Tuesday, February 19, 2019
United States Supreme Court Justice Clarence Thomas, writing a concurring opinion from the denial of certiorari in McKee v. Cosby, has essentially called for an abandonment of First Amendment concerns in the torts of defamation and libel. Interestingly, the lawsuit involves a claim by McGee, who accused actor and comedian Bill Cosby of sexual assault, for defamation based on a letter from Cosby's attorney which allegedly damaged her reputation for truthfulness and honesty. The First Circuit, affirming the district judge, found that by making the public accusation, McKee became a "limited-purpose public figure" under First Amendment doctrine and therefore would have to show not only that the statements were false, but that they were made with actual malice (knowledge of falsity or reckless disregard for the truth).
McKee had sought review of the determination that she was a limited public figure. The Court declined. Justice Thomas's concurring opinion does not address this "fact bound inquiry," but instead argues that the Court should reconsider the doctrinal basis for the lower courts' decisions, including New York Times v. Sullivan (1964), which the opinion extensively discusses. In a nutshell, Thomas argues that New York Times v. Sullivan and its progeny are "policy-driven decisions masquerading as constitutional law": there was no "public figure" doctrine of libel at common law and an originalist understanding of the First Amendment does not extend to state law torts such as defamation and libel. While New York Times v. Sullivan may seem like settled precedent entitled to respect under stare decisis, Justice Thomas notes that the Court "did not begin meddling in this area until 1964, nearly 174 years after the First Amendment was ratified."
What should we make of this thirteen page concurring opinion? It can seem a gratuitous intervention in a case in which it would not make a difference. Or it can seem just another occasion for Justice Thomas to articulate his hallmark originalism. Or it could be an invitation for lower federal judges — and for litigators — to start challenging the First Amendment actual malice standard for defamation and libel more directly. Additionally, this position is quite consonant with the President's statements that libel laws need revision and Trump's reputation as a "libel bully," although perhaps cases such as Summer Zervos lawsuit against Trump — very similar to McKee's against Cosby — Trump would be disserved by a more common law approach. But in the cases in which Mr. Trump were the plaintiff, an absence of the burden of having to prove "actual malice" would certainly work to his benefit.
Sixteen states filed suit in the Northern District of California to halt President Trump's emergency action to reprogram federal funds to build the wall. The lawsuit follows an earlier suit filed by Public Citizen, and a third one filed by environmental groups. (Both of those are in the D.C. District.)
The suits all raise similar claims (there is no "emergency" under the National Emergencies Act, and, even if there were, it doesn't unlock the authorities that President Trump is using to reprogram funds, and other cited authorities are unavailable) and ask for similar relief (a declaration that President Trump's action is unlawful, and an injunction to halt it).
In addition to declaring an emergency under the NEA, President Trump identified three sources of funds for reprogramming. First, 10 U.S.C. Sec. 2808 allows the Secretary of Defense to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." (Section 2808 funds are only available upon the President's declaration of an emergency under the NEA, so the President's emergency declaration "unlocks" those funds.) Second, 10 U.S.C. Sec. 284 authorizes the Secretary of Defense to support certain counterdrug actions on the request of another department or agency or a state or local official, including "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." (Section 284 allows the Secretary of Defense to reprogram funds without an emergency declaration under the NEA.) Finally, 31 U.S.C. Sec. 9705 provides that after reserves and required transfers, the Treasury Forfeiture Fund's "unobligated balances . . . shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency. . . ." (Section 9705 also allows action without a presidential emergency declaration.) (The proclamation also invokes the Ready Reserve provision, allowing the Secretary of Defense, upon the President's declaration of an emergency, to call up "any unit, and any member not assigned to a unit to serve as a unit . . . for not more than 24 months.")
According to the White House Fact Sheet, President Trump's action authorizes reprogramming of funds (1) from the Treasury Forfeiture Fund (Section 9705, about $601 million), (2) counterdrug activities (Section 284, up to $2.5 billion), (3) and military construction (Section 2808, up to $3.6 billion). Importantly, "[t]hese funding sources will be used sequentially and as needed."
The states argue first that there is no emergency under the NEA, and that President Trump therefore lacked authority to declare one. The complaint details the ton of evidence, much from the government itself, on illegal immigration across the southern border, crime by illegal immigrants, and drugs that cross the southern border and argues that this simply doesn't add up to an NEA "emergency."
The states claim that even if there is an emergency, the President can't unlock federal funds under Section 2808. That's because building the wall doesn't "require use of the armed forces." Moreover, the President can't reprogram counterdrug money under Section 284, because "the proposed border wall will not assist in blocking 'drug smuggling corridors.'" Finally, the President can't tap Treasury Forfeiture Funds, because the statutory criteria under that statute aren't satisfied.
The states also argue that the administration violated the National Environmental Protection Act, because it failed to prepare an Environmental Impact Assessment for the wall.
