Constitutional Law Prof Blog

Fourth Circuit: Non-Disparagement Clause in Police Misconduct Settlement Violates First Amendment

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

In its opinion in Overbey v. Mayor & City Council of Baltimore, the Fourth Circuit held that non-disparagement clauses in settlement of police misconduct claims violates the First Amendment.

Writing for the majority, Judge Henry Floyd, described the non-disparagement clauses that the Baltimore Police Department inserted in 95% of its settlement agreements. Here, Ashley Overbey sued the city for being arrested in her home when she called 911 to report a burglary, resulting in a settlement of $63,000, complete with the usual non-disparagement provision. The Baltimore Sun newspaper reported on the settlement as it went before a city agency for approval, including a negative comment about Overbey from the City Solicitor, and the reporting prompted some anonymous on-line comments, to which Overbey responded online. The City decided that Overbey's online comments violated the non-disparagement clause and thus remitted only half of the settlement amount, retaining $31,500 as "liquidated damages."

The court found that the settlement agreement included a waiver of Overbey's First Amendment rights (rejecting the City's argument that the First Amendment was not implicated by refraining from speaking), and further held that the waiver was "outweighed by a relevant public policy that would be harmed by enforcement." The court rejected the city's arguments, including a fairness argument that the court should enforce Overbey's sale of her speech rights:

Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.

The court thus reversed the district judge's grant of summary judgment to the city. It's opinion clearly held that "the non-disparagement clause in Overbey's settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void."

The court also considered the First Amendment claim of the other plaintiff, Baltimore Brew, a local news website, which the district judge had dismissed for lack of standing. The court held that Brew had standing based on its complaint's allegations regarding the City's pervasive use of non-disparagement clauses in settlements with police brutality claimants as it "impedes the ability of the press generally and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions." The court stressed that its conclusion was based on the allegations in the complaint and that the evidentiary record should be developed by the district judge.

Dissenting, recent appointee to the bench Judge Marvin Quattlebaum stated that since Overbey entered into the settlement agreement voluntarily — a question the majority stated it need not resolve given its conclusion regarding public interest — the courts should enforce it. The defendants, the dissenting judge argued, have an interest in finality, the certainty of their contract, and gave up their "opportunity for vindication by a judge or jury" and are thus entitled to have the non-
disparagement clause enforced.  In a footnote, the dissenting judge found the "hush money" by the majority as "harsh words," suggesting that a better view is that the plaintiff "cannot have her cake and eat it too."

[image: "hush money" circa 1883 via]

 

Fourth Circuit Tosses D.C., Maryland Emoluments Suit Against Trump for Lack of Standing

Steven D. Schwinn, John Marshall Law School

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.

We last posted here and here.

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.

SCOTUS Finds Partisan Gerrymandering Non-Justiciable Political Question

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

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.

 

Industry Group Has Standing to Appeal FOIA Ruling

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Food Marketing Institute v. Argus Leader Media that an industry group had standing to appeal a lower court's FOIA ruling that would have required government disclosure of information that would have harmed the group's members.

The case arose when Argus Leader Media filed a FOIA request with the USDA for the names and addresses of all retail grocery stores that participate in the national food-stamp program, SNAP, along with each store's annual SNAP redemption data from 2005 to 2010. USDA declined to provide the redemption data, citing FOIA's Exemption 4, which protects "confidential" commercial information. The district court ruled against the agency under the circuit's "substantial harm" test to determine whether information is "confidential." (Under the test, information is protected if its disclosure would create a substantial harm to the competitive position of the person or firm from whom the information was obtained (the participating grocery stores).) USDA declined to appeal, so the Food Marketing Institute stepped in to challenge the ruling.

The Court today ruled that the Institute had standing to appeal. The Court held that disclosure of the requested information would "likely cause some financial injury" to its members, and that a favorable Court ruling would redress that injury. As to Argus's claim that a judicial ruling would simply restore the government's discretion to withhold the data (and thus that redressability was speculative, not a sure thing), the Court said that "the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it 'will not disclosure' the contested data unless to do so by the district court's order."

