Constitutional Law Prof Blog

Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales

Steven D. Schwinn, John Marshall Law School

Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.

The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).

The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)

In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.

Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).

But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:

While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.

Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.

In the meantime, the case can proceed on the merits, though without a preliminary injunction.

Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.

United States Supreme Court Reaffirms Abortion Access in Whole Woman's Health

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).  Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.

In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).

The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas.  (Note that even if Justice Scalia was still on the bench, the result would have been the same).  Justice Thomas also wrote separately.

Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.  

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.

[citations omitted].

With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test.  The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.

On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:

when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:

Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.  Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.

 Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement.  Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions."  And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.

While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.

Court Deadlocks on President's Immigration Plan

Steven D. Schwinn, John Marshall Law School

The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)

While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):

Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.

Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).

We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.

The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).

United States Supreme Court in Fisher II: UT Affirmative Action Plan Constitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause.  In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).

Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit.  On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")

Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:

In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected peti­tioner’s application was narrowly tailored.

Kennedy's opinion ends with a paean to diversity and a warning, including to UT:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admis­sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

Justice Alito disagreed strongly and read portions of his dissent from the bench.  His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately).  Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:

The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.

Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded:  "The majority cannot side with UT simply because it is tired of this case."

 

 

 

Cleveland RNC Convention Protest Zone Challenged

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.

Central to the First Amendment claim is the contention that the "event zone" is far too large and 

apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.

Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time.  ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."

The Cleveland regulations ban a host of dangerous items within the zone.  This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC.  However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls.  There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.

Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government.   Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance.  While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.

Some good reporting by Eric Heisig and Andrew Tobias of cleveland.com; expect more as the Republic National Convention approaches, July 18-21, in Cleveland.

 

Divided Ninth Circuit Says Second Amendment Doesn't Protect Concealed Carry

Steven D. Schwinn, John Marshall Law School

A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.

The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.

It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).

The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.

The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).

The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."

The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.

The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.

Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."

Supreme Court Finds Due Process Violated When Prosecutor-Turned-Judge Did Not Recuse

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.

Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' post-conviction claim, moreover, is based on prosecutorial misconduct. 

Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:

The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."

Justice Kennedy's relatively brief opinion for the Court specifically rejected each of Pennsylvania's arguments. 

As to the passage of time between the prosecutorial and judicial events, the Court reasoned that

A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection."  Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences.  And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."

As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:

A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.

Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton.  Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation.  Roberts states that it is "up to state authorities" to determine whether recusal is required. 

In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.

 [image NYPL digital collection, "A Murder Trial in the Court of General Sessions, circa 1901, via]

Second Circuit Holds No First Amendment Claim for Prisoner's Journalistic Publication

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges.  McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front. 

While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech."  This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement -  - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

Daniel McGowan via

But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007).  Soon thereafter, the BOP had instructed staff not to enforce it.  In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity.  Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation.  Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."

The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.

Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

Federal Civil Rights Ruling Keeps Claim Alive

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Simmons v. Himmelreich that a federal prison can maintain his Bivens claim against individual prison officials for Eighth Amendment violations, even though the district court threw out his earlier Federal Tort Claims Act case for the same incident under the FTCA's "discretionary function" exception.

The ruling is a win for Himmelreich and similarly situated federal civil rights plaintiffs. It means that the FTCA doesn't foreclose this kind of claim, and that Himmelreich will have his day in federal court, after all.

The unanimous ruling turned on a very plain, and very simple, reading of the FTCA exceptions provision. In short, the exceptions provision says that the FTCA judgment bar (which ordinarily would have foreclosed Himmelreich's suit against the individual officers, because the district court threw his FTCA claim out) doesn't apply to claims claims dismissed under the exceptions. And because the district court threw his first case out under the exceptions clause, the judgment bar didn't foreclose his subsequent Bivens claim.

Here's my post on the case at SCOTUSblog, with permission:

Prisoner-rights litigation can often raise some tricky issues. Navigating them can mean the difference between keeping a claim alive in federal court, and losing it – and thus the difference between enforcing federal civil rights, and not.

One of these tricky issues was on full display in Simmons v. Himmelreich. But despite the potentially complicated questions in the case, a unanimous Supreme Court held today that one of the rules for prisoner-rights suits simply means exactly what it says: A prisoner can bring a constitutional tort claim against individual prison officials even after a court dismissed his earlier Federal Tort Claims Act suit because the officials acted in a “discretionary” capacity.

