Federal Court Enjoins Enforcement of Mandated COVID-19 Vaccination of Healthcare Workers, Observing Not Only Authoritative and Procedural Deficiencies in CMS Order But Also Likelihood that Enforcement Would Exacerbate Crisis in Healthcare Access


Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.)  Order and Opinion entered November 29, 2021.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Defendants’ Notice of Appeal filed November 30, 2021.


The United States District Court for the Eastern District of Missouri has enjoined the federal government from implementing mandated COVID-19 vaccination for healthcare providers and other workers associated with facilities receiving Medicare or Medicaid support.  The United States has filed a notice of appeal from the injunction ordered on November 29th.

The federal trial court observes that the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), lacks Congressional authority for the actions it has taken, which because of its sweep would require explicit and clear authority if it authority could be delegated at all in light of the federalism question that the federal intrusion on private citizens’ health care decisions and the disruption of federal-state balance that the vaccine mandate present.  

Moreover, CMS erred in abandoning notice and requirement provisions, as no excuse for having done so, including any alleged emergency, can be found.

Of particular significance to the court is not merely the shift from encouraging to demanding vaccination of healthcare workers and the application of a one-size-fits-all policy without respect to the institution involved but also the threat to access to care that the mandate provides.

Provider institutions already face a shortage in workers that began before but has been compounded by the COVID-19 pandemic. As mandated vaccination may precipitate additional worker shortages, which in turn will impact access to care, the court agrees that the threat of harm to the public because of mandated vaccination merits injunctive relief.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Order and Opinion November 29, 2021

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Notice of Appeal filed November 30, 2021

Litigation Contagion:  With Thirteen Vaccine Mandate Petitions Consolidated in the Sixth Circuit, OSHA Seeks Emergency Dissolution of Stay Entered by Fifth Circuit


Memoranda concerning the stay of the vaccine mandate, entered by the Fifth Circuit and consolidated in the Sixth Circuit, are due on November 30, with responses due December 7th and replies due December 10.  At this posting, no action has been taken on the government’s motion to expedite briefing.


All together now. With multidistrict litigation underway in the United States Court of Appeals for the Sixth Circuit, the Occupational Safety and Health Administration (OSHA) seeks emergency dissolution of the stay of the Emergency Temporary Standard (the “Vaccine Mandate”) entered by the United States Court #v Appeals for the Fifth Circuit.  Some petitioners object to the administration proceeding on an emergency basis, while others ask that the Sixth Circuit transfer all the proceedings to the Fifth Circuit.

Nationwide Vaccination or Testing Required of Certain Employers Stayed. The OSHA Vaccine Mandate, which requires employers of 100 or more employees to require employee vaccination or testing concerning Covid-19 or face significant fines, which would by its terms take effect on December 6, 2021, was stayed by the United States Court of Appeals for the Fifth Circuit on November 12, 2021.  

Ruling on retention, modification, or dissolution of the stay front and center. The Sixth Circuit, to which all petitions in twelve federal circuits were transferred by order of the Judicial Panel on Multidistrict Litigation, has invited briefing on whether the stay ought to be vacated, amended, or extended.  The federal respondents seek dissolution of the stay on an emergency basis.  Several petitioners seek initial hearing en banc before the federal appellate court.

Constitutional concerns about a measure said to be for the common good.  The Fifth Circuit entered a stay of the Vaccine Mandate based on its perception that the Vaccine Mandate is a sweeping national measure that presents grave constitutional concerns.  In ordering the halt of the mandate, the appellate court, among other determinations, found no statutory authority with which OSHA could create such a measure.  In the absence of explicit authority from Congress, the federal agency exceeded its statutory as well as Commerce Clause powers and encroached on public health rights reserved to the states.  Where OSHA has no authority, in the Fifth Circuit’s view, to regulate a hazard that is not confined to the workplace, OSHA cannot dictate the behavior of individuals using employers as a conduit.

Emergency action is necessary to address potentially lethal health consequences. OSHA argues that the Covid-19 virus has killed hundreds of thousands of people and that OSHA”s gathering of evidence supporting requiring vaccination is empirically sound, and that OSHA”s findings ought not be disturbed by the courts.  The federal government asserts that authority for monitoring contagious diseases was established decades ago with respect to blood-borne pathogens.

Employers hamstrung by compliance, particularly where resistant employees threaten to quit if vaccination required.  Opposing employers resist the government’s position that employers’ estimates of the costs of vaccine compliance are speculative.  Employers resent the government’s determination to proceed on an emergency basis before the Sixth Circuit has developed a comprehensive case management order or ruled on several pending motions for initial review en banc.  

Mandate’s impact not confined to employers and employees Employers stress that the impact of the vaccine mandate, if permitted to take effect, will force employees to choose between their work or their personal autonomy before the year end holidays.  As many essential workers are involved, the impact of the mandate will be felt by the public at large, as goods and services will not be manufactured and provided as planned.

Get litigation back to where it once belonged. While acknowledging that the Sixth Circuit has shown deference to the Fifth Circuit, some petitioners seek transfer of the consolidated multidistrict litigation to the Fifth Circuit, which has, it is argued,  already acquainted itself with the issues in the time sensitive vaccine mandate cases  

JustLawful Note:  Few would dispute that the reach of the vaccination mandate is historic, and it is hardly speculative to believe that the matter will reach the United States Supreme Court, nor is it unreasonable to think that the Sixth Circuit will promptly address the motions now before it. 


Case Materials

BST Holdings, et al. v. Occupational Health and Safety Administration, et al., No. 21-60845 (5th Cir.).  Opinion and Order November 12, 2021.

BST Holdings et al v. OSHA, No. 21-60845 (5th Cir.) Order November 12, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.).  Docket as of November 28, 2021.

In re. MCP No. 165,, No. 21-7000 (6th Cir.) Docket as of November 28, 2021

In re:  Occupational Safety and Health Administration Interim Final Rule:  COVID-19 Vaccine and Testing:  Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued November 4, 2021.  United States Judicial Panel on Multidistrict Litigation, MCP No. 165.  Consolidation Order, November 18, 2021.

In re: Occupational Safety and Health Administration Interim Final Rule: COVID-19 Vaccine and Testing: Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued November 4, 2021. United States Judicial Panel on Multidistrict Litigation, MCP No. 165. Consolidation Order, November 18, 2021.

Phillips Manufacturing and Tower Company, et al. v. U.S. Department of Labor, Occupational Safety and Health Administration, No. 21-4028 (6th Cir.) Petition for Initial Hearing en Banc, November 17, 2021.

Phillips Manufacturing and Tower v. OSHA, No. 21-4028 (6th Cir.) Petition for Initial Hearing en Banc, November 17, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Initial Case Management Order, November 21, 2021.

Initial Case Management Order In re MCP No. 165 OSHA Rule on COVID-19 Vaccination and Testing

In re. OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.) Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021.

In re OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.). Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021

In re. OSHA Rule on Covid-19 Vaccination and Testing, 86 Fed. Reg. 61401, No. 21-4018, No. 21-7000 (6th Cir.).  Respondents’ Motion to Amend Schedule for Stay Briefing and to Set Schedule for Merits Briefing, November 24, 2021

In re OSHA Rule on Covid-19, Respondents Motion to Amend Schedule for Stay Briefing, No. 21-7000 (6th Cir.) November 24, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Job Creators’ Network, et al. v. OSHA, et al.  Opposition to Respondents’ Emergency Motion to Dissolve Stay, November 23, 2021.

In re OSHA Rule on Covid-19 Vaccination and Testing, No. 21-7000 (6th Cir.) Job Creators’ Network et al. Opposition to Emergency Motion to Dissolve Stay, November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Transfer by BST Holdings, et al., November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Transfer by BST Holdings, et al., November 23, 2021

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.). Motion to Hold in Abeyance Government’s Emergency Motion to Dissolve Stay, November 23, 2021

In re MCP 165 OSHA Rule on Vaccination and Testing, No. 21-7000 (6th Cir.) Motion to Hold in Abeyance Government’s Emergency Motion to Dissolve Stay

In re. MCP No. 165:  OSHA Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir.).  Order, November 23, 2021.

In re MCP 165, No. 21-7000 (6th Cir.) Order November 23, 2021

A Vaccination Compliance Cauldron: Ten States Insist Federal Covid-19 Healthcare Providers’ Mandate Is Constitutionally, Statutorily, and Procedurally Unsound

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.). Complaint filed November 20, 2021.


Ten states have joined in challenging the action of the United States Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) in promulgating an Interim Final Rule with Comment Period (IFC) that conditions health care providers’ receipt of federal funding and reimbursement on employee or contractor vaccination against COVID-19.  

Providers and Employees Threatened. Health care providers whose employees fail to comply with the federally mandated demand that all health care workers be vaccinated against Covid-19 may lose federal funding,   As vaccination refusal will threaten employer compliance with the federal measure, unvaccinated employees may lose their jobs.

Exacerbation, Not Mitigation.  The states submit that this sweeping federal incursion on health care administration threatens to exacerbate an already extant crisis in health care provision, which crisis only deepened during the COVID-19 pandemic, forcing states to undertake drastic measures to ameliorate the deadly synergies of two crises which individually would have sufficed to cause health care services to crater. 

          To the extant shortage of workers and threat of harm from viral infection the federal government has added a compliance burden that, the states contend, violates the interests of the states, the healthcare providers and entities within the states, and the healthcare workers who must submit to vaccination or face termination. 

State Standing.  Having brought their complaint in the United States District Court for the Eastern District of Missouri, the states and their attorneys general assert standing premised on exercise of parens patriae powers or statutory authorizations. 

Effective Immediately.  The Interim Final Rule, also called  the CMS vaccine mandate, became effective on publication on publication in the Federal Register on November 5th.  Its protocol demands at least partial vaccination compliance by the first week of December, a deadline that only compounds the problems the rule has caused, the states note.  

          Most significantly, the states argue, the Interim Final Rule is not merely factually detrimental to the provision of health care services, the rule itself and the manner in which the rule was crafted is in violation of central components of the Administrative Procedures Act (APA) and the United States Constitution.

The CMS Vaccine Mandate Makes Matters Worse.  The complaining states assert that the sweeping federal incursion on providers’ rights will exacerbate and extant shortage of workers.  The federal scheme is an unconstitutional abridgment of rights traditionally reserved to the states, and is not only legally flawed but also is, as a practical matter, administratively disastrous, as the health care needs of densely populated urban areas are markedly varied from those of rural settings.  

The CMS vaccine mandate must be set aside.  The states ask that the federal court declare the CMS vaccine rule be declared invalid constitutionally and in violation of the Administrative Procedures Act (APA) and other statutes, and that its enforcement be enjoined.

Not an overnight development.  Healthcare workforce shortages predate the COVID-19 pandemic by decades, the states recount.  Nursing shortages, already critical, have been made all the more so by the demands for urgent and other care precipitated by the pandemic. Many nursing professionals feel they cannot continue to work as they have been.  Many have been attracted to positions offering better working conditions are higher compensation. 

          Staffing shortages threaten the capacity of hospitals to administer care.  To address pandemic care needs, states relaxed standards for the provision of services, permitted workers to work without vaccination, and expanded telehealth services.

          The states are critical of the implementation of the administrative rule per see where doing so represents and Executive Branch about face from federal non-involvement in vaccination to a nationwide push for COVID-19 vaccination compliance that threatens workers with loss of employment and provider entities with loss of available federal funding.   

Reaching beyond providers.  Where health care workers cannot work, providers will be unable to provide services, and the patient public will be denied care.  Each of these outcomes, the states observe, is contrary to sound policies of health care delivery.

A diverse panoply of providers under a single rubric.   There are fifteen categories of Medicare and Medicaid providers, encompassing urban and rural clinics, hospitals, long-term care facilities, and home health agencies. 

          CMS reports that nearly all hospitals within the United States are connected in some measure to Medicare and Medicaid.  Although CMS has recognized the diverse purposes and practices of these categories of providers and suppliers, CMS has embroidered on all covered providers and suppliers the measures applicable to long-term care facilities, the states observe. 

          Moreover, CMS appears to recognize the adverse consequences of the vaccine mandate:  failure to comply will threaten health care workers with loss of employment, which in turn will deepen an already critical worker shortage, which in turn will impact access to care.