The Court went on to abandon the "substantial harm" test (thus lowering the bar on Exemption 4 and making it easier for an agency to withhold information under that Exemption) and to rule in favor of the Institute:

At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is "confidential" within the meaning of Exemption 4. Because the store-level SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

SCOTUS Finds Virginia House Lacks Standing to Appeal Racial Gerrymandering

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

In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.

Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.  It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause. 

Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.

The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal.  Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.

The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.

Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.

Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting. 

The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one. 

image: map of Virginia circa 1612 via

Court Says House Lacks Standing to Challenge Trump's Border Wall Funding

Steven D. Schwinn, John Marshall Law School

Judge Trevor N. McFadden (D.D.C.) ruled today that the House of Representatives lacks standing to challenge President Trump's reallocation of appropriated funds to build a border wall.

We last posted on the case here.

The ruling deals a sharp blow to the House in this case (although one imagines it'll be appealed). But other legal challenges against the reallocation of funds are still pending. And as Judge McFadden wrote in some detail, the House has other ways to hold President Trump to account.

Recall the background: Congress declined to appropriate the full amount of money that President Trump sought for the wall; President Trump then turned to three statutory authorities, including an "emergency" authority, that he claimed authorized him to reallocate funds appropriated for other purposes for the wall; and the House sued, arguing that the reallocation violated the Appropriations Clause and federal law.

We analyzed the merits arguments here.

Today's ruling in U.S. House of Representatives v. Mnuchin says that the House hasn't suffered a sufficient concrete injury because of President Trump's reallocation of funds to build the wall. In particular, the court said that the House hasn't suffered a "complete nullification" of its appropriations powers, and therefore hasn't suffered a sufficient injury to support standing:

But unlike the plaintiffs in Raines, the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.

More still, the House can hold hearings on the Administration's spending decisions.

You might wonder why the (Republican) House had standing to challenge President Obama's decision to reallocate funds for the cost-sharing reduction payments under the Affordable Care Act, but the (Democratic) House has no standing to challenge President Trump's reallocation of funds for the wall.

I don't have a good answer, and I'm not sure the court in today's case does, either.

Judge McFadden seems to say that standing in the cost-sharing case was based on the House's constitutional (Appropriations Clause) claim, whereas this case looked more like a statutory claim (in which the House wouldn't have standing). But that seems weak: Judge McFadden himself says that the distinction between a constitutional claim and statutory claim is murky; and the constitutional claim in this case seems as strong, or stronger, than the constitutional claim in the cost-sharing case. Judge McFadden also says that allowing the House to sue here would also allow the House to sue over "every instance of the Executive's statutory non-compliance." But that's plainly not the case.

(Maybe you can understand the court's analysis better than I can. Take a crack: it's at pages 14 to 15 of the enclosed version of the opinion.)

Trump Administration Strikes at Affordable Care Act in its Entirety

Steven D. Schwinn, John Marshall Law School

The Trump Administration reversed its earlier position and argued before the Fifth Circuit last week that the entire Affordable Care Act must fall. According to the administration, that's because (1) the individual mandate is now unconstitutional and (2) the rest of the Act is inseparable from it and therefore must also fall.

The move was expected. With it, the administration now supports the district court's sweeping ruling that struck the entire Act.

The administration argues first that the individual plaintiffs have standing to lodge this challenge. The administration claims that these "individual plaintiffs are directly subject to the individual mandate and have established concrete financial injuries from it." It argues that it doesn't matter that there's now no means of enforcing the mandate (after Congress set the tax penalty at $0), because the plaintiffs have been harmed by higher insurance prices and fewer insurance choices resulting from the (inseverable) guaranteed-issue and community-rating provisions.

