Antonyuk v. Superintendent of New York State Police, No. 22A557, 598 U.S. ___(2023). January 11, 2023.
Justice Alito and Justice Thomas warn the Second Circuit that its practice of summarily affirming trial court injunctions – even if leavened by issuing expedited briefing orders – must stop: if it does not, the next petition for Supreme Court review will be granted.
22A557 Antonyuk v. Nigrelli (01_11_2023)
Donald J. Trump v. United States, No. 22-cv-81294 (CAC).
The judge assigned to former President Donald Trump’s case against the United States concerning search of his Mar-a-Lago residence has indicated that a special master may be appointed to review the documents seized.
The court has not solicited bids for appointment of a special counsel.
Today a group called National Security Counselors submitted a letter to the court offering the curriculum vitae of individuals believed to be competent to serve.
As evidence of experience, the group has filed a copy of an amicus brief submitted to the Supreme Court last term in opposition to a petition for certiorari by former President Trump concerning federal records. There it was argued that no individual claim of presidential executive privilege ought to survive the end of an administration.
Letter to Court Seeking Appointment August 30, 2022
Notice of Proposed Special Master Candidates August 30, 2022
Curriculum Vitae of Proposed Special Masters August 30, 2022
Amicus Brief in Supreme Court 21-932
Trustees of New Life in Christ Church v. City of Fredericksburg, No. 21-164 (S. Ct.) 525 U.S. _____. Order denying certiorari dated January 18, 2022.
Justice Gorsuch dissents from the court’s denial of certiorari of a dispute between local tax authorities and a church claiming tax exemption for a minister’s residence used not only as housing, but also as a gathering place for religious study and management of outreach works.
While acknowledging that state law permits tax exemption of a minister’s residence, the City of Fredericksburg denied the church this exemption. The city reviewed church governing documents and concluded that the church did not understand its own qualifications for “ministry”, and that, therefore, exemption must be denied.
The church rejected the city’s interpretation of the church’s views who might serve as a minister, relying on the church’s views of its governing structures.
A state court in Virginia agreed with the city. After the Virginia Supreme Court denied review, review in the U.S. Supreme Court was sought.
Justice Gorsuch is of the view that the First Amendment precludes the sort of deep dive into church governance that the City of Fredericksburg conducted in this case, finding the City’s claim that it may ‘verify’ church rules antithetical to established law rendering ecclesial considerations, which include church governance, outside the purview of civil authorities, including the courts.
History is clear that the United States was formed with escape from government oppression of religion firmly in mind, Justice Gorsuch opines. Thus, in the absence of fraud of deceit, civil authorities and the courts may not serve as interpreters of church law, but rater, church positions on ‘purely ecclesial’ matters are to be accepted as conclusive.
To the extent that this dispute appears to stand established law on its head, summary reversal would have been preferred, Justice Gorsuch concluded. Even if such an “obvious” error in what may be seen as a small case may be promptly corrected, Justice Gorsuch is of the view that permitting the error to stand is not the best way to proceed because “[b]ureaucratic efforts to “subject” religious beliefs to “verification” have no place in a free country.” Dissent, Slip. op. at 4.
Trustees of New Life in Christ Church v. Fredericksburg, Order dated January 18, 2020
In re: MCP No. 165, Occupational Safety and Health Administration, Interim Final Rule; Covid-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 61402. No. 21-7000 (6th Cir.). Order dissolving Fifth Circuit stay entered December 17, 2021.
The United States Court of Appeals for the Sixth Circuit is now administering consolidated litigation from all federal circuits relating to the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) issued November 5, 2021.
The Emergency Temporary Standard mandates that employers with more than one hundred employees require that employees be vaccinated against Covid-19 or be tested frequently and masked.
On December 17, a three-member panel of judges of the Sixth Circuit dissolved the stay of the ETS entered by the Fifth Circuit Court of Appeals prior to multi-district litigation consolidation.
