SCOTUS Rules FOIA Exception Applies to Flu Comment

Back in U.S. Fish and Wildlife Service v. Sierra Club, 592 U. S. ____ (2021), the U.S. Supreme Court maintained that the deliberative process privilege provides protection against disclosure under the Freedom of Information Act (FOIA) to in-house draft biological opinions which are both predecisional and deliberative, even if the drafts reflect the bureaus’ last views about a proposition. Justice Amy Coney Barrett wrote the majority opinion, her first since joining the courtroom. .

Facts of the Case

Even the Environmental Protection Agency (EPA) proposed a rule in 2011 regarding”cooling water intake structures” utilized to cool industrial gear.

Adhering to this required consultation, the Services prepare an official”biological opinion” (known as a”hazard” or”no jeopardy” biological opinion) Changing whether the agency’s proposal will jeopardize the occurrence of endangered or endangered species.” After consulting with the Services, the EPA made changes to its proposed rule, and the Services received the revised version in November 2013. Staff members at NMFS and FWS shortly completed draft biological opinions concluding the November 2013 planned rule was likely to sabotage particular species. Staff members delivered those drafts to the relevant decisionmakers within each service, but decisionmakers at the Services publicly approved the drafts nor shipped them into the EPA. The Services instead shelved the draft opinions and agreed with the EPA to expand the period of consultation. Following these continued discussions, the EPA delivered the Services a revised proposed rule in March 2014 that differed considerably in the 2013 version. Satisfied the revised guideline was not able to harm any protected species, the Services issued a combined final”no jeopardy” biological opinion. The EPA issued its final rule the exact same day.

Sierra Club, an environmental organization, submitted FOIA requests for records related to the Services’ consultations with the EPA. FOIA requires that federal agencies make records available to the public on request, unless those records fall in one of nine exemptions. Exemption 5 incorporates the privileges offered to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client liberty, and attorney work-product privilege. The Services invoked the deliberative process privilege, which protects against disclosure documents created through an agency’s deliberations about a policy, rather than files that embody or explain a policy which the agency adopts. Even the Sierra Club sued to acquire those withheld documents. Even the Ninth Circuit Court of Appeals held the draft biological opinions weren’t privileged because although branded as loopholes, the draft opinions represented the Services’ final opinion concerning the EPA’s 2013 proposed rule.

Supreme Court’s Decision

With a vote of 7-2, the Supreme Court reversed. “The deliberative process privilege protects the draft biological feedback from disclosure because they are both predecisional and deliberative,” Justice Amy Coney Barrett wrote on behalf of the Court. “We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this ruling.”

In her opinion, Justice Barrett clarified the deliberative process privilege intends to improve agency decisionmaking by”encouraging candor and blunting the chilling effect which accompanies the prospect of disclosure.” Citing Renegotiation Bd. V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she noted that the privilege distinguishes between predecisional, deliberative files, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not.

“It isn’t always self-evident if it’s the document signifies an agency’s final choice, but one thing is apparent: A document isn’t final only because nothing else follows . Sometimes a proposal dies on the vine,” Justice Barrett wrote. “That happens in deliberations–some ideas are lost or simply languish. Yet documents speaking such dead-end notions can hardly be described as reflecting the agency’s preferred course. What matters, then, isn’t whether a document is in line, however whether it communicates a policy where the agency has settled”

Relying on this framework, the Court proceeded to conclude that the deliberative process privilege protects the draft biological feedback from disclosure because they signify a preliminary perspective –not a final conclusion –concerning the EPA’s proposed 2013 rule. In service, Justice Barrett highlighted the Services identified the records as”drafts.” While Justice Barrett confessed that the tag isn’t determinative, the Court found it was accurate in this situation given that the opinions were subject to both change and had no direct legal implications.

The Court further found that because the decision makers neither approved the drafts nor sent them to the EPA, they are better described as draft biological opinions however as”loopholes of draft biological opinions” In rejecting the arguments raised by the Sierra Club, the Court further concluded that while the loopholes could have had the practical effect of sparking EPA to revise its principle, the deliberative privilege still applies because the Services failed to treat the loopholes as closing but rather upon to further discussion.
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SCOTUS Rules FOIA Exception Applies to Environmental Opinion

Justice Amy Coney Barrett wrote the majority view, her first since joining the courtroom. .

Facts of the Case

Even the Environmental Protection Agency (EPA) proposed a guideline in 2011 regarding”cooling water intake structures” utilized to cool industrial gear.

Following this required consultation, the Services prepare a formal”biological opinion” (known as a”jeopardy” or”no jeopardy” biological opinion) Changing whether the bureau’s proposal will jeopardize the existence of threatened or endangered species.” After consulting with all the Services, the EPA made changes to the proposed rule, along with the Services obtained the revised version in November 2013. Staff members at NMFS and FWS soon completed draft biological opinions concluding the November 2013 planned rule was supposed to jeopardize particular species. Staff members sent those drafts to the applicable decisionmakers within each agency, but decisionmakers at the Services neither approved the drafts nor delivered them into the EPA. The Services instead shelved the draft remarks and consented to the EPA to expand the length of consultation. Following these continued talks, the EPA sent the Services a revised proposed rule in March 2014 that differed considerably from the 2013 variant. Satisfied the revised rule was unlikely to damage any protected species, the Services issued a joint final”no jeopardy” biological opinion.

Sierra Club, an environmental organization, submitted FOIA requests for records associated with the Services’ consultations with the EPA. FOIA requires that federal agencies make records available to the general public on request, unless all these records fall in one of nine exemptions. Exemption 5 incorporates the privileges offered to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. The Services invoked the deliberative process privilege, which protects against disclosure documents generated through an agency’s deliberations about a policy, instead of files that embody or clarify a policy which the bureau adopts. Even the Sierra Club sued to get those withheld documents. Even the Ninth Circuit Court of Appeals held the draft biological opinions were not privileged because although tagged as broadcasts, the draft remarks represented the Services’ final remark concerning the EPA’s 2013 rule.

Supreme Court’s Conclusion

“We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this ruling.”

In her view, Justice Barrett explained the deliberative process privilege aims to enhance agency decisionmaking by”encouraging candor and blunting the frightening effect which accompanies the prospect of disclosure.” V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she noted that the freedom distinguishes between predecisional, deliberative files, which are exempt from disclosuredocuments and also files representing a final agency decision and the reasons supporting it, which aren’t.

“It isn’t always self-evident whether a document signifies an agency’s ultimate decision, but only one thing is apparent: A record isn’t final only because nothing else follows it. Sometimes a proposal dies on the vine,” Justice Barrett composed. “That happens in deliberations–a few thoughts are lost or just reverted. Yet documents speaking such dead-end thoughts can barely be described as representing the agency’s chosen class. What things, then, isn’t whether a record is in line, however whether it communicates a policy where the bureau has settled”

Relying on this framework, the Court proceeded to conclude that the deliberative process privilege protects the draft biological opinions from disclosure because they reflect a preliminary perspective –not a final decision–concerning the EPA’s suggested 2013 rule. In service, Justice Barrett highlighted the Services identified all these records as”drafts.” Even though Justice Barrett acknowledged the tag isn’t determinative, the Court found it was accurate in this case given that the remarks were subject to change also had no immediate legal consequences.

The Court further found that because the decision makers neither approved the drafts nor delivered them into the EPA, they are best described not as draft biological opinions however as”drafts of draft biological opinions” In rejecting the debates raised by the Sierra Club, the Court further concluded that while the loopholes could have had the practical effect of provoking EPA to revise its principle, the deliberative privilege still applies because the Services did not deal with the drafts as final but rather upon to further discussion.
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Unanimous Court Rules FTCA Bars Suit Against Federal Officers

In Brownback v. King,592 U. S. ____ (2021), the Supreme Court ruled that the Federal Tort Claims Act barred school student James King’s claims of police brutality. The Court unanimously held that the district court’s dismissal of all King’s claims under the FTCA triggered the”ruling bar” at 28 U.S.C. § 2676 and precluded him from raising separate claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) on charm.

Facts of the Case

The FCTA allows a plaintiff to deliver certain state-law tort claims against the United States for torts committed by federal employees acting within the scope of their work, assuming that the plaintiff states six statutory aspects of an actionable claim. The FCTA’s”conclusion bar” gives that any ruling in an FTCA lawsuit”shall constitute a complete bar to any action by the claimant, by reason of the exact subject matter, against the employee of the government whose act or omission gave rise to the promise.”

James King resisted the United States under the FTCA after a vicious encounter with Todd Allen and Douglas Brownback, members of a national task force who dared King to get a fugitive. In addition, he resisted the officers separately under the suggested cause of action accepted by Bivens. The District Court dismissed his FTCA claims, claiming that the Government was resistant because the officers were entitled to qualified immunity under Michigan law, or in the alternative, that King failed to state a valid claim under Federal Rule of Civil Procedure 12(b)(6). The court also dismissed King’s Bivens claims, ruling that the officers were eligible for national qualified immunity. King appealed only the dismissal of his Bivens claims.

The Sixth Circuit Court of Appeals found that the District Court’s dismissal of both King’s FTCA claims failed to activate the decision bar to obstruct his Bivens claims. According to the appeals court, because”the district court disregarded [King]’s FTCA claim[s] for absence of subject-matter jurisdiction” when it decided that he hadn’t said a viable claim and so”did not reach the merits.”

Supreme Court’s Decision

The Supreme Court unanimously reversed. “We conclude that the District Court’s order was a ruling about the merits of the FTCA claims that may activate the ruling bar,” Justice Clarence Thomas wrote on behalf of the Court. “The conclusion of the United States Court of Appeals for the Sixth Circuit is reversed”

In reaching its decision, the Court highlighted that similar to common-law claim preclusion, the ruling bar requires a final decision”on the merits” In this case, it concluded that the District Court’s inventory ruling dismissing King’s FTCA claims”hinged on a quintessential worth conclusion: if the undisputed facts demonstrated all the components of King’s FTCA claims” It further maintained that the court’s alternative Rule 12(b)(6 ) ) holding also passed on the material of King’s FTCA claims, as a 12(b)(6) ruling concerns the values.

Since Justice Thomas explainedthe”one complication in this case is that it involves overlapping concerns regarding sovereign immunity and subject-matter jurisdiction.” In passing on King’s FTCA claimsthe District Court also decided that it lacked subject-matter jurisdiction over those claims. While the Court acknowledged that a plaintiff’s failure to state a claim under Rule 12(b)(6) does not deprive a federal court of subject-matter jurisdiction, it mentioned that in the unique circumstance of the FTCA, all facets of a meritorious claim will also be jurisdictional.

Thus, although a plaintiff need not establish a §1346(b)(1) jurisdictional element to get a court to keep subject-matter jurisdiction over his claim, because King’s FTCA claims neglected to survive Rule 12(b)(6) motion to dismiss, the court also was deprived of subject-matter jurisdiction. “Usually, a court cannot issue a ruling on the merits’when it has no jurisdiction’ because to do so is, by very definition, for a court to act ultra vires,” Justice Thomas wrote, citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998). “But where, as here, pleading a claim and pleading jurisdiction fully overlap, a ruling that the court lacks subject-matter jurisdiction may concurrently be a decision on the merits that triggers the judgment bar.”

In footnote, Justice Thomas noted that King might assert that the ruling bar does not apply in cases like his at which the tort claims under the FTCA and the related non-FTCA claims are brought in a single lawsuit. The Court did not deal with the issue because it was not addressed at the Sixth Circuit’s opinion. In a concurring opinion, Justice Sonia Sotomayor highlighted that the question of if the FTCA judgment bar covers claims brought in exactly the identical actions warrants consideration.
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SCOTUS Rules Pupils Have Standing to Bring Free Speech Suit

As stated by the Courta request for nominal compensation satisfies the redressability element required for Article III standing where a plaintiff’s claim is based on a completed breach of a legal right.

Facts of this Case

The suit was brough by former students at Georgia Gwinnett College who desired to exercise their religion by sharing their beliefs on campus while enrolled there. In 2016, Chike Uzuegbunam spoke with interested students and passed out religious literature on campus grounds. Uzuegbunam stopped after a campus police officer informed him that campus policy prohibited distributing written spiritual materials outside areas designated for this purpose. A school official later clarified to Uzuegbunam that he could speak about his religion or distribute substances only in two specified language regions on campus, and even then only after securing a license. But when Uzuegbunam got the required license and attempted to speak at a free speech zone, a campus police officer asked him to stop, now stating that individuals had complained about his speech.