The states claim that the President's actions violate the separation of powers, encroach upon Congress's spending power, and violate the relevant statutes.
As to standing, the states argue that they'll lose federal funds and the resulting economic activity when the administration reprograms money already allocated to other projects:
If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States. The redirection of funding from authorized military construction projects located in Plaintiff States will cause damage to their economies. Plaintiff States will face harm to their proprietary interests by the diversion of funding from military construction projects for the States' national guard units. And the construction of a wall along California's and New Mexico's southern borders will cause irreparable environmental damage to those States' natural resources.
Monday, February 18, 2019
The First Circuit ruled last week that the congressionally created Board to oversee the restructuring of Puerto Rico's debt was constituted in violation of the Appointments Clause. The court, however, stopped short of halting the Board's federal lawsuit to initiate debt adjustment proceedings on behalf of Puerto Rico, giving the government 90 days to cure the appointments defect.
The ruling in Aurelius Investment v. Commonwealth of Puerto Rico puts the ball in the government's court to get the Board members properly appointed before the debt readjustment proceeding can move forward.
The case involves the Financial Oversight Management Board created under the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"). Congress created the Board to provide independent supervision and control over Puerto Rico's financial affairs and to help the Island "achieve fiscal responsibility and access to capital markets." Under the Act, Board members are appointed by the President from a slate of candidates created by congressional leadership. (If the President doesn't select a member from one of these lists, the Senate has to confirm the President's nominee. But current Board members all came from a list, without Senate confirmation.)
The Board filed for debt readjustment on behalf of Puerto Rico. Debt-holders sought to dismiss the suit, arguing that the Board lacked authority to file, because Board members weren't appointed pursuant to the Appointments Clause. The Board responded that Congress had authority to constitute the Board this way under the Territorial Clause.
The First Circuit ruled against the Board. The court first acknowledged that the Territorial Clause gives Congress broad authority over U.S. territories, but rejected the argument that the the Clause is so powerful as to allow Congress to bypass the Appointments Clause. The court applied the specific-governs-the-general canon and held that the specific Appointments Clause prevails over the more general Territorial Clause. Moreover, the court said that the Territorial Clause doesn't allow Congress to override the requirement of other structural provisions, like presentment (under the Presentment Clause); so, too, it it doesn't allow Congress to override the requirements of the Appointments Clause.
The court also rejected the claim that the nondelegation doctrine, which operates more flexibly in territories (allowing Congress wider berth to delegate lawmaking authority), gives Congress room to bypass the Appointments Clause. Moreover, the court rejected arguments based on congressional control over the D.C. courts, and declined to read the Insular Cases as creating an Appointments Clause-free-zone in Puerto Rico.
As to the Appointments Clause itself, the court ruled that Board members are "officers" and therefore subject to the Clause, because the positions are "continuing," the incumbent exercises significant authority, and that authority is exercised pursuant to the laws of the United States. On this last point, the court noted that "[e]ssentially everything [Board members] do is pursuant to federal law." The court distinguished high-level Puerto Rican officials who are elected by Puerto Ricans, even though their ultimate authority traces to Congress. "So the elected Governor's power ultimately depends on the continuation of a federal grant. But that fact alone does not make the laws of Puerto Rico the laws of the United States, else every claim brought under Puerto Rico's laws would pose a federal question."
Finally, the court held that Board members are "principal" officers, because, under Edmond, "[t]hey are answerable to and removable only by the President and are not directed or supervised by others who were appointed by the President with Senate confirmation." As such, they must be nominated by the President, with advice and consent of the Senate.
The court declined to dismiss the Board's Title III petitions, however, because "[a]t a minimum, dismissing the Title III petitions and nullifying the Board's years of work will cancel out any progress made towards PROMESA's aim of helping Puerto Rico 'achieve fiscal responsibility and access to the capital markets.'" Moreover, the court stayed its ruling for 90 days to give the government time for Senate confirmation.
Saturday, February 16, 2019
Public Citizen and the Frontiera Audubon Society sued President Trump for declaratory and injunctive relief yesterday over the president's declaration of a national emergency in order to reallocate funds to build the wall. The lawsuit, filed in the District of Columbia, is the first of (undoubtedly) many.
The lawsuit, Alvarez v. Trump, alleges that President Trump unlawfully invoked the National Emergencies Act because there is, in fact, no emergency, and that he unlawfully reallocated funding from Defense Department construction projects and drug interdiction efforts to build the wall. The complaint details the government's now well known statistics about immigration at the Southern border, and related matters, and quotes from President Trump's press conference yesterday: "I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster"--a statement seemingly at odds with an "emergency." (But remember that the Supreme Court, in Trump v. Hawaii, upheld the travel ban under the President's authority to suspend entry of aliens if entry "would be detrimental to the interests of the United States," under the INA. In doing so, the Court managed to disregard so much of what President Trump actually said about the travel ban--which had nothing to do with "the interests of the United States." This suggests that the Supreme Court will be quite deferential to the President when the wall case gets to the high Court.)
