Thursday, May 7, 2015

District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice

In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act.  The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.

140px-DOL_Seal_with_HammerThe central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition.  The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014).  The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice. 

Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools. 

There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley.  Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”

Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.

Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.” 

Nor are employees likely to believe that the Notice is their employer’s speech.

[citations omitted].  The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.

The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments.  It therefore entered summary judgment in favor of the government.

Given the vigor with which NAM has litigated similar issues, it will most likely appeal.  However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
NOTICE[image via]

May 7, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

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

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

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

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

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

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

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

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

The court likewise held that there was no implicit preclusion.  

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

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

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

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

Court OKs Prosecution Use of Cell Tower Location

The en banc Eleventh Circuit ruled this week in United States v. Davis that a court order, pursuant to the Stored Communications Act, compelling the production of a telephone company's business records containing information as to cell tower locations (and linking the defendant's calls to those towers) did not violate the Fourth Amendment.

The ruling reverses an earlier panel decision, which held that the order violated the Fourth Amendment. The panel nevertheless affirmed the conviction, however, based on the good-faith exception to the exclusionary rule.

The ruling tests traditional Fourth Amendment rules against technological advances--and their ability to reveal vast amounts of highly personal data. The court applied a traditional Fourth Amendment approach, but invited Congress to revisit the appropriate balance between technology and privacy in cases like this.

The defendant, Quartavious Davis, was charged with several counts for his role in a string of robberies. At Davis's trial, the prosecution introduced telephone records  from Metro PCS, obtained through an earlier court order, showing the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. An officer-witness then connected the location of the cell towers with the addresses of the robberies, placing Davis near the robbery locations around the time of the robberies. (The evidence showed the location of the cell towers that connected Davis's calls, but not the precise location of Davis or his phone.) Davis was convicted and sentenced to 1,941 months in prison.

The court order for the records was based on the Stored Communications Act. The SCA provides that a federal or state governmental entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." This does not require a showing of probable cause. Davis argued that the order violated the Fourth Amendment.

The Eleventh Circuit rejected Davis's arguments. The court wrote that the SCA actually provides greater privacy protections than a routinely issued subpoena to third parties for a wide variety of business records (credit card statements, bank statements, and the like). This, it said, was no different. It also wrote that Davis claimed no trespass, and that he had no reasonable expectation of privacy in the location of cell towers to which he voluntarily sent call signals, or in the business records of his third-party provider. The court thus concluded that there was no "search."

But even if there were a search, the court held that it was reasonable, balancing the government interests against Davis's expectations of privacy. It said that the government had compelling interests in investigating and preventing crimes, and that Davis had, at most, a diminished expectation of privacy.

Judges Martin and Jill Pryor dissented, arguing that technological advances, "which threaten to cause greater and greater intrusions into our private lives," threaten "to erode our constitutional protections."

 

May 7, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Symposium on Con Law and Food, Drug, Medical Device Regulation

The Food and Drug Law Institute and Georgetown's O'Neill Institute for National and Global Health Law are co-sponsoring a symposium on Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products on Friday, October 30, 2015, at Georgetown University Law Center.

Abstracts are due June 1, 2015.

Click here for the announcement and more information.

May 7, 2015 in Conferences, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Bessler on the Death Penalty

John Bessler (U. Baltimore) writes over at Jurist.org with helpful background and context on Glossip v. Gross. That's the Supreme Court case testing the constitutionality of lethal injection when the first drug doesn't reliably induce unconsciousness, or a deep, coma-like state, resulting in extreme pain when the second drug is administered. Our preview of the oral arguments is here.

May 7, 2015 in Cases and Case Materials, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2015

D.C. Circuit Rebuffs Challenge to CFPB

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

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

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

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

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

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

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

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

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

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

Friday, May 1, 2015

Ninth Circuit Rejects First Amendment Challenge to Disclosure of Significant Donors to NonProfit

The Ninth Circuit's opinion in Center for Competitive Politics v. Harris rejected a First Amendment challenge to a disclosure of major donors requirement.

Form-990The nonprofit Center for Competitive Politics  (CCP)- - - an organization to promote the First Amendment and "campaign freedom"- - - sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of the Center’s “significant donors” on Internal Revenue Form 990 Schedule B, which the Center must file with the state in order to maintain its registered status with the state’s Registry of Charitable Trusts.  The unanimous panel affirmed the district judge's denial of a preliminary injunction.

The court rejected as a "novel theory" CCP's argument that the disclosure requirement alone is so injurious that it must meet strict scrutiny. 

CCP is correct that the chilling risk inherent in compelled disclosure triggers exacting scrutiny—“the strict test established by NAACP v. Alabama,” —and that, presented with a challenge to a disclosure requirement, we must examine and balance the plaintiff’s First Amendment injury against the government’s interest. However, CCP is incorrect when it argues that the compelled disclosure itself constitutes such an injury, and when it suggests that we must weigh that injury when applying exacting scrutiny. Instead, the Supreme Court has made it clear that we must balance the “seriousness of the actual burden” on a plaintiff’s First Amendment rights. Here, CCP has not shown any “actual burden” on its freedom of association.

[citations omitted].  The court largely relies on  the Supreme Court's 2010 decision in Doe v. Reed, (John Doe I) in which the Court upheld the constitutional of Washington's disclosure of petition signatures.  Indeed, the Ninth Circuit panel noted that

unlike in John Doe No. 1 or in other cases requiring the disclosure of the names of petition signatories, in this case, the disclosure would not be public. The Attorney General keeps Form 990 Schedule B confidential. Although it is certainly true that non-public disclosures can still chill protected activity where a plaintiff fears the reprisals of a government entity, CCP has not alleged any such fear here. CCP instead argues that the Attorney General’s systems for preserving confidentiality are not secure, and that its significant donors’ names might be inadvertently accessed or released. Such arguments are speculative, and do not constitute evidence that would support CCP’s claim that disclosing its donors to the Attorney General for her confidential use would chill its donors’ participation.

However, the Ninth Circuit left open the possibility that CCP could show "a reasonable probability that the compelled disclosure of [its] contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties" that would warrant relief on an as-applied challenge, just as the Court did in Doe v. Reed.  Recall that on remand in Doe v. Reed the Ninth Circuit found no such probability.  Given the confidential nature of the 990 Form here, CCP would most likely have an even more difficult time showing such a probability.

The Ninth Circuit also rejected the preemption claim.  Essentially although the Form is required by the federal IRS, federal law does not bar state attorneys from requesting the information in the form.

 

UPDATE: On May 15, 2015, the Center for Competitive Politics filed an Emergency Application for Injunction Pending Certiorari in the United States Supreme Court; more here.

May 1, 2015 in Campaign Finance, First Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (1) | TrackBack (0)