Afternoon round-up

By on May 31, 2016 at 6:05 pm

This morning the Court issued orders from last Thursday’s Conference and one opinion in an argued case. In United States Army Corps of Engineers v. Hawkes Co. Inc., the Justices ruled that an approved “jurisdictional determination” by the Army Corps of Engineers is a final agency action subject to judicial review under the Administrative Procedure Act.  . Coverage of the opinion comes from Lydia Wheeler of The Hill, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Brent Kendall of The Wall Street Journal, Sam Hananel of the Associated Press, Greg Stohr of Bloomberg, Daniel Fisher of Forbes, Annie Snyder of Politico, Robin Bravender of E&E, and David Savage of the Los Angeles Times. Continue reading »

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This morning the Supreme Court issued orders from last week’s Conference, adding a False Claims Act case to its merits docket for next Term and asking the federal government to weigh in on a case involving the Individuals with Disabilities Education Act.  The Court also issued two summary reversals, both unsigned, in cases involving inmates in California and Arizona.  Continue reading »

UPDATED 9:54 p.m.   Judge Hanen on Tuesday evening issued a brief order on the government’s plea for a postponement of his ethics order, setting a hearing for 10 a.m. in a week — on June 7.  It is unclear whether that schedule will have any impact on the government’s plan to file an immediate appeal to the Fifth Circuit Court.


Strongly disputing a federal judge’s power to issue a sweeping order to punish the government over ethical issues in the hard-fought case over federal immigration policy, the Obama administration began moving swiftly on Tuesday to block that order.  It asked the judge to put the issue on hold, and promised an immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.

As that new challenge moves ahead, the Supreme Court will continue internal discussions over how to decide the legality of the policy, which would defer deportation for up to five million undocumented immigrants. The case is United States v. Texas.  That review does not appear likely to have any direct effect on the ethics controversy, which is moving on a separate judicial track.


Saying it “emphatically disagreed” with the order May 19 by U.S. District Judge Andrew S. Hanen of Brownsville, Texas, the Justice Department said the ruling not only was wrong but that it was “made worse by (and perhaps explained by) the absence of the required fair process for the department and its attorneys.”  It added that it would use whatever appeal process it needed to try to get the order nullified.

Judge Hanen is the same jurist who, in February of last year, blocked enforcement of the government’s deferred deportation policy at the request of the twenty-six states that had pursued a challenge.  That order is still in effect.  His May 19 ethics order found that at least two Justice Department lawyers who appeared before him in the case had intentionally acted, in bad faith, to deceive him and the states about when enforcement of one part of the policy would begin.

The department argued on Tuesday that the part of his order forcing the government to hand over personal information about youths who had benefited from one of the changes in policy would affect about 50,000 individuals, and could undermine the confidence of undocumented individuals in communicating in private with the government over their status.  It also argued that the broad new ethics mandate issued by the judge requiring Justice Department attorneys to get new ethical training every year for five years could affect some 3,400 attorneys and would cost about $8 million over that period, while interfering seriously with their work on government legal business.

To support its claims about the impact it foresaw, the department filed two sworn statements, from an official in the Department of Homeland Security (found here), and from an official in the Justice Department (found here).

The central focus of the government’s legal memorandum, filed along with the request for a stay, was the claim that Judge Hanen acted unconstitutionally in intruding upon the government’s management of its own employees, and in issuing his broad ethics command without giving the government or the attorneys a chance to dispute his findings and to know what ethical sanctions he would issue before he announced them on May 19.

A judge’s power to protect the processes of a court, the government’s legal memorandum argued, is limited to preserving order and functioning only in that one court.  Judge Hanen’s ethics training requirement, however, would affect any of some 3,400 department attorneys who planned to appear in any court, federal or state, in the twenty-six states that had sued over the policy.

The authority to issue sanctions for ethical misconduct, the department’s filing said, is limited to actions to safeguard the proceedings before the specific court, and cannot sweep broadly to other courts where a judge had no power to act.  That power, it stressed, “does not extend to policing proceedings in other courts that do not threaten its own judicial authority in the cases before it.”

