Wednesday, July 10, 2019
The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.
The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.
The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.
The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:
To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.
Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:
And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.
The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.
Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.
Thursday, June 27, 2019
In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.
Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection.
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause.
And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.
Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962). The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook"). It is not that there is no relief, the majority concludes. While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.
In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities." Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government. The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts. As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used. As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"
Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.
Thursday, May 30, 2019
The Ninth Circuit ruled today that a lower court had jurisdiction over environmental organizations' lawsuit against the United States Forest Service under the "citizen suit" provision in the Resource Conservation and Recovery Act.
The ruling reverses the lower court decision on this point and remands the case for further proceedings related to the merits.
The case, Center for Biological Diversity v. United States Forest Service, started when the Center and others sued the USFS for its failure to address the use of lead ammunition by hunters in Arizona's Kaibab National Forest. According to the plaintiffs, scavenger species, including the California condor, suffer from lead poisoning after they ingest lead ammunition left in animal carcasses by hunters. The Center sought declaratory and injunctive relief pursuant to the RCRA's citizen-suit provision.
The district court dismissed the case, ruling that it amounted to a request for an advisory opinion. The Ninth Circuit reversed.
The Ninth Circuit held that the case was not an advisory opinion. The court said that the Center's challenge presents a "genuine adversary issue between the parties," and that "a ruling in the Center's favor would require USFS to mitigate in some manner--not necessarily by banning the use of lead ammunition in the Kaibab--the harm caused by spent lead ammunition, thereby leading to a change in USFS's operation of the Kaibab."
The court rejected the lower court's conclusion that any judicial ruling would amount only to a recommendation. That's because the RCRA specifically grants the courts jurisdictions over this type of claim and relief, including jurisdiction "to restrain any person who has contributed or who is contributing to [a substantial endangerment to health or the environment], to order such person to take such other action as may be necessary, or both." The court also rejected the lower court's conclusion that any order "would be an improper intrusion into the domain of the USFS." The court said that this is exactly what the RCRA authorizes, and that this position, if accepted, "would preclude courts from issuing injunctions against expert administrative agencies, which, of course, we regularly do."
The court also rejected the USFS's argument that the courts should "declin[e] jurisdiction out of deference to the policy choices of the other branches of the federal government." The court said that the RCRA grants it jurisdiction, and that it has a "virtually unflagging obligation . . . to exercise the jurisdiction given [it]."
The case goes back to the district court for further proceedings related to the merits.
Friday, May 3, 2019
The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."
Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.
The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.
The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."
The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.
The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.
Friday, April 26, 2019
In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.
The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.
Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.
At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."
The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.
via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall.
In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016). Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:
It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].
The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.
Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states.
April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Wednesday, April 10, 2019
Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge.
Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.
The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.
DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively."
Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.
So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.
Applying Havens Realty Corp. v. Coleman, the court held that
because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in postconviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."
But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost beyond those normally expended to carry out its advocacy mission.'"
As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."
The court also ruled that the plaintiffs' claims weren't ripe for review.
The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.
The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.
The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:
The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.
Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.
At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.
Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."
Wednesday, March 13, 2019
District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation
Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.
The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.
The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.
The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.
As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing."
As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."
The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier).
Saturday, March 9, 2019
The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.
The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.
The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.
Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."
The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.
The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.
The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.
The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.
The court remanded the case to the district court to consider Thuraissigiam's legal claims.
Thursday, February 21, 2019
The D.C. Circuit ruled in al-Tamimi v. Adelson that claims by Palestinians that pro-Israeli American individuals and entities conspired to support genocide in disputed territories does not present a non-justiciable political question. The court remanded the case so that it can move forward.
The case involves Palestinian nationals' and Palestinian-Americans' claims that certain pro-Israeli American individuals and organizations funneled money to Israeli settlements, which then used the funds to train a militia of Israeli settlers to kill Palestinians and confiscate their property. In particular, the plaintiffs alleged that some or all of the defendants (1) engaged in civil conspiracy to rid the disputed territory of all Palestinians, (2) committed or sponsored genocide and other war crimes, (3) aided and abetted the commission of genocide and other war crimes, and (4) trespassed on Palestinian property. The plaintiffs brought their claims under the Alien Tort Statute and the Torture Victims Protection Act.
The district court held that the case raised non-justiciable political questions and dismissed the complaint.