The complaint alleges that the President violated the separation of powers by encroaching on Congress's appropriations power. In short: Congress only appropriated $1.35 billion for the wall; President Trump invoked the NEA to reallocate funds from other pots, even though there was no emergency; in so reallocating appropriated funds, President Trump encroached on Congress's power of the purse.
The complaint does not allege that the NEA's definition of "emergency" delegates too much lawmaking authority to the executive in violation of the nondelegation doctrine.
The plaintiffs include landowners along the border, who have been told that the government would use their land to build a wall, if it got the money to do so.
Friday, February 15, 2019
In its opinion in Free the Nipple v. City of Fort Collins, the Tenth Circuit upheld the district judge's preliminary injunction against a public-nudity ordinance that imposes no restrictions on male "toplessness" but prohibits women from baring their breasts below the areola, Fort Collins, Colo., Mun. Code § 17-142 (2015). The district judge dismissed the First Amendment challenge, but later found that the plaintiffs had a likelihood of success on their Equal Protection Clause challenge and that a preliminary injunction from enforcing the statute was warranted.
Writing for the majority, Judge Gregory Phillips relied heavily on the United States Supreme Court's most recent decision on equal protection and gender, Sessions v. Morales-Santana (2017). The majority first concluded that as a gender-based classification, the ordinance merited intermediate scrutiny. While the city agreed the classification was gender-based, it had argued that only "invidious discrimination" on the basis of gender merited intermediate scrutiny. Judge Phillips noted that only when the classification is facially neutral but has disparate impact is the issue if "invidiousness" relevant.
The city also argued that women's and men's breasts had important physical differences. Judge Phillips considered several sources, adding that although the court was "wary of Wikipedia's user-generated content," it agreed with the district judge that there were inherent physical differences between men's and women's breasts, but "that doesn't resolve the constitutional question." Instead, the majority opinion stressed that the court should beware of such generalizations and their potential to "perpetuate inequality."
In its application of intermediate scrutiny, the majority analyzed the three interests asserted by the city:
- protecting children from public nudity,
- maintaining public order, and
- promoting traffic safety.
As to protecting children, the majority agreed with the district judge's finding quoting experts that the city's interest rested on negative stereotypes and citing Morales-Santana, the majority concluded that "laws grounded in stereotypes about the way women are serve no important governmental interest."
As to public order and traffic safety, the majority agreed that in "the abstract," these were both important governmental interests. However, the court stated that it suspected that the city was actually more concerned with the sex-object stereotype that the district judge had described, quoting experts. Moreover, it noted that the cases which the city relied upon held that the "nebulous concepts of public morality" actually justified the ban rather than interests in public order or traffic safety. The majority also concluded that the female-only toplessness ban was overbroad - and suggested that the city could "abate sidewalk confrontations by increasing the penalties for engaging in offensive conduct." In other words, the majority concluded that rather than criminalize women's behavior because it might incite some people, the city could criminalize people who acted on their incitement.
The majority candidly recognized that it had the "minority viewpoint" and other courts in divided opinions - including the Seventh Circuit - have rejected such challenges.
In dissent, Judge Harris Hartz argued that intermediate scrutiny should not apply at all, in part because there are real differences between men and women as to their breasts, and that intermediate scrutiny should not be diluted by applying it in this instance. Instead, Judge Hartz argued that only rational basis should apply, which the ordinance easily passed.
The constitutionality of sex-specific nudity bans that apply to women's breasts is long-standing: our earlier discussion is here, linking to a discussion from Dressing Constitutionally about the 1992 New York case which the majority cites. Yet with the split between the Tenth and Seventh Circuits now apparent, it may be ripe for United States Supreme Court resolution.
[image: "Photograph of Gerald R. Ford, Jr., and Two Unidentified Men in Bathing Suits" via]
Third Circuit Finds No Property Interest in Continued Salary in Professor's Procedural Due Process Challenge
In its opinion in McKinney v. University of Pittsburgh, the Third Circuit rejected a procedural due process challenge to the university's reduction of a professor's salary by 20%. Reversing the district judge, the Third Circuit unanimously found that the professor did not have a property interest in continued salary at the same rate under the university policy.
The policy had no explicit provision describing salary decreases, but did provide that "[e]ach faculty or staff member performing satisfactorily will receive a percentage increase of the size determined for that year for maintenance of real salary.” There were substantial questions about whether McKinney was performing satisfactorily and the decrease came only after several years of poor performance reviews. But the heart of the issue was whether the university policies established the type of property interest in his continued base salary sufficient to be recognized under Board of Regents v. Roth (1972) and Perry v. Sindermann (1972).