Complaining not only about the reach of Hanen’s order but also about what it would do to Justice Department operations and conduct of immigration policy, the department said that it would violate the Constitution by intruding upon the department’s own ethical controls over its own employees, and upon the executive branch’s authority to decide what to do with confidential information it gathers about the private rights of individuals during enforcement of official policy.

The department fervently insisted that it closely monitors the ethical conduct of all of its attorneys, and maintains a rigorous internal policy of ethical refreshers each year and of disciplining those who deviate from required ethical standards.

Judge Hanen has the option of acting immediately on the request to postpone his order, or of delaying any action until he gets a response from the twenty-six states.  In the Justice Department’s filings Tuesday, it told the judge that the department and lawyers for the states could not agree on the delay request.

The ethics dispute arose after two Washington-based attorneys for the department had told the judge and the states who sued that the new policy announced in November 2014 would not begin to be put into effect in any way until the judge had a chance to decide whether to block enforcement. In fact, as matters turned out, some immigration officials had granted an extra year of postponement to young undocumented immigrants even though the added-year opportunity was also supposed to have been delayed.  Judge Hanen was considering the states’ plea to delay the new benefit for the youths along with delay of a broad new program of delayed deportation for adult immigrants.

Most of the benefits of the deferral policy as it applied to youths went into effect in 2012, and the case now in the courts does not question the legality of that earlier order.  It was only the expansion of the policy, to give a third year of delay to youths who could qualify to remain in the country, that was at issue before Judge Hanen, along with all aspects of the 2014 program applying to adult immigrants.

The government had discovered that extra-year benefits had been extended to 108,000 youths, but that only about 50,000 of those were living in the twenty-six states who had sued.  The Justice Department had said that it understands Judge Hanen’s order to turn over personal information about extra-year beneficiaries to apply only to those 50,000.

One of the issues that the Supreme Court is considering in the case now awaiting a decision is whether the states had any legal right to sue to challenge the 2014 deferral policy.  Judge Hanen found that at least one state, Texas, did have a sufficient claim of injury from the new policy as to have “standing” to sue.  If the Supreme Court were to overturn that “standing” decision, it would mean that the states’ challenge would end abruptly.

However, the ethics order now being challenged in higher courts by the Justice Department was in response to conduct of attorneys before Judge Hanen, and prior to his decision to block enforcement.  It does not appear that ending the case on the merits, as a Supreme Court finding of a lack of standing would do, would have any effect upon whether an ethics violation had occurred in late 2014 and early 2015 in Judge Hanen’s court.


We are live-blogging this morning as the Court issues orders and opinions. Join us.

Posted in Live

Tuesday round-up

By on May 31, 2016 at 6:52 am

Coverage relating to the death of Justice Antonin Scalia and the nomination of Chief Judge Merrick Garland to succeed him comes from Tony Mauro, who in The National Law Journal (subscription or registration may be required) reports that,as loudly as advocates lament the plight of an eight-justice court, there is one interested group that has barely made a peep—the eight justices themselves.” In a second story, Mauro also reports on recent remarks by Justice Ruth Bader Ginsburg, who described Scalia as not only “a dear colleague and friend” but also a “discerning shopper.”  In his column for The New York Times, Adam Liptak observes that the Court “seems to have split into two camps, with the four justices at its ideological center working diligently to deliver unified opinions,” while the “remaining members of the court seem less committed to that project.” And at Bloomberg Law, Kimberly Robinson looks at the effects of having an eight-member Court.  Continue reading »

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Petition of the day

By on May 30, 2016 at 11:10 pm

The petition of the day is:


Issue: Whether a 42 U.S.C. § 1983 claim for denial of medical care made by an arrestee is cognizable under the Fourth Amendment and the objective reasonableness standard applies or is cognizable under the Fourteenth Amendment and the deliberate indifference standard applies.