The D.C. Circuit reversed. The court said that the plaintiffs' complaint reduced to two questions for the court: (1) Who has sovereignty over the disputed territory?; and (2) Are Israeli settlers committing genocide? The court ruled that the first question raised a political question, because it "plainly implicates foreign policy and thus is reserved to the political branches." But it ruled that the second question didn't:
An ATS claim, then, incorporates the law of nations. And it is well settled that genocide violates the law of nations. Genocide has a legal definition. Thus, the ATS--by incorporating the law of nations and the definitions included therein--provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. . . . We are well able, however, to apply the standards enunciated by the Supreme Court to the facts of this case. . . .
In light of the statutory grounds of plaintiffs' claims coupled with Zivotofsky I's muteness regarding Baker's four prudential factors, we believe that whether Israeli settlers are committing genocide is not a jurisdiction-stripping political question. Accordingly, although the question who has sovereignty over the disputed territory does present a "hands-off" political question, the question whether Israeli settlers are committing genocide does not.
The court held that the first question was extricable from the rest of the case, and therefore the lower court could move forward on the second question. (The second question doesn't require resolution of sovereignty over the disputed territories; it only asks whether Israeli settlers are committing genocide in the disputed territories.)
February 21, 2019 in Cases and Case Materials, Courts and Judging, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)
Tuesday, February 12, 2019
Judge Randolph D. Moss (D.D.C.) ruled last week that Public Citizen doesn't not have standing to challenge President Trump's executive order requiring agencies to revoke two regs for every one they adopt.
The unusual ruling in this unusual case comes because of the unusual procedural posture: the government moved to dismiss for lack of standing, even as Public Citizen moved for partial summary judgment on standing.
The ruling simply means that the case can move forward--first, on standing. The next step: the court will schedule a conference to determine how best to finally decide the standing question. At issue: Whether President Trump's EO is actually causing agencies not to adopt regulations (that then harm Public Citizens or its members).
After the court initially dismissed the case for lack of standing, Public Citizen amended its complaint to allege "purchaser standing" under circuit law. Under that doctrine, a plaintiff can allege standing based on an agency's failure to regulate, if the consumer wanted to purchase a product that would have been subject to that regulation. As the court explained, with regard to the vehicle-to-vehicle regulation--one of the five that Public Citizen challenged:
Plaintiffs now [state] that "[t]he delay of the V2V rule is depriving" two of their members "of the opportunity to purchase vehicles with this desired feature." Although that addition might seem minor, it signals a significant change in Plaintiffs' theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have "purchaser standing" were they to sue in their right and that their interests are sufficient to sustain Public Citizen's associational standing to sue. . . .
Fleming attests that she plans to purchase a new car "in the next 5 years or so," and Weissman attests that she plans to buy a new car "in the next 5-7 years." Both attest that they would like their new cars to include V2V technology. They assert that the delay in finalizing the rule "will negatively affect [their] ability to purchase a new car with this safety system" and that they will "be limited in [their] ability to purchase the vehicle[s] [they] desire."
Under circuit precedent, "the inability of consumers to buy a desired product may constitute an injury-in-fact 'even if they could ameliorate the injury by purchasing some alternative product.'" "That holds true here and provides a sufficient basis to reject the government's argument that Fleming and Weissman face no threat of injury because they can, in any event, buy a V2V-equipped Cadillac CTS sedan, Lexus, or Toyota."
But still there's the question of causality (and the related question of redressability). In particular: Did President Trump's EO cause the failure to regulate, and would a court order redress the plaintiffs' injuries? The court said that Public Citizen plausibly pleaded causation (and thus denied the government's motion to dismiss), but that it didn't show causation beyond genuine dispute (and thus denied Public Citizen's motion for summary judgment).
That ruling leaves the case alive--but only (at first) to decide whether the EO caused the plaintiffs' injuries.
Wednesday, January 2, 2019
For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported. The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.
Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."
The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.
image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.
Tuesday, December 18, 2018
The Judicial Council of the Tenth Circuit today tossed out the scores of complaints against Justice Kavanaugh on the ground that as a Supreme Court justice he is no longer subject to the Judicial Conduct and Disability Act. Thus, the Council lacked jurisdiction and dismissed the complaints.
Chief Justice Roberts referred to the Tenth Circuit 83 complaints, alleging that Justice Kavanaugh testified falsely to Congress in his confirmation hearings about his role in the Bush administration, that he testified falsely about his personal conduct, and that he displayed partisan bias and lack of appropriate judicial temperament--all in violation of various canons of the Code of Conduct for United States Judges.
But the Judicial Council of the Tenth Circuit ruled that the Act "effectively precludes action against an individual who is no longer a circuit, district, bankruptcy or magistrate judge." "In conclusion, Congress has not extended the Judicial Conduct and Disability Act to Supreme Court justices."
Still, this might not end the matter. As the ruling states,
The importance of ensuring that governing bodies with clear jurisdiction are aware of the complaints should also be acknowledged. Accordingly, we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information.