Campus policy at the time prohibited utilizing the free speech zone to state anything that”disturbs the peace and/or relaxation of person(s).” The officer advised Uzuegbunam that his speech violated campus policy because it had led to complaints, and also the officer endangered Uzuegbunam with disciplinary action if he lasted. Uzuegbunam again complied with the order to stop speaking.

Another student who shares Uzuegbunam’s religion, Joseph Bradford, decided not to speak about religion because of these events. The two Uzuegbunam and Bradford sued certain college officials charged with enforcement of the faculty’s speech policies, arguing that these coverages violated the First Amendment. The students sought injunctive relief and minimal damages. The school officials ultimately opted to discontinue the challenged policies instead of to shield themand they sought dismissal on the ground that the policy shift left the students without standing to sue. The parties agreed that the policy shift rendered the students’ request for injunctive relief moot, however, contested whether the students had standing to keep the suit according to their remaining claim for nominal compensation. The Eleventh Circuit Court of Appeals held that while a request for nominal compensation can sometimes save a case from mootness, such as where a person pleads but fails to prove an amount of compensatory damages, the students’ request nominal damages could not by itself establish standing.

Supreme Court’s Conclusion

“This case asks if an award of nominal compensation by itself may redress a past injury. We hold that it could,” Justice Clarence composed on behalf of most.

As Justice Thomas clarified to establish Article III standing, the Constitution requires a plaintiff to spot the injury in fact that’s fairly traceable to the challenged conduct and to seek a remedy likely to redress this injury. To determine whether nominal compensation could remedy a previous accident, the Court looked to common law, noting that the rule at common law was that a party whose rights are vaccinated could always recover nominal damages without providing evidence of real damage. “Because nominal damages were offered at common law in analogous conditions, we conclude that a request for nominal compensation satisfies the redressability element of standing where a plaintiff’s claim is based on a completed breach of a lawful right,” Justice Thomas wrote.

While the Court acknowledged that”a single dollar often cannot offer complete redress,” it found that”to effectuate a partial remedy satisfies the redressability requirement” It further concluded that a contrary rule would result in”that the oddity of privileging small-dollar economic rights over important, but not readily quantifiable, nonpecuniary rights”

As Justice Thomas explained,”[n]ominal obligations are not a consolation prize for the plaintiff who pleads, but fails to prove compensatory damages. They are rather the compensation awarded by default before the plaintiff determines entitlement to some other type of compensation, including compensatory or statutory damages”
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SCOTUS Rules Pupils Have Standing to Bring Free Speech Suit

As stated by the Court, a petition for nominal compensation satisfies the redressability element necessary for Article III position where a plaintiff’s claim is based on a completed breach of a legal right.

Facts of this Case

The suit had been brough by former pupils at Georgia Gwinnett College who wished to exercise their own faith by sharing their beliefs on campus while enrolled there. In 2016, Chike Uzuegbunam talked with curious students and passed out religious literature on campus grounds. Uzuegbunam ceased following a campus police officer advised him that campus coverage banned distributing written religious materials outside places designated for this purpose. A college official later explained to Uzuegbunam that he could talk about his faith or distribute materials only in two specified address places on campus, and even then only after securing a permit. But when Uzuegbunam got the necessary permit and tried to talk to a free speech zone, a campus police officer asked him to quit, this time saying that individuals had complained about his address.

Campus policy at that time banned employing the free speech zone to state anything which”disturbs the calmness or relaxation of person(s).” The officer told Uzuegbunam that his address violated campus policy since it had contributed to complaints, along with also the officer endangered Uzuegbunam with disciplinary action if he continued. Uzuegbunam again complied with the order to quit speaking.

Another student who shares Uzuegbunam’s faith, Joseph Bradford, decided to not talk about faith because of these events. The two Uzuegbunam and Bradford resisted particular college officials charged with enforcement of the college’s speech policies, arguing that these coverages violated the First Amendment. The pupils sought injunctive relief and nominal damages. The faculty officials finally decided to discontinue the contested policies instead of to protect them, and they sought dismissal on the ground that the coverage shift left the pupils without having to sue. The parties agreed that the policy shift rendered the pupils’ petition for injunctive relief moot, but contested whether the pupils had standing to maintain the suit according to their staying claim for nominal compensation. The Eleventh Circuit Court of Appeals held that although a petition for nominal compensation can sometimes save a case from mootness, like where a person pleads but fails to establish an amount of compensatory damages, the pupils’ request nominal damages could not by itself establish status.

Supreme Court’s Decision

“This case asks if an award of nominal compensation by itself can redress a past injury. We hold that it could,” Justice Clarence wrote on behalf of the majority.

As Justice Thomas explained, to establish Article III standing, the Constitution requires a plaintiff to recognize the injury in fact that is fairly traceable to the challenged conduct and to look for a remedy likely to redress this injury. To determine whether nominal compensation could remedy a previous accident, the Court appeared to law, noting that the prevailing rule at common law was that a party whose rights have been invaded can always recover nominal damages without furnishing proof of actual damage. “Because nominal damages were available at common law in analogous circumstances, we conclude that a petition for nominal compensation satisfies the redressability element of status where a plaintiff’s claim is based on a completed breach of a legal ,” Justice Thomas wrote.

It further concluded that another rule would lead to”that the oddity of all privileging small-dollar financial rights over important, but not easily quantifiable, but nonpecuniary rights.”

In reaching its decision, the Court rejected the argument which compensatory damages is a prerequisite to an award of nominal damages. Since Justice Thomas explained,”[n]ominal obligations are not a consolation prize for the plaintiff who pleads, but fails to establish compensatory damages. They are the compensation awarded by default until the plaintiff determines entitlement to some other kind of compensation, for example compensatory or statutory damages.”
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Supreme Court Rules Census Suit Not Ripe for Judicial Review

The U.S. Supreme Court recently dismissed a lawsuit challenging the Trump Administration’s policy of excluding undocumented immigrants from the apportionment foundation when conducting the U.S. census. By a vote of 6-3, most concluded that the legal struggle in Trump v. New York, 592 U.S. ____ (2020), Wasn’t ripe for judicial review.  

Legal Counsel of the US Census

The Constitution further mandates that an”actual Enumeration” be conducted”each… ten decades, in such Manner as [Congress] shall by Law direct.” 

Under 2 U.S.C. § 2a(a), the President is then required to carry Congress”a statement showing the entire number of people in each State… as determined under the… decennial census of the population, and the amount of Representatives to which each State would qualify” using a mathematical formula”called the method of equal proportions.” 

Facts of the Case

Back in July 2020, President Donald Trump issued a memorandum to the Secretary of Commerce respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding”from the apportionment foundation aliens that are not in a lawful immigration status.”

To facilitate implementation”to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report,”to provide information per- mitting the Presidentto the degree practicableto practice the President’s discretion to execute the policy.” The President directed the Secretary to contain these info as well as a tabulation of population based on the criteria created by the Census Bureau for restricting each State’s residents.

This case arises from among many challenges to the memorandum brought by various States, local governments, associations, and people. A three-judge District Court held that the plaintiffs had standing to continue in federal court since the memorandum was chilling aliens and their families from responding to the census, thus degrading the quality of census data used to allocate federal funding and forcing any plaintiffs to divert funds to fight the chilling effect. The District Court concluded that the memorandum violates §141(b) by ordering the Secretary to produce 2 types of numbers–a valid tabulation derived from the census, and an invalid tabulation constituting aliens based on administrative records outside the census. The District Court further ruled that the exclusion of aliens on the basis of legal status will contravene the requirement for §2a(a) that the President nation the”lot of persons in each State” for purposes of apportionment. The District Court announced the memorandum criminal and enjoined the Secretary from containing the data needed to execute the memorandum within his §141(b) report on the President. The Government appealed.

Supreme Court’s Decision

At a per curium decision, the Supreme Court determined that it lacked jurisdiction to decide the dispute and also remanded the case back to district court with instructions to dismiss the case. As stated by the Court, the case is”teeming with contingencies and speculation which impede judicial review.”

“The President, to be certain, has made clear his desire to exclude aliens with no lawful status from the apportionment base. But the President characterized his directive by providing that the Secretary should collect information’to the degree ‘ and that aliens must be excluded’into the extent feasible,”’ nearly all wrote.   “Any forecast the way the Executive Branch may eventually execute this general statement of policy is’no longer than conjecture’ at the moment.”

Nearly all further highlighted that the Trump Administration”can’t feasibly implement the memorandum” by excluding all illegal immigrants, noting that”the policy may not prove feasible to execute in any manner at all, let alone in a way substantially likely to damage any of these plaintiffs here.” It added:”The count this is full; the present dispute involves the apportionment process, which remains at a preliminary stage. The Government’s final action will reveal both legal and practical constraints, making any prediction about future harm just that–a forecast.”

Given that it was too premature for the Court to decide the dispute, most did not address the merits of the case. “At the conclusion of the day, the status and ripeness queries both lead to the conclusion that judicial resolution of the dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of these inherent and related statutory claims presented,” the Court wrote.

Dissent

Justice Stephen Breyer wrote a dissenting view, which has been joined by Justices Sonia Sotomayor and Elena Kagan. “The Government has announced a policy to exclude aliens without lawful status from the apportionment foundation for the decennial census. The Government doesn’t deny that, if completed, the policy will damage the plaintiffs. Nor does it deny that it will execute that policy imminently (to the extent it can do so),” Justice Breyer wrote. “Under a straightforward application of the precedents, the plaintiffs have standing to sue.”

The dissenters further claimed that the plaintiffs also needs to prevail on the merits. “The simple meaning of the statutes, decades of historic practice, along with uniform interpretations from all three branches of Government attest that aliens without lawful status cannot be excluded from the decennial census exclusively due to the status. The Government’s effort to remove them in the apportionment foundation is criminal, and I feel this Court should say so,” Justice Breyer wrote.
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Supreme Court Hears Oral Arguments in Three Cases

The U.S. Supreme Court began its January sitting January 11, 2020. In light of the COVID-19 pandemic, the justices will last to hear oral arguments remotely for the foreseeable future. Below is a brief summary of the problems before the Court last week:

Pham v. Guzman Chavez: The case involves noncitizens that are susceptible to reinstated elimination orders, which can be issued once a noncitizen has illegally reentered the United States after being eliminated. While these orders are normally are not open to challenge, the migrants could pursue withholding of removal if they have a reasonable fear of persecution or torture in the states designated in their elimination orders. The question issue before the Court is whether the alien put in withholding-only proceedings is subject to the detention procedures set out in 8 U.S.C. 1231, or rather to the detention procedures set out in 8 U.S.C. 1226. Section 1231 authorizes the detention of an alien who”is arranged eliminated ” It provides the authorities”shall” detain the alien through a first 90-day”removal period,” and the authorities”may” detain the alien beyond that initial period when the alien poses a”risk to the area” or is”unlikely to comply with the order of elimination ” Meanwhile, Section 1226(a) authorizes the detention of the alien”pending a decision on whether the alien is to be eliminated from the United States.” In general, the statute expressly authorizes the authorities, in its discretion, to release the alien “bond” or”conditional parole.” The specific issue the justices should determine is”[w]hether that the detention of a person who’s subject to a reinstated removal order and who’s pursuing withholding or deferral of removal is governed by 8 U.S.C. 1231, or rather by 8 U.S.C. 1226.”

College officials stopped him because he had been out the 0.0015percent of campus in which”free speech saying” was allowed. When Chike booked a free speech space and tried to evangelize, officials stopped him because someone whined which, under College policy, transformed Chike’s speech to”disorderly behaviour” Facing field if he lasted, Chike registered suit. Another pupil, Petitioner Joseph Bradford, self-censored following hearing officials mistreated Chike. The students raised constitutional claims from the school’s enforcement of those policies, seeking compensation and prospective equitable relief to remedy that the censorship and chill. After the college changed its speech coverages post-filing, the lower courts held that Chike and Joseph didn’t adequately plead compensatory damages, and their nominal-damages claims were moot. Even the Supreme Court must now pick a question which has split the circuit courts of appeal:”When a government’s post-filing change of an undercover policy moots nominal-damages claims that vindicate the government’s previous, completed breach of a plaintiffs constitutional right.”