While the United States Supreme Court has never ruled explicitly on whether there is a property interest in a particular base salary, the Third Circuit discussed circuit cases requiring an "explicit assurance to that effect" in any policies. Here, while there was not a specific warning that salary could be reduced, the court found that nevertheless the language of the applicable policy was not sufficient to give McKinney a "legitimate expectation" in his base salary and thus a protectable property interest.
While the court's conclusion largely rested on its interpretation of the policy's language, it also noted that McKinney had not objected when his salary was not raised in a previous performance review, and articulated a policy of judicial restraint in the area of "academic decisionmaking."
Thursday, February 14, 2019
The Third Circuit ruled that the Pennsylvania Liquor Control Board is entitled to Eleventh Amendment immunity from a suit for monetary damages by an employee who alleged that the PLCB discriminated against him in violation of the Equal Protection Clause. The ruling ends the case.
The case, Patterson v. PLCB, arose when a PLCB employee accused the Board of discriminating against him because of his race. The employee sued for monetary damages; the PLCB moved to dismiss under Eleventh Amendment immunity; and the district court dismissed the case.
The Third Circuit affirmed. The court ruled that the PLCB, an "independent" state agency, is entitled to Eleventh Amendment immunity under the circuit's three-part balancing test. The court said first that "the state is not legally responsible for adverse judgments, the PLCB can satisfy a judgment using revenue obtained from liquor sales, and the PLCB is responsible for its own debts"--weighing against immunity. Second, the court said that the state treats the Board as an arm of the state--the Board is separately incorporated, it has its own power to sue and be sued, it's immune from state taxes, and state law considers the Board an arm of the state--weighing in favor of immunity. Finally, the court said that the Board's governing structure and oversight by the state weigh in favor of immunity. On balance, the court held that the Board gets immunity.
Wednesday, February 13, 2019
On February 25, the Court will hear oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.
In the Second Circuit's divided opinion in Halleck v. Manhattan Community Access Corporation (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.
But before reaching that heart are sticky issues involving whether the First Amendment applies at all given the complex statutory and regulatory schemes governing "public access" television. Additionally, the conflation of the state action threshold for all constitutional claims and the doctrine of "public forum" under the First Amendment can make the analysis murky. As a further complication, the most applicable precedent is Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) which the majority opinion in Halleck by Judge Jon Newman accurately describes as "a case that generated six opinions spanning 112 pages of the United States Reports," in which "five Justices expressed differing views on whether public access channels were public forums." Judge Newman acknowledged that there was not only disagreement among the Justices, there was disagreement among the Circuits and District Courts, but ultimately declared:
With all respect to those courts that have expressed a view different from ours, we agree with the view expressed by Justices Kennedy and Ginsburg in Denver Area. Public access channels, authorized by Congress to be “the video equivalent of the speaker’s soapbox” and operating under the municipal authority given to MNN in this case, are public forums, and, in the circumstances of this case, MNN and its employees are subject to First Amendment restrictions.
Writing a dissent on this issue in the Second Circuit, Judge Dennis Jacobs essentially criticized the conflation of the state action and First Amendment public forum issues, arguing that the majority opinion
private property leased by the Government for public expressive activity creates a public forum; a facility deemed to be a public forum is usually operated by Government; action taken at a facility determined to be a public forum usually is state action; the First Amendment applies to a person acting at such a facility if the person has a sufficient connection to Government authority to constitute state action; and here, the Borough President’s designation of MNN to administer the public‐access station is sufficient.
[citations to majority opinion omitted]. Judge Jacobs would have applied state action doctrine under the Second Circuit requiring that a private entity can only be deemed a state actor if there is compulsion by the state, or joint action with the state (an entwinement analysis), or when the private entity has been delegated a public function by the state. In his concurrence, Judge Lohier argued that there was state action under the public function analysis, but for Judge Jacob, the operation of an "entertainment facility" was not a traditional public function: "And it is fortunate for our liberty that it is not at all a near‐exclusive function of the state to provide the forums for public expression, politics, information, or entertainment."
Looking forward to the oral argument at the Supreme Court, it will be worth noticing whether the Justices focus on public forum doctrine under the First Amendment or on state action doctrine or whether the problematical convergence of the two doctrines continues.
In its thorough opinion in Davison v. Randall (& Loudoun County), the Fourth Circuit earlier this month concluded that the interactive component of the Facebook Page of Phyllis Randall, the Chair of Loudoun County, Virginia constituted a public forum and that the Chair engaged in classic viewpoint discrimination violating the First Amendment when she banned a constituent from posting on the page.
The Fourth Circuit's unanimous opinion by Judge James Wynn affirms the opinion by District Judge James Cacheris which we extensively discussed here.