No comment.  The states point out that there has never before been a federal vaccination mandate, and that the newly-effective rule is unsound on multiple grounds.  The states notes that CMS abandoned the comment period ordinarily required for rules of the magnitude of the unprecedented healthcare vaccine mandate.  Moreover, CMS has failed to locate with accuracy its authority to promulgate the vaccine mandate.

Unauthorized rule-making. The states argue that there is no statutory authority for the CMS vaccine mandate, and that none of the authorities cited by the CMS as authorizing the mandate do so.  This legally unsupported rule will cause the states great economic harm, particularly as states will not only be threatened with loss of federal resources but the states’ own administrative resources have been conscripted to serve the federal government. 

Hindsight unavailing.  The states submit that the CMS has relied on post-hoc rationalizations to support the rule, an impermissible approach which renders the measure arbitrary, capricious, and not in accordance with law. 

Constitutionally intrusive.  The states argue that compulsory vaccination is traditionally a power reserved to the states.  The federal expansion of power over the states violates the Tenth Amendment, the states submit.

Doctrinally unsound.  The states argue that the CMS vaccine mandate is unsound as it is a measure of national breadth and depth that is not supported by clear Congressional directive, and thus runs afoul of the major questions doctrine.   Similarly, the co of a Congressional articulation of an intelligible guiding principle, the CMS vaccine rule violates principles of non-delegation.

Outside professional bounds.  The states observe that the CMS vaccine mandate is precluded by the Social Security Act, which forbids supervision or control over the practice and provision of medicine and medical services.

Procedurally flawed.  The states submit that the Administrative Procedures Act (APA) is not inaptly named, and that no sound excuse exists for CMS’ failure to adhere to notice and comment procedures which permit interested persons’ participation in administrative processes.  

          CMS not only failed to adhere to these processes but its rule became effective on publication with initial compliance to be completed within thirty days.  Additionally, CMS failed to comply with the sixty-day pre-publication requirement of the Social Security Act.  

Input not sought.  CMS failed to confer with the states concerning the mandate as it is required to do.

Unconstitutional conditions imposed.   The federal government may not impose conditions on funding unrelated to the programs impacted or without notice to the states that vaccination would be required in order to obtain federal funds.  

State resources conscripted.  In enacting measures which threaten providers’ finances through demands on employees, the states observe that is is an infringement on state powers for the federal government to demand that state administrative resources be expended in service of federal aims.

Declaratory and injunctive relief sought: looking forward. The states have requested declaratory and injunctive relief which would nullify the CMS vaccine mandate and prohibit its enforcement.  At this writing the federal court has not issued any orders relating to the case, although in light of the abbreviated time frame for compliance with the CMS vaccine mandate, it is anticipated that there will be activity related to this case soon.  

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.) Complaint






As Vaccination Regulation Litigation Erupts, the Fifth Circuit Stays Mandate Pending Expedited Briefing


 

BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.


 

On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.

The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.

The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.

The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.

The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.

Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.

Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.

In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.

All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.

The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.

Order of the United States Court of Appeals for the Fifth Circuit:

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021_

Challenges to the OSHA Emergency Temporary Standard (ETS):

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.) Petitioners Brief November 5, 2021

Commonwealth of Kentucky, et al. v. OSHA (6th Cir.) Petition Filed November 5, 2021

State of Missouri, et al., v. Joseph R. Biden, President of the United States, et al. (8th Cir.) Petition Filed November 5, 2021

State of Florida, et al. v. OSHA (11th Cir.) Petition Filed November 5, 2021

 

At the Hour of Our Death: Supreme Court to Consider Prisoner’s Plea for Prayer and Touch in Execution Chamber


Ramirez v.  Collier, Executive Director of the Texas Department of Criminal Justice, et al., No. 21-5592.  Oral argument set for November 9, 2021.   


The Supreme Court will soon consider whether Petitioner Ramirez, sentenced to death for a capital crime, may prevail in his claim that the State of Texas’ has violated the Religious Land Use and Religious Persons Act by refusing Ramirez’s request that his spiritual advisor not only be present in the execution chamber but also be permitted to pray aloud and to lay hands on Ramirez during the execution.

 

RLUIPA was enacted after the Supreme Court concluded that the Religious Freedom Restoration Act (RFRA) could not apply to the states.  Both statutes provide protections for religious exercise that may exceed the guarantees of the First Amendment, by shifting burdens of proof and persuasion and by permitting latitude in what may be considered a religious exercise.  

 

Thus a prisoner need not establish that a requested religious accommodation refers to a normative practice in any spiritual practice adhered to by the prisoner.  The state, however, must establish not only that its practices support a compelling government interest and that the state has employed the least restrictive means in furtherance of that goal.  

 

The presence of ministers in the death chamber has been permitted in Texas, in other states, and in the federal system.  At this time, Texas’ rules and regulations appear not to preclude such a presence, but interpretive guidance, some apparently issued in response to Ramirez’ requests, rule out vocalization and laying on of hands during and following the administration of lethal injections.

 

On its face Ramirez’s request appears compelling and its denial cruel.  What possible end could be served by denying a prisoner the solace of prayer and touch at death?  Safety and security, says the state.  

 

The state, through the Texas Department of Criminal Justice  opines that past procedures permitting religious attention at execution were supported by safety protocols permitting state employees, not volunteers, to provide religious support.  Sabotage and the creation of chaos in the execution room cannot be ruled out, the state argues, as such events are not without a basis in history and the likelihood of a disruptive occurrence is enhanced  if a volunteer minister would be so close to the prisoner that the disruption of the flow of medication or to removal of needles or restraints.  

 

Moreover,  the state argues that its practices and prohibitions respect the dignity of the prisoner by permitting audio surveillance from outside the execution chamber of the administration of lethal substances and the dying process.  Audible prayer would thwart that process, making it more likely that the state could not remediate the execution timely and enhancing the chance of an agonizing death.

 

Religious advocacy groups and scholars of religious freedoms have aligned with Ramirez, particularly in service of precluding interpretations of RLUIPA that would permit accommodations only if the state were affirmatively precluding a recognized religious practice.  

 

Several states have asserted that the states must be deferred to in fashioning acceptable execution chamber protocols.  The states fear a flood tide of litigation intended only to forestall executions, all in defiance of the Prison’ Litigation Reform Act, which would hamstring the state in administering sentences, thereby undermining the criminal justice system and principles of federalism. 

 

The United States has urged the Supreme Court to remand the case for resolution, particularly for further articulation of the parties’ interests.

 

Joining in advocating for bringing to a conclusion Ramirez’ litigation are the survivors of Carlos Ramos, who died after having been stabbed twenty-nine times by the Petitioner.   Ramos’ children, now grown, ask that the Court not be unmindful that at each stage of litigation the trauma of their loss is revived.  The Ramos family asks how it is that media attention appears to cast Ramirez as heroic, where their father was denied a sacramental death.  


JustLawful note:  This comment omits consideration of the exhaustion of remedies argument that is also presented in this case.

JustLawful Comment: Leaving aside the flood tides of dilatory claims, administration of justice, and federalism questions, which are not insignificant, it is difficult to believe that the requested ministerial presence and prayer and touch practices could not be accommodated through prison protocols protecting the interests of all.   “Accommodation” by definition suggests that each party yield — by inches if not by yards — to the other.  The parties seem disinclined toward such a perspective, yet the Court may order remand in furtherance of such a result, which would likewise aid the Court in avoiding unnecessary decisions.


Case Materials:

Brief of Petitioner Ramirez September 27, 2021

Brief for Respondents October 15, 2021

Reply Brief For Petitioner October 25, 2021

Ramirez v. Collier Joint Appendix Vol. I

Amicus Submissions in Support of Petitioner Ramirez

Amicus First Liberty Institute September 27, 2021

Amicus Scholars of the PLRA and Prison Grievance Systems September 27, 2021

Amicus The United States Conference Of Catholic Bishops September 27, 2021

Amicus Religious Liberty Scholars September 27, 2021

Amicus Becket Fund for Religious Liberty September 27, 2021

Amicus Christian Legal Society, et al. September 27, 2021

Amicus Spiritual Advisors and Former Corrections Officials September 27, 2021

Amicus Former Prison Officials September 27, 2021

Amicus Alliance Defending Freedom September 27, 2021

Amicus Protect the First Foundation September 27, 2021

Amicus Submissions in Support of the Respondents

Amicus Arizona, et al. in Support of Respondents October 15, 2021

Amicus Pablo Castro’s Children October 15, 2021

Amicus Criminal Justice Legal Foundation October 15, 2021

Amicus Submissions in Support of Neither Party

Amicus the United States September 27, 2021

Amicus Freedom from Religion Foundation et al. September 27, 2021

 

 

 

 

 

Supreme Court Grants Realtors’ and Landlords’ Petition for Relief from Stay of Judgment Vacating CDC Eviction Moratorium as Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23. Order granting emergency petition for relief from stay issued August 26, 2021.

The Supreme Court has lifted the stay of the United States District Court’s judgment vacating the Center for Disease Control order imposing a nationwide mortatorium on evictions. 

It is not only rare that the Supreme Court would reach down to a trial court to vacate that court’s order during the pendency of appellate litigation, it is even more rare that the Court would so forcefully tip its hand concerning the likely outcome should the merits of the litigation be reached:   The CDC’s exercise of power in issuing the eviction moratorium was so far outside its authority that, with respect to the likelihood of success of the realtors’ and landlords’ challenge, “it is difficult to imagine them losing.”  (Per Curiam opinion, p.5).  

Should a nationwide eviction moratorium remain desirable, Congress must specifically authorize such a measure. 

Three justices dissented, citing changed conditions supporting the issuance of a new eviction moratorium and finding that the statute granting the CDC powers to act to control communicable disease support the eviction moratorium orders.

21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08_26_21)

 

 

The United States Urges the Supreme Court to Keep the CDC Eviction Moratorium in Effect

Alabama Associaion of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23.  Response of the United States submitted August 23, 2021.


Today the United States submitted to the Supreme Court its view that the judicial stay of an order vacating the Centers for Disease Control (CDC) Eviction Moratorium must remain in place during pending litigation.  The government argues that the circumstances surrounding the August 3, 2021 order halting certain evictions differ from those presented during the first, and later extended, moratorium order. The government argues that equity favors the stability the stay provides, while the realtors and landlords impacted by the CDC orders cannot establish that they will be irreparably harmed by preserving the status quo.

Times Have Changed.  The United States disputes the conclusion reached by the United States District Court for the DIstrict of Columbia that the August 3, 2021 is materially the same as its predecessor, pointing to the emergence of the highly transmissible Delta variant of the Covid-19 virus, which, the government submits, provided the impetus for issuing a new CDC eviction moratorium order days after an earlier order, determined to have been unconstituional, lapsed by its own terms.  In support of its position, the government points to a reported increase in illness subsequent to the issuance of the new moratorium.  

Neither the September, 2020 nor the August, 2021 CDC Orders Is Legally Flawed.  The United States, on behalf of the Department of Health and Human Services (HHS) and its component, the Centers for Disease Control, argues that the legislature conferred upon HHS broad powers to take measures to inhibit the spread of contagious diseases, including the implementation of the eviction moratorium.  Given that HHS may plainly issue orders of quarantine, it would be unseemly to conclude that HHS could not forbid landlords from evicting tenants during a pandemic.  

The idea that the legislature needed to be more specific in its delegation of powers cannot succeed, the United States observes, where the 2021 Appropriations Act relied upon the  legislation authorizing emergency public health measures in order to appropriate funding to make landlords whole.  This incorporation recognizes the aptness of reliance on the earlier legislation, making further legislative specificity unnecessary. 

Neither Commerce Clause nor non-delegation arguments can prevail where it has been established that measures inhibiting the interstate transmission disease are permitted and where broad powers to act “in the public interest” have been upheld.

The Moratorium Suits the Circumstances.  In ordering relief from forced evictions, the CDC observed that evictions would force persons and families into homelessness, causing them to be housed in temporary shelters or other places where crowding would increase the risk of contagion.  Most importantly, the government argues, the August 3, 2021 order applies only where there exist high risks of contagion and only to those unable to meet their obligations to their landlords.