The administration goes on to argue that the mandate is now unconstitutional, because the tax penalty is set at $0. The administration claims that the $0 tax penalty transforms the mandate from a congressional action based on its taxing authority (held valid in NFIB) to a congressional action based on its Commerce Clause authority (held invalid under NFIB). As a result, the administration claims that the mandate is unconstitutional.

Finally, the administration claims that all other provisions of the Affordable Care Act are inseverable from the mandate, and therefore must fall, too. The administration points to congressional intent and Court rulings that the guaranteed-issue and community-rating provisions are tied up with the individual mandate; and it argues that all other ACA provisions are, too, because their operation would fundamentally change from the ways that Congress intended when the mandate and the guaranteed-issue and community-rating provisions fall.

The administration's position, if accepted by the Fifth Circuit, would mean that the entire ACA goes away, including the individual mandate; the guaranteed-issue and community-rating provisions; and the health-care exchanges, coverage limits, requirements to cover dependent children, and restrictions on high-cost insurance plans.

First Circuit Says Massachusetts Has Standing to Challenge Contraception Mandate Exemptions

Steven D. Schwinn, John Marshall Law School

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.

Federal Judge Enjoins Texas anti-BDS Statute as Violative of First Amendment

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

In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.

HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.

Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.

On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006).  He concluded:

Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.”  Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.

Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.

Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute.  As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.

Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."

Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.

The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:

Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89.  Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).

[some citations omitted].

 

 

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Steven D. Schwinn, John Marshall Law School

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 post[]conviction 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.

SCOTUS Hears Oral Argument on Virginia Racial Gerrymandering, Bethune-Hill Redux

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

The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.  Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.

Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. 

On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates  Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "

During that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so."  While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as  the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view.  There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court.  The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.

On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.

If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.

[image: Virginia House of Delegates 2012 via]

District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation

Steven D. Schwinn, John Marshall Law School

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). 

Fourth Circuit Finds Public Official Violated First Amendment Rights of Constituent on Facebook

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

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.

Court Says Plaintiffs Don't Not Have Standing to Challenge Trump's 2-for-1 Regulatory EO

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.

District Court Dismisses Maryland's Obamacare Case Against the Feds for Lack of Standing

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.

Ninth Circuit Halts Interim Rules on ACA Contraception Exemptions, but Only as to Plaintiff States

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.

Court Tosses San Francisco's Challenge to Trump Walk-Back of Regulatory Guidance

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.

Organizations Have Standing to Challenge USDA Inaction on Birds (again), but Lose (again)

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."

Fifth Circuit Says No Standing to Challenge Mississippi Flag

The Fifth Circuit ruled that plaintiffs lacked standing to challenge a Mississippi town's decision to fly the state flag over city hall as a violation of the Fair Housing Act. The ruling ends the case.

The plaintiffs in Mississippi Rising Coalition v. City of Ocean Springs, Mississippi, challenged a city council resolution requiring the state flag to be flown over city hall and other municipal buildings. They claimed that flying the flag, which includes the Confederate battle flag, amounted to "racial steering" in violation of the FHA.

But the Fifth Circuit ruled that they lacked both Article III and statutory standing. As to Article III, the court simply pointed to a 2017 ruling, Moore v. Bryant, also denying standing to plaintiffs challenging the state flag, but under equal protection: "That Plaintiff alleges that he personally and deeply feels the impact of Mississippi's state flag, however sincere those allegations are, is irrelevant to . . . standing analysis unless Plaintiff alleges discriminatory treatment." The court said that "[i]f exposure to a flag does not injure a plaintiff for equal protection purposes, exposure to the same flag does not injure a plaintiff for FHA purposes either."

As to statutory standing under the FHA, the court said that flying the flag is not a "discriminatory housing practice," and that the plaintiffs therefore weren't "aggrieved persons" under the Act.

District Court Says Members of Congress Have Standing to Sue President for Emoluments Violations

Steven D. Schwinn, John Marshall Law School

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.