Two of the three judges have published an opinion providing a point-by-point refutation of the Fifth Circuit’s views One judge has written a separate concurrence. A third has dissented.
No stealing bases. It appears that the courts may be experiencing ’emergency’ fatigue, and even if this is not so, skipping procedural steps has been discouraged. Earlier in the week the Sixth Circuit denied motions for initial review en banc. This will serve to inhibit the litigants in seeking immediate review in the U.S. Supreme Court prior to seeking rehearing en banc and could aid the Supreme Court, if such immediate review is nonetheless sought, in remanding the case to the federal appellate court for further proceedings.
In procedurally unrelated but topically similar litigation, the United States Supreme Court has denied a petition to stay New York’s vaccine mandate pending review of a petition for certiorari which argues that New York’s failure to provide for religious exemption from vaccination violates the First Amendment.
The Opinion in the Multidistrict Litigation. The Sixth Circuit perceives the Covid-19 virus to be an ongoing causative agent, one which has killed people and shut down the economy, which prompted employers to seek guidance from the Department of Labor Occupational Health and Safety Administration (OSHA), which in turn, on November 5, 2021, issued an Emergency Temporary Standard requiring certain employers to require employee vaccination or face covering and frequent testing.
The Fifth Circuit enjoined implementation of the ETS the day after it was issued. The court affirmed its decision a week later.
The Sixth Circuit now observes that OSHA may issue emergency orders bypassing public notice and comment proceedings where grave danger requires employee protection.
The OSHA emergency measure does not require employee vaccination, the court has found, as employees may be masked and tested or work from home, but employers must maintain vaccination records or face penalties.
The Sixth Circuit panel has examined the four established evaluative factors to be considered in staying any measure before litigation.
Petitioners’ Likelihood of Success on the Merits.
Authority for OSHA’s Action Exists. Contrary to the Fifth Circuit’s determination, the Sixth Circuit perceives that OSHA may regulate infectious diseases within its statutory authority.
The “major questions” doctrine cited by the Fifth Circuit is an interpretive tool permitting exception from deference to agency authority, but it is vague and it is in any case inapplicable where agency authority has not been expanded, the court has explained.
Same emergency, different authority. The OSHA Covid-19 employer mandate can be distinguished from the eviction moratorium declared unconstitutional earlier this year by the U.S. Supreme Court. The Centers for Disease Control lacks authority to regulate landlord-tenant relations, as the Supreme Court has found, but here, the Sixth Circuit panel has concluded, OSHA has established authority to regulate workplace safety.
Moreover, OSHA gathered evidence substantiating its conclusion that an emergency exists. The Sixth Circuit declined to find that any necessity permitting emergency intervention by OSHA be universal or absolute, but rather found that the persistence of workplace issues prompted issuance of the emergency temporary standard as the last arrow in the Secretary of Labor’s quiver.
The federal appellate judges dismissed attacks on the OSHA measure as over or under inclusive, finding that the efficacy of a measure, particularly an emergency measure, need not be perfectly calibrated or accompanied by a cost-benefit analysis.
The panel dismissed the notion embraced by the Fifth Circuit that the OSHA mandate is in violation of the Commerce Clause, and impact on interstate commerce, such as viral contagion, is sufficient to establish a basis for federal law and federal preemption.
The Sixth Circuit judges found the non-delegation doctrine to be somewhat musty and in any case inapposite where it is well established that Congress may delegate to executive branch powers to act in the public interest or to protect public health.
Whether Irreparable Harm Will Befall Petitioners in the Absence of a Stay.
The Sixth Circuit explored the irreparable harm issue notwithstanding its view that its analysis of the petitioners’ assertions and arguments fail to demonstrate the likelihood of success on the merits, which could have ended the inquiry because the public interest analysis merges with the likelihood of success on the merits analysis where the government is a party.
