Friday, July 24, 2015
The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.
The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.
We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)
The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.
Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)
Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.
Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.
The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).
But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."
The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.
July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)
Thursday, June 11, 2015
The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.
The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.
Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.
The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:
In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.
The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."
The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.
The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.
Wednesday, May 27, 2015
The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.
The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.
The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.
The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.
Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.
Sunday, May 17, 2015
Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.
The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.
The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.
In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.
Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:
[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.
The ruling is consistent with similar rulings in other district courts.
May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Saturday, May 16, 2015
A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.
But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)
Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.
Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:
the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.
Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.
The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.
But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:
And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.
Thursday, May 7, 2015
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 6, 2015
The D.C. Circuit last week dismissed a case challenging the Consumer Financial Protection Bureau under separation of powers. The ruling in Morgan Drexen, Inc. v. CFPB held that the plaintiffs lacked standing and should pursue their constitutional claims against the CFPB in a CFPB enforcement action pending in another federal district court.
The ruling ends this particular challenge to the CFPB (for now), but allows the plaintiff to pursue its challenge in the enforcement action.
Morgan Drexen filed the claim after the CFPB threatened enforcement action against the firm for violations of the Consumer Financial Protection Act and the Telemarketing Sales Rule in its bankruptcy and debt-relief services. Kimberly Pisinski, an attorney who contracts with Morgan Drexen for paralegal services, joined the suit on the theory that the CFPB's enforcement action against Morgan Drexen would affect her own law practice.
Morgan Drexen and Pisinski sought declaratory and injunctive relief, arguing that the CFPB is unconstitutional because its powers are overbroad, it's headed by a single director who is removable only for cause, it is funded outside the ordinary appropriations process, and judicial review of its actions is limited.
But soon after Morgan Drexen and Pisinski sued in the D.C. District, the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Pisinski, who apparently really, really wanted to be a part of the action, moved to intervene in that suit, too. (The court denied her motion. The court also recently granted the CFPB's motion for sanction and default judgment against Morgan Drexen, finding that "[d]efendants willfully and in bad faith engaged in a coordinated and extensive effort to deceive the Court and opposing counsel" and having "blatantly falsified evidence . . . concealing this fact from the Court, opposing counsel, and even their own counsel at every turn.")
The D.C. Circuit ruled that Morgan Drexen could lodge its constitutional claims against the CFPB in the enforcement case in the Central District of California instead of in its case in the D.C. District. The court said that Morgan Drexen wouldn't suffer any harm in harm in doing so, and that it'd support judicial economy.
The court also ruled that Pisinski lacked standing. That's because she didn't allege a CFPB enforcement action would harm her practice, or that she engaged in any illegal conduct as a Morgan Drexen contractor:
In sum, Pisinski has failed to proffer evidence in support of any of her theories of standing: that she was responsible for Morgan Drexen's allegedly illegal conduct, that her practice is or will be economically harmed by the Bureau's enforcement action against Morgan Drexen, or that implicit accusations by the Bureau that she exercised too little control over Morgan Drexen or engaged in illegal conduct herself could damage her professional standing. The record evidence does not show that she used Morgan Drexen's allegedly illegal services or that there is a substantial risk that the Bureau's enforcement action will cause harms to her practice or professional reputation that she has asserted.
Judge Kavanaugh dissented, arguing that Pisinsky had standing, and that the majority's approach is "more complicated than it needs to be."
Monday, April 27, 2015
The Fifth Circuit on Friday dismissed a case challenging both the individual and employer mandates in the Affordable Care Act under the Origination Clause. The court said that the individual plaintiff challenging the individual mandate lacked standing, and that the corporation challenging the employer mandate was barred by the Anti-Injunction Act. The ruling dismisses the case, with little or no chance of a successful appeal.
The case, Hotze v. Burwell, was brought by a medical doctor, Steven Hotze, and his employer, Braidwood Management. The plaintiffs argued that the ACA's individual and employer mandates violated the Origination Clause, because they are "bills for raising Revenue" that did not "originate in the House." Their theory: The ACA was a Senate amendment to a shell of a House bill that already passed, so that in fact the ACA really originated in the Senate. If so--and if the individual mandate is authorized by the Taxing Clause (and not the Commerce Clause), as the Court held--then, they claimed, the whole ACA should have started in the House. Because it really didn't, it violated the Origination Clause.