AMG Capital Management, LLC v. Federal Trade Commission: The closely-watched case challenges that the Federal Trade Commission’s (FTC) authority to compel monetary relief. The Federal Trade Commission Act generally”empower[s] and lead [s]” that the FTC to prevent persons from having”unfair or deceptive acts or practices in or affecting commerce.” The issue before the Court is”Whether §13(b) of the Act, by authorizing”injunction[s],’  also authorizes the Commission to need monetary relief like restitution — and if so, the scope of the constraints or requirements for this relief”

Decisions in the cases are expected prior to the Court’s term ends in June.
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SCOTUS Rules Retaining Bankruptcy Debtor’s Property Doesn’t Violate Automatic Stay

At City of Chicago, Illinois v. Fulton, 592 U.S. ____ (2021), the U.S. Supreme Court maintained that keeping estate property after the filing of a bankruptcy petition does not violate the automatic stay awarded under 11 U.S.C. § 362(a)(3). The Court’s conclusion was unanimous.

Facts of the Case

The filing of a petition under the Bankruptcy Code (11 U.S.C. §541(a)) automatically”creates an estate” which, with some exceptions, comprises”all legal or equitable interests of the debtor in property as of the commencement of the case.” Section 541 is meant to include within the home any property made available by other states of the Bankruptcy Code. Section 542 is just one particular provision, as it provides that an entity in possession of property of the bankruptcy property”will send to the trustee, and account for” that property. The filing of a petition additionally automatically”operates as a stay, applicable to all entities,” of attempts to gather prepetition debts outside the bankruptcy principle, §362(a), for example”any act to obtain possession of property of the estate or of property in your estate or to exercise control over property of the estate,” §362(a)(3).

In each case before the Court, the respondent filed a bankruptcy petition and requested that the city of Chicago (City) return his or her vehicle, which had been impounded for failure to pay fines for automobile infractions. In each instance, the City’s refusal was held by a bankruptcy court to violate the automatic stay. The Seventh Circuit Court of Appeals affirmed, concluding that by keeping ownership of these vehicles the City had behaved”to exercise control within” respondents’ property in violation of §362(a)(3).

Supreme Court’s Decision

Justice Alito delivered the opinion of the Court.

According to the Court, the plain text of the Bankruptcy Code supports its choice. As Justice Alito explained:

The language employed in §362(a)(3) suggests that only retaining ownership of estate property does not violate the automatic stay. Under this provision, the filing of a bankruptcy petition operates as a”stay” of”any action” to”exercise control” over the property of the estate. Taken together, the most natural reading of those terms–“remain,””action,” and”exercise “–is that §362(a)(3) prohibits affirmative acts which could disturb the status quo of property property as of the time when the bankruptcy petition was filed.

The Court further concluded that the respondents’ alternative reading would create at least two severe issues. To begin with, it discovered that reading §362(a)(3) to cover mere retention of property would render §542’s chief control –that a thing in possession of specific estate property”shall send to the citizenship… such property”–largely superfluous, even though §542 appears to be the provision governing the turnover of estate property. Secondly, the Court found that the respondents’ reading will render the commands of §362(a)(3) and §542 contradictory. As Justice Alito explained, Section 542 carves out exceptions for this turnover command. Under the respondents’ interpretation, an entity could be required to turn over property under §362(a)(3) even if this property were exempt by turnover under §542. According to the Courtthe background of the Bankruptcy Code affirms the reading. The Code originally included both §362(a)(3) and §542(a), however, the prior provision lacked the phrase”or to exercise control over property of the estate.” When that phrase was added by modification, Congress made no reference of altering §362(a)(3) into a optimistic turnover responsibility. It is unlikely that Congress could have made such an important change simply by adding the phrase”exercise management,” rather than by adding a cross-reference to §542(a) or another sign that it was so transforming §362(a)(3).
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SCOTUS to Hear Potential Blockbuster Voting Rights Case

Next month, the U.S. Supreme Court will notice two important voting rights cases from Arizona. The scenarios, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, involve an Arizona policy that requires voters who vote someone to do so in their own assigned precincts along with also a state law that prohibits so-called”ballot harvesting,” by which mail-in ballots are collected and returned by someone other than a voter’s caregiver, family member, mail provider, or an election officer. 

Facts of this Case

Section 2 of the Voting Rights Act prohibits voting clinics that”result[] in a denial or abridgement of the right of any citizen… to vote on account of color or race.” Such a discriminatory”result” happens if an election is not”equally open to participation” by racial minorities, providing them”less opportunity than other members of their electorate to participate in the political process and to elect representatives of their choice.”

The State of Arizona grants all citizens an equal opportunity to vote in person or by mail. But, additionally, it has voting laws in place that regulate those voting procedures. Arizona includes an”out-of- precinct policy,” that does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct. It also has a”ballot-collection legislation,” known as H.B. 2023, that enables only certain people (i.e., family and family members, caregivers, mail carriers, along with elections officers ) to handle another individual’s completed early ballot.

Both lawsuits before the Court involve the preceding provisions. In Brnovich v. Democratic National Committee, the district court declared the provisions contrary to claims under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Even though a Ninth Circuit panel confirmed, the entire Ninth Circuit, sitting en banc, reversed.

In Arizona Republican Party v. Democratic National Committee, the Ninth Circuit held that Arizona violated § 2 of the Voting Rights Act by (1) requiring peer voters to cast ballots in their assigned precincts; and (2) prohibiting”ballot-harvesting.” The federal appeals court held that because racial minorities disproportionately vote out-of-precinct and use ballot-harvesting, the Voting Rights Act compels the State to permit those clinics.

Issues Before the Supreme Court

The Supreme Court granted certiorari in the two cases on October 2, 2020. In Arizona Republican Party v. Democratic National Committee, the justices have agreed to think about the following concerns:

Whether § 2 of the Voting Rights Act pushes countries to authorize any voting practice that will be used disproportionately by racial minorities, even though present voting processes are race-neutral and Extend all voters an equal opportunity to vote; andWhether that the Ninth Circuit properly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by allegedly”unfounded” worries about voter fraud.In Brnovich v. Democratic National Committee, the justices agreed to think about the following query:

Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct, violates Section 2 of the Voting Rights Act; andWhether Arizona’s ballot-collection legislation, which permits only certain people (i.e., household and family members, caregivers, mail carriers and elections officers ) to handle another individual’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.The cases are merged and are scheduled for oral argument on Tuesday, March 2, 2021.
The article SCOTUS to Hear Potential Blockbuster Voting Rights Case appeared on Constitutional Law Reporter.

Divided Court Rules U.S. Railroad Retirement Board Decision Subject to Judicial Review

In Salinas v. United States Railroad Retirement Board, 592 U. S. ____ (2021), a busted U.S. Supreme Court held that a refusal from the U.S. Railroad Retirement Board to reopen a prior benefits determination is subject to judicial scrutiny. The decision represents the initial 5-to-4 divide in a case argued during the Court’s 2020-21 term.

Legal Background

The Railroad Retirement Act of 1974 (RRA) builds a method of disability, retirement, and survivor benefits for railroad employees. The system is administered by the U. S. Railroad Retirement Board (Board).

Section 231g of the RRA provides:

Decisions of the Board determining the rights or liabilities of any individual under this subchapter will be subject to judicial scrutiny in exactly the identical fashion, subject to the same constraints, and provisions of law shall apply in exactly the identical manner like the decision were a conclusion of rights or liabilities under the Railroad Unemployment Insurance Act [45 U.S.C. 351 et seq.] except that the time in which proceedings for the review of a determination with regard to a annuity, supplemental annuity, or lump-sum benefit may be initiated will be one year after the decision is going to have been entered upon the records of this Board and conveyed to the plaintiff.

The RUIA’s judicial review provision, 45 U.S.C. §355(f), provides:”Any claimant, or any railroad labor organization arranged in accordance with the provisions of this Railway Labor Act…, where claimant is a member, or any base-year company of the claimant, or any other party aggrieved by a final decision under subsection (c) of this division, may… obtain a summary of any final decision of this Board.”

Facts of this Case

Back in 1992, petitioner Manfredo M. Salinas began seeking disability benefits under the RRA based on serious injuries he suffered during his 15-year livelihood using the Union Pacific Railroad. Salinas’ first three applications were denied, however, he had been granted benefits after he filed his fourth application in 2013. He timely sought reconsideration of the amount and begin date of his gains. After reconsideration had been denied, he filed an administrative appeal, asserting that his third party application, filed in 2006, must be reopened because the Board hadn’t considered specific medical documents. An intermediary of this Board denied the petition to reopen because it was not created”[w]ithin four decades” of the 2006 decision, and the Board confirmed.

Salinas sought review together with the Fifth Circuit Court of Appeals. However, the court dismissed the petition for lack of jurisdiction, holding that national courts can’t review the Board’s refusal to reopen a prior benefits determination. The Fifth Circuit reported a longstanding separation among the Circuits on this problem.

Majority Decision

With a vote of 5-4, the Court held that the Board’s refusal to reopen a prior benefits determination will be subject to judicial examination.  Justice Sonia Sotomayor authored the Vast Majority opinion, which was linked with Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh.

In reaching its decision, the majority mentioned that to qualify for judicial scrutiny below 45 U.S.C. §355(f ), the Board’s refusal to reopen its own denial of Salinas’ 2006 application has to constitute”any final decision of this Board.”  It moved on to conclude that it does.

Since Justice Sotomayor clarified, the term”any final decision” is wide and reflects Congress’ intent that it be interpreted widely. Citing Smith v. Berryhill, 587 U. S. ___, ___ (2019), she included that the term also”finds Some Sort of terminal event,” such as the”final phase of inspection.”   Justice Sotomayor further emphasized that language from the Administrative Procedure Act has been interpreted to refer to an agency actions that”the two (1) markers [s] the consummation of the agency’s decision making process and (2) is just only clearly one by which rights or obligations have been determined, or from which legal consequences will flow.”

According to the majority, the Board’s refusal to reopen the prior denial of benefits fulfills these standards. First, the decision was the”terminal event” from the Board’s administrative review process. Since Justice Sotomayor mentioned, after attractive the intermediary’s denial of visiting the Board, Salinas’ only recourse was to seek judicial scrutiny. Secondly, the features of a reopening decision make it ” by which rights or obligations have been determined, or from which legal consequences will flow.” By way of example, a reopening is defined as”a conscious determination… to reevaluate an otherwise final decision for purposes of revising that decision.” It hence entails significant changes that impact benefits and obligations under the RRA. The Board reads §355(f )’s earlier reference to”some other party aggrieved by a final decision under subsection (c)” to imply that each licensed party could seek review of only”a final decision under” §355(c). Section 355(f ), however, uses the wide term”any final decision” without linking it to the earlier reference §355(c). According to the bulk, this is  a”notable omission,” since Congress used such limiting language everywhere in Section 355.

The bulk next decided that any ambiguity from the sense of”any final decision” must be resolved in Salinas’ favor under the”strong presumption favoring judicial review of administrative actions.” Even though the Board contended that many cross-references in §355 prove that §355(f ) and §355(c) are coextensive. The majority pointed out that now there are several indications that §355(f ) is broader than §355(c). Thus, it concluded that the Board didn’t satisfy the”significant burden” of showing that the statute’s”language or arrangement” forecloses judicial review.

The majority rejected several other arguments raised by the Board. First, it dismissed the Board’s effort to analogize §355(f ) to the judicial-review provision addressed in Califano v. Sanders, 430 U.S. 99 (1977), noting that the latter supply comprises an express restriction that §355(f ) does not, distinguishing Califano from this instance. Secondly, the majority rejected the Board’s argument that reopening does not qualify for judicial review since it’s merely a”refusal to generate a new conclusion” of obligations or rights, such as the refusal of reopening in Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449 (1999). In support, justice Sotomayor highlighted that the statute in Your Home did not implicate the presumption in favour of judicial review also was thinner than §231g, that simply integrates §355(f ) to the RRA. Ultimately, the majority held that the very fact that the Board could decrease to provide reopening did not indicate that, having opted to supply it, the Board could avoid the plain text of §355(f ). The Board’s decision to deny or grant reopening is ultimately optional, however, and so subject to reversal only for abuse of discretion.

Dissent

Justice Clarence Thomas authored a dissent, which was joined in dissent by Justices Samuel Alito, Neil Gorsuch, also Amy Coney Barrett. While Justice Thomas acknowledged that the majority”may well correctly translate the judicial review supply located in the Railroad Unemployment Insurance Act (RUIA),” he contended that the case concerns the judicial review supply located in the Railroad Retirement Act (RRA). According to Justice Thomas, the crucial issue is that which can be evaluated, which is addressed at the RRA.