The Greatest Good for the Greatest Number.  The government and the people will suffer greatly if the government’s current plan to freeze evictionsis disturbed.  Property owners, on the other hand, have not been able to provide reliable evidence of their losses, for which, in any case, the government has promised financial assistance. 

What Might Have Been Is Not What Is.  The United States resists the position taken by realtors and landlords that Judge Kavanaugh’s observation that he would have granted review earlier if he were not assured that the eviction moratorium would expire at the end of July now compels the Supreme Court to grant review and to vacate the stay.  Remarks made in support of denying review cannot now be transformed into an indication that review would have been granted had matters been otherwise.  Not only do new facts support the new CDC measures, but in the absence of a controlling opinion a litigant may not, by pointing to a concurrence in support of an earlier denial of review, later recast that concurrence as a vote supporting review. 

Time of Ruling Unknown. The case docket does not now disclose any activity beyond the present submissions of the parties.   

Alabama Association of Realtors v. HHS, No. 21A23 Response in Opposition

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.


Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

New CDC Eviction Moratorium Is Defective, But Federal District Court Cannot Vacate Its Earlier Stay Where the Order of the D.C. Circuit Court of Appeals Upholding that Stay Is the Law of the Case

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-0377-DLF.  Opinion and Order issued August 13, 2021.


The federal district court in the District of Columbia has compared the August 3, 2021 Order of the Centers for Disease Control imposing a nationwide stay of evictions until October 31, 2021 and found it to be not materially different from the order preceding it, which has been found to be, and has been admitted to be, constitutionally defective.  

Were it possible to do so, the federal district court said today, the court would enter an order similar to the order of vacatur issued previously.  The court cannot do so, however, because the United States Court of Appeals for the District of Columbia Circuit refused to disturb the district court’s earlier stay of its order of vacatur.  The appellate court’s refusal to grant relief, which left the district court’s stay of its order of vacatur in place, is the law of the case which the district court may not now ignore. 

The appellate court and the district court were not of the same analytical minds with respect to the initial stay, but this is of no moment at this time.  Plaintiffs’ recourse is in the appellate court or in the United States Supreme Court.  

There is Need for a Meta Crystal Ball.  It is not known at this time whether the plaintiffs will once again seek relief in the United States Supreme Court prior to seeking relief or continuing its current appeal in the D.C. Circuit Court of Appeals.  Although the United States Supreme Court denied plaintiffs’ earlier petition, Justice Kavanaugh opined that he would have agreed with the justices who would have granted relief but for the imminent expiration of the first Centers for Disease Control Order.   While plaintiffs in this case asserted that Justice Kavanaugh’s opinion in essence created a majority that would grant relief, the United States argued the concurrence in denying relief could not be transformed into one granting relief, as plaintits wished, a position with which the district court has agreed.  As the other justices’ votes are known publicly, but their analyses and opinions are not, assessment of a likely outcome if relief were sought first in the Supreme Court will no doubt provoke much discusson. 

JustLawful Observation: Whether in the present posture of the case plaintiffs will renew their request for relief in the United States Supreme Court rather than in the D.C. Circuit Court of Appeals is, of course,  a matter of speculation.  While much of today’s ruling may have too much of a “yes-but-no” flavor, and seem to rely on jurisprudential concepts pleasing to judges and lawyers but confounding to the public, there may be some comfort in considering that it is likely that not too much time will pass before the next round of litigation begins.  

Alabama Association of Realtors, et al. v. HHS, No. 20-0377Memorandum Opinion and Order dated August 13, 2021

Nixxing Ipse Dixit: U.S. Supreme Court Finds New York’s Covid-Related Tenant Financial Hardship Self-Certification Provisions Deny Landlords Due Process

Chrysafis, et al., v. Marks, No. 21A8.  Order granting injunctive relief pending disposition in Second Circuit or of Petition for Certiorari entered August 12, 2021.  


New York’s pandemic related tenant protections preclude eviction if a tenant self-certifies to financial hardship.  Landlords may not challenge such self-certifications.  This, the U.S. Supreme Court has concluded, impairs landlords’ due process interests, as established law has observed that “no man may be a judge in his own case.”  Order of August 12, 2021, citing In re Murchison, 349 U. S. 133, 136 (1952).  

By order entered August 12, 2021,  the Court has enjoined the preclusive effect of tenant self-certifications pending further judicial activity but has left undisturbed the capacity of courts to make assessments of financial hardship in eviction proceedings.  Such assessments could permit receipt of pandemic-related financial aid and could preclude eviction.

Justice Breyer, with Justices Sotomayor and  Kagan,  has dissented, opining that there is no basis in the law for the U.S. Supreme Court to reach the constitutionality of a state law measure which has not been enjoined by a state court, where there has been no determination in the Second Circuit Court of Appeals, where the emergency eviction measures will lapse of their own accord at the end of August, where there is available $2 billion dollars in federal rental assistance, and where landlords are not denied, but only delayed, a hearing, a circumstance which does not violate constitutional due process principles.  

Justice Breyer’s dissent notes that there is no First Amendment compelled speech issue presented by the state’s requirement that factual information be provided to tenants. 

While it is recognized that emergency measures are not wholly insulated from judicial review, it is Justice Breyer’s sense that in this circumstance, where any right to relief is not clearly established, where tenants may face displacement earlier than anticipated, and where the state must craft and administer many scientifically and medically complex emergency measures, the public interest would favor deference to the state.  

The U.S. Supreme Court’s decision has been presented to the federal court in the District of Columbia for consideration in connection with the court’s anticipated ruling on a challenge to the new federal eviction moratorium.

U.S. Supreme Court docket showing entry of order:

21A8 U.S. Supreme Court Docket

Order entered August 12, 2021

CHRYSAFIS . v. MARKS, U.S. Suprerme Court Order with Dissent August 12 2021

Submission to U.S. District Court for the District of Columbia:

Alabama Association of Realtors v. HHS, 20-03377, Notice of Supplemental Authority

Alabama Association of Realtors v. HHS, 20-03377, Exhbit A.

20% Off Is Still 100% Unconstitutional: Realtors Argue that Novel Iteration of CDC Eviction Moratorium Is as Lacking in Authority as its Precursor

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-cv-03377 (D. D.C.). 


Emergency!  Last spring plaintiff realtors and related organizations were successful in persuading the U.S. District Court for the District of Columbia that the September, 2020, Order of the Centers for Disease Control imposing a national moratorium on evictions was without authority.  The court found no authority for such a sweeping measure in the public health law that served as the order’s premise, nor could the court find any legislative delegation of authority that would permit the Centers for Disease Control to criminalize rental property evictions. 

The D.C. District Court vacated, yet stayed, its order pending review.  The U.S. Court of Appeals for the District of Columbia Circuit refused to disturb the federal district court’s determinations, and the United States Supreme Court denied emergency review.

The denial of review, however, came with Justice Kavanaugh’s concurring caveat: he agreed that the eviction moratorium order was unconstitutional but sensed that it was best to let the order lapse of its own accord at the end of July, as the Centers for Disease Control represented to the Supreme Court that the moratorium would not be extended further. 

Post-Moratorium Hubbub in the Executive and Legislative Branches.  The President of the United States stated publicly that he had been advised that the eviction moratorium was unconstitutional. A valid moratorium would require, as Justice Kavanaugh pointed out, legislative authority, which Congress failed to enact. 

The President begged the states to disburse the $45,000,000,000 that the federal government had provided in assistance to troubled tenants but which appears to have been bogged down in bureaucracies.  

This Time It’s Different.  On August 3, 2021, the Centers for Disease Control issued a new order prohibiting evictions in areas deemed to be highly affected by a variant of the contagious Covid-19 virus that prompted the initial moratorium.  This “Delta” variant, the Centers for Disease Control has predicted, is highly contagious and its threat to interstate transmission justifies federal intervention on a limited basis, which the Centers for Disease Control now sets at about 80% of all counties nationally or 90% of all rental housing in the United States.

Lack of Constitutional Authorization Remains. Plaintiffs argue that the fundamental lack of authorization for the Centers for Disease Control’s new order persists: no geographic or statistical tinkering can imbue the order with the constitutional soundness it lacks.  

It’s Not the Principle of the Thing, It’s the Money. That the Executive Branch is in accord with the view that the prior order was unconstitutional  makes the new order all the more curious except that the President has stated that he hopes that litigation will buy some time to move relief to intended recipients.  

Fuzzy Math.  The U.S. Department of Health and Human Services, of which the Centers for Disease Control is a component, has opposed emergency relief now because, the government argues, the plaintiffs’ assertion that the precedent it finds in Justice Kavanaugh’s concurrence is not precedent at all.  The government argues that a concurrence that can be seen as aligned with those who would have granted relief cannot transform the minority of judges who would have granted review into a majority.  

As Then, So Too Now.  Defendants argue that as there is no Supreme Court precedent binding the district court the law requires that the D.C. Circuit Court of Appeals opinion on the stay controls.  The district court should not disturb its earlier stay, the government argues, but the court must recognize that its earlier vacatur of the first CDC order is of no moment, either, as circumstances have so changed that the court’s initial conclusions would not apply now.  

Deference, Please. Moreover, the Centers for Disease Control submit that the district court should abstain from any action to permit the Solicitor General of the United States to determine whether to seek emergency review in the D.C. Court of Appeals or the United States Supreme Court.

There May Be More to Come. The plaintiffs may file a reply to the government’s opposition by August 6, but at this time none is of record.

Centers for Disease Control Order Dated August 3, 2021:

CDC Eviction Order

Realtors’ Emergency Motion:

Emergency Motion to Enforce the Supreme Court’s RulingyDefendants’ Opposition

Defendants’ Opposition to Plaintiffs’ Emergency Motion

Order of U.S. Supreme Court Denying Review of Eviction Moratorium

Order Denying Application to Vacate Stay June 29, 2021

Fundamental Fairness Compels Cosby’s Release, Supreme Court of Pennsylvania Concludes

Commonwealth of Pennsylvania v. William Henry Cosby, Jr., No. J-100-2020.  June 30, 2021.  


A Life of Unprecedented Firsts and Widespread Public Acclaim. Bill Cosby enjoyed a career marked by achievements in comedy, in acting, and in education.  Following success as a stand up comedian, he was the first African American to star in a nighttime drama, I Spy.  Later, the long-running Cosby Show, in which he played a sometimes perplexed, but always lovable, sweater-wearing physician, endeared him to millions.  Cosby was not infrequently referred to as “America’s Dad.”

 

Dad Would Never. Surrounded by accomplishments and accolades, the notion that Cosby was anything other than that which he appeared to be in public was unthinkable until the early years of the new millennium.

 

Very Tough Love. Theretofore relentlessly anodyne, in 2004 Cosby lambasted African Americans for what he perceived to be life limiting choices and woeful parental skills.  Notwithstanding that Cosby asserted that his intention was to proffer help, his thoughts were not well received.  

 

Very Little Love (Or So It Would Appear). That same year Cosby engaged in a personal relationship with a woman at Temple University.   Although Cosby asserted that all his activity was consensual, the woman believed that she had been drugged and sexually assaulted, and was unable to consent. 

 

Concerned about the impact that the relationship with Cosby had had on her, Andrea Constand complained to local police. 

 

No Criminal Case. On review of Constand’s complaint and conduct, as well as a statement by Cosby, the District Attorney for Montgomery County, Pennsylvania, concluded in 2005 that the available evidence was not sufficient to ensure a conviction.

 

But Perhaps a Successful Civil Suit. By his own account, the District Attorney believed that while he could not be certain of a criminal conviction against Cosby, he could facilitate a civil suit for money damages for Constand if he declared he would not prosecute Cosby.  If there were no possibility of prosecution, Cosby in turn would not be able to avail himself of his Fifth Amendment right against self-incrimination.  

 

Telling the World. With the idea of removing any Fifth Amendment protections from Cosby in a civil proceeding, the District Attorney issued a press release describing to the public his decision that his office would not prosecute Bill Cosby based on the investigation and the evidence then known.  

 

No Compliance with Statute or Protocols. The sole promise made by the District Attorney was in the press release. There was no court order of immunity sought or obtained, nor was three any writing describing any immunity conferred upon Cosby.

 

Testimony Under Oath. In later civil suits, Cosby was deposed on several occasions, during which he never asserted any Fifth Amendment privilege and during which he made statements that were self-incriminating.