The judges dismissed as “speculative” employers’ views of compliance cost, including loss of workers, and noted that if cited for non-compliance, an employer can always assert the impossibility of compliance as a defense. The potential harm to the public of failure to implement Covid-19 contagion mitigation measures such as the OSHA employer mandate, in light of the harms already incurred by the nation, are staggering, and the risks to the public are only underscored where petitioners have not shown that they are likely to prevail on the merits.
Note well: this panel’s opinion may not be within the judiciary’s bailiwick.
In a separate concurrence, Circuit Judge Gibbons has written to emphasize his view that the judicial branch ought not be as active in policy questions as this litigation has demanded. The judge notes that questions of what the other branches might have done differently or “sweeping pronouncements” about constitutional law, themselves “untethered” to the present case, invite the judicial branch to exceed its limits. Separation of powers principles preclude judicial second-guessing of coordinate branches. Where a court concludes that an agency has acted within its authority and within constitutional bounds, the judge opined, the court ought not press further into realms committed to other branches’ expertise.
Au Contraire: Dissenting Judge Opines that Panel Analysis is Wrong
The dissenting member of the panel thinks the question of constitutional and statutory authority is squarely within the power of the judiciary.
The dissent wholly disagrees with the view that the OSHA emergency measure permits employers to decide how to manage workplace Covid-19 risks. Employers must adopt written policies, demand that employees be vaccinated unless exempt, and pay employees who need time off to get vaccinated. The mask and testing alternative was, by OSHA’s own admission, designed to be unpalatable as by its operation it imposes costs of testing on employers.
The dissent observes that it is not necessary that petitioners demonstrate a likelihood of success on each and every one of its theories in order to substantiate the need for a stay: the potential to prevail on one theory would suffice.
Petitioners can demonstrate a likelihood of success, the dissent has concluded, because OSHA has exceeded its authority, which limits the promulgation of emergency measures to circumstances in which employees face grave danger and the emergency intervention is necessary to protect employees.
Where OSHA never made a finding that its rule was necessary, the rule cannot be upheld: the insufficiency of extant measures, which is the justification offered by the Secretary of Labor, will.not meet the “necessary” standard.
Moreover, effectiveness is a separate question that cannot be bootstrapped into a determination of necessity.
The dissenting justice rejects the notion that emergency measures, by their very nature, need not be as carefully crafted or supported as normative acts, and this is particularly so where OSHA has had nearly two years to consider protections and to evaluate alternatives. Where no showing of necessity can be made, the emergency measure cannot be sustained.
Of similar concern is that the Secretary failed to locate a “grave danger” that would support the private employer vaccine mandate. Although viral infection can be dangerous, there is no evidence showing that contracting the disease is a grave threat, as available data show varying levels of risk among different demographics.
There is no evidence linking contraction of Covid-19 to the workplace. Those who are already vaccinated are not, by and large, imperiled. Where a mortality rate of one in two hundred and two cases of infection is said to exist among the unvaccinated, OSHA has not met the “grave danger” requirement, particularly where no link to workplace harm has been shown.
The dissent questions the panel’s minimization of the substance of the “major questions” concerns petitioners raise where OSHA has never issued an emergency measure of the scope of the Covid-19 employer mandate and, the dissent observes, the question is not simply one of the kind of measure OSHA may implement, but also its scope or degree (emphasis in text).
Given the Supreme Court’s discussion of the “major questions” doctrine in declaring the CDC eviction moratorium to be invalid, it is not accurate to say, as this panel has, that the “major questions” doctrine is an arcane exception to deference to agency expertise.
Finally, OSHA’s circumspection in other contexts supports similar caution here, and does not support promulgation of an expensive and unparalleled emergency measure.
Employers will be hamstrung by the costs of compliance and by the potential loss of employees that may ensue. Similarly problematic is the loss that will result to individuals who submit to vaccination only to learn later, as they may, that the command to do so was not supported in law.