“Only Board decisions’determining the rights or liabilities of any individual’ under the RRA are subject to judicial review,” Justice Thomas wrote. “Because the Board’s decision below did not ascertain any right or responsibility, the RRA does not provide for judicial scrutiny.”
The article Divided Court Rules U.S. Railroad Retirement Board Decision Subject to Judicial Review appeared on Constitutional Law Reporter.

US Supreme Court Rules Germany Entitled to State Immunity in the Nazi Art Case

At Federal Republic of Germany v. Philipp, 592 U. S. ____ (2021), the U.S. Supreme Court held that Germany was entitled to State immunity in a suit seeking compensation for the forced sale of medieval artwork called the”Welfenschatz” through the rise of Nazi Germany. As stated by the Courta country’s alleged taking of property by its own nationals doesn’t drop under Foreign Sovereign Immunities Act’s expropriation exception, which applies to”property obtained in breach of global law”

Facts of the Case

The respondents will be the heirs of German Jewish art dealers who formed a consortium through the waning years of the Weimar Republic to buy a collection of medieval relics called the Welfenschatz. The heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the set to Prussia to get a third of its worth.

The relics are currently maintained by the Stiftung Preussischer Kulturbesitz (SPK), an instrumentality of the Federal Republic of Germany, and exhibited at a Berlin museum. After unsuccessfully seeking settlement in Germany, the heirs introduced several common law property claims in U.S. District Court against Germany and SPK (together Germany).

The heirs contend that their claims fall within the exception for”property obtained in violation of global law,” because the coerced selling of the Welfenschatz, their property, constituted an act of genocide, and genocide is a breach of international human rights law. Meanwhile, Germany asserts that the exception is inapplicable because the applicable international law is that the global regulation of property–not the regulation of genocide–and below the global law of property that a foreign sovereign’s taking of its nationals’ property remains a domestic affair. This”domestic takings principle” assumes that what a nation does to property belonging to its citizens within its borders is not the subject of global law. The District Court refused Germany’s motion to dismiss, and also the D.C. Circuit Court of Appeals confirmed.

Supreme Court’s Conclusion

The U.S. Supreme Court reversed. It held that The term”rights in property taken in violation of global law,” as utilized at the FSIA’s expropriation exception, describes violations of the global law of expropriation and therefore incorporates the domestic takings rule. Chief Justice John Roberts wrote on behalf of the unanimous Court.

As stated by the Supreme Court, the lower courts interpreted the expropriation exception also broadly. The Court also dismissed the respondents’ argument that the expropriation exception applied because the forced purchase of this Welfenschatz lacked the ban on genocide.

“We need not determine whether the sale of the consortium’s land has been an act of genocide, because the expropriation exception is best read as imitating the global law of expropriation rather than human rights,” Chief Justice Roberts clarified. “we don’t seem to the regulation of genocide to find out whether we have jurisdiction over the heirs’ common law property claims. We seem to the regulation of property” In additional assistance, Roberts noted that the exception”places repeated emphasis on property along with property-related rights, while acts and harms we might connect with genocide are notably lacking.”

Citing Kiobel v Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013), Roberts highlighted that the Court has long recognized that”United States law governs domestically but doesn’t rule the entire planet.” Accordingly, the Court interpreted the FSIA because it will other statutes affecting international relations: to prevent, where possible,”producing friction in our relations with [other] nations and leading some to reciprocate by devoting their courts permission to embroil the United States in costly and difficult litigation.”

The Court also highlighted that a broad interpretation of the FSIA exception would invite lawsuits against the USA in foreign courts.

As a catalyst, we would be amazed –and may even initiate reciprocal actions –if a courtroom in Germany adjudicated claims by Americans who they were entitled to countless millions of dollars due to human rights violations com- mitted from the United States Government years ago. There’s no reason to expect that Germany’s response would be no different were American courts to exercise the authority asserted in this circumstance.

The Supreme Court did not address Germany’s argument that the District Court was obligated to abstain from deciding the case with international comity motives or the heirs’ alternative argument that the purchase of the Welfenschatz is not subject to the domestic takings rule because the consortium members weren’t German nationals in the time of the transaction.
The article US Supreme Court Rules Germany Entitled to State Immunity from the Nazi Art Case appeared first on Constitutional Law Reporter.

Supreme Court Considers”Hot Pursuit” in Closely Watched Fourth Amendment Instance

Even the U.S. Supreme Court heard oral arguments in several cases last week. It also declared it will continue to hear disagreements this session”in keeping with public health advice in response to COVID-19.”

The most-closely watched case is Lange v. California, which entails whether police pursuits for misdemeanors justify a warrantless entry, a matter which has divided the lower courts.  Absent consent or”exigent circumstances,” a police officer normally can not enter into a home to conduct a search or make an arrest without getting a warrant. Courts have held that exigent circumstances may exist if officials are reacting to investigating criminal action, such as being at”hot pursuit” of a fleeing suspect.

However, the Supreme Court’s exigent circumstances precedents still haven’t addressed pursuits involving suspected misdemeanors, which are by far the most common basis because of arrest. The issue before the Court at Lange is”Does pursuit of a particular man who a police officer has probable cause to believe has committed a misdemeanor reluctantly qualify as an exigent circumstance enough to allow the officer to get into a home without a warrant?”

Though the Supreme Court’s decision isn’t expected until, several justices appeared poised to reject a categorical rule allowing warrantless police pursuit of misdemeanor suspects into a home.

Below is a brief overview:

Florida v. Georgia: The long-standing dispute involving Florida and Georgia entails the rights to the water from the Apalachicola-Chattahoochee-Flint River Basin. The question this time around is”whether Florida is entitled to fair apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief from Georgia to sustain an adequate flow of fresh water to the Apalachicola Region.” Rosen v. Dai & Rosen v. Alcaraz-Enriquez: The spiritual cases, which have been consolidated for an hour of oral argument, centers on the Trustworthiness of a immigrant’s testimony.   The justices have agreed to answer 2 questions: (1) Whether a court of appeals may well assume that an asylum applicant’s testimony is credible and accurate whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without having an explicit adverse credibility determination; also (2) whether the court of appeals violated the remand principle as put forth in INS v. Ventura, 537 U.S. 12 (2002), if it decided at the first instance the respondent, Ming Dai, was eligible for asylum and entitled to withholding of removal.Decisions at each the cases are expected before the Court’s term ends in June.
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Unanimous Court Rules FTCA Bars Suit Against Federal Officers

The Court unanimously held that the district court’s dismissal of King’s claims under the FTCA triggered the”judgment bar” in 28 U.S.C. § 2676 and prevent him from raising separate claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) on charm.

Facts of this Case

The FCTA allows a plaintiff to bring specific state-law tort claims from the USA for torts committed by federal employees acting within the scope of their employment, assuming the plaintiff stated six statutory aspects of an actionable claim. The FCTA’s”conclusion bar” provides that any judgment in an FTCA suit”shall constitute a complete bar to any action by the plaintiff, with the same subject matter, against the employee of the government whose act or omission gave rise to this promise.”

James King resisted the United States under the FTCA after a violent encounter with Todd Allen and Douglas Brownback, members of a federal task force who mistook King for a fugitive. He also resisted the officers separately under the implied cause of action recognized by Bivens. The District Court dismissed his FTCA claims, holding that the Government was immune since the officers were entitled to qualified immunity under Michigan law, or instead, that King failed to state a valid claim under Federal Rule of Civil Procedure 12(b)(6). The court dismissed King’s Bivens claims, ruling that the officers were eligible for federal qualified immunity. King appealed just the dismissal of his Bivens claims.

The Sixth Circuit Court of Appeals found that the District Court’s dismissal of King’s FTCA claims did not activate the decision bar to obstruct his Bivens claims. As stated by the appeals court, since”the district court disregarded [King]’s FTCA claim[s] for absence of subject-matter authority” as it decided that he had not said a viable claim and so”did not reach the values”

Supreme Court’s Decision

The Supreme Court unanimously reversed. “We conclude the District Court’s order was a judgment on the merits of the FTCA claims that can activate the decision bar,” Justice Clarence Thomas wrote on behalf of this Court.

In reaching its decision, the Court emphasized that like common-law claim preclusion, the judgment bar requires a last decision”on the merits.” In cases like this, it concluded that the District Court’s inventory ruling dismissing King’s FTCA claims”hinged on a quintessential merits conclusion: whether the undisputed facts created all the elements of King’s FTCA claims.” It further maintained that the court’s alternative Rule 12(b)(6 ) ) holding passed on the material of King’s FTCA claims, as a 12(b)(6) ruling concerns the merits.

As Justice Thomas explained, the”one drawback in this case is the fact that it involves overlapping questions regarding sovereign immunity and subject-matter jurisdiction.” In passing on King’s FTCA claims, the District Court also decided that it lacked subject-matter authority over those claims. Though the Court acknowledged that a plaintiff’s failure to state a claim under Rule 12(b)(6) does not deprive a federal court of subject-matter authority, it noted that in the unique circumstance of the FTCA, all facets of a meritorious claim will also be jurisdictional.

Thus, even though a plaintiff shouldn’t prove a §1346(b)(1) jurisdictional element for a court to keep subject-matter authority over his claim, since King’s FTCA claims neglected to survive a Rule 12(b)(6) motion to dismiss, the court was deprived of subject-matter authority. “Generally, a court cannot issue a ruling on the merits’as it has no authority’ because to do so is, by very definition, for a court to act ultra vires,” Justice Thomas wrote, citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998). “But in the end, as here, pleading a claim and also pleading authority fully overlap, a ruling that the court lacks subject-matter authority may concurrently be a judgment on the merits that triggers the decision bar.”

In footnote, Justice Thomas noted that King could argue that the judgment bar does not apply in cases like his where the tort claims under the FTCA and the associated non-FTCA claims are brought in one lawsuit. The Court did not deal with the issue since it wasn’t addressed in the Sixth Circuit’s opinion. In a concurring opinion, Justice Sonia Sotomayor highlighted the question of whether the FTCA judgment bar covers claims caused the exact same activity warrants consideration.
The article Unanimous Court Rules FTCA Bars Suit Against Federal Officers appeared on Constitutional Law Reporter.

Unanimous Court Rules FTCA Bars Suit Against Federal Officers

In Brownback v. King,592 U. S. ____ (2021), the Supreme Court ruled that the Federal Tort Claims Act prohibits college student James King’s claims of police brutality. The Court unanimously held that the district court’s dismissal of all King’s claims under the FTCA triggered the”ruling pub” in 28 U.S.C. § 2676 and prevent him from increasing different claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) on charm.

Facts of the Case

The FCTA allows a plaintiff to deliver certain state-law tort claims against the United States for torts committed by federal employees acting within the scope of their employment, so long as the plaintiff alleges six statutory elements of an allowable claim. The FCTA’s”judgment pub” gives that any ruling in an FTCA lawsuit”will constitute a complete bar to any action by the plaintiff, with the exact identical subject matter, against the employee of the government whose act or omission gave rise to the promise.”

James King sued the United States under the FTCA following a vicious encounter with Todd Allen and Douglas Brownback, members of a federal task force who mistook King for a juvenile. He also sued the officers separately under the implied cause of action accepted by Bivens. The District Court dismissed his FTCA claims, claiming that the Government was immune since the officers were entitled to qualified immunity under Michigan law, or in the alternative, that King failed to state a valid claim under Federal Rule of Civil Procedure 12(b)(6). The court dismissed King’s Bivens claims, ruling that the officers were eligible for federal qualified immunity. King appealed only the dismissal of his Bivens claims.

The Sixth Circuit Court of Appeals found that the District Court’s dismissal of both King’s FTCA claims failed to trigger the judgment bar to block his Bivens claims. As stated by the appeals court, since”the district court dismissed [King]’s FTCA claim[s] for lack of subject-matter authority” as it determined that he hadn’t said a viable claim and so”didn’t reach the merits.”

Supreme Court’s Conclusion

“We conclude the District Court’s order was a ruling on the merits of the FTCA claims that can trigger the decision bar,” Justice Clarence Thomas wrote behalf of the Court.