However, for the first time on appeal the government defendants raised the argument that the individual constituent who was temporarily banned, Brian Davison, lacked Article III standing because he did not suffer an injury in fact. Judge Wynn's opinion first found that the plaintiff evinced an intent to engage in the proscribed conduct in the future — here, commenting on Facebook Pages of the government official — which was easily satisfied given that he was "active in local politics." Second, Judge Wynn's opinion found that there continued to be a credible threat of future "enforcement" by the government, especially given past actions and that Randall had not "disavowed" future enforcement.
Judge Wynn's opinion for the Fourth Circuit on the state action threshold issue agrees with the district court's opinion that there is state action. Judge Wynn wrote that the issue of whether there is sufficient "color of state law" under 42 U.S.C. §1983 is "synonymous with the more familiar state action requirement applicable to Fourteenth Amendment claims" and the analysis for each is identical. The precise contours of that analysis do not admit to a "specific formula" according to the opinion, instead meriting consideration of the totality of the circumstances and whether there is a sufficiently close nexus. Importantly, here the court concluded that the official used the power and prestige of her office to damage the plaintiff constituent based upon events which arose out of her official status.
On the First Amendment merits, Judge Wynn's opinion found that the Facebook Page — or portions of it — created a public forum, an issue that is intertwined with the state action issue. For the public forum question, the Fourth Circuit, like the district judge, again discussed the specifics of the Facebook Page and interactive component with its invitation for ANY Loudoun resident to make comments on ANY issues. The court noted the language from the Supreme Court's opinion in Packingham v. North Carolina (2017) commenting that social media as currently the most important place for the exchange of views. Judge Wynn rejected the government's arguments that Facebook was a private website that cannot be converted to a public forum, noting that the forum analysis under the First Amendment applies to private property dedicated to public use. Judge Wynn also rejected the government's argument that the Facebook Page was exempt from First Amendment analysis as government speech, again noting that it specifically invited constituents to participate.
Interestingly, the Fourth Circuit analogized to Halleck v. Manhattan Community Access Corp (2nd Cir. 2018), which, as the opinion discussed in a footnote, is now before the United States Supreme Court on certiorari (our preview is here). But the Fourth Circuit distinguished the issues before the Court in Halleck as being state action issues rather than the public forum issues to which it analogized.
Check out Leah Litman's piece at Take Care on the Court's orders last week in June Medical (granting a stay of the Fifth Circuit's rejection of a challenge to Louisiana's admitting-privileges requirement for doctors who perform abortion) and Dunn v. Ray (granting a stay of the Eleventh Circuit's stay of execution for an inmate who was denied an imam to attend his execution). Litman argues that these rulings "are not really about the district court's general role as fact-finders. They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to--who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards."
Tuesday, February 12, 2019
The Fourth Circuit rejected an eleventh-grade student's Establishment Clause and Free Speech Clause claims against school administrators and the district for including lessons on Islam in a world history course. The ruling ends the challenge and leaves the lessons in place.
The case, Wood v. Arnold, involves a particular reading and a separate particular exercise in a "Muslim World" unit within a larger world history class. The reading, which appeared on a PowerPoint slide, said, "Most Muslim's [sic] faith is stronger than the average Christian." (Underlining in original.) The exercise required students to fill in the blanks for this statement: "There is no god but Allah and Muhammad is the messenger of Allah." (Underlined words were blank in the original.)
A student challenged the two lessons under the Establishment Clause and Free Speech Clause. The Fourth Circuit rejected those claims.
The court ruled that, given the larger context, the lessons did not violate the Lemon test: they had a sufficiently secular purpose (to study comparative religions); they did not inhibit or advance religion (applying the endorsement test as the second prong under Lemon, they merely "identif[ied] the views of a particular religion," and didn't endorse those views); and they did not entangle government and religion (because they were not religious in the first place).
As to free speech, the court said that the fill-in-the-blank exercise didn't violate the student's right against compelled speech, because it was a school exercise that didn't require her to adopt any particular view.
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, February 6, 2019
The Third Circuit ruled in Adams v. Governor of Delaware that the state's constitutional requirement for political balance among the judges on most state courts violated the plaintiff's free association rights under the First Amendment. The ruling means that plaintiff James Adams can throw his hat in the ring for state judicial positions, even if his independent party status would otherwise bar his appointment under the balancing requirement.
The case tests Delaware's constitutional requirement that most state courts have political balance on the bench between the two major political parties. (The provision is at Article IV, Section 3 of the Delaware Constitution.) The governor's appointments are thus restricted by available slots for Democrats or Republicans. And in most cases the provision makes no room for independents or other party candidates for the bench. (Delaware's judges are appointed by the governor on the advice of a judicial nominating commission, with confirmation by the state Senate. When advertising for open positions, the commission designates available slots by party--"Democrat" or "Republican.")