The ruling, penned by Justice Sonia Sotomayor, is a decisive win for prisoner-rights advocates. It means that Walter Himmelreich and other, similarly situated civil rights litigants retain a critical tool – the constitutional tort claim against individual officers – in enforcing civil rights and deterring their abuses. More generally, it means that there is now one less tricky issue in prisoner-rights litigation, and it is just a little bit easier, at least in the narrow circumstances of this case, to retain a claim and enforce federal civil rights.

The case involved Himmelreich’s suit against federal prison officials for violations of his Eighth Amendment rights. Himmelreich was serving time for producing child pornography when prison officials transferred another prisoner from special housing into the general population. The transferred prisoner had previously threatened to “smash a pedophile” if given the chance, so it was hardly a surprise when the transferred prisoner severely beat Himmelreich.

Himmelreich sued the government under the Federal Tort Claims Act, which waives sovereign immunity for tort claims against the federal government for the acts of its employees. It also gives federal district courts exclusive jurisdiction over those claims, subject to certain procedural requirements in Chapter 171 (which becomes relevant below, in Himmelreich’s second suit). But the FTCA also contains a list of exceptions, in particular, a “discretionary function” exception that exempts “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function” from the FTCA. This means that someone (like Himmelreich) who has been injured has no FTCA claim against the government for injuries that result from a discretionary act of a government employee. The district court thus dismissed Himmelreich’s FTCA claim under this exception, ruling that the prison officials’ decision as to where to house inmates was a discretionary function. The parties did not challenge this ruling.

While Himmelreich’s FTCA case was still pending, he filed a second suit against the individual prison officials for violating his Eighth Amendment rights. After the district court dismissed Himmelreich’s first suit, the officials then moved to dismiss this second suit under yet a different part of the FTCA. In particular, the officials argued that the FTCA’s “judgment bar” foreclosed this second case. The judgment bar, in Section 2676, says that once a plaintiff receives a judgment in an FTCA suit, he generally cannot bring another suit against an individual employee based on the same incident. It reads:

The judgment in any action [under the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

In other words, the government argued that the district court’s dismissal of Himmelreich’s FTCA case amounted to a “judgment,” and that the FTCA judgment bar therefore foreclosed Himmelreich’s second case against the individual officers.

This is where things get a little complicated. Himmelreich countered that the judgment bar did not apply to cases dismissed under the FTCA exceptions provision (the same one that the district court used to dismiss Himmelreich’s first case). That’s because the exceptions provision says that “[t]he provisions of this chapter” shall not apply to claims dismissed under the exceptions (including the discretionary function exception). “The provisions of this chapter,” in turn, refer to Chapter 171, the list of procedural requirements (mentioned above). And Chapter 171, in turn, includes the judgment bar. The upshot is that a case dismissed on the judgment bar (like Himmelreich’s first case) does not foreclose a case against individual officers arising out of the same incident (like Himmelreich’s second case).

The Supreme Court agreed. In a statutory analysis that required all of two paragraphs, the Court said that Himmelreich’s plain reading of the FTCA was correct, and that the FTCA created no bar to his second case against the individual officers. The Court noted that result made sense:

If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple . . . .

Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.

The Court also roundly rejected the government’s non-textual arguments. It said that United States v. Smith, in which the Court held that another provision of Chapter 171 (the exclusive remedies provision) foreclosed a suit against an individual employee, did not control. That’s because Smith didn’t even discuss the “shall not apply” language in the exceptions provision. Moreover, the exclusive-remedies provision in Smith (unlike the judgment bar) was specifically designed to apply to the exceptions in the FTCA. The Court also said that it didn’t need to address the government’s parade of horribles that would result if every provision of Chapter 171 “shall not apply” to the FTCA’s exceptions. “If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”

At the end of the day, the ruling means that Himmelreich can pursue his civil rights claim against the individual officers, even after the district court dismissed his earlier FTCA claim based on the “discretionary function” exception. More generally, it probably also means that a plaintiff can similarly pursue a civil rights claim against individual officials, even after a district court dismissed an FTCA claim based on other procedural grounds that have nothing to do with “whether an employee can be held liable instead.”

This is a clear win for Himmelreich and other, similarly situated civil rights plaintiffs, because it preserves their constitutional claims against individual officers. This is no small thing: These individual claims, more than any FTCA claim, help enforce civil rights by holding individual officers accountable and by creating a strong deterrent against civil rights abuses by other officers. Thus, today’s ruling, while dealing with just a narrow statutory issue under the FTCA, is nevertheless an important victory for Himmelreich, an important victory for access to justice, and an important victory for civil rights enforcement.