 

A Decade Hence, Things Were Perhaps Not Exactly What Was Had in Mind. Ten years after the Constand complaint and the promise of non-prosecution, a new District Attorney reopened the case based on the public release by a Federal judge of Cosby’s previously sealed deposition testimony.  

 

#MeToo and #MeToo and #MeToo. As interest in Cosby’s conduct gained momentum, one woman after another disclosed that she believed that she had been drugged and sexually assaulted by Cosby.  The allegations spanned decades, some reaching back to the 1960s.  Some, but not all, of the accounts were admitted in evidence at Cosby’s second trial. 

 

A Matter of Record. Cosby was convicted of aggravated indecent assault in 2018, in a second trial following a 2016 mistrial.  

 

And Now the Reversal.  Within recent weeks Cosby’s conviction has been vacated and he has been released from prison.  

 

Justice Delayed or Justice Denied. This latest result is no doubt unthinkable to those who believed that Cosby’s conviction represented a measure of justice, however belated, not only for those who felt themselves personally victimized by Cosby, but also for those persons everywhere who have suffered sexual assault, ofttimes in decades-long silence.

 

Justice is for the Next World: In this World, There is the Law. The Supreme Court of Pennsylvania, having reviewed all the proceedings, concluded that the District Attorney’s deliberate inducement caused Cosby to forfeit his constitutionally guaranteed right against self-incrimination. Moreover, the District Attorney had no power to bind those who would succeed him.  

 

Induced and Abandoned. The appellate court concluded that the District Attorney’s inducement, in the form of a press release announcing there would be no prosecution, which was relied upon by Cosby, so offended principles of fundamental fairness, which the law considers to be the foundation for all due process, that the only way to make Cosby whole was to set aside the conviction and set Cosby free.

 

The Pennsylvania Supreme Court’s opinion was not unanimous.  Two judges concurred and dissented at once, opining that Cosby ought to be tried a third time, with any evidence introduced in error in the prior trials suppressed.  

 

One judge dissented from the result in its entirety, questioning the soundness of the court’s conclusion that the District Attorney made an unconditional promise by means of a press release.  Moreover, the Court’s speculation about the District Attorney’s intent to gull Cosby into forfeiting his Fifth Amendment rights was contrary to sound jurisprudence. 

 

Nonetheless, the dissenting judge agreed that were circumstances as the majority described them, prosecutors would have boundless capacities to trample on individuals’ constitutionally protected interests. 

 

In addition, the dissent perceived that the trial court erred in admitting evidence of prior assaults, as the evidence was unduly inflammatory, and the dissent would have been inclined to order a new trial on that basis.

 

The News May Be Bad, but the Law May Be Good.  Appellate decisions exist to refine the law.  While the release of Cosby may disappoint, the release had nothing to do with Cosby’s conduct, memorialized for all time in the opinion. 

 

The result had everything to do with the prosecutor. 

 

In this light the opinion is a clarion call to prosecutors everywhere to be prudent in their dealings with defendants, with the courts, and with the public, to be scrupulously truthful and trustworthy, and to be no larger than the office and the law allow.   

Commonwealth v Cosby (Pa. 2021). Wecht, J. for the Court

Commonwealth v Cosby (Pa 2021). Dougherty, J., Concurring and Dissenting.

Commonwealth v Cosby (Pa. 2021). Saylor, J., Dissenting.




Justices’ Disappointments Surround Supreme Court’s Decision that Free Exercise Clause Permits Exemption from Philadelphia’s Foster Placement Policies

Fulton, et al., v. City of Philadelphia, et al., No. 19-123.  Opinion of the Court by Roberts, C.J., issued June 17, 2021.


The Catholic Church has long been involved in providing services to children in need.  Until recently, Catholic Social Services of Philadelphia, under contract with the city, evaluated potential foster parents and made recommendations to the city for placement.  However, when Catholic Social Services disclosed that it would not certify same-sex couples for placements, Philadelphia determined that it would not enter into another contract with Catholic Social Services unless Catholic Social Services would agree to certify same sex couples for foster care service.

Litigation ensued, notwithstanding that no same sex couple has ever requested or been denied certification by Catholic Social Service.

A federal district court denied  Catholic Social Services request for injunctive relief, finding that the agency was unlikely to prevail on either a Free Exercise or Free Speech claim, as a neutral law of general applicability is not subject to Free Exercise challenges, and Free Speech principles were inapplicable where the social services agency was certifying for a government agency.

The Third Circuit agreed.  The Supreme Court granted certiorari, having in mind whether or not it ought to overrule Employment Division of the Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990).

Employment Division of the Department of Human Services of Oregon v. Smith (“Smith”), supra, held that neutral laws of general applicability are not subject to Free Exercise challenges.

In this case, the Supreme Court declined to revisit Smtih, deciding instead that because Philadelphia’s contract with Catholic Social Services included the potential for exemption from same-sex services, the possibility of exemption removes the agreement from consideration as would apply to “neutral laws of general applicability”.  

The Supreme Court found it unquestionable that Philadelphia’s refusal to enter into an agreement with Catholic Social Services, and its retroactive rejection of certifications already made, substantially burdened religious exercise by forcing Catholic Social Services to exercise its faith and refrain from providing services to the city, or by abandoning its faith and providing those services.

The Court could find no compelling reason for rejecting Catholic Social Services, particularly as no harm could be envisioned from continuing to accept their services.  If a request for certification of a same-sex couple were presented, that request could be presented instead to another agency that could accept the couple. 

The Court rejected Philadelphia’s arguments that it ought to have more latitude and received more deference in Free Exercise matters when the city acts in a managerial capacity.  The Court found no basis in the law for abandoning constitutional principles on the basis of the City’s role.

Heckling the Umpire.  The Court’s narrow decision in this case precipitated the issuance of three separate concurrences, each reflecting the joining justices’ disappointment in not overruling Smith.  Justice Alito has published a 77-page history of Free Exercise jurisprudence, which includes a scathing assessment of the Court’s opinion, offering that it might as well have been written in disappearing ink.  All Philadelphia needs to do to avert the Court’s decision is remove the exemption language.  This would place petitioners back at the beginning, with another cycle of litigation ahead.

Fulton v. Philadelphia, No. 19-123 (S. Ct.) June 17, 2021  

 






Crisis Upon Crisis: Landlords Ask Supreme Court Justice to Vacate Stay of Order Staying CDC Order Staying Evictions


Alabama Association of Realtors, et al.  v. U.S. Department of Health and Human Services, No. 20A169.  Emergency application to Chief Justice of the United States Supreme Court and Circuit Justice for the D.C. Circuit John G. Roberts, Jr.  submitted June 2, 2021; Response submitted June 10, 2021. 


The Centers for Disease Control (CDC), following lapse of a federal legislative order, issued and later extended an order suspending landlords’ powers to evict non-paying tenants during the COVID-19 pandemic.  It was thought that a potential for massive evictions existed which would precipitate, among other things, homelessness or forced overcrowding of housing, which would increase the likelihood of viral contagion and disease. 

The CDC order will lapse on June 30th unless it is extended.

Tenants Stay While Landlords Pay. The eviction moratorium, as it is called, has relieved qualifying tenants of the obligation to pay rent.  Landlords have not been relieved of the obligation to pay bills.  

Various calculations present various estimates of the value of lost rental income during this time.  There is no doubt that it is, simply stated, a lot, but how much, in millions or billions, is disputed, as is the ability of a Congressional appropriation of funds payable to the states and, in turn, through the states and to the landlords, to mitigate their losses.  Landlords argue that if federal funds become available, the money will be insufficient to cover all losses and will be so delayed as to diminish the value of payment.

Not Merely a Civil Matter.  Lost rents are not landlords’ only worry.  Violations of the eviction moratorium carry criminal penalties and substantial fines. 

Defeat Snatched from the Jaws of Victory. In an effort to stem the accrual of further losses, plaintiffs real estate owners, managers, and trade associations sought and received a favorable judgment in federal district court in the District of Columbia.  With the judgment came an order enjoining the operation of the CDC order nationwide.  Notwithstanding its judgment and order, relief was immediately stayed by the issuing court because the court perceived that the government presented significant legal questions for review.  The United States Court of Appeals for the District of Columbia refused to vacate the order.  Petition to the Circuit Judge of the United States Supreme Court ensued.

Power and Its Exercise. Plaintiffs submit that the trial court was correct in perceiving that the CDC’s eviction moratorium order was not within its statutory power and that staying that determination has only increased irreparable harms to landlords nationally.  Plaintiffs submit that the statute authorizing the CDC to issue orders to stop the spread of disease is limited to quarantine and inspection measures.  The CDC’s disruption of landlord-tenant relations, powers reserved to the states, presents constitutional questions that the U.S. Supreme Court must review, and that pending that review, the stay must be vacated to prevent greater harm to the landlords.

Plaintiffs need relief notwithstanding that the current order will expire on June 30th, they argue, for the failure to vacate the stay will render plaintiffs’ victory meaningless.  

The Department of Health and Human Services, on behalf of its component the Centers for Disease Control, insist that the CDC has plenary powers to issue orders to inhibit disease providing the CDC articulates its perception of a need to do so.  Such powers are not unlimited, as plaintiffs argue, nor are there questions of unconstitutional delegation, for no power committed to the Legislative Branch has been delegated, and Congress may delegate to HHS the power to act in the interest of the public.

Equity (in the Traditional Sense). The arguments for emergency action by the Circuit Justice by and large concern whether or not appropriate standards for issuance of the stay in the trial court, or denial of vacation of that stay, in the appellate court, were selected and applied.  These are equitable considerations which involve not only judicial discretion and deference on review,  but also a showing of demonstrable error. 

The federal government is supported by twenty-three state amici.  Their brief indicates that states will administer federal monies to landlords to compensate for lost rent, but doing so will require time.  

JustLawful’s Crystal Ball:  The proximity in time of the emergency petition to the expiration of the CDC eviction moratorium creates high drama.  However, Circuit Justice Roberts may not wish to decide more law than is necessary, particularly as judicial deference to agency determinations would counsel against an eleventh hour intervention, especially where doing so might, either directly or paradoxically, further destabilize already deeply distressed rental housing conditions.  

Alabama Association of Realtors, et al. v. HHS 20A169 SCOTUS Application to Vacate Stay

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Lower Court Orders and Opinion

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Provisions of Law

Association of Alabama Realtors, et al. v. HHS 20A169 Opposition

Alabama Association of Realtors, et al. v. HHS 20A169 Amicus Brief

Public Figures, Private Law: Facebook Oversight Board Upholds Initial Removal of President’s Statements and Presence but Condemns Facebook’s Failure to Articulate Standards or Time Limits


Case No. 2021 -001 – FB – FBR.  Facebook Oversight Board, May 5, 2021.


Facebook is an online social media platform that welcomes all except those determined to have acted badly according to its internal standards, which are described generally in its Terms of Service, with which users promise compliance.   For the errant poster, Facebook may administer rebukes, suspend or terminate service, as well as removing content it deems unsuitable. 

Facebook thus administers and enforces rules of its own making by its own employees.  In light of persistent concerns about this insularity, Facebook founder Mark Zuckerberg created a board of review, funded by Facebook but administered independently.  

This week the Facebook Oversight Board issued an opinion unsigned by its constellation of prominent international figures that concluded that Facebook did not err in removing statements of then-President Donald J. Trump at the time of and concerning violence that erupted on January 6, 2021 in the nation’s Capitol following a rally of Trump supporters.  

While correct in the immediacy of its removal and ban in light of the circumstances at the time, in which the then-President’s words were perceived to have incited insurrection, the Facebook Oversight Board condemned Facebook’s failure to articulate the reasons and applicable standards supporting the removal and ban and the apparent eternal silencing of Facebook account holder Trump.  

The Facebook Oversight Board sent the case back to Facebook for further proceedings. 

The decision is no small matter and some have deemed it a landmark of equal stature with Marbury v. Madison, 5 U.S. 137 (1803), the first enunciation by the United States Supreme Court of its reason for being and its power of judicial review.  

This proceeding can be seen as a foundational attempt to provide some structure for review of platform provider’s decisions.  

This matters greatly (“bigly”, some might say) because internet service providers are almost entirely immune from suit for questionable decisions and at the same time the government of the United States cannot intervene to regulate online speech as it is constrained by the First Amendment to the Constitution of the United States.  