In reaching its decision, the Court emphasized that like common-law claim preclusion, the ruling bar requires a final judgment”on the merits.” In cases like this, it reasoned that the District Court’s summary ruling ignoring King’s FTCA claims”hinged to some quintessential worth choice: whether the undisputed facts demonstrated all the components of King’s FTCA claims.” It further held that the court other Rule 12(b)(6) holding passed on the material of King’s FTCA claims, as a 12(b)(6) ruling concerns the values.

Since Justice Thomas explainedthe”one drawback in this case is the fact that it involves overlapping questions about sovereign immunity and subject-matter authority” In departure on King’s FTCA claimsthe District Court also determined that it lacked subject-matter authority over those claims. While the Court acknowledged that a plaintiff’s failure to state a claim under Rule 12(b)(6) generally does not deprive a federal court of subject-matter authority, it mentioned that in the unique circumstance of the FTCA, all elements of a meritorious claim are also jurisdictional.

Thus, even though a plaintiff need not establish a §1346(b)(1) jurisdictional component for a court to maintain subject-matter authority over his claim, since King’s FTCA claims neglected to survive Rule 12(b)(6) motion to dismiss, and the court was deprived of subject-matter authority. “Usually, a court cannot issue a ruling on the merits’as it has no authority’ because to do so is, by very definition, for a court to act ultra vires,” Justice Thomas wrote, citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998). “But where, as here, pleading a claim and also pleading authority entirely overlap, a ruling that the court lacks subject-matter authority may concurrently be a decision on the merits that triggers the judgment pub”

In footnote, Justice Thomas noted that King could assert that the ruling bar doesn’t apply in cases like his in which the tort claims under the FTCA and the associated non-FTCA claims are attracted in a single lawsuit. The Court didn’t address the issue as it was not addressed in the Sixth Circuit’s view. In a concurring opinion, Justice Sonia Sotomayor highlighted the question of whether the FTCA judgment pub covers claims brought in exactly the exact identical activity warrants consideration.
The article Unanimous Court Rules FTCA Bars Suit Against Federal Officers appeared on Constitutional Law Reporter.

SCOTUS Rules Litigants Can Sue Federal Officials Individually in Religious Freedom Suits

The Court’s decision paves the way for Muslims put over the”No Fly List” to chase money damages from a bunch of FBI agents in their personal capacity.

Facts of this Case

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing significant burdens on religious exercise, demonstrating a compelling fascination pursued through the least restrictive ways. In addition, it gives a person whose religious exercise has been burdened the right to seek”appropriate relief.” Congress passed the Act in the wake of the Supreme Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), that held that the First Amendment tolerates neutral, generally applicable laws that burden or prohibit religious acts even when the laws are unsupported with a narrowly tailored, compelling governmental interest. The RFRA sought to counter the effect of the holding and restore the pre-Smith”compelling interest test” by”provid[ing] a claim… to individuals whose religious exercise is substantially burdened by government.”

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are all practicing Muslims who assert that FBI agents put them around the No Fly List in retaliation because of their refusal to act as informants against their religious communities. Respondents sued different agents in their official capacities, seeking removal out of the No Fly List. They also sued the agents in their unique capacities for cash. According to respondents, the retaliation price them considerable amounts of cash: airline tickets squandered and income from project opportunities lost.

Over a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief. The District Court subsequently dismissed the individual-capacity claims for money damages, judgment that RFRA doesn’t allow monetary relief. The Second Circuit Court of Appeals reversed. It determined that RFRA’s express treatments provision, together with the statutory definition of”Government,” authorizes claims against government officials in their unique capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court reasoned that the open-ended phrase”appropriate relief” encompasses cash damages against officials.

Supreme Court’s Decision

By a vote of 8-0, the Supreme Court confirmed. “We conclude that RFRA’s express treatments provision allows litigants, when appropriate, to receive money damages against federal officials in their unique capacities,” Justice Clarence Thomas wrote on behalf of their unanimous Court.

Justice Thomas first addressed if injured parties could sue Government officials in their own capacities. In replying in the positive, Justice Thomas mentioned the plain language of this statute, writing:

RFRA’s text provides a clear response: They can. People can sue and obtain relief”against a government,” §2000bb–1(c), that can be defined to include”a branch, division, agency, instrumentality, and official (or other individual acting under color of law) of the USA.”

Since Justice Thomas said, below the RFRA’s definition, the relief that may be executed against an”official… of the Unites States” is”relief against a government.” He noted that this interpretation has been confirmed by RFRA’s use of the phrase”persons acting under color of law,” that has been interpreted by this Court in the 42 U.S.C. §1983 circumstance to allow suits against officials in their unique capacities.

Justice Thomas then turned to if the”appropriate relief” referenced in the RFRA permits for financial damages. Rejecting the government’s argument, the Court held that it does. “A damages remedy isn’t only’appropriate’ relief as seen through the lens of suits against Government workers,” he wrote. “It is also the sole form of relief that could cure some RFRA offenses. For specific injuries, like respondents’ wasted plane tickets, successful relief is composed of damages, not even an injunction.”

The Court rejected the government’s argument that it ought to be skeptical of harms against government officials because these awards could raise separation-of-powers concerns. “But there are no constitutional reasons why people must do so in its stead.”
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US Supreme Court Rejects Statute of Limitations for Military Rape

Facts of this Case

The Uniform Code of Military Justice (UCMJ) provides a military crime,”punishable by death, may be tried and punished at any time without restriction.” Other military crimes are subject to a 5-year statute of limitations.

The case revolves around three army support members convicted of rape. When they were billed, the UCMJ given that rape might be”penalized by death.” Since the Supreme Court held Coker v. Georgia, 433 U. S. 584, 592 (1977) the Eighth Amendment prohibits a death sentence for the rape of an adult woman, respondents argued they couldn’t, in actuality, were sentenced to death, and for that reason the UCMJ’s 5-year statute of limitations applies and pubs their convictions. Accordingly, it resisted the rape convictions of respondents.

Supreme Court’s Conclusion

Justice Samuel Alito wrote on behalf of this Court.

Since Justice Alito clarified the Respondents maintained that the UCMJ phrase”punishable by death” means able to punishment by death when all pertinent law has been taken into consideration. The Government characterized the phrase more like a word of art, meaning able of punishment by death under the punishment provisions of the UCMJ. While the Court acknowledged that there had been”reasonable arguments on each side,” it ultimately sided with the administration’s interpretation of this statute. In service, Justice Alito cited three reasons.

First, Justice Alito noted that UCMJ is a uniform code and that”a natural referent for a statute of limitations provision over the UCMJ is also other law in the UCMJ itself.” He explained:

In the context of this UCMJ, so, Article 120’s directive that rape might be”penalized by death” would be probably the most natural place to start looking for Congress’s response to whether rape was”punish- able by death” over the meaning of Article 43(a). We believe that’s so even if, as respondents claim the individual prohibition on”cruel or unusual punishment” in Article 55 of the UCMJ would have been held to present an independent defense from the imposition of the death penalty for rape.

Second, Justice Alito concluded that the Respondents’ interpretation of §843(a) is not the sort of limitations provision that Congress is likely to have selected. Emphasizing that clarity is an objective for which lawmakers try when enacting these provisions, Justice Alito noted the deadline for filing rape charges would be uncertain under the Respondents’ interpretation, since it would depend on an unresolved constitutional question regarding Coker’s application to army prosecutions, on the Supreme Court’s “`evolving standards of decency”’ beneath the Eighth Amendment, and also on whether §855 of this UCMJ individually prohibits a death sentence for rape.

“In summary, if we approved the interpretation of Article 43(a) embraced by the CAAF and defended by respondents, we would have to conclude that this provision set out a statute of limitations that nobody could have known with any real assurance until important and novel legal questions were resolved by this Court,” Justice Alito written. “That is not the sort of limitations provision that Congress is more likely to have selected.”

Third, Justice Alito found that the things that lawmakers are likely to take into consideration when adjusting the statute of limitations for a crime vary considerably from the factors that underlie the Court’s Eighth Amendment choices. “[S]ince the ends served by statutes of limitations differ sharply from those served by provisions such as the Eighth Amendment or Article 55 of the UCMJ, it’s not likely that lawmakers would need to tie a statute of limitations on judicial interpretations of these provisions,” he wrote.

Depending on the above, the Court concluded that that”punishable by death” is a”term of art that’s characterized by the provisions of the UCMJ specifying the punishments for the crimes it outlaws.” Accordingly, it held that the Respondents’ prosecutions were timely.
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SCOTUS Sides With New Mexico in Interstate Dispute Over Pecos River

With a vote of 7-1, the justices agreed that New Mexico must receive delivery charge for the evaporated water though water was not delivered to Texas

Facts of this Case

Even the 1949 interstate Pecos River Compact provides for equitable apportionment of using the Pecos River’s water from New Mexico and Texas. At an 1988 amended decree in the same instance, the Supreme Court appointed a River Pro to annually calculate New Mexico’s responsibilities to Texas under the Compact. The Court also embraced the River Master’s Manual, which elaborates how best to create the required calculations to ascertain if New Mexico is complying with its obligations under the Compact. As relevant, §C.5 of this Manual provides that if water is stored”in the request of Texas” in a facility in New Mexico, then New Mexico’s delivery obligation”will be decreased by the quantity of reservoir losses due to the storage”

In 2014, a tropical storm brought heavy rainfall in the Pecos River Basin. To reduce flood, Texas’s Pecos River Commissioner requested that some of the River’s water be saved in New Mexico. A few months after, the water has been released; but a significant quantity of water evaporated while the water has been held in New Mexico.

For decades afterwards, the States sought to reach an agreement on the way the evaporated water should be accounted for under the Compact. To permit those discussions to continue, the River Master outlined a process in 2015 which predicted for the future settlement of the issue. Neither State objected. When discussions eventually broke down, however, New Mexico filed a motion with the River Representative which sought delivery charge for the evaporated water. The River Master agreed, rejecting Texas’s argument that the motion was untimely and finishing the evaporated water was water stored”in the request of Texas” under §C.5 of the River Master’s Manual.

Supreme Court’s Conclusion

The Supreme Court rejected Texas’ motion, agreeing with all the River Master’s decision. “We concur with the River Master’s conclusion, and we deny Texas’s motion for review,” Justice Brett Kavanaugh wrote on behalf of most.

The Court first rejected Texas’ argument that New Mexico’s motion for credit for the evaporated water was untimely. Since Justice Kavanaugh highlighted, both parties agreed to postpone the River Master’s settlement of this evaporated-water matter. Accordingly, neither party could object to the discussion process outlined from the River Master for resolving the dispute.

The Court further found that New Mexico is entitled to delivery charge for the evaporated water. In support, the Court point to Section C.5 of the River Master’s Manual. As Justice Kavanaugh clarified:

The River Master’s Manual, that was approved by this Court in 1988, implements the Compact and speaks straight to the question: After water is saved in New Mexico”in the request of Texas,” then New Mexico’s delivery obligation”will be decreased by the quantity of reservoir losses caused by its storage” The water has been stored in New Mexico at the request of Texas, so New Mexico’s delivery responsibility must be decreased by the amount of water that disappeared through its storage.

In the end, the Court found that Texas’s counterarguments–which the stored water wasn’t actually part of the”Texas allocation” known in §C.5, which New Mexico did not”store” the water for §C.5 functions, which Texas should not be charged for any evaporation occurring from March 15 until the water had been released in August 2015–were unpersuasive.
The article SCOTUS Sides With New Mexico in Interstate Dispute Over Pecos River appeared on Constitutional Law Reporter.

SCOTUS Rules Litigants Can Sue Federal Officials Individually in Religious Freedom Suits

Back in Tanzin v. Tanvir, 592 U. S. ____ (2020), the U.S. Supreme Court unanimously held that the Religious Freedom Restoration Act of 1993’s (RFRA) state remedies supply authorizes litigants, when appropriate, to acquire money damages against federal officials in their individual skills for separating litigants’ right to free exercise of religion under the First Amendment. Even the Court’s decision clears the way for Muslims put to the”No Fly List” to chase money compensation from a group of FBI agents in their private capacity.

Facts of the Case

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. Additionally, it gives a person whose religious exercise was burdened the right to find”appropriate relief.” The RFRA sought to offset the effect of the holding and restore the pre-Smith”compelling interest test” by”provid[ing] a claim… to persons whose religious exercise is substantially burdened by government.”

