Monday, July 2, 2018

Fifth Circuit Clarifies: Nonfinal Decisionmaker Can Be Liable for Retaliation for Free Speech

The Fifth Circuit ruled last week in Sims v. City of Madisonville, that a nonfinal decisionmaker can be liable for a retaliatory discharge against an employee in violation of the First Amendment.

The ruling clarifies the law in the Fifth Circuit and aligns the court with all the other circuits to have addressed the issue. It also means that future nonfinal decisionmakers in the Fifth Circuit are now on notice (and the law is clear, for qualified immunity purposes): You may be liable for actions you take against employees in retaliation for their protected First Amendment speech.

The case involved a police officer's lawsuit against the city and another officer (but not the final decisionmaker) for retaliatory discharge in reprisal for his speech about the defendant-officer's official conduct. The defendant-officer sought qualified immunity.

In a somewhat unusual move, the court took up the first prong of the two-part qualified immunity test in order to get to its holding on the plaintiff's right. Qualified immunity shields an official from a constitutional tort unless (1) the official violated the plaintiff's constitutional rights and (2) the right was clearly established at the time. Because courts can address either prong  first, they often (or almost always) address the second prong first, and grant qualified immunity because a right wasn't clearly established. But this means that they don't get to the first prong--whether there was a constitutional violation in the first place. That leaves the law unsettled, which then invites qualified immunity on the second prong in future like cases. Or as the court said: "Continuing to resolve the question at the clearly established step means the law will never get established."

That's exactly what happened here. Fifth Circuit law took a detour on the issue after courts misread an earlier ruling. That led to confusion in the circuit about what the law was. And that, in turn, led to a string of dismissals on qualified immunity grounds because, well, the right wasn't clearly established.

So the court joined all the other circuits to have addressed the issue and ruled that nonfinal (mid-level) decisionmakers can be liable for retaliatory action, so long as their actions were a "causal link" in the retaliatory action.

As numerous courts of appeals have recognized, individual liability for a government official who violates constitutional rights, including First Amendment ones, turns on traditional tort principles of "but-for" causation. If an individual defendant's animus against a coworker's exercise of First Amendment rights is a link in the causal chain that leads to a plaintiff's firing, the individual may be liable even if she is not the final decisionmaker.

The ruling did nothing for the plaintiff in this case, though. That's because at the time of the action (before the court ruled in this case), the law was still unsettled in the circuit--there was no clearly established right--and so the court granted qualified immunity to the defendant under the second prong.

The court also rejected the plaintiff's due process claims.

July 2, 2018 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Sunday, July 1, 2018

Sixth Circuit Narrows Window for State Failure-to-Warn Claims Against Generic Manufacturers

The Sixth Circuit ruled last week in McDaniel v. Upsher-Smith Labs, Inc., that the Federal Food, Drug, and Cosmetic Act preempted a plaintiff's state failure-to-warn claims against a generic drug manufacturer for failure to include a Medication Guide with the prescription drugs.

The case narrows the already wee-bit window left open for plaintiff claims against generic manufacturers by the Supreme Court in PLIVA v. Mensing. That case held that the FDCA preempted state tort law that required manufacturers to use a stronger label. As the McDaniel majority explained:

In Mensing, patients who had taken generic metoclopramide and developed tardive dyskinesia sued the generic manufacturers for failing to update the warning labels to adequately advise of the medication's risks. They claimed that state tort law obligated these manufacturers to use a stronger label. But FDA regulations require sameness between the warning labels of a brand-name drug and its generic counterpart. The generic manufacturers were in a bind. If they strengthened the label to satisfy state law, they'd run afoul of their federal duty of sameness; if they retained the label to satisfy federal law, they'd fall short of their state-law duty to provide adequate labeling. Finding it impossible for the generic manufacturers to comply with state and federal law, the Supreme Court held that state law must give way and the tort claims were preempted.