Mixed Result in State Prisoner-Rights Case

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Ross v. Blake that a state prisoner wasn't excused from exhausting administrative remedies under the Prisoner Litigation Reform Act because of "special circumstances," but that he may be excused if administrative remedies are unavailable.

The ruling walks back a lower-court-created exception to the PLRA exhaustion requirement, but at the same time recognizes that PLRA statutory exhaustion only applies to "available" remedies. This is probably a net loss for state prisoners (because they can no longer excuse failure to exhaust based on "special circumstances"), but it means that the plaintiff's claim in this case will stay alive, at least through remand to the lower courts, on the question whether remedies were actually "available" to him. The ruling also gives some good language on what it means to be "available" under the PLRA--fodder, no doubt, for future prisoners defending against PLRA-failure-to-exhaust claims.

While the case is not directly constitutional, it certainly has implications for prisoner civil rights and access-to-justice.

Our argument preview is here.

In short, the plaintiff in the case, Shaidon Blake, brought a civil rights claim against a state prison official. The official moved to dismiss for failure to exhaust administrative remedies under the PLRA. Blake countered that he did exhaust. As the case moved to the Supreme Court, it became clear that the administrative remedial scheme itself was, well, confused, and nobody could really say whether Blake exhausted or not.

The Fourth Circuit ruled in favor of Blake, saying that court-created "special circumstances" excused any failure to exhaust, especially where an inmate, as here, reasonably believed that he had sufficiently exhausted his remedies.

But a unanimous Supreme Court rejected the Fourth Circuit's "special circumstances" approach. Justice Kagan, writing for the Court, said that the PLRA contained no "special circumstances" exception, and that the courts couldn't make it up.

But at the same time, the Court said that the PLRA itself required that a plaintiff exhaust only "available" remedies, and that there were serious questions in this case whether the remedies were, in fact, available. Indeed, the Court went on at some length describing why remedies may not have been available--providing a strong prompt to the lower court on remand to hold that they were not available (and therefore to excuse Blake's failure to exhaust).

The Court said that "special circumstances" and "availability" were two different questions. Because it's probably harder to show that a remedy is unavailable than that "special circumstances" excuse exhaustion, the ruling is probably a net loss for prisoners. But at the same time, the Court remanded Blake's case with pretty specific instructions and guidance for the lower court to determine that remedies were not available, and therefore that Blake's failure to exhaust (if any) was excused. In other words, Blake may well end up at the same place he was before his case went to the Court: Exhaustion excused, but this time for lack of available administrative remedies.

Daily Read: Clay v. United States (1971)

Professor Ruthann Robson, City University of New York (CUNY) School of Law

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. 

In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces." 

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg via

The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

However, the Department of Justice abandoned that argument before the United States Supreme Court:

In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger,  ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief].  This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.

[citations and footnote omitted]

A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).

Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."

Muhammad Ali's Greatest Fight: Cassius Clay vs. the United States of America, the 2000 book by Howard Bingham and Max Wallace and subsequent 2013 HBO televised drama center on the litigation.

 

 

No Separation of Powers Problem With Captive-Bred Exemption under Endangered Species Act

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in Friends of Animals v. Jewell that Congress did not violate separation of powers when it enacted legislation ordering the Fish and Wildlife Service to reinstate a categorical exemption for captive-bred animals under the Endangered Species Act.

The ruling is a blow to endangered-species advocates, because it permits the FWS to grant an exemption to the ESA's prohibition on taking or possessing an endangered species without going through the previous individualized-exemption application process. In other words, FWS can now grant a blanket exemption to all holders of captive-bred endangered species without publicizing individual applications and individual exemptions--and also without allowing interested parties to weigh in.

The case arose when the FWS issued the Captive-Bred Exemption to the ESA's general prohibition on taking or possessing an endangered species. The Exemption meant that all captive-bred herds of three antelope species got an automatic pass, without having to go through the individual-application process in Section 10(c) of the ESA.

But Friends sued, arguing that the Exemption violated Section 10(c) of the ESA. The district court agreed, citing the plain language of Section 10(c), which says, "[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." (Emphasis added.)

After the district court struck the Exemption, the FWS backed off and withdrew the Exemption. But then Congress passed "Section 127," which ordered the FWS to "reissue the final rule published on September 2005," that is, the Exemption.

Friends sued again, this time arguing that Section 127 violated separation of powers--in particular, the rules in Plaut v. Spendthrift Farm, Inc. and United States v. Klein. (These cases were on full view in the Court's recent ruling in Bank Markazi.) The lower court dismissed the case, and the D.C. Circuit today affirmed (although on slightly different grounds).