Section 230:  the good, the bad, and the sometimes ugly. When widespread public adoption of the internet was in its infancy, Congress sought to inhibit unprotected speech while protecting internet service providers from liability for statements not of their own creation posted on platforms.  Section 230 of the Communications Decency Act of 1996 preempts federal law and precludes suit against any platform provider who does not create content.  The platform is free to remove or to otherwise police its product without losing those immunities.  

This would leave a user without recourse unless the platform’s actions could be challenged in court in contract, which in limited measure can be done, or through internal review with the platform provider, as is the case in this week’s opinion.

The creation of an international body not necessarily bound by the laws of any one nation cannot be other than a major inflection point in modern law.  Prominent First Amendment authorities question whose law should govern such cases.  

It is far too soon to tell whether this new thing is a good thing, and much is lost in cheers and jeers attaching to personalities, whether that of the former President or of the founder and CEO of Facebook.  What is to the Facebook Oversight Board’s credit is that the reviewing body articulated not only the facts determined but also the standards embraced.  The virtue of its reliance on standards drawn from international human rights declarations, which remain aspirational domestically if not adopted by the United States, awaits further reflection.  

Links to the decision and to other materials are posted below. 

The Facebook Oversight Board opinion:  

2021 001 FB FBR Oversight Board Opinion

The Facebook Oversight Board announcement and overview of its opinion:

Oversight Board Upholds Trump Suspension While Finding Facebook Failed to Apply Proper Penalty

The composition of the Oversight Board:

Facebook Oversight Board

A primer on the creation of the Oversight Board and a reflection on this week’s opinion:

Lawfareblog: About the Facebook Oversight Board

Lawfareblog: It’s Not Over: Oversight Board Trump Decision is Just the Start

Reflections on jurisprudential questions prompted by the Facebook Oversight Board determination:

Volokh Conspiracy: Whose Rules Should Govern How Americans Speak with Other Americans Online

Responses to announcement of the decision and opinion in the mainstream media:

Facebook Oversight Board Tells Zuckerberg He’s the Decider on Trump – The New York Times

Trump Is Still Banned on YouTube. Now the Clock Is Ticking. – WSJ

Facebook Oversight Board’s Trump Decision was Marbury v Madison Moment – CNBC

Two recent cases discussing Section 230 of the Communications Decency Act of 1996:

Daniels v Alphabet Inc ND Cal 2021

Murphy v Twitter Inc Cal App 2021

Discussions of United States’ positions on international human rights conventions:

Where the United States Stands on 10 International Human Rights Treaties – The Leadership Conference Education Fund

Human Rights and the United States

Public commentary on the controversy submitted to the Facebook Oversight Board:

Facebook Oversight Board Public Comments

School Is Out! Or Is It? Supreme Court to Consider School’s Constitutional Capacity to Discipline Student’s Off-Site Online Speech


Mahanoy Area School District v. B.L., et al., No. 20-255 (S. Ct.).  Oral argument scheduled for April 28, 2021 at 10 a.m.


Student B.L., who was all in on cheerleading activities, was distressed to learn that a less senior student had jumped the line to the varsity squad, while she, with a year’s experience to her credit, remained on the junior varsity squad.  As is normative among digital natives, B.L. made her views known online on the social media application Snapchat.  B.L. did not have a good word to say, and indeed she used some words that a grandmother might kindly term “unladylike.”

Soon thereafter the school was abuzz with the news of B.L.’s postings.  School administrators, displeased with her having posted material that it considered disrespectful and disruptive of school and school-related activities, determined that she ought to sit the cheerleading season out.  This was fiercely protested by B.L. and her family.  The school would not budge, and this case, which questions how much off-site speech a school may discipline, ensued.

During the Viet Nam War, students protesting the United States’ participation in that conflict came to school wearing black arm bands to signify their disagreement.  When a school tried to countermand this activity, the Supreme Court disciplined the school instead.  In Tinker v. Des Moines Independent Community School District, et al, 393 U.S. 503 (1969), the Court concluded that minor students are not without Constitutional rights, including speech and expressive rights.  Schools may not interfere with students’ speech and expressive activities except where the ordinary activity of the school or the rights of others may be substantially disrupted thereby.

Life today is no longer constrained geographically as in the past.  Communication is instant online and that communication may reach an audience any time and any where.   Boundaries as they once were known are no more, leaving schools to wonder how they might navigate the shoals of order and expression.

The petitioning school district argues that it was error for the trial and appellate courts to interpret Tinker as inapplicable to off-site activity.  Schools, responsible for so much of students’ lives in the day to day, must be able to maintain civility when offsite online behavior interferes with order or threatens others.

B.L. counters that the First Amendment rights recognized in Tinker would be meaningless if students, fearful of condemnation and harsh consequences from school authorities, were not able to communicate online as they would wish.

The United States, as amicus with a bit more clout than many other amici, while favoring the school’s position, suggests that there are several lenses with which to evaluate the interests of the parties, but asks the Supreme Court to return the case to the lower courts for further developments.

Mahanoy Area School District v. B.L., No. 20-255 Brief for Petitioner

Mahanoy Area School District v. B.L., No. 20-255 Joint Appendix

Mahanoy Area School District v B.L., No. 20-255 Brief for Respondents

Mahanoy Area School District v. B.L., No. 20-255 Reply Brief for Petitioner

Mahanoy Area School District v. B.L., No. 20-255 United States’ Amicus Curiae Brief

Funny Things Have Happened on the Way to the Fora: Justice Thomas Proffers Adapting Common Carrier Law to Digital Media to Address Speech Concerns

Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).


Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space.  As such, the former president could not block others’ or their responses without violating the First Amendment. 

 

In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.

 

While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.  

 

Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet. 

 

Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason.  This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are.  It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.

 

If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action.  Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally.  While market power has traditionally been a part of common carrier analyses, it is not a determining factor:  entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.  



This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.  


Supreme Court Determination 

20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04_05_2021)

Second Circuit Decision Regarding Rehearing en banc:

Knight First Amendment Inst at Columbia Univ v Trump 953 F3d 216 Mem 2nd Cir 2020

Second Circuit Decision on Appeal:

Knight First Amendment Inst At Columbia Univ v Trump 928 F3d 226 2nd Cir 2019

Opinion of the United States District Court

Knight First Amendment Inst At Columbia Univ v Trump 302 F Supp 3d 541 SD NY 2018


 



 

Pronouns and Principles: Sixth Circuit Holds that University Faculty Member’s Speech and Religious Beliefs Enjoy First Amendment Protections

Meriwether v. Hartop, et al, Jane Doe, and Sexuality and Gender Acceptance, No. 20-2389 (6th Cir.).  March 26, 2021.


The United States Court of Appeals for the Sixth Circuit, observing that the trial court had lost sight of fundamental First Amendment principles, has vacated dismissal of a professor’s case alleging that his employer, state university, impermissibly infringed on his First Amendment speech rights and impinged on his Free Exercise interests.  

 

Accepting solely for purposes of its review that plaintiff Meriwether’s allegations are true, the court recounted that in the course of teaching that Meriwether, a professor at Shawnee State University for 25 years, referred to a student as a male.  That student approached Meriwether after class and demanded to be referred to as a female.  Meriwether demurred based on religious principles and an inability to affirm that which he believes to be untrue.  The student uttered a coarse epithet and promised to have Meriwether fired.

 

After reporting the incident, one colleague opined that religion ought not be taught at the school, knowing that Meriwether had done exactly that for a quarter of a century.   The school insisted that Meriwether conform to its anti-discrimination policies by conforming his language to the student’s preference or by not using pronouns at all.  As Meriwether stated he could not on principle do the first nor in practice do the second, the school administrators attempted to reach a compromise in which Meriwether would address the student with neutral terms.  

 

The student complained repeatedly, prompting Title IX review, which concluded that Meriwether had created a hostile environment in violation of that law, which guarantees equal treatment in education.  Meriwether presented a grievance through the faculty union which prompted laughter from the hearing official, who would later be the reviewing official on appeal.  That reviewing official’s delegate determined that Meriwether was undeserving of an accommodation based on religious principles perceived to be bigoted, and therefore unworthy of legal protection. 

 

Meetings were held and memoranda were generated and the compromise offered to Meriwether was revoked.  He was instructed to conform to the school’s speech policies or face discipline, which might include termination or suspension without pay.  A written warning to that effect was added to his official file.  

 

Meriwether sued and lost in federal district court.  On appeal, the Sixth Circuit has stressed that teachers at public universities do not lose First Amendment rights by virtue of that status. The university’s interest in administration, premised on inchoate fears, did not outweigh the faculty member’s speech rights.  Statutes and policies intended to ensure the fair treatment of all are not superior to all other statutes and policies, the court observed.  The finding of a violation of Title IX was in error where there was no pervasive culture making student life intolerable. 

 

The Sixth Circuit concluded that the school had compelled speech by demanding that Meriwether use pronouns deemed acceptable according to policy, and compelled silence in that speech without pronouns was impossible, and an explanation of his views on his syllabus was denied, as was his request for religious accommodation, none of which, subject to development of the record, may be constitutionally tolerable.  Equally problematic was the school’s failure to treat Meriwether’s beliefs even-handedly.  The court found the hostility displayed toward Meriwether troubling and contrary to Supreme Court precedent.  

 

The case has been remanded to the federal trial court for further proceedings.  

Meriwether v. Hartop, et al. No. 20-3289 (6thCircuit).Opinion March 26, 2021

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

Not Quite Down Pat: New First Amendment Bivens Action Emerges from TSA Employees’ Interference with Recording of “Pat Down” Search

Dyer v. Smith et al., No. 3:19-cv-921 (E.D. Va.) February 23, 2021


The United States District Court for the Eastern District of Virginia recently denied transportation security agents’ motion to dismiss in a suit precipitated by the agents’ insistence that a travelling couple stop  video recording agents patting down — physically searching outside the clothes — one partner, and that anything already recorded be destroyed. 

The federal district court reviewed and rejected factors cautioning against expansion of Bivens actions, observing that the law is clear not only through decisions but also by custom that there exists a recognized First Amendment right to gather news and, as a corollary proposition, to record officials in the conduct of official business.  The court concluded that in the absence of any available remedy, the couple’s Bivens action may proceed.  

JustLawful Observation:  This straightforward summary may provoke an “of course!” response, but that response might be a bit hasty, given that the court recognized a new Bivens action, when in the wake of Hernadez v. Mesa, 528 U.S. ____ (2020), decided during the last Supreme Court term, it was thought that Bivens actions would soon be unicorns:  fanciful but imaginary.

Counsel for the transportation agents thinks so, too, and is pursuing interlocutory review.E.D. Virginia Opinion:

Dyer v Smith, No. 3:19-cv-921 (E.D. Va.) February 23, 2021

Request for Interlocutory Review:

Dyer v. Smith, No. 3:19-cv-921. Defendants’ Memorandum Supporting Motion to Certify Interlocutory Review

Recent U.S. Supreme Court Consideration of Bivens Actions:

Hernandez v Mesa, 528 U.S. , 140 SCt 735, 206 LEd2d 29 (2020)

Commentary on the Future of Bivens Actions

SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment. Robertson, C. ABA Practice Points. April, 2020.

When Zeal Outstrips Reason: Second Circuit Upholds Judgment Stemming from Website’s Publication of Allegations of Child Sexual Abuse

Powell v. Jones-Soderman and Foundation for the Child Victims of Family Courts, No. 20-532-CV (2nd Cir.) February 26, 2021.


The United States Court of Appeals for the Second Circuit recently upheld a Connecticut federal court judgment that the founder of a child advocacy foundation had libeled a Connecticut father when, during pending divorce proceedings, she published on her website allegations that the father had committed child sexual abuse. 

On appeal, Jones-Soderman argued that the trial court erred in finding her liable because proof of the falsity of her statements was lacking, and such proof was necessary to overcome her First Amendment defense. Moreover, she said that the trial court failed to give consideration to her good faith belief that she was publishing the truth.  

While the First Amendment may protect commentary on matters of public interest, no such protection extends to demonstrably false statements, which the appellate court found were amply examined by the federal trial court in taking testimony and in admitting to the record state court findings that the allegations of sexual abuse were without merit.  