Mensing left a narrow opening for plaintiffs' state failure-to-warn claims: They have to be based on conduct that violates the FDCA, but can't be a critical element of the claim. Chief Judge Cole explained in partial concurrence, partial dissent:

Implied preemption leaves open a narrow gap for state failure-to-warn claims against generic drug manufacturers that resides between its two forms--impossibility and obstacle preemption. The claim must be premised on conduct that violates the FDCA to avoid impossibility preemption. This is so because the FDCA requires a generic drug to have the same warnings as its brand-name counterpart (under the federal duty of sameness), so that simultaneous compliance with any state duty to supply different warnings would be impossible. At the same time, to avoid obstacle preemption, the violation of the FDCA cannot be "a critical element" of the claim [because the FDCA authorizes only the federal government, not individual plaintiffs, to enforce the FDCA].

Circuit law recognizes that a plaintiff can thread this needle: in Fulgenzi v. PLIVA, the court held that a plaintiff's failure-to-warn claim survived preemption, because the claim "relie[d] upon the adequacy of the warnings and the causation of her injuries," and not the "[f]ailure to update from one adequate warning to another." "On the merits, whether PLIVA ha[d] violated its federal duties [was] irrelevant to the adequacy of its warnings."

But the court distinguished Fulgenzi here: "But here, as explained above, adequacy of the warnings is not the issue. Rather, it is Upsher-Smith's alleged failure to ensure the amiodarone Medication Guide's availability for distribution--the failure to comply with a federal regulation that only the Federal Government may enforce--that is the ballast steadying McDaniel's claim." The court pointed to repeated references in McDaniel's complaint that the defendant failed to meet FDCA standards.

Chief Judge Cole argued that Fulgenzi applied:

McDaniel's Tennessee failure-to-warn claims are no different. In her complaint, she alleges that Upsher-Smith violated the federal duty of sameness by failing to provide warnings in the form of a medication guide. But she cannot be faulted for doing so [in order to avoid impossibility preemption, described above]. . . .

McDaniel's claims are premised on a violation of an independent Tennessee duty to warn, not federal law. "The alleged breach arises from the same act"--namely, the failure to provide a medication guide. Indeed, it must arise from the same act to avoid impossibility preemption. "[B]ut the legal basis is different." McDaniel's claims depend on whether the warnings provided were inadequate and proximately caused her late husband's death. Because the fact of a federal-law violation is not a necessary element of those claims, they are not subject to obstacle preemption . . . .

July 1, 2018 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Check it Out: Stern on Kennedy, Gerrymandering, and Redistricting Commissions

Check out Mark Joseph Stern's piece in Slate, Partisan Gerrymandering Is About to Get Much Worse. Stern writes that Justice Kennedy's retirement will mean more than just that the Court likely won't hear partisan gerrymandering challenges; it likely will reverse its OK of independent and other kinds of redistricting commissions:

If voters approve the independent redistricting commission [in Michigan's ballot initiative], Republican state legislators are almost certain to challenge it in court. And if their lawsuit reaches the Supreme Court, Roberts will have the opportunity to turn his 2015 dissent [in Arizona State Legislature v. Arizona Independent Redistricting Commission] into law. In the process, he could strike down not only Arizona's commission, but also California's, which similarly removes legislators from the business of redistricting.

Depending on how broadly the court rules, it could put other progressive electoral reforms on the chopping block as well. If the U.S. Constitution gives state legislatures near-absolute control over redistricting, then bipartisan commissions could also be doomed.

July 1, 2018 in Elections and Voting, News | Permalink | Comments (0)

Check it Out: Liptak on Free Speech's Right Turn

Check out Adam Liptak's piece in The NYT, How Conservatives Weaponized the First Amendment.

The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to rule for conservative speech than for liberal speech.

The piece draws on Lee Epstein, Andrew D. Martin, and Kevin Quinn's 6+ Decades of Freedom of Expression in the U.S. Supreme Court.

July 1, 2018 in First Amendment, News, Speech | Permalink | Comments (0)