But there was a problem even before the court got to the merits: Hotze already had health insurance through Braidwood, and so would not have to purchase insurance or pay the tax penalty. This meant that he didn't suffer a harm.
Hotze neglected to say in his complaint that his insurance wasn't up to ACA snuff (and that he'd have to drop it and buy new insurance or pay the tax penalty), so all he had for an injury was that the ACA forced him to make hard health-insurance choices. The court said that this wasn't enough for standing.
Hotze also argued that when the employer mandate takes effect, Braidwood would have to offer him less desirable insurance. The court said that this theory wasn't tightly enough tied (or at all tied) to the individual mandate, however, so this didn't support standing, either.
Finally, Hotze said that the ACA forced his insurance premiums up. The court rejected this theory, too, saying that it amounts to a generalized grievance.
The court also dismissed Braidwood's challenge to the employer mandate, but this time under the Anti-Injunction Act. The AIA bars courts from hearing any challenge to restrain the assessment or collection of any tax.
Even if the court had addressed the merits, however, this case didn't appear to be going anywhere. That's because the ACA did originate in the House, even if in a shell bill later amended by the Senate to include the full ACA. The plaintiffs argued that the Senate amendment wasn't germane to the House bill (and was thus an unconstitutional end-run around the Origination Clause), but the government argued that the Origination Clause didn't contain a germane-ness requirement--a point the district court found convincing.
The district court dismissed the case on the merits, ruling that the ACA didn't violate the Origination Clause. Good bet the Fifth Circuit would have, too.
Friday, April 24, 2015
The D.C. Circuit ruled today that plaintiffs lacked standing to challenge EPA and NHTSA's standards for greenhouse gas emissions from cars and trucks. The ruling means that the case is dismissed, and the standards stay in place.
The case, Delta Construction v. EPA, tests a joint effort by the EPA and NHTSA to regulate greenhouse gas emissions from automobiles and trucks. The agencies issued coordinated rules, one set of rules for cars and, later, one set for trucks. (The D.C. Circuit previously upheld the car rules, and the Supreme Court denied review.)
The plaintiffs--business, associations, and individuals in California, and Plant Oil Powered Diesel (or POP Diesel), a company that promotes the use of vegetable oil in place of traditional diesel fuel--sued, arguing that the regulations were arbitrary and capricious in violation of the Administrative Procedures Act. The California plaintiffs challenged the EPA rules only; POP Diesel challenged both the EPA and NHTSA rules. The California plaintiffs argued that the regs jacked up the price of cars and trucks in the state; POP Diesel argued that the truck rule makes its product economically unfeasible.
The court held that the California plaintiffs lacked standing, because they couldn't show causation and redressability. That's because even if they won on the merits--and the court struck the EPA rules--the NHTSA rules would still drive the prices of their vehicles up. In other words, because both agencies' sets of rules did the same thing, defeating one wouldn't solve their alleged problem.
As to POP Diesel, the court said that it didn't fall within the zone of interests protected by the portion of the Clean Air Act governing emissions standards for motor vehicles. The court said that economic interests, like POP Diesel's, without more, aren't within the congressional goals of the Act, and that POP Diesel's green approach alone doesn't put it within the Act's zone of interests.
The court dismissed the case and ended the plaintiffs' challenge to the emissions regs.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015] 149 [updated] LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.
76 77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)
Tuesday, March 24, 2015
The Sixth Circuit ruled last week in Sierra Club v. EPA that the Sierra Club had standing to challenge EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area from "nonattainment" to "attainment" of the area's national air quality standards for particulate matter. The court went on to rule that the EPA's redesignation violated the Clean Air Act.
The ruling is notable, because it's the first time the Sixth Circuit had a chance to address a petitioner's burden of production on standing in a direct appeal of a final agency action. The court said that the petitioner bears a burden of production similar to that required at summary judgment (and not like the lower standard required on a motion to dismiss), that is: "the petitioner has to present specific facts supporting standing through citations to the administrative record or 'affidavits or other evidence' attached to its opening brief, unless standing is self-evident." This standard aligns the Sixth Circuit with the Seventh, Eighth, Tenth, and D.C. Circuits.