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that FBI agents put them over the No Fly List in retaliation for their refusal to act as informants from their spiritual communities. Respondents sued different representatives in their official capacities, seeking removal from the No Fly List. They also resisted the representatives in their individual capacities for cash. Based on respondents, the retaliation price them considerable sums of cash: airline tickets squandered and earnings from job opportunities lost.

More than a year after respondents suedthe Department of Homeland Security advised them they could now flythus mooting the claims for injunctive relief. The District Court then dismissed the individual-capacity claims for money damages, judgment that RFRA does not permit monetary relief. The Second Circuit Court of Appeals reversed. It determined that RFRA’s express remedies supply, combined with the statutory definition of”Government,” prides claims against government officials in their individual capacities. Determined by our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended term”appropriate relief” encompasses cash damages against officials.

Supreme Court’s Conclusion

With a vote of 8-0, the Supreme Court confirmed. “We conclude that RFRA’s state remedies provision allows litigants, when appropriate, to acquire money damages against federal officials in their individual capacities,” Justice Clarence Thomas wrote on behalf of their unanimous Court.

Justice Thomas initially addressed if wounded parties may sue Government officials in their personal capacities. In answering in the positive, Justice Thomas cited the plain language of the statute, composing:

RFRA’s text gives a clear answer: They could. Persons can sue and get relief”from a government,” §2000bb–1(c), which is defined to contain”a branch, division, agency, instrumentality, and official (or other individual acting under color of law) of the USA.” §2000bb–2(1) (emphasis added).

Since Justice Thomas explained, below the RFRA’s definition, the relief which may be implemented from an”official… of the Unites States” has been”relief from a government.” He further noted that this interpretation has been supported by RFRA’s use of the term”persons acting under color of law,” which has been interpreted by this Court in the 42 U.S.C. §1983 circumstance to permit suits against officials in their individual capacities.

Justice Thomas then turned to if the”appropriate relief” referenced in the RFRA allows for monetary compensation. Rejecting the government’s argument, the Court maintained that it will. “A damages remedy is not only’proper’ relief as viewed through the lens of lawsuits against Government workers,” he also wrote. “It’s is also the only form of relief which can remedy some RFRA violations. For specific injuries, such as economists’ wasted plane tickets, effective relief is composed of compensation, not even an injunction.”

The Court rejected the administration’s argument that it ought to be careful of harms against government officials since these awards could raise separation-of-powers concerns. “But there are no inherent reasons why people have to do this in its stead.”
The article SCOTUS Rules Litigants May Spartan Federal Officials Individually in Religious Freedom Suits appeared on Constitutional Law Reporter.

US Supreme Court Rejects Statute of Limitations for Military Rape

Accordingly, the Court reinstated the convictions of three former military service members.  

Facts of this Case

The Uniform Code of Military Justice (UCMJ) provides a military offense,”punishable with death, might be tried and punished at any time without restriction.” Other military offenses are subject to a 5-year statute of limitations.

The case revolves around three military service associates convicted of rape. When they were charged, the UCMJ provided that rape may be”penalized by death” Since the Supreme Court held Coker v. Georgia, 433 U. S. 584, 592 (1977) the Eighth Amendment forbids a departure sentence for the rape of an adult woman, respondents argued they could not, in actuality, were sentenced to death, and so that the UCMJ’s 5-year statute of limitations applies and bars their own convictions. The Court of Appeals for the Armed Forces (CAAF) agreed that the relevant statute of limitations was five years. Thus, it resisted the rape convictions of respondents.

Supreme Court’s Decision

Justice Samuel Alito wrote on behalf of this Court.

As Justice Alito explainedthe Respondents claimed that the UCMJ term”punishable by death” means capable of punishment by death when all pertinent law is taken into account. The Government characterized the term more like a term of art, meaning able of punishment by passing under the punishment provisions of the UCMJ. While the Court acknowledged that there had been”reasonable arguments on both sides,” it ultimately sided with the administration’s interpretation of this statute. In service, Justice Alito cited three reasons.

First, Justice Alito mentioned that UCMJ is a uniform code which”a natural referent for a statute of limitations provision over the UCMJ is just another law at the UCMJ itself” He further explained:

From the context of this UCMJ, therefore, Article 120’s directive that rape may be”penalized by death” is probably the most natural place to start looking for Congress’s response to whether rape was”punish- able by passing” over the meaning of Article 43(a). We think that is so even if, as respondents claim that the individual prohibition on”cruel or unusual punishment” in Article 55 of the UCMJ would have been held to offer an independent defense against the imposition of the death penalty for rape.

Secondly, Justice Alito concluded that the Respondents’ interpretation of §843(a) is not the type of limitations provision that Congress is very likely to have chosen. Emphasizing that clarity is a goal for which lawmakers try when enacting such terms, Justice Alito mentioned the deadline for submitting rape charges would be unclear under the Respondents’ interpretation, as it would rely on an unresolved inherent question about Coker’s application to military prosecutions, on the Supreme Court’s “`evolving standards of decency”’ beneath the Eighth Amendment, and on whether §855 of this UCMJ independently prohibits a departure sentence for rape.

“In summary, if we approved that the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision put a statute of limitations that no one might have known together with any real assurance until important and novel legal questions were solved by this Court,” Justice Alito wrote. “This is not the type of limitations provision that Congress is very likely to have chosen.”

Third, Justice Alito discovered that the facets that lawmakers are likely to take into account when adjusting the statute of limitations for a offense vary considerably from the considerations that underlie the Court’s Eighth Amendment decisions. “[S]ince the ends served by statutes of limitations differ sharply from individuals served by provisions such as the Eighth Amendment or Article 55 of the UCMJ, it is not likely that lawmakers would want to tie a statute of limitations to judicial interpretations of such terms,” he wrote.

Based on the above, the Court concluded that that”punishable by death” is a”term of art that is defined by the conditions of the UCMJ defining the punishments for the offenses that it outlaws.”
The post US Supreme Court Rejects Statute of Limitations for Military Rape appeared early on Constitutional Law Reporter.

SCOTUS Sides With New Mexico in Interstate Dispute Over Pecos River

With a vote of 7-1, the justices agreed that New Mexico must receive delivery credit for the evaporated water though that water Wasn’t delivered to Texas

Facts of the Case

Even the 1949 interstate Pecos River Compact supplies for equitable apportionment of using the Pecos River’s water from New Mexico and Texas. In an 1988 amended decree in the same instance, the Supreme Court made a River Pro to annually compute New Mexico’s obligations to Texas under the Compact. The Court also adopted the River Master’s Manual, which elaborates how best to make the necessary calculations to ascertain if New Mexico is complying with its obligations under the Compact. As important, §C.5 of the Manual provides that if water is saved”in the request of Texas” in a facility in New Mexico, then New Mexico’s delivery obligation”will be lowered by the amount of reservoir losses due to the storage.”

In 2014, a tropical storm caused heavy rain in the Pecos River Basin. To stop flood, Texas’s Pecos River Commissioner requested that some of the River’s water be saved in New Mexico. New Mexico’s Commissioner agreed. Several months after, the water was released; but a substantial amount of water vanished while the water was held in New Mexico.

For years thereafter, the States sought to reach an agreement on the way the evaporated water ought to be accounted for under the Compact. To permit those discussions to last, the River Master outlined a procedure in 2015 that predicted for the upcoming resolution of the problem. Neither State objected. When discussions finally broke down, however, New Mexico filed a motion with the River Master that sought delivery credit for the evaporated water.

Supreme Court’s Decision

The Supreme Court rejected Texas’ motion, agreeing with all the River Master’s choice. “We concur with the River Master’s determination, and we deny Texas’s motion for review,” Justice Brett Kavanaugh composed on behalf of the majority.

The Court first rejected Texas’ argument that New Mexico’s motion for credit to the evaporated water has been untimely. As Justice Kavanaugh emphasized, both parties consented to postpone the River Master’s resolution of the evaporated-water issue. Thus, neither party may object to the negotiation procedure outlined from the River Master for solving the dispute.

The Court further found that New Mexico is entitled to delivery credit for the accumulated water. In service, the Court stage to Section C.5 of the River Master’s Manual. As Justice Kavanaugh clarified:

The River Master’s Manual, which was accepted by this Court in 1988, implements the Compact and speaks straight to the question: After water is saved in New Mexico”in the request of Texas,” then New Mexico’s delivery obligation”will be lowered by the amount of reservoir losses caused by its storage.” The water was saved in New Mexico at the request of Texas, therefore New Mexico’s delivery obligation must be lowered by the quantity of water that evaporated during its storage.

Lastly, the Court found that Texas’s counterarguments–that the saved water wasn’t actually a part of their”Texas allocation” known in §C.5, so that New Mexico didn’t”store” the water to §C.5 functions, and that Texas should not be billed for any evaporation occurring from March 15 until the water was published in August 2015–were unpersuasive.
The post SCOTUS Sides With New Mexico in Interstate Dispute Over Pecos River appeared first on Constitutional Law Reporter.

Supreme Court Rules Census Suit Not Ripe for Judicial Review

The U.S. Supreme Court recently dismissed a lawsuit demanding the Trump Administration’s policy of excluding undocumented immigrants from the apportionment foundation after conducting the U.S. census. With a vote of 6-3, the majority concluded that the legal struggle in Trump v. New York, 592 U.S. ____ (2020), was not ripe for judicial scrutiny.  

Legal Foundations of the US Census

Under two U.S.C. § 2a(a), the President is then needed to carry Congress”a statement showing the entire number of persons in each State… as ascertained under the… decennial census of the population, and the amount of Representatives to which each State would qualify” with a mathematical formulation”called the method of equal proportions.” 

Facts of the Case

The memorandum declared a policy of excluding”from the apportionment foundation aliens who aren’t in a lawful immigration status.”

To ease execution”to the maximum extent possible and consistent with all the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report,”to give advice per- mitting the President, to the extent practicable, to exercise the President’s discretion to execute the policy.” The President directed the Secretary to incorporate such information as well as a tabulation of inhabitants based on the standards promulgated by the Census Bureau for restricting each State’s inhabitants.

This case arises from one of several challenges to the memorandum brought by various States, local authorities, organizations, and people. Even a three-judge District Court held that the plaintiffs had standing to proceed in federal court because the memorandum was chilling offenders and their families from reacting to the census, thus degrading the quality of census information used to allocate federal funds and forcing a few plaintiffs to divert funds to combat the frightening effect. The District Court concluded the memorandum violates §141(b) by ordering the Secretary to produce two types of figures –a valid tabulation derived by the census, and also an invalid tabulation constituting aliens according to administrative documents beyond the census. The District Court further ruled that the exclusion of aliens on the basis of legal status could contravene the requirement in §2a(a) the President nation the”whole number of persons in each State” for purposes of apportionment. The District Court declared the memorandum unlawful and enjoined the Secretary from containing the data needed to execute the memorandum within his §141(b) report on the President. The Government appealed.

Supreme Court’s Conclusion

In a per curium decision, the Supreme Court decided that it lacked jurisdiction to decide the dispute and also remanded the case back to district court with directions to dismiss the case. As stated by the Court, the instance is”teeming with contingencies and speculation that impede judicial review.”

“The President, to be sure, has left his desire to exclude aliens with no lawful status from the apportionment base. However, the President characterized his directive by providing the Secretary should gather information’to the degree ‘ and aliens must be excluded’into the extent possible,”’ nearly all wrote.   “Any forecast the way the Executive Branch might eventually execute this general statement of policy is’no longer than conjecture’ at the time.”

The majority further emphasized the Trump Administration”can’t properly implement the memorandum” by excluding all illegal immigrants, noting that”the coverage may not prove possible to execute in any way at all, let alone in a manner substantially likely to harm any of these plaintiffs here.” It included:”The count here is complete; the current dispute includes the apportionment procedure, which remains at a preliminary phase. The Government’s final action will reveal both legal and practical constraints, making any prediction about future injury only that–a forecast.”

Given it was still too early for the Court to decide the dispute, the majority didn’t address the merits of the case. “At the conclusion of the day, the standing and ripeness queries both lead to the conclusion that judicial resolution of the dispute is premature. Consistent with our determination that standing has not been shown and the case is not ripe, we express no opinion regarding the merits of the inherent and related statutory claims presented,” the Court wrote.