Jones-Soderman is not entitled to reliance on an “actual malice” standard for publication of defamatory material, the Second Circuit found, but even if she were, that standard would have been met, and it would negate any qualified privilege she might have.  

That Jones-Soderman published statements about the plaintiff when in his ex-wife’s employ in a custody battle and with knowledge that clinicians, state authorities, and the state court had found the abuse claims without foundation.  No qualified privilege may serve as shield in such circumstances, nor may a “good faith belief” in the truth of the published statements be invoked where Jones-Soderman knew of evidence contradicting the claims.

Jones-Soderman’s status as a mandated reporter of child abuse is of no moment with respect to the facts in this case, particularly where no complaint to Child Protective Services was ever made.

Powell v. Jones-Soderberg, No. 20-532 (2nd Cir.)

Going to the Chapel (Again): Supreme Court Enjoins California’s Restriction on Indoor Worship, Chastising Ninth Circuit for Failing to Reach Result “Clearly Dictated” by Supreme Court’s Decision Just Days Earlier

Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

  • Justices Thomas and Gorsuch would grant all the relief sought by the church.  
  • Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
  • Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
  • Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
  • Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
  • Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
  • California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
  • The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
  • Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
  • Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
  • Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
  • Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
  • In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
  • The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
  • Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
  • The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
  • The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
  • The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
  • Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021

Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment


 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established


What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

The Preacher Talked to Me and He Smiled: Supreme Court Upholds Injunction Permitting Minister’s Presence at Alabama Prisoner’s Execution

Commissioner v. Smith, No. 20A128, 592 U.S. ____ (February 11, 2021).


Justice Kagan, with three others, has opined that Alabama failed to meet the strict scrutiny test applicable under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Alabama’s global prohibition on ministerial presence at execution substantially burdens a prisoner’s religious exercise, and Alabama failed to demonstrate that this preclusion is the least restrictive means of advancing the compelling state interest in prison security.  As such, the injunction permitting the prisoner to have a religious presence at execution is proper and will not be dissolved.

Justice Thomas, without writing separately,  would have granted the petition to dissolve the injunction.

Justice Kavanaugh and Chief Justice Roberts would grant the petition as reflecting a non-discriminatory policy, but would encourage states to implement measures that would fulfill requests such as the inmate’s here and thereby avoid protracted litigation. 

 

Commissioner v. Smith, 20a128, 592 U.S.__(February 11, 2021)




Pour l’instant, ils ne parlent pas: Federal Judge Denies Social Media Platform Parler’s Request that Amazon Web Services Restore Its Service

Parler LLC v, Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash). Order denying preliminary injunctive relief entered January 21, 2021.


A federal court in Washington has denied Parler’s request that Amazon Web Services (AWS) be  ordered to resume web hosting service to social media platform Parler.  

 

The court found that the standards for preliminary injunctive relief, particularly with respect to a likelihood of success on the merits, had not been met. 

 

First, the court found that Parler had not established that it would prevail on an antitrust claim, as neither an agreement between AWS and Twitter, nor a restraint of trade had been shown. AWS has insisted no contact between AWS and competitor Twitter had occurred.   

 

Second, AWS’s pursuit of lawful remedies, such as might be found in the parties’ agreement,  cannot support a claim for tortious interference with business.  

 

Third, Parler was not substantially likely to prevail on its contract claim where Parler was admittedly in breach of its agreement with AWS and suspension or termination was a consequence of a breach under the parties’ agreement.  

 

Counsel admitted at hearing that damages could make Parler whole, making it impossible to perceive that irreparable harm would ensue if an injunction was not issued.  

 

The balance of equities did not favor Parler, as it was admittedly in breach of its contract with AWS. 

 

The court noted that AWS had offered evidence that AWS did not treat Parler and Twitter differently on the same facts, for different services are provided to each company.  

 

Finally, the court noted that no policy supports compelling AWS to provide a platform for speech that might incite violence.

 

Parler LLC v Amazon Web Services 2 21-cv-0031 BJR Order Denying Preliminary Injunction

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

Parler Resists War of Words with Amazon Web Services and Insists Parler Will Likely Go Out of Business Absent Judicial Intervention

Parler, LLC v Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash,).  Telephone conference with court set for 10 a.m. PST on January 14, 2021.


In Reply to Amazon Web Services’ (AWS) Opposition to Parler’s Motion for Injunctive Relief, Parler argues that AWS miscasts termination as suspension, a position negated by AWS’ statement to Parler that Parler could do nothing to be restored to service.

 

Parler offers that AWS never advised Parler what contractual obligation Parler had allegedly breached. Most significantly, AWS breached the contract by failing to adhere to the thirty day period before termination the agreement requires.

 

AWS has always been aware of, and never questioned, Parler’s proactive practices concerning problematic posts, which are reactive and use a jury system issues with posts.  Parler envisioned moving to prospective artificial intelligence screening in the coming year. Moreover, AWS expressed interest in Parler’s adoption of AWS’ proprietary software, an arrangement which, if consummated, would essentially marry the two entities.

 

Parler states that it has always responded to any posting issues presented to it by AWS.  When competitor Twitter terminated Donald Trump’s account and created a Parler account, mass migration from Twitter to Parler caused Parler not only to crash but to face a backlog of troublesome posts.

 

Parler worked diligently to address problematic material, advising AWS of its progress, and was all but finished with the backlog when AWS terminated service to Parler.

 

Parler notes that no one arrested in connection with the January 6th violence in the U.S. Capitol had a Parler account, An individual killed there had an account that was dormant since November.  The posting of videos by account holders does not establish that the poster was present at the Capitol.

 

Parler argues that AWS has succumbed to pressure to suppress conservative speech as well as to deny the President social media access. 

 

Parler further argues that AWS has unlawfully preferenced the bigger and wealthier Twitter, ensuring Twitter’s market dominance by forcing Parler out of business.

 

Surely AWS can be seen as having interfered with business relationships, Parler argues, as AWS’ termination of Parler interfered with Parler’s relationships with every one of its fifteen million users.

 

Section 230 of the Communications Decency Act does not operate as a bar to an antitrust action:  Section 230 immunizes speech, not anticompetitive conduct, which the Ninth Circuit has recognized.

 

Parler states that AWS’ termination has made it difficult for Parler to find a new web hosting partner, making it likely that Parler will go out of business absent judicial intervention.  

 

If the court fails to enjoin AWS, Parler submits, AWS’ termination will likely be fatal to Parler, but an injunction will require only that AWS provide services as required in its contract with Parler, balancing the equities in Parler’s favor.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.). Parler Reply (2021-01-13)

 

It’s not us, it’s them: Amazon Web Services States Parler’s Breach of Agreement with AWS Permitted Suspension, Denies Antitrust Violation, and Claims Immunity under Section 230 of the Communications Decency Act of 1996

Parler, LLC v. Amazon Web Services, No. 2:21-cv-00031 (BJR) (W.D. Wash.). Opposition to motion for injunction filed January 12, 2021.


Amazon Web Services (AWS) has opposed Parler’s motion for injunctive relief, asserting that its agreement with Parler permitted AWS to suspend or terminate Parler because of repeated troubling postings after the November election and after the January 6th eruption of violence in the Capitol.

 

AWS states that its agreement with Parler specifically permits the actions that it took. Amazon Web Services states that Parler was slow or failed to remedy threatening postings, and that when tens of thousands of posts went unaddressed, AWS was within its contractual rights to terminate or suspend Parler

 

Parler cannot state a claim for tortious interference with business relationships in the absence of a breach of contract, AWS reasons.  AWS states that Parler has not in fact been harmed, given Parler’s assertion that it would be offline for only half a day.

 

AWS argues that Parler cannot state a claim for violation of the Sherman Act where there is no evidence of any anti-competitive communication, let alone agreement, between AWS and Parler’s competitor Twitter.  Any difference in treatment between Parler and Twitter by AWS exists because of differences in AWS’s agreements with the two entities. 

 

Finally, and perhaps most importantly, AWS asserts that Section 230 of the Communications Decency Act of 1996 immunizes AWS from liability for any actions it has taken to remove offensive or harmful material from Parler, including suspension or termination..  The immunities conferred by Section 230 preclude Parler’s claims for breach of contract and anticompetitive conduct, AWS argues.

 

AWS states that injunctive relief is inappropriate where an injunction would inhibit or preclude AWS from entering into or policing its agreements.

 

AWS has submitted redacted copies of allegedly problematic postings from Parler and has submitted, with a request that they remain under seal, unredacted copies of such material.

 

Parler may submit a response today. At this writing no time for oral argument has been established.

Parler LLC v. Amazon Web Services, No. 2.21-cv-00031 (W.D. Wash.) Opposition to Motion for Injunction

David Versus Goliath (and Goliath). Parler Challenges Amazon Web Services’ Suspension as Anti-Competitive and in Breach of Contract

Parler LLC v. Amazon Web Services, No 2:21-cv-00031 (BJR) (W.D. Wash.) Verified Complaint filed January 11, 2021.


Amazon Web Services (AWS) has suspended webhosting services to Parler, a relative newcomer to the social media marketplace because, AWS has stated, AWS doubts Parler’s capacity to monitor postings that incite violence.

 

AWS suspended  Parler almost immediately after Parler’s competitor Twitter permanently terminated the account of Donald J Trump.  This  termination prompted a mass migration of customers from Twitter to Parler as well as a significant spike in new customers. 

 

AWS towers above other web hosting services globally.  By comparison with the shuttered Parler, Parler observes that AWS has promised Twitter timeline and enhanced services.

 

Parler asserts in its Complaint in federal court in Washington that because of the suspension, which Parler says has been presented like a termination, AWS has irreparably damaged Parler’s business and reputation.  

 

Even if Parler is able to find another platform, Parler avers, the time and other costs associated with rewriting Parler’s AWS-compatible code will be extraordinary.

 

Parler alleges that AWS’ agreement to enhance services to Twitter while forcing Parler from the marketplace violates the Sherman Antitrust Act. 

 

Parler also asserts that by effectively terminating Parler without the thirty day’s notice required by the agreement between the two, AWS has breached its agreement with Parler.  

 

Parler denies any breach of its agreement with AWS, stating that it removed any allegedly unacceptable comments that AWS brought to Parler’s attention.  Parler observes that similar content has been retained without comment on Twitter.

 

Briefing concerning injunctive relief will close January 13th.  A time for oral argument has not been set.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.) Verified Complaint

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits


High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.


This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

An Even More Perfect Union: Committees of Conservative, Progressive and Libertarian Thinkers Try Their Hands at Drafting a U.S. Constitution Consonant with Their Respective Political Philosophies


It is inescapably apparent, all too often painfully so, that there is great discontent within our nation that runs not just to its operations but to its foundations.  So pervasive is this malaise that its presence may soon surpass the status once held by the weather:  everyone complains about it, but no one does anything about it. 

Not so at the National Constitution Center, which recently published three proposed drafts of a new U.S. Constitution, each drawn in accordance with the points of view of three separate committees of noted conservatives, progressives, and libertarians.

The conservatives, not unsurprisingly, are not as irked by the Founders’ handiwork than others, yet they are vehement in urgining the installation of reforms which would temporally limit public office and which would restore to the Senate an obligation to debate the common good.  

The conservative focus is on minimizing opportunities for mischief that ensue when short term gains are advanced at substantial costs to long term stability in service of shared goals.

The progressives focus on their overarching concern with true democracy and equality, with a particular interest in coming to terms with what, in fact and in practice, are rights, which rights ought to be protected, and in what manner.

Libertarians have even less cavil with the original Constitution, thinking initially that the committee would merely review the existing document and add to each Article and Amendment a succinct “we mean it.”  The were not so pleased with themselves, however, as to forsake drafting with an emphasis on curtailing the existence and exercise of federal powers. 

As such efforts go, this project seems a good one, efforts which might serve as starting points for the seemingly ever more elusive civil discussions that are hoped for but too infrequently had.  

The recently published drafts, with commentary, may be found at the links below.

The_Conservative_Constitution

The_Progressive_Constitution

The_Libertarian_Constitution_1

Supreme Court Holds Federal Officials May Be Liable Individually for Damages for Violations of the Religious Freedom Restoration Act


Tanzin, et al. v. Tanvir, et al., No. 19-71.  Opinion issued December 10, 2020.