Here, the Sierra Club attached to its brief a declaration by Sierra Club members who claimed that the redesignation would cause aesthetic, recreational, and physical injuries. As to causation and redressability, the court noted "that many courts have apparently found it so obvious that redesignation would lead to higher emissions that they did not even need to discuss the standing of environmental litigants." Still, the court looked to "reasonable inferences" about redesignation's impact and concluded that "[w]e find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the Club from redesignation of the Cincinnati area."
After concluded that the Sierra Club had standing, the court went on to rule against the EPA on the merits--that the redesignation violated the Clean Air Act.
Friday, March 20, 2015
The Ninth Circuit ruled today in Munns v. Kerry that families of a government contractor taken hostage in Iraq lacked standing to challenge the alleged government policy prohibiting families from offering a reward or negotiating with terrorist kidnappers. The ruling dismisses the case.
The case was brought by former employees of a private firm (and their families) that contracted with the government for security services in Iraq. Former employees of the company claim, through their next of kin, that they were issued substandard military equipment and were ill-prepared for a mission (because of the negligence of their employer, sanctioned by the State Department), that as a result they were taken hostage and held for over a year, and that government policy prohibited the families from negotiating with the kidnappers. Kidnappers brutally executed the employees in 2008.
One plaintiff, Bjorlin, not taken hostage, alleges that he wishes to return to Iraq but wants to be sure that government policies will not prevent his employer from properly equipping him for security missions.
The families of the kidnapped and executed employees argued that an alleged government policy prohibiting them from seeking information on the kidnapped employees, and offering a reward, violated the First Amendment; they sought declaratory and injunctive relief against such a policy. They also argued that the government withheld money that belongs to them as survivors of their deceased contractor relatives, in violation of the Due Process and Takings Clauses; they sought monetary damages.
The Ninth Circuit ruled that the plaintiffs lacked standing for their claims for declaratory and injunctive relief. As to the families of executed employees, the court said that they didn't allege how any government policies would affect them in the future (even if they alleged that those policies affected them in the past). As to Bjorlin, the court said that the chain of events required before he would be affected by any policies was simply too attenuated.
Because the court affirmed the dismissal based on lack of standing, it didn't address the political question doctrine as an alternative basis for dismissal.
The court also rejected the plaintiffs' claims for monetary damages based on sovereign immunity.
Friday, March 13, 2015
The ACLU filed suit this week on behalf of several media and human rights organizations challenging the NSA's "upstream surveillance" program. The plaintiffs argue that the program violates the First and Fourth Amendments, and that NSA has implemented upstream surveillance in violation of the FISA Amendments Act of 2008. (H/t reader Darren Elliot.)
Through upstream surveillance, a program disclosed by Edward Snowden after the Court handed down Clapper v. Amnesty International (more on that below), the NSA intercepts, collects, and searches all of Americans' international communications (e-mails, web-browsing, search engine queries, and the like). The NSA intercepts communications through devices directly on the internet backbone (with the help of providers like Verizon and AT&T), and it searches that material using keywords associated with NSA targets--that is, anyone outside the United States believed likely to communicate "foreign intelligence information."
The Supreme Court dismissed the last major suit of this type. The Court said that the plaintiffs in Clapper v. Amnesty International lacked standing to challenge NSA surveillance under the FISA Amendments Act (50 USC Sec. 1881a), because they didn't allege that they'd actually be targets of surveillance (only that they'd likely be targets).
This suit addresses the standing problem by alleging that upstream surveillance has already targeted them--because upstream surveillance is up and running and collects, in a drag-net kind of way, the kinds of communications that they engage in. And by including Wikimedia (with all its international internet connections), the ACLU ensures that at least one plaintiff has certainly been a target of this program.
Thursday, March 12, 2015
The D.C. Circuit ruled this week that airlines have standing to challenge a TSA fee charged to passengers, because the fee, built into the price of an airline ticket, increases the net price for tickets and thus reduces demand. But the court went on to rule against the airlines on the merits.