It’s a sure sign that the end of the Term is drawing closer:  briefs filed by the Office of the Solicitor General, at the Court’s invitation, expressing the views of the United States in cases in which the Court is considering whether to grant review.  Submitting the briefs in mid- to late May gives the Justices an opportunity to consider them and decide whether to grant review in the cases before their summer recess.  On May 23 and 24, the federal government filed five such briefs, recommending that certiorari be granted in three cases.  (In a brief filed on May 20, the government also recommended that the Court grant review in Fry v. Napoleon Community Schools; I discuss that case in more detail in a post on my own blog.) Continue reading »

This week at the Court

By on May 29, 2016 at 12:00 pm

On Tuesday, the Court issued orders from its May 26 Conference. It granted review in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby and called for the views of the Solicitor General in Endrew F. v. Douglas County School District. The Court also released its opinion in United States Army Corps of Engineers v. Hawkes Co., Inc. On Thursday, the Justices will meet for their June 2 Conference; our list of “petitions to watch” for that Conference will be available soon.


Petitions of the day

By on May 27, 2016 at 11:10 pm

The petitions of the day are:


Issue: (1) Whether the Court of Appeals, in finding that Respondents’ Fifth Amendment claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001 regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers; (2) whether the Court of Appeals, in denying qualified immunity to Petitioner Ziglar erred: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar’s specific conduct was at the time clearly established, instead defining the “established law” at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law; and (3) whether the Court of Appeals erred in finding that Respondents’ Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal , and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar’s liability, but fall short of stating plausible claims.


Issue: (1) Whether the judicially inferred damages remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, should be extended to the novel context of this case, which seeks to hold the former Attorney General and Director of the Federal Bureau of Investigation (FBI) personally liable for policy decisions made about national-security and immigration in the aftermath of the September 11, 2001 terrorist attacks; and (2) whether the former Attorney General and FBI Director are entitled to qualified immunity for their alleged role in the treatment of respondents, because it was not clearly established that aliens legitimately arrested during the September 11 investigation could not be held in restrictive conditions until the FBI confirmed that they had no connections with terrorism; and (3) whether respondents’ allegations that the Attorney General and FBI Director personally condoned the implementation of facially constitutional policies because of an invidious animus against Arabs and Muslims are plausible, as required by Ashcroft v. Iqbal, in light of the obvious alternative explanation—identified by the Court in Iqbal—that their actions were motivated by a concern that, absent fuller investigation, the government would unwittingly permit a dangerous individual to leave the United States.


Issue: (1) Whether, as the Second Circuit held, the judicially implied cause of action for damages against individual officials recognized in Bivens v. Six Unknown Named of Federal Bureau of Narcotics, extends to detentions of foreign nationals after the September 11 attacks; (2) whether qualified immunity was property denied, notwithstanding the specific circumstances confronted by petitioners—including the FBI’s terrorism designations for respondents—because the Constitution “clearly” prohibits any “condition of pretrial detention not reasonably related to a legitimate governmental objective,” or imposed “because of . . . race, ethnicity, religion, and/or national origin;” and (3) whether the allegations against Hasty and Sherman (the Warden and Associate Warden at the Metropolitan Detention Center)—such as the assertion that they “knew” the FBI’s terrorism designations for respondents were wrong but imposed otherwise mandatory confinement conditions because they had discriminatory intent—are sufficiently plausible to state a claim under Ashcroft v. Iqbal.


In 1875, Chae Chan Ping left San Francisco for China with a certificate promising him re-entry upon his return. Congress had recently banned new laborers from China, but it had made an exception for previous residents who held certificates like Ping’s. While Ping was gone, however, Congress expanded the ban to include even certificate-holding previous residents – a complete surprise to Ping when he arrived back in San Francisco twelve years later. Ping’s lawsuit, the Chinese Exclusion Case, would go before the Supreme Court in 1889 and, as Polly Price argued in a recent lecture sponsored by the Supreme Court Historical Society, provide a foundation for immigration case law in the Progressive Era.

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