Eugene Volokh's Blog, page 159

[Josh Blackman] Today in Supreme Court History: February 24, 1930

2/24/1930: Chief Justice Charles Evans Hughes takes oath.

Chief Justice Charles Evans Hughes

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[Josh Blackman] Did Judge Reyes Impose An Unconstitutional Religious Test?

[Can a federal judge ask a DOJ lawyer "What do you think Jesus would say"?]

Judge Ana Reyes (DDC) may be having some issues right now. On Valentine's Day, in a case concerning fired inspectors general, she threatened to sanction former Solicitor General Seth Waxman.

"Mr. Waxman, I am really debating right now whether to order a show cause on sanctions," Judge Reyes said right before the call ended. "I'm not going to do it, because I've got other things to deal with, but this was totally unacceptable." . . .

"You are an experienced, experienced individual," she said of Mr. Waxman, adding that "there is no universe in which I would ever be qualified enough to be hired by the solicitor general's office, much less be the solicitor general." . .  .

"Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?"

Four days later, Judge Reyes held another hearing about President Trump's executive order in gender dysphoria in the military.

This is an actual question Judge Reyes asked a DOJ lawyer:

What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we're not going to allow them into homeless shelters? Do you think Jesus would be, 'Sounds right to me'? Or do you think Jesus would say, WTF? Of course let them in.

WTF, for those who may not know, stands for "What the fuck?" How far we have come from Cohen v. California. A person wearing a jacket that said Fuck the Draft, to protest bombs being dropped in Vietnam, was arrested. Now, a judge is dropping f-bombs from the bench.

DOJ has submitted a complaint to Chief Judge Srinivasan concerning Judge Reyes's conduct.

I hope Judge Reyes is doing well. This sort of conduct is extremely troubling. Maybe she should be given the Pauline Newman treatment, and not receive any further cases until she undergoes mental screening? Call it an "administrative stay" of her Article III commission. Apparently, you can administratively stay anything!

Apart from the ethical issues, I wonder whether Judge Reyes may have inadvertently tripped across a seldom-mentioned provision of the Constitution. The Religious Test Clause provides:

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Torcaso v. Watkins (1961), more-or-less held that that Religious Test Clause is coextensive with the Free Exercise Clause. Yet, the Religious Test Clause remains part of the Constitution. (I'll table for now whether the DOJ lawyer would fall within the ambit of the phrase "Office or public Trust under the United States"; I am not certain what kind of position he holds.)

Traditionally, we think of a religious test as a government official having to pledge a belief in a particular faith, or to a deity more generally. For example, Seth Barrett Tillman has written about the Religious Test Clause in the North Carolina Constitution of 1776. It provided:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

What about Judge Reyes's question? Asking a government lawyer "What would Jesus do" is a purely theological question. It is, in every sense, a test about religious belief. And the question is premised on the existence of Jesus as a deity. Does the lawyer have to take a position on that question? I do not know what the lawyer's religion is, if any at all. As a Jew, I would certainly have struggled with that question. If Judge Matt Kacsmaryk asked a government lawyer "What would Jesus do?", articles of impeachment would already have been filed.

Ultimately, I do not think Judge Reyes actually cared what Jesus thought. She was making a rhetorical point that a conservative administration, which purports promotes morality, was being hypocritical by not helping certain people. This same rhetorical trap is used whenever a conservative favors restrictive immigration policies. There is no there, there.

In any event, I hope Judge Reyes is well. Her conduct here is cause for concern.

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[Josh Blackman] Today in Supreme Court History: February 23, 1905

2/23/1905: Lochner v. New York argued.

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[Josh Blackman] SCOTUS Takes A Holiday From The Separation of Powers On The Hampton Dellinger Jitney

[Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution.]

On Friday evening (after I signed off), the Supreme Court issued a terse statement in Bessent v. Dellinger. The Court didn't grant, or deny, the government's motion to vacate the TRO. Instead, it did nothing. The Court simply ruled that the government's application "is held in abeyance until February 26, when the TRO is set to expire." This document is not exactly an order. I'm not even sure what to call it. It's basically a status update. BRB if you will.