. . .
As with any misconduct complaint . . . any complainant has a right to seek review of this Order by filing a petition for review by the Judicial Council . . . .
Friday, December 14, 2018
The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.
The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.
The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.
The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.
The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.
The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.
The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs.
As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures.
But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.
Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.
Thursday, December 13, 2018
The Fifth Circuit dismissed Texas's case seeking a declaration that its anti-sanctuary-city bill, SB4, did not violate the Constitution. The ruling follows its opinion earlier this year upholding most of the law.
The upshot: SB4 mostly stays on the books.
In this most recent case, Texas v. Travis County, the state sought declaratory relief that SB4 did not violate various provisions of the Constitution. (Recall that SB4 is a state law that requires jurisdictions within the state to comply with federal immigration detainer requests--and, to that extent, not be sanctuary jurisdictions.) The defendants moved to dismiss for lack of standing. But the court held that under Franchise Tax Board it lacked federal-question jurisdiction (and therefore didn't reach the standing question). Here's why (quoting Franchise Tax Board):
States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the [constitutional questions that] such enforcement may raise are tested there.
[U]ntil Congress informs us otherwise, such a suit is not within the original jurisdiction of the United Sates district courts.
Because of the earlier ruling upholding SB4--and because this case merely dismisses Texas's suit for lack of jurisdiction--this case has no effect on SB4. As the court said, "[M]ost of SB4 is now in effect."
The Second Circuit ruled that a case challenging New York officials' eviction-settlement practices can move forward in federal court, despite the fact that a state-court judge ratified the settlements. The ruling is a victory for victims of the practices, and says that a civil-rights defendant can't side-step federal jurisdiction by having a state-court judge merely ratify the defendant's actions.
The case, Cho v. City of New York, arose when New York officials coerced individuals and businesses into signing settlement agreements waiving various constitutional rights in order to avoid eviction. The settlement agreements were subsequently "so-ordered" by state-court judges.
Plaintiffs sued in federal court under Section 1983, but the defendants won a district court ruling dismissing the case based on the Rooker-Feldman doctrine. (That doctrine says that a federal district court can't hear an appeal of a state-court judgment.) The Second Circuit reversed.
The court ruled that the state-court judges' acts of "so-order[ing]" the settlement agreements didn't turn the plaintiffs' federal-court case into a de facto appeal (that would have been barred by Rooker-Feldman). Instead, the state-court judges merely ratified the settlements. Moreover, the plaintiffs' harm was caused by the coerced settlement agreements themselves, not by the state-court ratification. The court explained:
The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in review of state-court decisions.
The ruling only allows the case to move forward in federal court; it says nothing about the merits.
Wednesday, December 12, 2018
Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.
The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.
San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)
The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.
The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.
Tuesday, December 11, 2018
Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.
The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.
The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.
Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote
Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.
The court also denied the plaintiff's request for further discovery.
December 11, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Judge Trevor N. McFadden (D.D.C.) ruled in American Anti-Vivisection Society v. USDA that plaintiff organizations had standing to sue the USDA for its 14-year failure to extend protections under the Animal Welfare Act to birds. But at the same time, the court ruled that the plaintiffs' Administrative Procedure Act claims failed.
The case is a reprise of PETA v. USDA, a D.C. Circuit ruling over 3 years ago.
The court recognized the D.C. Circuit's "permissive" rules on organizational standing, and said that while this case presented standing difficulties, it fell in line with PETA:
But the Plaintiffs' organizational standing allegations are similar enough to PETA II to dictate the outcome here. As there, the Plaintiffs have, "at the dismissal stage, adequately shown that the USDA's inaction injured [their] interests and, consequently, [they have] expended resources to counteract those injuries." They have alleged with enough supporting factual allegations that the challenged agency decisions "deny [them] access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities." In other words, they have plausibly "alleged inhibition of their daily operations, . . . an injury both concrete and specific to the work in which they are engaged."
This injury--an inability to gather information, publish reports, and help reduce the neglect and abuse of birds--is traceable to the Department's inaction and could be redressed by an order compelling the Department to issue regulations. And the Plaintiffs have pointed to webinars and other educational programs they must produce in the absence of applicable avian regulations. The Court finds that the Plaintiffs have standing and that it has jurisdiction to consider the merits of their arguments.
Nevertheless, the court ruled that the plaintiffs' APA claims failed, because the USDA took the "legally required" action (even if not the bird rules), and because the USDA's inaction isn't a "final agency action."
Friday, September 28, 2018
Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.
We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.
The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."
The court agreed:
[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.
The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.
September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)