The court ruled that restriction violated Adams's free association rights under Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois. First, the court (creating a split with the Sixth and Seventh Circuits) concluded that state judges were not policy-making positions or confidential positions:
Judges simply do not fit this description. The American Bar Association's Model Code of Judicial Conduct instructs judges to promote "independence" and "impartiality," not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be "unswayed by partisan interests" and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges "must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will." Independence, not political allegiance, is required of Delaware judges.
[T]he question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. . . .
To the extent that Delaware judges create policy, they do so by deciding individual cases and controversies before them, not by creating partisan agendas that reflect the interests of the parties to which they belong. . . . [T]he operation of the judicial branch is not "so intimately related to [Delaware] policy" that the Governor would have "the right to receive the complete cooperation and loyalty of a trusted advisor [in that position]."
Next, the court said that even if the state's interest in partisan balance on the bench was a compelling interest, the constitutional requirement of balance wasn't the only (or narrowest) way it could achieve that interest.
Judge McKee concurred and wrote separately "to note the potential damage to the image of the judiciary [in states that select judges in general elections preceded by partisan political campaigns] and the extent to which it can undermine the public's faith in the judges who are elected."
Tuesday, February 5, 2019
United States District Judge Finds Exclusion of Puerto Rican Resident from Benefits Violates Equal Protection
In his opinion in United States v. Vaello-Madero, United States District Judge for the District of Puerto Rico, Gustavo Gelpí, entered summary judgment for the defendant in a suit by the United States seeking to recoup SSI disability payments. Mr. Vaello-Madero had been receiving SSI benefits while living in New York and the federal government continued to deposit the monthly payment into his checking account even after he relocated to Puerto Rico. The SSI statute defines persons eligible for SSI as living in the "United States," and by definition Puerto Rico from the United States, 42 U.S.C. §1382c(e).
Judge Gelpí rejected the government's contention that this exclusion was supported by the Territorial Clause, Article IV §3 cl. 2, which although it gives Congress a "wide latitude of powers" is not a "blank check" to "dictate when and where the Constitution applies to its citizens," citing Boumediene v. Bush (2008).
However, Judge Gelpí credited Vaello-Madero's argument that the exclusion of citizens of Puerto Rico from SSI benefits violated the equal protection component of the Due Process Clause of the Fifth Amendment. Judge Gelpí relied on United States v. Windsor (2013) in which the United States Supreme Court found DOMA unconstitutional, stating that as in Windsor the SSI statute was based on animus. Judge Gelpi gestured toward the possible applicability of a higher level of scrutiny - mentioning that US citizens residing in Puerto Rico are "very essence of a politically powerless group, with no Presidential nor Congressional vote, and with only a non-voting Resident Commissioner representing their interests in Congress" and noting that a "de facto classification based on Hispanic origin is constitutionally impermissible" - but held that, as in Windsor, rational basis was not satisfied.
Importantly, Judge Gelpí found that the government's interests advanced to support the exclusion of Puerto Rico in the statute, cost and nonpayment of federal income tax by Puerto Rican residents, were "belied by the fact that United States citizens in the Commonwealth of the Northern Mariana Islands receive SSI disability benefits."
Judge Gelpí's opinion ends with strong language:
federal legislation that creates a citizenship apartheid based on historical and social ethnicity within United States soil goes against this very concept [of Equal Protection and Due Process]. It is in the Court’s responsibility to protect these rights if the other branches do not. Allowing a United States citizen in Puerto Rico that is poor and disabled to be denied SSI disability payments creates an impermissible second rate citizenship akin to that premised on race and amounts to Congress switching off the Constitution. All United States citizens must trust that their fundamental constitutional rights will be safeguarded everywhere within the Nation, be in a State or Territory.
However, the opinion stops short of declaring 42 U.S.C. §1382c(e) facially unconstitutional and enjoining its enforcement. Judge Gelpí does issue summary judgment in favor of Vaello-Madero in an opinion sure to be used as precedent in other similar proceedings if the United States does not appeal.
Monday, February 4, 2019
Judge Ellen Lipton Hollander (D. Md.) dismissed Maryland's case against the federal government for a declaration as to the constitutionality and enforceability of the Affordable Care Act and an injunction to get the government to enforce it. Judge Hollander concluded that the state lacked standing.
At the same time, the court recognized that Maryland might establish standing in the future--if the administration actually fails to enforce the ACA.
Maryland threw all of its standing-spaghetti at the wall, but still it wasn't enough to overcome what the court called the speculative nature of its harm. Maryland argued that the government's failure to enforce the ACA would harm its proprietary and financial interests (because the state set up systems, including an exchange, under the ACA, and because the state would be on the hook for uninsureds' care); quasi-sovereign interests (ensuring that the state and its residents get to participate in the ACA); and sovereign interests (in the creation and enforcement of its insurance and healthcare regulatory regime).