The dissent points out that OSHA cannot complain that petitioners have not substantiated their claims where by invoking emergency authority OSHA foreclosed the opportunity for notice and comment that would permit submission of evidence for agency consideration.
Opinion of the U.S. Court of Appeals for the Sixth Circuit Dissolving Stay of OSHA Mandate
In re. MCP No. 165. Sixth Circuit Order December 17, 2021
Correspondence and Opinion of the U.S. Court of Appeals for the Sixth Circuit Denying Initial Hearing En Banc
In re. MCP No. 165, Sixth Circuit Order December 15, 2021
Order of the U.S. Supreme Court Denying Injunctive Relief with Dissenting Opinion
21A145 Dr. A v. Hochul, No. 21A 145 Order and Dissenting Opinion December 13, 2021
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
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. 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:
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
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:
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:
Human Rights and the United States
Public commentary on the controversy submitted to the Facebook Oversight Board:
In re Michael T. Flynn, No. 20-5143 (D.C. Cir.) Order and Opinion Denying Emergency Petition for Mandamus entered August 31, 2020.
ICYMI: Retired General Michael T. Flynn, having served in both the Obama and Trump administrations, was charged with making false statements to federal officers in connection with investigation of foreign involvement in the United States’ 2016 election and related matters. Gen. Flynn twice entered guilty pleas yet later sought to withdraw those pleas, as exculpatory evidence became available and as the conduct of federal investigators came into question.
The Attorney General requested independent review of the matter subsequent to which the federal government moved to dismiss the charges against Gen. Flynn. The trial judge retained as amicus a retired judge to aid in determining whether the matter ought to be dismissed, and even if the matter were to be dismissed, whether the trial court might independently hold Gen. Flynn in criminal contempt for perjury. The court was committed to discerning the foundation for dismissing the case, which would include discovery of the prosecutorial process and hearings.
Gen. Flynn immediately petitioned for a writ a mandamus, which was initially granted. The trial judge, having been requested by the court of appeals to respond, petitioned for en banc review.
On Monday, the full complement of the D.C. Circuit Court of Appeals changed its initial position and denied mandamus relief. Two judges dissented.
The per curiam opinion. The majority of the panel concluded that mandamus was not appropriate where the trial court had not yet entered any order concerning the government’s motion to dismiss. General Flynn could pursue appeal if any ruling were adverse to him, and as such, he had not made a showing that there existed no adequate means of redress. The separation of powers arguments are speculative and, in the absence of concrete action on the motion to dismiss, cannot support extraordinary relief. Moreover, the adversities the defendant complained about were not dissimilar from those visited upon other defendants, and unlike many others, the General remained at liberty.
In addition, the panel majority found no reason to reassign the case to another judge. The court’s commentary in the course of the proceedings was not unusual and without more cannot support reassignment. Disqualification based on the trial judge having become a party in the mandamus proceedings could not be supported where the federal court of appeals determined to grant en banc review sua sponte.
Principles only, not politics. D.C. Circuit Judge Griffith wrote a separate concurrence underscoring that the appellate court concerned itself only with the constitutional and jurisprudential questions presented notwithstanding any public commentary about political matters, including political appointments.
If not now, when? Judges Henderson and Rao each wrote dissenting opinions and each supported the other’s views.
Circuit Judge Henderson affirmed her view that the initial In re Flynn mandamus ruling and order was correct, and worried that the standard set for reassignment by the panel majority is impossibly high, which will inhibit motions for disqualification that would otherwise be brought.
The statutory standards for impartiality appear to have been diluted beyond any efficacy where the notion of “leave of court” with respect to prosecutorial motions to dismiss, heretofore liberally construed, now permits scheduling hearings and taking evidence to determine whether leave ought to be granted.