The Religious Freedom Restoration Act (“RFRA”) was Congress’ attempt to re-introduce the highest standard of review for analyses of the constitutionality of laws that burden religion.  To survive a RFRA challenge, a measure that substantially burdens religious exercise must serve a compelling government interest by the least restrictive means. 

Prior to the enactment of RFRA, Employment Division v. Smith, 494 U.S. 872 (1990), a decision that remains both widely criticized and widely discussed, held that in general there is no constitutional offense to be found in generally applicable neutral laws that may incidentally burden religion. Enacted in 1993, RFRA was intended to restore the higher standard of review that Smith was perceived to have eroded.  

The scope of available remedies provided but not enumerated in RFRA is the subject of the case just decided, in which the plaintiffs objected to the government’s having placed them on “no fly” lists because, they asserted, they refused to act as informants for religious communities for the Federal Bureau of Investigation.  

Plaintiffs sued federal officials in their individual capacities.  Claims for injunctive relief were mooted by their removal from “no fly” lists, but plaintiffs would not abandon their claims for money damages.

The trial court that dismissed the claims for monetary damages was reversed by the United States Court of Appeals for the Second Circuit, which concluded that the language of RFRA providing “appropriate relief” to claimants and permitting actions against “the government” includes federal officials in their individual capacities.  The Supreme Court has agreed. 

Justice Thomas has proffered a textual analysis in support of the Court’s decision to reject the government’s argument that “government” as used in RFRA is limited to acts of officials in their official capacities, and that “government” cannot extend to the individual assets of federal employees which would be reached to satisfy judgments.

An ordinary and limited meaning of a word in a statute changes where Congress chooses to change the use of the word, Justice Thomas observed.  RFRA expands the definition of “government” to include officials or persons acting under color of law.

Officials are “persons” who are answerable under RFRA and judgments against them can be considered to be relief against the government.

Moreover, the “under color of law” language that appears in RFRA echoes the language of a principal civil rights statute, 42 U.S.C. Section 1983, which has been interpreted to apply to suits against officials in their official capacities. 

In general, “appropriate relief” may be fashioned according to context, but from common law forward money damages against officials have been available even where the sovereign itself is immune from suit.

In addition, although the 1988 Westfall Act precludes common law claims against federal officials, constitutional and statutory remedies are preserved.

Just as the language of 42 U.S.C. Section 1983 is an appropriate source of comparison for analysis of the scope of a cause of action under RFRA, so does the availability of money damages under Section 1983 serve as support for recognizing claims for money damages under RFRA. 

This is all the more apt, Justice Thomas states, where Section 1983 permits relief for violations of First Amendment interests.  In that RFRA was intended to return the law to the status quo ante Smith, monetary damages should be available in service of that end, to re-establish and to maintain a full panoply of relief.  

Congress did not limit redress under RFRA to equitable remedies, although it could have, and it is plain that such remedies will not be adequate, and hence not appropriate, Justice Thomas concluded, where costs have been incurred and losses occasioned which cannot be cured by any form of injunctive relief.

Neither the spectre of separation of powers concerns nor the desire for a presumption against monetary damages, as raised by the government, can transform those questions into matters for judicial intervention, the Court continued, where addressing such questions is the province of the legislative branch. 

With policy soundly committed to Congress, the Court noted that its decision does not in any way diminish the availability of qualified immunity defenses. 

JustLawful Observation:  The brevity of this opinion ought not be confused with the scope of its potential reach.  At a minimum, it will have all officialdom on its toes when it comes to matters impacting religion.

19-71 Tanzin v. Tanvir (12_10_2020)

The Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings



Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S.  _____. Injunctions pending appeal entered November 25, 2020.


The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari.  The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.

Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic.  These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes.  The measures may be enhanced or relaxed as the perception of prevalence or risk changes. 

Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the  Free Exercise Clause of the First Amendment of the United States Constitution.  The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued.  The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.  

There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services. 

Both petitioners were denied relief in the district and appellate courts.  Decision on the merits in the Second Circuit awaits briefing and argument in December.

Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.  

The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.

The Supreme Court has disagreed.  

The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends.  Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable.  As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate. 

The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited:  “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns.  Slip Op. at pp. 5-6.  

Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.”  Slip. Gorsuch dissent  at 2.  The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience.  If the Constitution  has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.”  Gorsuch dissent at 3.  

Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11  (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference.  Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not.  As the current restrictions involve core constitutional concerns, Jacobson does not control.  Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.  

Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations.  Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed.  Once a favored class is created, the state must say why those who are less favored are excluded.  

Justice Kavanaugh takes a programmatic view of the Court’s offer of relief.  If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact.  The petitioners will at least be permitted some clarity during the pending appellate process.

Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect.  If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.  

Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed.  The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health  and  safety must be balanced against religion.  The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.  

Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order.  The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.  

Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.

Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view.  And the mere reference to religion within the measures will not suffice to make them discriminatory.  Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020

Back to Bakke: First Circuit Finds No Error in Harvard’s Admissions Practices


Students for Fair Admissions v. President and Fellows of Harvard College, No. 19-2005 (1st Cir.)  November 12, 2020.


An advocacy group, questioning whether Harvard College’s admissions practices were unlawfully racially based, brought suit in federal district court.  The group was unsuccessful there and that result has not been disturbed on appeal.  

In general, racial ‘balancing’ in admissions practices is impermissible, as it is little other than impermissible racial “quota” practices by another name, but the same ratio of applicants to admissions over time does not necessarily reflect a quota.

Over a ten year period, Harvard’s racial percentages fell within a narrow range.  Harvard utilized one page summaries to illustrate the racial composition of classes.  

The court found that the number of admitted Asian applicants increased from 3.4% in 1980 to 20..6 in 2019 while applicants ranged from 4.1% in 1980 to 22.5% in 2014.  Without elaboration, the court concluded that this is inconsistent with a quota.  The court observed that the proportion of asian applicants to Asian admissions remained consistent over time.  

The court observed that stasis in the composition of classes reflects stasis in the pool of applicants.  Without more, the First Circuit found no error in the district court’s determination that neither quotas or balancing were in play in Harvard’s admissions procedures.  

The First Circuit found unobjectionable Harvard’s continuous monitoring of admissions as permissible in supporting its diversity goals without evidencing balancing or quota practices

The student advocacy group argued that Harvard applied race as a “mechanical plus” precluding individual considerations and permitting race as a decisive factor in admissions.

Where race can benefit any applicant and where race is individualized, mechanica arguments fail.  The court observed that racial diversity is not exclusive and has no more prominence than other diversity in Harvard’s contextualized admission practices.  The court found Harvard’s practices, which do not employ an impermissible fixed “points” practice, to be holistic with race, neither mechanical nor decisive.

The First Circuit upheld rejection of the argument that race was decisive because other racial groups were admitted in greater numbers than Asians of high academic achievement.  

The First Circuit noted that Supreme Court precedent has permitted racial impact greater than that evidenced by Harvar.  In one case, eliminating race as an admissions criteria would cause a 72.4% decrease in minority admissions, while in this case the change would be 45%, less than that permitted in the first case. 

The First Circuit stressed that race cannot be decisive for minimally qualified applicants but in this case race is not decisive for highly qualified applicants in a competitive process.  

The First Circuit rejected the perception of the United states government as amicus that Harvard considers race at every step of its admissions process.  The First Circuit rejected the United States’ premise that race may be considered only at only point in the admissions process and found that holistic considerations, including race, may be part of the admissions process throughout.  

Similarly, the First Circuit found unavailing the argument that the Supreme Court has found that race as a consideration must have a  stopping point because this exhortation was never mentioned in subsequent Supreme Court opinions.  

Precedent has never required universities to define an end point for the utilization of race as an admissions criteria and there is no error in Harvard’s not setting a ceiling on admissions.

Harvard’s having crafted, considered, and yet rejected as unworkable proffered alternatives to race in its admissions process does not mean that its evaluations were defective or inadequate.  

The First Circuit rejected the claim that Harvard impermissibly treated Asian students less favorably than others.

The presence of some subjectivity in admissions will not establish intentional discrimination, the First Circuit found, citing early discussion fo flexible admissions systems.  Any risk of subjective bias training the admissions process is mitigated by the requirement that admission cannot occur except through the vote of a majority of forty members of an admissions committee.  

The appellate court found unobjectionable the district court’s failure to find flawed as stereotypical references to Asians as “quiet,” “flat,” or other terms where such language was used concerning applicants from other groups. 

The court found no error in changes to admissions rating guidance to employees that race may not be considered an admissions rating criteria, nor was an increase in Asian admissions after the initiation of litigation as guidance is reviewed probative of discrimiation, as admissions guidance is reviewed and revised annually and Asan admissions have been increasing steadily over time.

Worries over inclusion or exclusion of personal ratings were dismissed by the court although the student advocacy group attempted to demonstrate that while inclusion of personal rating did not impact the likelihood of an Asian applicant’s admission the exclusion of this information would have a negative impact.

The essence of correlation between the rating and admission does not compel a finding of causation or ‘influence.’  

The district court did not err in considering several sources of evidence indicating that correlation but not causation was established.  The First Circuit upheld the district court’s conclusion that whether or not the personal rating is included in admission has no material effect, varies over time, and is not always negative.  

The district court opined that implicit bias was possible for unsupported and speculation about the explanation for significant variance in modes. The First Circuit found this exploration would not compel setting aside, as plain error, the conclusion that there was no intentional discrimination.  

Students for Fair Admissions v. Harvard College, No. 19-1-01A (1st Cir.) November 12, 2020

Faith in the Not So Hot Zone: Second Circuit Denies Synagogues and Churches Relief from New York’s Pandemic Measures

Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020)

Keep Your Shirt On! Wisconsin Students Successfully Argue that the First Amendment Protects Wearing Controversial T-Shirts in School


N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227; Lloyd v. Kaminski, No. 20-C-276 (E.D. Wis.) November 6, 2020.


Two Wisconsin students attending separate schools came to school wearing clothing advocating individual gun rights.  School authorities took action against the students for violating the schools’ dress codes.  One school rejected a parent’s attempt to provide an alternative t-shirt advocating patriotism.  

In 1969, the Supreme Court recognized that students have some protected expressive rights, the denial of which must be supported by evidence that the expression in question materially interferes with school functioning.  Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969). 

In this case the schools did not focus on disruption but argued that the shirts were not protected because no particularized message was conveyed and some messages were advertisements.

The students assert that even if the shirts were commercial they nonetheless merit First Amendment protections.

While clothing itself is not generally protected, the court has rejected the school’s view that a particular and recognizable message must be present for First Amendment protections to attach.  The court noted that while one shire did contain commercial elements, the message concerning the right to bear arms was clear.  The court also rejected the argument that the message was not clear because the messages themselves are what precipitated the school’s intervention.

The shirts are entitled to First Amendment protection, the court concluded, but not absolute protection. The dimensions of any proper time and place restrictions remain open for exploration, but judgement that constitutional protection is lacking is denied.  

N.J. ex rel. Jacob v. Sonnabend (E.D. Wis. 2020)

Creche Not Entirely Quashed: Stay Pending Appeal of Dispute about Public Christmas Display Denied, but County’s Conformity to Establishment Clause Need Not Preclude All Religious Elements


Woodring v. Jackson County, Indiana, No. 4:18-cv-00243 (S.D. Ind.)  November 3, 2020.


The federal trial court in Indiana has concluded that Jackson County is not likely to prevail on the merits of its defense as a public Christmas display focused on the birth of Jesus, surrounded by secular figures, cannot convey anything other than an endorsement of a religious view and have anything other than a religious purpose, given its undisputed Christian symbolism and its failure to serve any secular end.

Although the court concluded that no passerby suffered religious coercion by virtue of viewing the display, deficits in two prongs of the Seventh Circuit’s tests for Establishment Clause violations, the count could not demonstrate the likelihood of success on the merits needed to enter a stay pending appeal.

The court observed that the presentation of a public Nativity scene has not been precluded but rather that the county has been permitted to bring its presentation into conformity with the Establishment Clause.

Woodring v. Jackson Cnty. (S.D. Ind. 2020)

Life Online: Court Declines to Order Discovery of Litigant’s Internet Identities and Activities in Its Entirety


Lindke v. Freed, No. 20-10872 (S.D. Mich.) November 2, 2020.