But the court said Maryland's harms were too speculative, even given the state's allegations in a second amended complaint that specifically detailed the administration's efforts to undermine the ACA. (Importantly, the court concluded that Maryland hadn't sufficiently pleaded that the administration would fail to enforce the ACA--not that nonenforcement would lead to the harms that Maryland cited.) In short:
Here, the State does not fear an imminent risk of enforcement. Rather, it fears nonenforcement, which it claims would result in significant costs and harm to the State. Whereas the executive agencies are responsible for enforcing the law and can therefore be expected to bring enforcement actions, they are categorically prohibited from flouting the law. To establish a plausible inference that an agency will imminently flout the law, particularly one affecting millions of people and billions of federal dollars, requires more persuasive allegations that defendants imminently intend not to enforce the ACA.
The President's profound disdain for the ACA cannot be seriously disputed. But, the State's allegations do not create a plausible inference of a substantial or certainly impending risk that the Trump Administration will cease enforcement of part or all of the ACA. Neither the President's zealous attempts to repeal the statute, nor his derisive comments about it, support an inference that he will fail to enforce the law.
Friday, February 1, 2019
In its en banc opinion in American Beverage Association v. City and County of San Francisco the Ninth Circuit unanimously found that the San Francisco ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance provided that advertisements for Sugar-Sweetened Beverages (SSB) include a warning:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
It further defined advertisements and importantly provided detailed instructions regarding the form, content, and placement of the warning on SSB Ads, including a requirement that the warning occupy at least 20% of the advertisement and be set off with a rectangular border.
Recall that the Ninth Circuit panel had similarly found that the SF ordinance most likely violated the First Amendment, reversing the District Judge's failure to grant a preliminary injunction.
The problem of the level of scrutiny to apply when the government compels speech in a commercial setting is one that has been reoccurring. In short, the choice of standards is between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Judge Graber noted that the Ninth Circuit had previously decided that the more lenient test of Zauderer applied in CTIA - The Wireless Ass'n v. City of Berkeley. However, a closely divided United States Supreme Court in National Institute of Family & Life Advocates (NIFLA) v. Becerra (2018), "applied the Zauderer test without deciding whether that test, in fact, applied" and found that a California statute mandating disclosures by crisis-pregnancy centers violated the First Amendment. But, according to Judge Graber's opinion, while NIFLA required the Ninth Circuit to reexamine the approach to challenges to compelled commercial speech, "nothing in NIFLA suggests that CTIA was wrongly decided," especially given the concern with health and safety warnings as permissible.
Under Zauderer, the usual factors require that the compelled disclosure be factual, non-controversial, and not unjustified or unduly burdensome, and then application of the lenient standard of a substantial government interest to which the mandated disclosure is reasonably related. Here, Judge Graber's opinion for the court concluded that the warning was unduly burdensome given the mandated size of the warning as 20% of the image.
While Judge Graber's opinion for the en banc court is relatively succinct, several other judges wrote opinions to disagree with the reasoning but not the result. Judge Sandra Ikuta, who authored the panel opinion, which was issued before the Supreme Court's opinion in NIFLA, argued that NIFLA provided a (new) framework mandating that the compelled speech regulation be considered a First Amendment content-based regulation subject to heightened scrutiny unless a Zauderer exception applies. In another concurring opinion, Judge Morgan Christen, joined by Chief Judge Sidney Thomas, agreed with the majority that Zauderer applied, but concluded that the warning did not survive the "purely factual" and "noncontroversial" factors of Zauderer. A third concurring opinion, authored by Judge Jacqueline Nguyen, objected to the application of Zauderer outside the context of false or misleading speech and argued that the more intermediate scrutiny test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) should apply.
These varying opinions suggest that the issue of the First Amendment consequences of states requiring warnings and thus arguably infringing commercial speech is far from resolved, although the agreement on the result here may mean that this is an unlikely case for Supreme Court review.
The Fourth Circuit ruled in McClure v. Ports that the Maryland Transit Authority didn't retaliate against a local union president in violation of the First Amendment when it revoked his access privileges to MTA property in reprisal for his protected speech. The court also dismissed the plaintiff's Fourth Amendment claim.
The case arose when David McClure, President of the Amalgamated Transit Union Local 1300, led a public advocacy campaign against unsafe MTA policies and operations. He later represented a worker in a disciplinary hearing, where the MTA claimed that he verbally harassed an MTA hearing officer.
Citing the harassment, the MTA required McClure to get permission before entering MTA's offices, and revoked his keycard access to its facilities. After McClure several times re-entered MTA properties without permission (in order to represent union workers), the MTA had him escorted out by police (the basis of his Fourth Amendment claim).
McClure sued, arguing that the MTA retaliated against him in violation of the First Amendment by requiring permission to enter its properties and by revoking his keycard access.