The court rejected Friends' argument that Section 127 violated Plaut, because Section 127 is prospective legislation (and not a retroactive revival of a dismissed case, in violation of Plaut):

Section 127 is not retroactive legislation because it does not establish what the law was at an earlier time. Likewise, Section 127 does not apply to a case already decided and does not overturn the court's determination in [the earlier case]--it simply alters the prospective effect of [the ESA's prohibition on taking or possessing an endangered species without an individual exemption] by exempting U.S. captive-bred herds of the three antelope species from the Act's . . . prohibitions going forward.

The court rejected Friends' argument that Section 27 violate Klein, because Section 127 simply "amends applicable law":

On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption "without regard to any other provision of statute or regulation that applies to issuance of such rule." By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by [the ESA].

The court also held that Friends had informational standing, based on the language of the ESA, which says that "[i]nformation received by the Secretary as part of any application [for an exemption] shall be available to the public as a matter of public record at every stage of the proceeding." According to the court, this was enough for Friends, an endangered-species advocacy organization, to assert informational standing.

Daily (Re)Reads: Judicial Impartiality

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.”  Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

But while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new. 

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay.  As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary. 

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant. 

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult.  Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions). 

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage.  If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge. 

 [image via]

Ninth Circuit Revives Student Group's First Amendment Claim

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit yesterday revived a student group's First Amendment retaliation complaint against the Arizona Board of Regents for pulling the plug on the group's funding in response to the group's public advocacy.

The ruling keeps this free speech case alive and sends it back to the district court.

The case arose when the Arizona Students' Association used its student-generated fees to push a ballot initiative that would increase funding for public education. In response, the state Board of Regents, which collected the fees and distributed them to the ASA, decided to withhold the fees that it already collected for the Spring 2013 semester and to make it harder for the ASA to collect future fees.

The ASA sued, but the district court dismissed the case. The court said that the Board enjoyed immunity under the Eleventh Amendment and, in any event, the complaint failed to state a claim.

The Ninth Circuit reversed. The court ruled that the ASA could (and did) state a Young claim for injunctive relief, but that the group failed to name individual Board members, as required under Young. The court said that the lower court should have granted ASA's motion to amend its complaint in order to name individuals and to comply with Young.

As to the merits, the appeals court ruled that ASA stated a plausible First Amendment retaliation claim. The court rejected the arguments that the Board had no obligation to pay for ASA's speech in the first place and that the fees were not a valuable government benefit:

ABOR had no affirmative obligation to collect or remit the ASA fee, but having done so for fifteen years at no cost, ABOR could not deprive the ASA of the benefit of its fee collection and remittance services in retaliation for the ASA's exercise of its First Amendment rights. ABOR's fee collection falls within the range of government benefits we have previously recognized as sufficiently valuable to give rise to a retaliation claim. Indeed, the ASA alleged that its student fees were allocated to its efforts to exercise core political speech. As we have previously held in other First Amendment retaliation cases, and as we now hold in this case, the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment.

Seventh Circuit: Teacher Has No First Amendment Claim For Offensive Classroom Speech

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A high school teacher confiscates a note passed in class containing rap lyrics with a racial slur and then engages the class in a well-intentioned but poorly executed discussion of why such words are hurtful and must not be used." The school board suspends the teacher under its "written policy that forbids teachers from using racial epithets in front of students, no matter what the purpose."  Does the teacher have a First Amendment claim?

In its brief opinion today in Brown v. Chicago Board of Education, the Seventh Circuit unequivocally answers "no." 

In short, the Court says, Garcetti v. Ceballos (2006) "dooms" the teacher's claim.  Brown was speaking as a teacher - - - and not as a citizen - - - and thus even under Pickering v. Board of Education (1968), there is no First Amendment right in the public employment context.

As the court states, "Brown is indignant that he was suspended for using a racial slur while attempting to teach his students why such language is inappropriate. His frustration is understandable, but it is not legally actionable." [There's some good reporting from when the suit was filed about the incident and the teacher Lincoln Brown from The Chicago Reader]

The court says that "the Board may have acted in a short‐sighted way when it suspended him for his effort to educate the students about a sensitive and socially important issue, but it did not trample on his First Amendment rights.”

As Chief Judge Diane Wood begins her opinion, the school board's action is within the category of "stupid but constitutional." Wood refers to the late Justice Scalia's quip that all federal judges should have a stamp with that slogan.  

 

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