Flynn’s petition for mandamus would limit the trial judge’s participation in the mandamus proceedings to that which the appellate court might invite, as with the request that the judge reply to the petition. Rather than accept this limitation, the trial judge disregarded the order of the D.C. Circuit to dismiss the Flynn case and assumed the posture of a party to the litigation by demanding en banc review. The majority of the panel appears to have sidestepped this concern by announcing that the court had determined that it would proceed to rehearing en banc sua sponte, notwithstanding that an order referenced the non-party judge’s request as the basis for its decision.
Throughout these proceedings, the trial judge has behaved in a way that causes concerns about impartiality, the judge observed, in that the court offered its “disgust” and “disdain” for Gen. Flynn’s behavior. The court’s selected amicus — in addition to inviting public participation as amici — was on public record supporting the denial of dismissal.
Where a trial judge’s participate in mandamus proceedings is by invitation, the trial court’s retention of counsel and behavior as if the judge were a party indicated an opposition to dismissal before the fact. That the trial court wanted to investigate whether the court itself could conclude that the defendant ought to be held in criminal contempt even if the case were dismissed is an indication that the court itself would pursue the defendant.
Judge Rao noted that separation of powers principles undergird judicial deference to prosecutor’s motions to dismiss notwithstanding that “leave of court” is sought. The proceedings envisioned by the trial judge are intended to discover the inner workings of the executive branch, which is not constitutionally appropriate. Moreover, such an incursion is not necessary in light of the known shortfalls in the government’s conduct with General Flynn.
The contradictory positions assumed by the trial judge are troublesome. Although the court issued detailed orders about the planned proceedings, counsel at argument before the circuit court stated that the trial judge may not make any findings as a result of the judicial inquest. This negates the majority’s conclusion that the harm anticipated by petitioner Flynn is “speculative.”
The routine availability of appellate review as a basis for denial of mandamus relief would mean that there would be no extraordinary case warranting mandamus. “Wishful waiting” is no shield against the harm that judicial involvement in the executive may cause here, particularly where Flynn’s liberty, which the executive no longer seeks to curtail, is threatened by the trial judge’s plan of action. (Slip opinion at 26.)
As ultimately dismissal must be granted and as the judiciary has no power to superintend the executive’s power to direct and to control prosecutions, any denial of dismissal by the trial court would mean mandamus would issue in accordance with precedent. There is no need to withhold relief where the appellate court would do well to inhibit error.
Moreover, in light of the known errors of the executive, there is much to be said for permitting self correction and little to be said for further proceedings with the harm that would ensue to petitioner Flynn. Incarceration is not the benchmark for measuring losses already occasioned and those foreseeable if proceedings continue.
The morass created by this case may not be without instructive value, according to Judge Rao, who concluded:
This case highlights the essential connection between the Constitution’s structure of separated powers and the liberty interests of individuals. While modern administrative government often blurs the separation of powers, at least in criminal cases courts have steadfastly policed the separation of powers, ensuring that a criminal defendant may lose his liberty only upon action by all three branches of the government. By allowing the district court to scrutinize “the reasoning and motives” of the Department of Justice, En Banc Pet. 13 (quotation marks omitted), the majority ducks our obligation to correct judicial usurpations of executive power and leaves Flynn to twist in the wind while the district court pursues a prosecution without a prosecutor. The Constitution’s separation of powers and its protections of individual liberty require a different result. I respectfully dissent.
United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.
Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.
Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23. Excerpts are currently available online.
The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances. The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.
The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.
The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met. To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.
Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.
The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred. Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.
The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.
While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits: “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.” (June 20th Order, Docket No. 27, at p. 6.)
The court recited potential costs if Bolton loses on the merits are not insignificant: loss of profits, exposure to criminal liability, and harm to national security.
Justlawful observation: A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order. Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.
This is not to say that the government wears a ten-gallon white hat in this case. The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position. Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern. Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.
Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.” (June 20th Order, Docket No. 27, at p. 6). It is in this that the government’s extension of the review process may stand on firmer ground.
United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020
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