Dissent

Justice Stephen Breyer authored a dissenting opinion, which has been joined by Justices Sonia Sotomayor and Elena Kagan. “The Government has declared a policy to exclude offenders with no lawful status from the apportionment foundation for the decennial census. The Government does not deny this, if completed, the coverage will harm the plaintiffs. Nor does it deny it will execute that coverage imminently (to the extent it is able to do so),” Justice Breyer wrote. “Under a simple application of our precedents, the plaintiffs have standing to sue.”

The dissenters further claimed that the plaintiffs should also prevail on the merits. “The plain meaning of the governing statutes, decades of historical training, along with uniform interpretations from all 3 branches of Government attest that extraterrestrial beings without lawful status cannot be excluded by the decennial census entirely on account of that status. The Government’s attempt to eliminate them from the apportionment foundation is unlawful, and I believe this Court should say so,” Justice Breyer wrote.
The post Supreme Court Rules Census Suit Not Ripe for Judicial Review appeared on Constitutional Law Reporter.

Supreme Court Hears Oral Arguments in Three Cases

The U.S. Supreme Court began its January sitting on January 11, 2020. In light of this COVID-19 pandemic, the justices will continue to hear oral arguments remotely for the foreseeable future. Below is a brief summary of the problems before the Court a week:

Pham v. Guzman Chavez: The case involves noncitizens who are subject to reinstated elimination orders, which can be issued when a noncitizen has reentered the United States after having been removed. While these orders are usually are not open to challenge, the migrants might pursue withholding of removal if they have a reasonable fear of persecution or torture in the states designated in their elimination orders. The question problem before the Court is whether the alien set in withholding-only proceeding is because of the detention procedures set out at 8 U.S.C. 1231, or rather to the detention procedures set out at 8 U.S.C. 1226. Department 1231 authorizes the detention of an alien who”is arranged eliminated ” It provides that the government”shall” detain the alien during a first 90-day”removal period,” and that the government”may” detain the alien beyond that first period when the alien poses a”threat to the community” or will be”unlikely to obey the order of elimination.” Meanwhile, Section 1226(a) authorizes the detention of the alien”pending a determination on whether the alien will be removed from the United States.” In general, the statute specifically authorizes the government, in its own discretion, to release the alien on”bond” or”conditional parole.” The particular problem the justices should determine is”[w]hether that the detention of a person who’s subject to some reinstated removal order and who’s pursuing withholding or deferral of removal will be regulated by 8 U.S.C. 1231, or instead by 8 U.S.C. 1226.”

Uzuegbunam v. Preczewski: Even though a student at Georgia Gwinnett College, Petitioner Chike Uzuegbunam began distributing religious literature on campus. College officials stopped because he was outside the 0.0015% of campus where”free speech expression” was allowed. When Chike booked a free speech distance and again tried to evangelize, officials ceased because somebody whined which, under College policy, converted Chike’s speech to”disorderly conduct” Facing discipline if he continued, Chike registered suit. Another student, Petitioner Joseph Bradford, self-censored after hearing officials mistreated Chike. The students raised constitutional claims from the school’s enforcement of the policies, seeking damages and prospective equitable relief to remedy that the censorship and chill. After the college changed its speech coverages post-filing, the lower courts held the Chike and Joseph failed to adequately plead compensatory damages, and their nominal-damages claims were meaningless. The Supreme Court must now decide a question that has split into circuit courts of appeal:”When a government’s post-filing change of an unprotected policy moots nominal-damages asserts that vindicate the government’s previous, completed breach of a plaintiffs constitutional right.”

The Federal Trade Commission Act normally”empower[s] and direct[s]” that the FTC to stop individuals by having”unfair or deceptive acts or practices in or affecting commerce.” The question before the Court is”Whether §13(b) of this Act, by authorizing”injunction[s],”’  also authorizes the Commission to demand monetary relief such as restitution — and if that’s the case, the reach of the limits or requirements for this relief”

Decisions in the instances are expected before the Court’s term ends in June. Please check back for updates.
The article Supreme Court Hears Oral Arguments in Three Cases seemed first on Constitutional Law Reporter.

SCOTUS Rules Retaining Bankruptcy Debtor’s Property Doesn’t Violate Automatic Stay

In City of Chicago, Illinois v. Fulton, 592 U.S. ____ (2021), the U.S. Supreme Court maintained that keeping estate land following the filing of a bankruptcy petition doesn’t violate the automatic stay granted under 11 U.S.C. § 362(a)(3). The Court’s conclusion was unanimous.

Facts of the Case

The filing of a petition under the Bankruptcy Code (11 U.S.C. §541(a)) automatically”creates an estate” that, with a few exceptions, comprises”all legal or equitable interests of the debtor in property at the initiation of the case.” Section 541 is meant to include within the estate any property made available by other states of the Bankruptcy Code. Section 542 is one particular provision, as it provides an entity in possession of land of the bankruptcy property”shall deliver to the trustee, and account for” that land. The filing of a petition also automatically”acts as a stay, applicable to all entities,” of attempts to gather prepetition debts outside the bankruptcy forum, §362(a), for example”any act to obtain possession of land of the estate or of property from the estate or to exercise control over property of the estate,” §362(a)(3).

In each case prior to the Court, the respondent filed a bankruptcy petition and asked that the town of Chicago (City) reunite her or his automobile, which had been impounded for failure to pay penalties for automobile infractions. In each instance, the City’s refusal was held by a bankruptcy court to violate the automatic stay. The Seventh Circuit Court of Appeals affirmed, concluding by keeping possession of the vehicles the City had behaved”to exercise control within” respondents’ land in violation of §362(a)(3).

Supreme Court’s Conclusion

Even the Supreme Court vacated the lower court ruling, holding that the mere retention of property land following the filing of a bankruptcy petition doesn’t violate §362(a)(3) of the Bankruptcy Code. Justice Alito delivered the opinion of the Court.

According to the Court, the plain text of the Bankruptcy Code supports its choice. As Justice Alito clarified:

The terminology used in §362(a)(3) suggests that merely keeping possession of property property doesn’t violate the automatic stay. Taken together, the most natural reading of these terms–“remain,””action,” and”exercise “–would be that §362(a)(3) prohibits affirmative acts that would disturb the status quo of property land at the time once the bankruptcy petition was filed.

The Court further reasoned that the respondents’ choice reading would produce at least two severe issues. To begin with, it discovered that studying §362(a)(3) to cover mere retention of land would render §542’s chief command–that an entity in possession of certain estate land”shall deliver to the trustee… such land”–largely superfluous, even though §542 seems to be the provision governing the turnover of estate property. Since Justice Alito clarified, Section 542 carves out exceptions to the turnover control. Under the respondents’ interpretation, an entity could be asked to turn over land under §362(a)(3) even if that land were exempt by turnover under §542. According to the Court, the foundation of the Bankruptcy Code affirms the greater reading. The Code originally included equally §362(a)(3) and §542(a), however, also the former provision lacked the term”or to exercise control over property of the estate” When that term was added by change, Congress made no mention of altering §362(a)(3) to a optimistic turnover responsibility. It’s not likely that Congress could have made such an important shift simply by adding the term”exercise control,” instead of simply by including a cross-reference to §542(a) or some other sign that it had been transforming §362(a)(3).
The article SCOTUS Rules Retaining Bankruptcy Debtor’s Home Doesn’t Violate Automatic Stay appeared first on Constitutional Law Reporter.

SCOTUS to Hear Potential Blockbuster Voting Rights Case

Next month, the U.S. Supreme Court will hear two major voting rights cases from Arizona. The instances, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, demand an Arizona coverage that requires voters who vote in person to do so in their assigned precincts and also a state law that prohibits so-called”ballot harvesting,” in which mail-in ballots are collected and returned by someone aside from a voter’s caregiver, family member, mail provider, or an election officer. 

Facts of this Case

Such a discriminatory”outcome” occurs if an election is not”equally open to participation” by racial minorities, providing them”less opportunity than other members of their electorate to participate in the political process and to elect representatives of their choice”

The State of Arizona grants all citizens an equal opportunity to vote in person or by mail. However, additionally, it has voting laws in place that govern those voting processes. Arizona has an”non – precinct coverage,” which does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct. In addition, it has a”ballot-collection legislation,” called H.B. 2023, which allows only particular individuals (i.e., family and household members, caregivers, mail carriers, and elections officers ) to deal with another individual’s completed ancient ballot.

Both suits before the Court involve the above provisions. While a Ninth Circuit panel confirmed, the entire Ninth Circuit, sitting en banc, reversed.

Back in Arizona Republican Party v. Democratic National Committee, the Ninth Circuit held that Arizona violated § 2 of the Voting Rights Act by (1) requiring peer voters to cast ballots in their assigned precincts; and (2) banning”ballot-harvesting.” The federal appeals court stated that because racial minorities disproportionately vote out-of-precinct and utilize ballot-harvesting, the Voting Rights Act compels the State to permit those practices.

The Supreme Court granted certiorari in the two instances on October 2, 2020. In Arizona Republican Party v. Democratic National Committee, the justices have agreed to look at the following questions:

Whether § 2 of the Voting Rights Act compels countries to authorize any voting practice that could be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and Provide all voters an equal opportunity to vote; and
Whether the Ninth Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by means of intent though the legislators were admittedly driven by partisan interests and by allegedly”unfounded” concerns regarding voter fraud.
In Brnovich v. Democratic National Committee, the justices agreed to consider the following question:

Whether Arizona’s out-of-precinct coverage, which does not count provisional ballots cast in person on Election Day beyond their voter’s designated precinct, violates Section 2 of the Voting Rights Act; and also
Whether Arizona’s ballot-collection legislation, which permits only particular individuals (i.e., household members, caregivers, mail carriers and elections officers ) to deal with another individual’s completed ancient ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
The cases have been analyzed and are scheduled for oral argument on Tuesday, March 2, 2021.
The post SCOTUS to Hear Potential Blockbuster Voting Rights Case appeared first on Constitutional Law Reporter.

Divided Court Rules U.S. Railroad Retirement Board Decision Subject to Judicial Review