I searched the Supreme Court database on Westlaw for similar updates and couldn't find anything on point. The Court will sometimes hold a petition in abeyance while deciding another case. Ardoin v. Robinson (2022) was such a case. When a petition has already been granted, and the government switches positions, the Court will hold the case in abeyance to figure out how to proceed. The Court took this step in Arkansas v. Gresham (2021) and Becerra v. Gresham (2021). But that is putting ongoing proceedings in abeyance. Here, the Court puts in abeyance an application. And in some cases, where the Court has granted an administrative stay that will expire on a certain date, the Justices will extend that stay. These shadow docket delays occurred in the "Frame or Receiver" case and the Mifepristone case. (Remember, different rules apply to the Fifth Circuit.) But again, that is putting in abeyance an existing stay.

How does a court hold a motion in abeyance? There is no deadline by which the Court must rule. This document reminds me of a district court issuing an unappealable administrative stay of an executive order. That's not a thing. The courts are really starting to get creative.

I've been unable to find any case where the Solicitor General sought emergency relief by a date certain, the Court declined to grant that relief by the requested date, and instead the Court issued an order to simply hold the government's application in abeyance. If anyone has seen such an order, pleases email me.

The votes in Dellinger are a bit unusual. Justices Sotomayor and Jackson would have denied the government's application outright, and did not vote to hold the application in abeyance. Justices Gorsuch and Alito noted their dissent from the order holding the application in abeyance. That means there were five votes to hold the case in abeyance: Chief Justice Roberts, Justice Thomas, Justice Kagan, Justice Kavanaugh, and Justice Barrett. I predicted that the government would lose by a 5-4 vote, with Justices Thomas, Alito, Gorsuch, and Kavanaugh in dissent. I was, as usual, wrong.

What's going on here? Obviously, there was some sort of compromise afoot. I would suspect that Justice Thomas, and probably Justice Kavanaugh, agrees with Judge Katsas on the merits. But that only gets to four votes. Perhaps to forestall the Court denying the government's motion now, they agreed to join the Chief to simply do nothing for the time being. On February 26, when the TRO expires, the Court can come back and issue a ruling for the ages without any of the unusual procedural hurdles. In other words, no precedent is set now. But Hampton Dellinger has received his eviction notice for February 26. He should not get too comfy.

I would commend Justice Gorsuch's dissent. He explains quite cogently why this suit does not belong in federal court. In short, Hampton Dellinger has no equitable cause of action to seek reinstatement. At most, if he is denied his pay, he can seek backpay. And a suit for backpay would a sort of property interest. And even at equity, I think there would have been a cause of action to recover that property interest from the government. However, both Meyers and Humphrey's Executor began in the Court of Claims, and did not invoke any sort of equitable jurisdiction.

Gorsuch writes:

Under this Court's precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation's founding, it was a remedy "traditionally accorded by courts of equity." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999). That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to "restrain an executive officer from making a . . . removal of a subordinate appointee." White v. Berry, 171 U. S. 366, 377 (1898) (internal quotation marks omitted). "No English case" involved "a bill for an injunction to restrain the appointment or removal of a municipal officer." In re Sawyer, 124 U. S. 200, 212 (1888). And state courts "denied" the "power of a court of equity to restrain . . . removal" in "many well considered" decisions. Ibid. Given that pattern of restraint, by the 1880s this Court considered it "well settled that a court of equity has no jurisdiction over the appointment and removal of public officers." Ibid.

Dellinger is not using the Constitution as a shield. By seeking reinstatement, he is attempting to wield it as a sword. But he cannot seek affirmative relief (that is, reinstatement) absent a statutory cause of action. And Justice Gorsuch recognizes that no such equitable cause of action existed at equity when the Constitution was ratified.

Seth Barrett Tillman and I developed these arguments during the Emoluments Clauses litigation. (BTW, has anyone sued Trump yet for violating the Emoluments Clauses??)

The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires government conduct. Cases like Ex Parte Young, Free Enterprise Fund, and Youngstown Sheet & Tube Co. v. Sawyer did not provide the plaintiffs with a cause of action. Absent a viable equitable cause of action, the federal district courts lacked equitable jurisdiction to hear the three Emoluments Clauses cases. . .  .

