because of the Emolument Clause's textual commitment to a coordinate branch of government, Congress) and that the case wasn't ripe (because "a conflict between two coordinate branches of government . . . has yet to mature").
Wednesday, December 20, 2017
Judge Amy Berman Jackson (D.D.C.) ruled today that Freedom Watch, Inc., lacked standing to bring a mandamus action to force Justice Department review of Special Counsel Robert Mueller's investigation and, ultimately, to terminate Mueller and his staff.
Freedom Watch alleged that Mueller's team engaged in a "torrent of leaks" and has "unethical conflicts of interest." The organization asked the court to order various DOJ offices to investigate Mueller's team and, if the allegations prove true, to fire them.
Judge Jackson ruled that Freedom Watch lacked standing to sue. In particular, the court said that Freedom Watch only alleged generalized grievances, not specific harm to itself or its members:
The fact that plaintiff has taken on the mantel of seeking to shine light on alleged governmental wrongdoing does not mean that it is affected by that wrongdoing in any particularized way--what plaintiff alleges is that the wrongdoing harms its objectives, not it. This is exactly the sort of abstract injury that does not rise to the level of an injury-in-fact.
The court also said that Freedom Watch's complaint lacked redressability:
While plaintiff has detailed the source of defendants' authority to undertake investigations, and the reasons why, in plaintiff's view, they should act, it points to no legal source of a mandatory duty owed to plaintiff to act, and therefore supplies no basis for the Court's power to order defendants to do so.
The ruling means that the case is dismissed.
Friday, December 15, 2017
Judge Wendy Beetlestone (E.D. Pa.) ruled today that the Commonwealth of Pennsylvania was likely to succeed on the merits of its challenge to the Trump Administration's interim final rules rolling back Obamacare's contraception mandate. Judge Beetlestone issued a temporary injunction, halting enforcement of the rules.
The case, Pennsylvania v. Trump, arose when the administration issued two interim final rules that all but undid the Affordable Care Act's contraception mandate for any organization that didn't want to enforce it. One rule, the Religious Exemption Rule, said that any organization could claim an exemption based on a sincerely held religious belief; the other, the Moral Exemption Rule, said the same thing for any organization that claimed a sincere moral objection. Under the rules, objecting organizations didn't have to seek an accommodation; they could simply drop coverage (with ERISA notice to their employees).
Pennsylvania sued, arguing that the IRFs violated the Administrative Procedure Act, Title VII of the Civil Rights Act , equal protection, and the Establishment Clause.
Judge Beetlestone first ruled that the Commonwealth had standing--for exactly the same reasons why Texas had standing to challenge President Obama's DAPA program in Texas v. United States:
There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations--here, the New IRFs. It is all the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. . . . Furthermore, like Texas and Massachusetts [in Massachusetts v. EPA], the Commonwealth seeks to protect a quasi-sovereign interest--the health of its women residents. . . . According to the Commonwealth . . . the Agencies' New IRFs will allow more employers to exempt themselves from the ACA's Contraceptive Mandate. Consequently, the Commonwealth contends that Pennsylvania women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasi-sovereign interest in ensuring that women residents receive adequate contraceptive care.
She went on to rule that the IRFs likely violated the APA, for two reasons. First, the administration violated notice-and-comment rules in issuing the IRFs. The court rejected the government's argument that it had statutory authority to bypass notice-and-comment procedures, and that special circumstances justified bypassing those procedures. Next, the IRFs violated federal law, the ACA. In particular, the ACA mandates coverage for women's preventative care, and doesn't provide an exception for religious or moral beliefs. Moreover, the accommodation process doesn't violate the Religious Freedom Restoration Act (as the government maintained), and so there's no RFRA reason for the Religious Exemption Rule. (The government didn't even try to argue that the RFRA mandated the Moral Exemption Rule.)
Because the court held that the Commonwealth would likely succeed on its APA claims, it didn't rule on the constitutional claims.
The court went on to conclude that the Commonwealth demonstrated the other elements of a preliminary injunction, too.
Monday, December 11, 2017
A third district judge has issued a preliminary injunction against the President's ban on transgender troops in the military. In her opinion in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington issued a preliminary injunction on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims.
Recall that after several tweets this past July, embedded President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." Recall that in October, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives. Recall that in November, United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures.
In Karnoski, Judge Pechman finds that the individual plaintiffs, the organizational plaintiffs, and the State of Washington all have standing to challenge the Presidential Memorandum and that the claims are ripe. She does grant the motion to dismiss as to the procedural due process claim.
On the merits, Judge Karnoski's analysis is succinct. She concludes that the policy "distinguishes on the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny." She then states that while the government defendants "identify important governmental interest including military effectiveness, unit cohesion, and preservation of military resources, they failed to show that the policy prohibiting transgender individuals from serving openly is related to the achievements of those interests." Indeed, she concludes, the reasons proffered by the President are actually contradicted by the studies, conclusions, and judgment of the military itself," quoting and citing Doe v. Trump.
Departing from the earlier cases, Judge Pechman also finds the plaintiffs have a likelihood of success on a substantive due process claim based on a fundamental liberty interest:
The policy directly interferes with Plaintiffs' ability to define and express their gender identity, and penalizes plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.
On the First Amendment claim, Judge Pechman concludes that the "policy penalizes transgender service members but not others for disclosing their gender identity, and is therefore a content based restriction."
She then quickly finds that on balance, the equities weigh in favor of the preliminary injunction.
With this third court finding the Presidential Memorandum has constitutional deficiencies, the transgender ban is unlikely to go into effect by January 1. Additionally, the Pentagon has reportedly announced that the ban will not take effect.