The airlines in Airlines for America v. TSA challenged a TSA rule implementing a statutory fee designed to cover the cost of screening passengers. Airlines collect the fee as part of the ticket price and pass the proceeds along to TSA. The airlines challenged the rule as it applies to passengers whose travel begins abroad but includes a connecting flight within the United States.
TSA argued that the airlines lacked standing. But the court disagreed. The court said that the airlines were harmed by the fee (even if minimally), because it jacked up the ticket price and thus reduced demand:
We recognized . . . the basic proposition that "increasing the price of an activity . . . will decrease the quantity of that activity demanded in the market." . . . TSA has given no reason to suspect that any . . . exception is applicable here. Thus, the security fees injure the airlines by increasing the net price for airline tickets and reducing demand for those tickets. . . .
While the impact on demand is likely to be modest, the direction of change in demand is clear (downward). . . . [T]he court's duty to refrain from merits rulings until assured of jurisdiction . . . does not mandate an econometric study of the exact quantity of change. And, as the injury is inferable from generally applicable economic principles rather than from any special circumstances, it is sufficiently "self-evident" that we require "no evidence outside the administrative record."
But the court went on to rule against the airlines on the merits. In short, the court said that the statute, which sets the security fee at "$5.60 per one-way trip in air transportation or intrastate air transportation that originates at an airport in the United States," allows TSA to collect the fee for travel that begins abroad and connects in the United States (for example, from Paris to New York with a connection to Chicago).
Tuesday, February 17, 2015
DHS Secretary Jeh Johnson announced that the government would comply with the temporary injunction issued late yesterday by Judge Andrew S. Hanen (S.D. Tex.) halting implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program. But the government will appeal.
Here's Judge Hanen's opinion.
Judge Hanen's ruling is based on the APA, and did not address the Take Care Clause argument. The first 60 pages is dedicated to standing. We previously posted on the case here.
Friday, February 13, 2015
There's no shortage of opinion on standing in King v. Burwell, the case testing whether the IRS had authority under the Affordable Care Act to grant tax credits to purchasers of health insurance through a federally-facilitated (not state-run) exchange. The Wall Street Journal and Mother Jones wrote about the standing problems first, but now there's coverage all around the internet.
Still, neither the government nor the Court has said anything about it.
The Court can consider the plaintiffs' standing anytime, and on its own motion. If it rules that the plaintiffs in this case lack standing, surely there will be efforts to find new plaintiffs.
But remember: The parallel case in the D.C. Circuit--which first came down the same day as King--is still in abeyance pending the outcome of King. If the Court dismisses King for lack of standing, the D.C. Circuit would likely lift its case out of abeyance and put the issue back before the Supreme Court relatively quickly (or at least quicker than ACA opponents could scrounge up new plaintiffs and start all over).
Friday, January 9, 2015
The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.
The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.
Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,
There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.
The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.
But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.
Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.
Tuesday, December 16, 2014
In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.
The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse." The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary, agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny. The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that
The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.
The court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks). Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message." Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct:
On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.
(emphasis in original). The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines.
The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge. On appeal, the plaintiffs argued that Measure B was not subject to severance. The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing. The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.
Monday, October 20, 2014
First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme
Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey. The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that
the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.
The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit. The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied." For the court, it was "too optimistic" to think that the "censorship risks are only theoretical." Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."
The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:
The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.
The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim."
To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.
The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined. The district judge will now be taking up this very question under First Amendment doctrine.
Thursday, September 11, 2014
Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge
The Third Circuit has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.
The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in Pickup v. Brown, albeit on different grounds.
The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter), specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted. The Third Circuit credits some of the reasoning of Ninth Circuit Judge O'Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project. The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:
consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.” . . . . As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.
Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context. In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection.
Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech. In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”
The court's distinction between professional and nonprofessional speech, however, may suffer from the same lack of bright lines that it finds with the conduct/speech distinction. The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement." But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute
allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.
The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined. Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.
However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.
[images from "Ten Days in a Mad House, Nellie Bly, via]