Plaintiff sued the city manager of Port Huron, Michigan, asserting that deleting unfavorable or politically disadvantageous comments from the city manager’s Facebook page violates LIndke’s First Amendment rights.

The Second Circuit has concluded that public officials’ public social media accounts may not exclude opinion because of disagreement.  Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2nd Cir. 2020), petition for cert. Filed August 20, 2020 (20-197). 

Freed seeks discovery, broadly stated, of all plaintiff’s social media history and activity, which plaintiff argues is beyond the scope of the lawsuit.

Defendant objects to the idea that the discovery must be cabinned to the case:  the information sought is essential to establishing that plaintiff is a “cyberbully.”

The court recognized that discovery in support of a cyberbully defense could be had but not until Freed better articulates the nature of the defense he intends to present so that discovery can be reasonably related to the case and not overly broad or unduly burdensome.  

This is particularly important, the court pointed out, where states have adopted various definitions as components of “cyberbullying.”  The court noted that whether such activities qualify for First Amendment protections may remain open for exploration, as the range of definitions of “cyberbullying” vary from unprotected “true threats” to annoyance.  Michigan criminal law tends toward “true threats” but of interest concerning discovery is which definition Freed intends to advance.

In addition the issue of whether the plaintiff posted using multiple pseudonyms may be relevant but the discovery request remains too broad.  Freed may be able to seek information about plaintiff’s behavior on Freed’s site but not throughout the internet.  Postings and accounts unrelated to Freed are not discoverable, the court has concluded.

The court declined to enter  protective order limiting discovery to matters in the complaints as discovery is already limited in that way.  Further refinement at this time is not necessary, the court concluded, but the court left open the issue of whether an order would be appropriate in light of the defendant’s refinement of his defense. 

Lindke v. Freed (E.D. Mich. 2020) Order November 2, 2020

When Civil Rights and Tort Wrongs Collide: Supreme Court Directs Fifth Circuit to Seek State Court Guidance on Liability for Injury Incurred at Protest

McKesson v. Doe, No. 19-1108, 592 U.S. _____ (S. Ct.)  November 2, 2020.


During an event protesting a police shooting in Baton Rouge, Louisiana, protesters blocked the highway in front of police headquarters. One protester threw concrete or a rock at a police officer who was clearing the highway. Having lost teeth and suffered brain trauma, the officer sued the protest event organizer.

A federal trial court dismissed the case, finding that the First Amendment barred the action A divided Fifth Circuit revered, finding some possibility for recovery under Louisiana tort law.

The Fifth Circuit did not attach precedential value to a Supreme Court case establishing that there is no liability for speech related violence unless it was deliberately intended.

The Fifth Circuit did not find the First Amendment to be a ban to tort recovery. Where petitioner directed obstruction of a highway and if the attack on the police officer was a consequence of the petitioner’s activity, the potential for tort liability could be found.

The Fifth Circuits’ dissent denounced the result, observing that a new tort of “negligent protest” could not be squared with the First Amendment.

Rehearing en banc was not granted, its denial accompanied by multiple opinions.

Petitioner McKesson asked the Supreme Court to overturn the Fifth circuit because liability for violence during protected activity must be closely circumscribed. McKesson argued that his activity was protected even if it was a misdemeanor and he had no relationship to the protester who injured the officer.

The Supreme Court has concluded that the Fifth Circuit’s analysis cannot be supported unless state law would support the action. Certification of the novel tort law question to the Louisiana Supreme court prior to ruling on any Constitutional question would have been prudent.

The Supreme Court entered a “GVR” order, granting the petition for certiorari, vacating the first Circuit judgment, and remanding to the Fifth Circuit for further proceedings in accordance with the Supreme court’s opinion.

McKesson v. Doe, No. 19-1108 (S. Ct.) November 2, 2020

Court Cannot Hear Complaint Grounded in Fear of an Imagined Future


Baker v. USD 229 Blue Valley, et al., No. 20-3054 (10th Cir.)  November 3, 2020.


A parent who had been granted a religious exemption from otherwise mandatory vaccinations as a condition of public school enrollment cannot obtain relief based on an unsubstantiated possibility that the exemption would be revoked in the future or based on imagined future interference with schooling alternatives elsewhere.

Article III of the United States Constitution precludes courts from entertaining actions other than those that are concrete and involve actual injury. As appellate review has revealed that petitioner could not meet either standard, the federal district court’s dismissal of the complaint was proper.

Baker v. USD 229 Blue Valley (10th Cir. 2020)

Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

He Could Have Been a Contender: Attorney Challenges Delaware Constitutional Requirement that Courts Maintain Balance Between Two Major Political Parties


Carney v. Adams, No. 19-309 (S. Ct.)  Oral argument set for Monday, October 5, 2020 at 10:00 a.m.


The Supreme Court’s new term opens tomorrow, October 5, with oral argument concerning a Delaware attorney’s challenge to state constitutional requirements that judicial appointments for several courts be made with party affiliations in mind, such that courts are balanced, or if not balanced, such that only a ‘bare majority’ of one party holds power.

James Adams wishes to become a judge in Delaware but as an independent is frozen out because of the state’s two-party balancing requirements.   

The state asserts that as sovereign its constitution may provide for equitable apportionment among parties in judicial appointments without being overridden by the federal government.  The state also asserts that the Supreme Court’s decisions in anti-patronage disputes permit the course adopted by Delaware for judges are policy makers whose work necessitates party loyalty, unlike employees who do not make policy and who ought not fear termination because of any political party affiliation.  

The state argues that as a preliminary matter Adams cannot sue because he has not been injured by the Constitutional provisions.  He has not actively sought appointment and he cannot inflict injury upon himself in order to create an interest in challenging the judicial appointment provisions.  

Adams believes that he need not seek appointment with full knowledge that he would be rejected so that he can challenge Delaware’s constitution.  Delaware’s position that sovereignty precludes a challenge to its constitution must fail, Adams argues, because the constitution is depriving him of associational rights guaranteed by the First Amendment.   Moreover, there is little merit to the ‘policy maker’ argument, as the very thing that the anti-patronage cases rejected — loss of employment because of party affiliation — does not depend on whether an employee is high level or low level, but on whether party affiliation caused the harm in issue, his failure to be able to become a judge because he is not a partisan.

Delaware takes pride in having enshrined partisan balancing in its constitution.  Preeminent in the law of corporations, Delaware is invested in establishing and maintaining fairness in judicial appointments so that the credibility and reliability of its judiciary will be perceived to be sound.  Delaware argues that the state constitution serves this end and must be permitted to remain as it is.  

Adams insists that the preclusion from a coveted appointment is hardly the “light burden” on free speech that the state contends that it is, but rather creates an unconstitutional categorical exclusion of independent or third party judicial candidates.. 

Carney v. Adams No. 19-309 Brief of Petitioner John C. Carney, Governor of Delaware

Carney v. Adams, No. 19-309 Brief of Respondent James R. Adams

Carney v. Adams, No. 19-309 Reply Brief of Petitioner John C. Carney, Governor of Delaware



Note regarding oral argument.. As restrictions related to the COVID-19 virus remain in effect, and as the Supreme Court remains closed, argument will be conducted telephonically. Although modified to address public health concerns, guarantees of access to the courts have not been abandoned. Oral arguments will be available by livestream audio through C-Span: https://www.c-span.org/video/?469266-1/carney-v-adams-oral-argument

Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him. 

 

A Tangled Web Indeed: United States and General Flynn Submit Evidence Supporting Agreed Upon Motion for Dismissal


United States v. Michael T. Flynn, Crim. No. 17-232 (D.  D.C.).  Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.


Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.  

Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material.  General Flynn agreed. 

Ordinarily prosecutorial determinations not to proceed are granted.  In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements.  The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.

The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn. 

The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn.  Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.  

The collusion collision course:  the collusion, in the legal sense,  sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed.  Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page.  Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.

Just Lawful Prognostication:  The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.  

While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.  

Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.

U.S. v. Flynn Government’s Supplemental Filing in Support of Dismissal

U.S. v. Flynn Third Supp Supporting Agreed Upon Dismissal

U.S. v. Flynn 248-1 Strzok and Page Texts

U.S. v. Flynn, ECF 248-2 McCabe Handwritten Notes

U.S. v. Flynn, ECF 248-3 Strzok Handwritten Notes

U.S. v. Flynn, ECF 248-4 Strzok Handwritten Notes

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Between Friends: Judge’s Selected Amicus Urges Court to Refuse to Dismiss Case Against General Flynn and to Proceed to Sentencing

United States v. Flynn, No. 17-cv-232 (EGS).  Amicus Reply Brief Submitted September 11, 2020.  Oral argument scheduled for September 29, 2020. 

An amicus appointed by the federal judge assigned to proceedings brought by the United States against General Michael T. Flynn opened his reply brief by asserting that General Flynn’s “guilt is obvious.”  Although the government has moved to dismiss the proceedings and the general has concurred, the amicus opines that the government’s acts are simply not done, offering the conclusion that “clear evidence” indicates that the prosecutor’s motion to dismiss was precipitated by “a corrupt and politically motivated favor unworthy of our justice system.”  The amicus believes that the government seeks to reduce the Article III court to a “rubber stamp,” and that the court ought not permit itself to be “sullied” in this way.  Instead, because the D.C. Circuit Court of Appeals has held that Article III jurisdiction continues until the court has ruled on a prosecutor’s motion to dismiss, and because the court has discretion to inquire into wrongdoing which the amicus asserts has occurred, the court may deny dismissal and proceed to sentence General Flynn.

The court has requested that the parties to the case submit a joint status report with their recommendations for further proceedings, with a proposed briefing schedule and proposed dates for oral argument, not later than September 21, 2020.  

Amicus briefs submitted September 11, 2020 and June 10, 2020, without attachments:

U.S. v. Flynn Amicus Brief September 11, 2020

U.S. v. Flynn Amicus Brief June

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

Still Standing, Yet at a Standstill. Federal Court Lauds Attorney’s Efforts to Call to Account the Kentucky State Supreme Court and Bar Administrative Committee But Decides Federal Relief is Precluded as Either Speculative or Barred by Sovereign Immunity

Doe v. Supreme Court of Kentucky, et al., No. 3:19-cv-236 (JRW).  Memorandum and Order granting dismissal entered August 28, 2020.

Doe sought admission to practice law in Kentucky after having done so successfully in Florida for nine years.  During that time, Doe was diagnosed with a mental health condition.  She agreed to practice with a monitor and complied with clinical recommendations.

Kentucky made multiple inquiries about Doe’s condition, demanding all medical records, convening hearings, requiring over-reaching contractual obligations but finally, after nearly two years, relenting in its insistence on conflating a mental condition with a deficit of character. Doe was admitted to practice.

Doe promptly commenced suit against the state court and bar authorities for violations of the Americans with Disabilities Act, defamation, and for other wrongs she asserted were inflicted upon her in the course of her pursuit of a license to practice law.

The federal court hearing her case praised her diligence in pursuing her licensure as doing so conferred a benefit not just to her but to the profession and society in general.  Where it is known that attorneys suffer a disproportionately higher incidence of stress, depression, addiction and suicide than others in society, hounding and threats of disqualification by the state and the bar serve only to invite harm, the court observed, as those fearing loss or denial of licensure or the oppression of the state will not seek help, and where help is not sought, some will lose not only their cases but their lives

Nonetheless, the court determined that it could not grant Doe relief.  Prospective relief could not be awarded as it would be speculative.  Other relief requested by Doe, even though she had standing, could not be awarded in federal court because immunity principles forbade doing so.  

Doe v. Supreme Court of Ky. (W.D. Ky. 2020)

D.C. Circuit Orders Stay of Constitutionally Defective Eviction Moratorium is to Remain in Place

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21-5093 (D.C. Cir.) Order denying emergency motion for stay filed August 20, 2021.


The United States District Court for the District of Columbia Circuit today denied an emergency motion to vacate the stay of the U.S. District Court’s order vacating the CDC Eviction Moratorium.  The court noted that it had previously denied such relief and that the federal district court had denied relief as well.

Whether review in the U.S. Supreme Court will be sought is not known at this writing.

Alabama Association of Realtors, et al. v. HHS 21-5093 Order August 20, 2021