In Salinas v. United States Railroad Retirement Board, 592 U. S. ____ (2021), a broken U.S. Supreme Court held that a denial by the U.S. Enforcement Retirement Board to reopen a previous benefits determination will be subject to judicial scrutiny. The choice represents the initial 5-to-4 divide in a case argued throughout the Court’s 2020-21 period.
Legal Background
The Railroad Retirement Act of 1974 (RRA) builds a method of disability, retirement, and survivor benefits for railroad employees. The system is administered by the U. S. Railroad Retirement Board (Board).
Part 231g of the RRA offers:
Choices of the Board determining the obligations or rights of any person under this subchapter shall be subject to judicial scrutiny in the exact same fashion, subject to the exact limitations, and all provisions of law shall apply in the exact same manner like the decision were a decision of corresponding rights or liabilities under the Railroad Unemployment Insurance Act [45 U.S.C. 351 et seq.] except that the time in which proceedings for the review of a determination with respect to an annuity, supplemental annuity, or lump sum benefit might be commenced shall be one year after the decision is going to have been entered upon the records of the Board and communicated to the plaintiff.
The RUIA’s judicial review provision, 45 U.S.C. §355(f), provides:”Any claimant, or any railroad labor organization organized in compliance with the terms of the Railway Labor Act…, of which claimant is a member, or any base-year company of the claimant, or another party aggrieved by a last decision under subsection (c) of the section, may… get a review of any last decision of the Board.”
Facts of the Case
In 1992, petitioner Manfredo M. Salinas started looking for disability benefits under the RRA according to serious injuries he suffered during his 15-year livelihood using the Union Pacific Railroad. Salinas’ first three applications were denied, but he had been granted benefits after he filed his fourth application in 2013. After reconsideration has been denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened since the Board hadn’t considered specific medical records. An intermediary of the Board denied the petition to reopen since it wasn’t made”[w]ithin four years” of the 2006 decision, and the Board affirmed.
Salinas sought review together with the Fifth Circuit Court of Appeals. The Fifth Circuit noted a longstanding divide among the Circuits on the matter.
Majority Decision
Justice Sonia Sotomayor authored the majority opinion, that was linked with Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh.
In reaching its decision, most noted that to qualify for judicial scrutiny below 45 U.S.C. §355(f ), the Board’s refusal to reopen its denial of Salinas’ 2006 application should constitute”any last decision of the Board.” It went on to conclude that it does.
Since Justice Sotomayor clarified, the term”any last decision” is wide and reflects Congress’ intent it could be interpreted widely. Citing Smith v. Berryhill, 587 U. S. ___, ___ (2019), she included the term also”denotes some sort of terminal event,” like the”final stage of review.” Justice Sotomayor further highlighted that language from the Administrative Procedure Act was interpreted to refer to an agency actions which”the two (1) mark[s] the consummation of the agency’s decision making process and (2) is only one in which rights or obligations have been determined, or from which legal consequences will flow.”
As stated by the majority, the Board’s refusal to reopen the previous denial of benefits fulfills those criteria. To begin with, the decision was the”terminal event” from the Board’s administrative review procedure. Since Justice Sotomayor noted, after attractive the intermediary’s denial of reopening to the Board, Salinas’ only recourse was to seek judicial scrutiny. Secondly, the characteristics of a reopening choice make it ” in which rights or obligations have been determined, or from which legal consequences will flow.” By way of example, a reopening is described as”a conscious determination… to rethink an otherwise final decision for purposes of revising that choice.” It thus entails significant changes that influence benefits and obligations under the RRA. The Board reads §355(f )’s prior reference to”another party aggrieved by a last decision under subsection (c)” to mean that each licensed party could seek review of just”a last choice under” §355(c). Part 355(f ), but utilizes the wide term”any last decision” without tying it into the earlier reference to §355(c). As stated by the majority, this is a”noteworthy omission,” since Congress used such limiting language elsewhere in Section 355.
The majority next determined that any ambiguity in the meaning of”any last decision” must be solved in Salinas’ prefer under the”strong presumption favoring judicial review of administrative actions.” Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015). While the Board contended that various cross-references in §355 establish that §355(f ) and §355(c) are coextensive. The majority pointed out that there are several signs that §355(f ) is wider than §355(c). Accordingly, it concluded that the Board didn’t meet the”significant burden” of showing that the statute’s”speech or structure” forecloses judicial review.
The majority rejected several other arguments raised by the Board. To begin with, it dismissed the Board’s effort to analogize §355(f ) into the judicial-review provision dealt in Califano v. Sanders, 430 U.S. 99 (1977), noting that the latter provision comprises an express limitation that §355(f ) does not, distinguishing Califano from this circumstance. Secondly, most rejected the Board’s argument that reopening does not be eligible for judicial review since it’s just a”refusal to generate a new decision” of obligations or rights, like the denial of reopening on Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U.S. 449 (1999). In support, justice Sotomayor emphasized that the statute on Your House failed to implicate the presumption in favor of judicial review and was thinner than §231g, that only incorporates §355(f ) to the RRA. Ultimately, the majority held that the fact that the Board could decline to offer reopening did not indicate that, having chosen to supply it, the Board could steer clear of the plain text of §355(f ). The Board’s decision to deny or grant reopening is ultimately optional, yet, and therefore subject to reversal just for abuse of discretion.
Dissent
Justice Clarence Thomas penned a dissent, which was joined in dissent by Justices Samuel Alito, Neil Gorsuch, also Amy Coney Barrett. While Justice Thomas confessed that most”might well correctly translate the judicial review provision located in the Railroad Unemployment Insurance Act (RUIA),” he contended the case concerns the judicial review provision located in the Railroad Retirement Act (RRA). As stated by Justice Thomas, the essential issue is that which could be assessed, which is addressed at the RRA.
“Only Board decisions’determining the rights or liabilities of any person’ under the RRA are subject to judicial scrutiny,” Justice Thomas wrote. “Since the Board’s decision below did not decide any right or liability, the RRA does not provide for judicial scrutiny.”

US Supreme Court Rules Germany Entitled to State Immunity in the Nazi Art Case

In Federal Republic of Germany v. Philipp, 592 U. S. ____ (2021), the U.S. Supreme Court held that Germany had been entitled to State immunity in a suit seeking compensation for the forced selling of medieval art called the”Welfenschatz” through the rise of Nazi Germany. As stated by the Courta country’s alleged taking of property from its own nationals doesn’t collapse under Foreign Sovereign Immunities Act’s expropriation exception, which applies to”property obtained in violation of international law”

Facts of this Case

The respondents will be the heirs of German Jewish art dealers who made a consortium through the waning decades of the Weimar Republic to purchase an assortment of medieval relics called the Welfenschatz. The heirs allege that when the Nazi government rose to power, it unlawfully coerced the consortium into selling the collection into Prussia for a third of its value.

After unsuccessfully seeking compensation in Germany, the heirs brought several common law property asserts in U.S. District Court from Germany and SPK (together Germany). Germany proceeded to dismiss, asserting that it was immune from suit under the Foreign Sovereign Immunities Act (FSIA).  

The heirs contend that their claims fall within the exception for”property obtained in violation of international law,” since the coerced sale of the Welfenschatz, their property, constituted an act of genocide, and genocide is a violation of international human rights law. Meanwhile, Germany argues that the exception is inapplicable since the applicable global law is the international law of property–not the law of genocide–and below the international law of property that a foreign sovereign’s taking of its nationals’ property remains a domestic event. This”domestic takings rule” assumes that what a nation does to property belonging to its citizens within its borders is not the topic of international law. The District Court denied Germany’s motion to dismiss, and also the D.C. Circuit Court of Appeals affirmed.

Supreme Court’s Decision

It held that The phrase”rights in property taken in violation of international law,” as utilized in the FSIA’s expropriation exception, describes violations of the international law of expropriation and thereby comprises the domestic takings rule. Chief Justice John Roberts wrote on behalf of the unanimous Court.

As stated by the Supreme Court, the lower courts interpreted the expropriation exception also broadly. The Court also dismissed the respondents’ argument that the expropriation exception applied since the forced purchase of this Welfenschatz lacked the ban on genocide.

“We don’t decide whether the selling of this consortium’s land has been a act of genocide, since the expropriation exception is read as imitating the international law of expropriation rather than of human rights,” Chief Justice Roberts clarified. “We do not look to the law of genocide to find out whether we have jurisdiction within the heirs’ common law property claims. We look into the law of property” In further support, Roberts noted that the exception”places repeated emphasis on property and property-related rights, while injuries and acts we could connect with genocide are especially missing”

Citing Kiobel v Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013), Roberts highlighted that the Court has long recognized that”United States law governs domestically but doesn’t rule the planet.” Thus, the Court interpreted the FSIA as it does other statutes affecting global relations: to avoid, wherever possible,”producing friction in our relationships with [other] states and leading some to reciprocate by granting their courts permission to embroil the United States in costly and hard litigation.”

The Court also highlighted that a wide interpretation of the FSIA exception would invite suits against america in foreign courts.

As a Nation, we would be amazed –and might even initiate mutual action–if a court in Germany adjudicated claims by Americans they were entitled to countless millions of dollars due to human rights violations com- mitted by the United States Government years back. There’s absolutely no reason to expect that Germany’s response would be any different were American courts to exercise the authority claimed in this case.

The Supreme Court did not tackle Germany’s argument that the District Court was obligated to abstain from deciding the case with global comity motives or the heirs’ alternative argument that the purchase of this Welfenschatz is not subject to the domestic takings rule since the consortium members weren’t German nationals at the time of this trade.
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Supreme Court Considers “Hot Pursuit” in Closely Watched Fourth Amendment Case

Even the U.S. Supreme Court heard oral arguments in three cases last week. It also declared it will continue to listen to disagreements this session”in keeping with public health advice in reaction to COVID-19.”

The most-closely watched case is Lange v. California, that involves whether police pursuits for misdemeanors justify a warrantless entry, an issue that has divided the lower courts.  Absent approval or”exigent conditions,” a police officer normally can not enter a home to conduct a search or make an arrest without obtaining a warrant. Courts have held that exigent conditions may exist if officials are reacting to or investigating criminal actions, such as being in”hot pursuit” of a fleeing suspect.

However, the Supreme Court’s exigent circumstances precedents still have not addressed pursuits involving suspected misdemeanors, that are undoubtedly the most usual basis because of arrest. The issue before the Court in Lange is”Does pursuit of a individual who a police officer has probable cause to believe has committed a misdemeanor overwhelmingly qualify as an exigent circumstance enough to allow the officer to enter a home without a warrant?”

Though the Supreme Court’s decision isn’t expected until, several justices appeared poised to deny a categorical rule allowing warrantless police pursuit of misdemeanor suspects into a home.

Below is a brief summary:

Florida v. Georgia: The longstanding dispute involving Florida and Georgia involves the rights to the water in the Apalachicola-Chattahoochee-Flint River Basin. The question this time is”if Florida is eligible for fair apportionment of the waters of their Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to maintain a decent flow of fresh water to the Apalachicola Region.”
Rosen v. Dai & Rosen v. Alcaraz-Enriquez: The immigration cases, which have been consolidated for one hour of oral argument, centers around the credibility of an immigrant’s testimony.   The justices have agreed to answer two questions: (1) When a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and accurate whenever an immigration judge or the Board of Immigration Appeals adjudicates a program without making an explicit adverse credibility determination; also (2) if the court of appeals violated the remand principle as set forth in INS v. Ventura, 537 U.S. 12 (2002), if it decided in the first case the respondent, Ming Dai, was eligible for asylum and eligible for withholding of removal.Decisions in every one of the cases are anticipated prior to the Court’s term ends in June. Please check back for updates.
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Rep. Eric Swalwell Sues Trump And His Obnoxious Son For Inciting MAGA Mob

(Photo by Justin Sullivan/Getty Images)

The Senate may have failed to convict Donald Trump, but House impeachment manager Eric Swalwell isn’t giving up just yet. Today the California congressman filed a civil suit against the former president, his hapless eldest son, his leaky pro bono lawyer, and Alabama Rep. Mo Brooks, all of whom addressed the MAGA mob before it stormed the Capitol on January 6.

“Today I filed a civil claim against Donald J. Trump, Donald Trump Jr., Rudolph Giuliani, and Representative Mo Brooks for inciting an attack against the Capitol that terrorized lawmakers and prevented us from doing our job of certifying the votes of the American people,” he tweeted.

“As a direct and foreseeable consequence of the Defendants’ false and incendiary allegations of fraud and theft, and in direct response to the Defendants’ express calls for violence at the rally, a violent mob attacked the U.S. Capitol and stopped Congress’s counting of electoral college votes. The Defendants assembled, inflamed and incited the mob, and as such are wholly responsible for the injury and destruction that followed.”

Whether a civil suit in U.S. District Court will be an effective means of redress remains to be seen. After an exhaustive recitation of the Defendants’ behavior leading up to the insurrection, Swalwell claims that they conspired to violate his civil rights by interfering with his official duty to certify the presidential election results.

This echoes the claims made by Rep. Bennie Thompson, who alleged a violation of 42 U.S.C. § 1985, better known as the Ku Klux Klan Act of 1871, a Reconstruction-era law aimed at mobs who would interfere with federal officials doing their jobs. And indeed Swalwell has requested that his suit should be treated as related to Rep. Thompson’s case and placed on Judge Amit Mehta’s docket. (Naturally this has nothing to do with Mehta’s record of hostility to Trump’s wild claims of executive immunity.)

The nine counts range from the quotidian (negligence, intentional infliction of emotional distress, incitement), to the interesting (the KKK claim) to the HUH WHAT??? (aiding and abetting a common law assault because, although he was never physically assaulted, the presence of the mob “caused the Plaintiff to fear imminent physical harm”). It should be an fascinating First Amendment case, with Trump et al. sure to assert that they were simply exercising their right to free speech and had no idea the mob might get unruly, notwithstanding Trump’s recommendation to acting Defense Secretary Christopher Miller on January 5 that 10,000 National Guard troops would be needed to control the crowd.

The former president commented via his spokesman Jason Miller, who described Swalwell to the Washington Post as “a low-life with no credibility” and rehashed discredited allegations that the California congressman is a “compromised” Chinese asset.

“I make no apologies whatsoever for fighting for accurate and honest elections,” Brooks said, in comments reported by Newsweek. “In sum, I wear Communist-sympathizer Swalwell’s scurrilous and malicious lawsuit like a badge of courage.

Still waiting on Don Jr. and Rudy to poke their heads up. Let’s assume that Rudy said, “Ha, take a number, pal,” and Deej is trying to hold his jaw still long enough to form semi-coherent sentences.

Swalwell is represented by Joseph Caleb and Philip Andonian of Caleb Andonian PLLC, Matthew Kaiser and Sarah Fink of KaiserDillon PLLC, and Barry Coburn and Marc Eisenstein of Coburn and Greenbaum PLLC.

Swalwell v. Trump [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.