The Fourth Circuit disagreed. The court assumed that McClure engaged in protected speech, and that the MTA retaliated against him because of that speech. But it held that the MTA's retaliatory actions didn't amount to unconstitutionally adverse behavior. According to the court, that's because McClure's interest in maintaining access to MTA property was "slight when compared to the government's interest in regulating such access."
On the one side of the scale, the court said that McClure was never entitled to enter MTA property: the collective bargaining agreement permitted union representatives' access only on permission of the MTA; McClure could have represented union members at grievance hearings at off-site locations (an option that the MTA offered); and McClure's keycard access was extended simply by grace of the MTA. On the other side, the MTA's interest in restricting access to its property, including private offices and garages with heavy machinery, was "weighty."
Wednesday, January 30, 2019
The Eighth Circuit ruled that the Second Amendment doesn't obviously protect the right to carry a concealed weapon in a vehicle. The ruling comes on the heels of the Supreme Court's decision to take up a case that could set the level of review for Second Amendment challenges.
The Eighth Circuit ruling came in a challenge to a federal criminal conviction for felon possession of a handgun. The defendant argued that the felon-possession ban violated the Second Amendment as applied to him. (Facial challenges have failed before, and would have failed here, under Heller, which said that a ban on felon possession is "presumptively lawful.") The court said part of the defendant's as-applied challenge necessarily included his particular circumstances--including the fact that he carried his gun on the floor board under the driver's seat of his vehicle--and that the Second Amendment protects that particular conduct. The court said that the defendant didn't argue that his particular conduct (again, including the fact that his gun was under the driver's seat of his vehicle) was protected by the Second Amendment, and therefore he forfeited his challenge.
But the court wrote that even if he preserved the challenge, he would have lost: "It is not plain or obvious that the Second Amendment protects Adam's conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle."
Judge Kelly concurred, but argued that the defendant's as-applied challenge shouldn't have hinged on the particular fact that the gun was concealed in a vehicle. Instead, it should have looked to whether the felon-possession ban met the Second Amendment standard given the defendant's "facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections."
Friday, January 25, 2019
Judge Emmet G. Sullivan (D.D.C.) today denied the government's request to stay the court's earlier order vacating the government's restrictions on asylum pending appeal. The ruling means that the court's order will remain in place--and the government can't enforce its crabbed "credible fear" standard in expedited removal proceedings--while the government appeals the earlier ruling.
Recall that the court halted DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings, because those standards violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious under the Administrative Procedure Act. (AG Sessions initiated the change in a ruling in Matter of A-B-, and DHS followed up with administrative guidance.) Those standards restricted claims by individuals who claim asylum based on a fear of domestic violence and gang violence.
The government claimed that the court only had authority to rule on the government's standards with regard to the plaintiffs in this case, and not across the board.
But the court rejected that argument, pointing to the language of the INA and the legislative history. The court also wrote that the government won't be irreparably harmed, and that third parties (other immigrants subject to the government's standard) would be harmed with a stay.
The ruling underscores the court's original order on the merits.
Judge Richard J. Leon (D.D.C.) earlier this week denied a temporary restraining order in favor of the federal employees who sued to get backpay and to not have to go to work during the shutdown. Judge Leon ordered further argument next Thursday, but the case is now likely moot (in light of today's agreement to get things going again, even if only temporarily).
The ruling means that the court declines to order the government to do anything for the employees, and leaves things to the political branches to work it out.
Judge Leon wrote in explicit separation-of-powers terms (and animated text--all emphasis in original):
But I want and need to make something very clear: the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches. We are an independent, co-equal branch of government, and whether or not we can afford to keep our lights on, our oath is to the Constitution and the faithful application of the law. In the final analysis, the shutdown is a political problem. It does NOT, and can NOT, change this Court's limited role. Of that I am very certain.
But a TRO is designed to freeze the state of affairs, not throw the status quo into disarray. The TROs sought here would do the latter. Moreover, the emergency relief standard is a sliding scale, and one of the factors I have to weigh is whether granting relief sought is in the public interest. [One group of plaintiffs] would effectively have me order the Federal Aviation Administration to pay [their] unpaid salaries with money that the FAA does not have right now. As plaintiffs well know, Congress has the power of the purse, not me. I cannot grant injunctive relief in that form.
[Another group of plaintiffs] would have me, in effect, give all currently excepted federal employees--numbering in the hundreds of thousands across dozens of agencies--the option not to show up for work tomorrow. These are employees who perform functions that the relevant agencies have determined bear on the safety of human life and/or the protection of property. If I were to issue a TRO, there is no way to know how many of these excepted employees would choose not to report to work tomorrow, and there is no way to know what public services would therefore go unprovided.
It would be profoundly irresponsible under these circumstances--with no record whatsoever telling me what government functions would be impacted--for me to grant that TRO. At best, it would create chaos and confusion--at worst, catastrophe!