Monday, July 2, 2018
In his opinion in Gary B. v. Snyder, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed a complaint alleging constitutional violations in the public schools in Detroit.
After finding the plaintiff students had standing and that the complaint against Governor Snyder and other officials was not barred by Eleventh Amendment immunity, Judge Snyder dismissed the Due Process Clause and Equal Protection Clause claims.
On the Due Process Clause claim, Judge Snyder noted that the constitutional right at issue is framed as "access to literacy" which "speaks to an opportunity" rather than simply literacy which is an "outcome of education." Using this definition, Judge Snyder distinguished the complaint from landmark cases such as San Antonio Independent School District v. Rodriguez (1973), rejecting "education" as a fundamental right. Nevertheless, applying the "standard" test to determine a fundamental right from Washington v. Glucksberg (1997) — "fundamental rights are only those 'objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed'"— even through the lens of Obergefell v. Hodges (2015), Judge Snyder reasoned that fundamental rights are generally only "negative rights."
Conceivably, a case like this one could be argued on either positive- or negative- right theories. As a positive right, access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it. As a negative right, access to literacy is so important that the state may not hinder Plaintiffs' attempts to secure it. ***
But a violation of negative rights is not what the Complaint truly seems to argue. The Complaint explains, in great detail, that the instruction and resources in Plaintiffs' schools are inadequate.
Judge Snyder reasoned that the Supreme Court's understanding of a "fundamental right," requires finding that neither liberty nor justice would exist absent state-provided literacy access, which would be "difficult to square with the fact that '[t]here was no federal or state-run school system anywhere in the United States as late as 1830.'" Thus, for Judge Snyder, the "ordered liberty" prong is tantamount to historical roots:
School districts at the time of the Constitution's ratification were formed 'when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.' [citation omitted] The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.
Thus, he concluded:
The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.
Judge Murphy concluded that the Equal Protection Clause claim was similarly not founded. The court repeats that there is no fundamental right and further finds that there is no racial classification because there to be a "relevant comparator school" requires not only that the school in question have a different racial composition that the 97% African-American schools in Detroit but also that the school "experienced relevant state interventions" like the schools in Detroit. Thus, rational basis scrutiny applies at its most deferential — whether "there is any reasonably conceivable state of facts that could provide a rational basis for the classification" — and the plaintiffs did not plead "specific decisions Defendants made concerning Plaintiffs' schools that could have been made differently" and were thus irrational.
The dismissal of the complaint makes it ripe for appeal.
[image: Paul-Constant Soyer, Little Girl Reading (1864) via]
Saturday, June 30, 2018
The Ninth Circuit ruled this week that environmental non-profits lacked standing to sue Ex-Im Bank for its failure to follow statutorily prescribed procedures before authorizing loans to private corporations for two liquid natural gas projects near the Great Barrier Reef in Australia.
The case is a cautionary tale for environmental groups (or others) suing for statutory procedural violations: Develop the record.
The ruling means that the case is dismissed.
The case, Center for Biological Diversity v. Export-Import Bank of the U.S., arose when Ex-Im Bank approved funding for two liquid natural gas projects near the Great Barrier Reef. Environmental organizations sued, arguing that Ex-Im Bank failed to consult as required by the Endangered Species Act and failed to take into account environmental impacts as required by the National Historical Preservation Act.
The Ninth Circuit dismissed the case for lack of standing. The court said that the plaintiffs didn't sufficiently connect the Bank's procedural failures to the harm to the Reef, especially given that the projects had begun by the time the Bank provided funding, and therefore failed to show causation and redressability. For one, the plaintiffs couldn't show "what action could be taken by the Ex-Im Bank to alter the course of the Projects, if the Bank were to perform the procedures" under the Acts. For another, the plaintiffs "have not established that the Ex-Im Bank was a necessary party without whom the Projects would not have been realized." Both problems resulted from the plaintiffs' failure to develop the record--the funding contracts themselves (to show what Ex-Im might do if the procedures were followed) and evidence of alternative project funding (to show the significance of Ex-Im's loans on the projects).
At the same time, the court held that the case was not moot. That's because the record didn't show whether Ex-Im continued to have some leverage over the borrowers, even though the project is now complete and at least some of the loans are fully repaid.
Monday, June 18, 2018
In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court. Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.
Chief Justice Roberts' opinion for the Court in Gill admits that
Over the past five decades this Court has been repeatedly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.
The Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The resolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district. The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.
Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:
when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.
Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that
the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here alleged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the government allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.
[emphasis added]. The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.
In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.
In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.
[image: "the gerrymander" via]
June 18, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments, Standing, Supreme Court (US) | Permalink | Comments (0)
Thursday, June 14, 2018
Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.
The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.
The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.
The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."
But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):
[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.
The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.
June 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, May 30, 2018
Judge Colleen Kollar-Kotelly (D.D.C.) today tossed two lawsuits filed by Kaspersky Lab arising out of the government's rejection of Kaspersky products. The ruling ends Kaspersky's challenges and means that the federal prohibition on government use of Kaspersky products stays on the books.
Kaspersky Lab, the Russian cyber-security firm, filed its first suit in response to the Department of Homeland Security's Binding Operative Directive that required all federal departments and agencies to stop using Kaspersky products. DHS issued the BOD out of concern that Kaspersky products on the government's networks and computer systems could create a security risk. Kaspersky argued that the BOD violated the Administrative Procedure Act and the Fifth Amendment.
Kaspersky filed its second suit in response to the National Defense Authorization Act, which also prohibited the government from using Kaspersky products. (The NDAA contained a somewhat broader prohibition, effective October 1, 2018.) Kaspersky argued that the NDAA was an unconstitutional bill of attainder.
The court ruled first that the NDAA did not violate the Bill of Attainder Clause, because the prohibition wasn't "punishment" under any of the three tests adopted by the D.C. Circuit (the "Historical Test," the "Functional Test," or the "Motivational Test"). The court dismissed this suit.
The court next ruled that Kaspersky lacked standing to challenge DHS's BOD, because any ruling in its favor wouldn't redress its harm. In particular, the court said that revoking the BOD wouldn't do anything to allow Kaspersky to sell its products to the government, because the (valid) prohibition in the NDAA would prohibit that. The court said that the government, knowing that the NDAA's ban takes effect on October 1, 2018, wouldn't purchase any Kaspersky products in the interim.
The ruling means that the bans on Kaspersky products stay on the books, and the government must remove all Kaspersky products from its systems.
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.