With respect to the cause of action question, the Emoluments Clauses cases were not unique. During the Trump presidency, other courts also concluded that federal courts had equitable jurisdiction to enjoin ultra vires government conduct. 314 These holdings were flatly inconsistent with Grupo Mexicano.315 And DOJ vigorously advanced this straightforward argument—based on Grupo Mexicano—that federal courts lack equitable jurisdiction to enjoin purported ultra vires government conduct

Gorsuch's opinion is consistent with one of the sleeper cases from last term, DeVillier v. Texas and Justice Thomas's dissent in Wilson v. Hawaii. The Constitution cannot be invoked offensively without a statutory cause of action. Justice Thomas explained that "constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose."

A long line of cases stretching back to Chief Justice Chase's decision in Griffin's Case recognizes this sword-shield dichotomy. Seth Barrett Tillman and I developed this doctrine in our Section 3 article. I realize most people were focused on our arguments about whether Trump was an "Officer of the United States," but the real important contribution was about Griffin's Case. Even if you agree with Baude and Paulsen that Chase got Section 3 wrong, Chase was right about federal courts jurisprudence. Justice Samour on the Colorado Supreme Court, in dissent, fully understood this principle, and cited our article.

¶293 For now, though, it is worth stressing that, despite detractors in some quarters, the other premises have withstood the test of time: Section Three is not self-executing, and Congress has the exclusive authority to enforce it. See Cale v. City of Covington, 586 F.2d 311, 316 (4th Cir. 1978) (citing Griffin's Case for the proposition that Section Three is "not self-executing absent congressional action") . . .

¶299 Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase's application of Section Three in Griffin's Case was politically motivated. Consequently, they criticize Griffin's Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase's views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin's Case.7 See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

¶300 First, there is self-execution as a shield, allowing individuals to raise the Constitution defensively, in response to an action brought by a third party. Second, there is self-execution as a sword—such as when individuals invoke the Constitution in advancing a theory of liability or cause of action that supports affirmative relief. When acting as a shield, the Fourteenth Amendment is self-executing. Cale, 586 F.2d at 316. The Fourteenth Amendment, however, cannot act as a self-executing sword; rather, an individual seeking affirmative relief under the Amendment must rely on legislation from Congress. Id.

¶301 The Fourth Circuit aptly adopted this distinction in Cale, thereby reconciling any apparent inconsistencies in Fourteenth Amendment jurisprudence.

Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting).

Justice Samour was exactly right. And I think the Supreme Court is trending in that direction.

Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution. All of these tick-tack suits against Trump will likely set some extremely significant precedents to reaffirm the separation of powers. If the Court follows through with DeVillier and Dellinger, and holds that statutory causes of action are needed to seek affirmative relief, entire swaths of suits will be barred from the federal courts. Overruling Bivens would just be the tip of the iceberg.

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[Josh Blackman] The Federal Supremacists Write a Ticket Good for One Ride in Williams v. Reed

[But Justice Thomas is still the only Justice who (correctly) concludes that Haywood v. Drown (2009) was incorrectly decided.]

Last week, I taught the Supreme Court's anti-commandeering cases in Constitutional Law. The precedent can be stated simply. New York v. United States held that Congress cannot compel state legislatures to enact legislation. Printz v. United States held that Congress cannot compel state executive branch officials to enforce federal law. And NFIB v. Sebelius held that Congress cannot compel people to engage in economic activity. However, Congress can compel state judges to enforce federal law. Article VI, Clause 2 maintains that "the Judges in every State shall be bound" by the supreme law of the land. In Printz, Justice Scalia acknowledged that since the framing, state judges have enforced federal law. 

A student asked if Congress could commandeer state courts, as well as state judges. The answer to this question is complex. In my view, the answer should be no. I developed this thesis in a 2016 article in the Illinois Law Review, titled State Judicial Sovereignty. In short, if a state legislature creates a court of true general jurisdiction, then a state judge can hear any federal cause of action. But if a state legislature divests a state court of jurisdiction over some federal cause of action, the action cannot be heard. Congress cannot commandeer the state legislature to vest their courts with jurisdiction, and the Supremacy Clause does not empower the courts to establish that jurisdiction. Remember, state court jurisdiction comes from the state legislature, and not the Constitution.

Regrettably, the Supreme Court rejected my approach in Haywood v. Drown (2009). In this case, which most people have never heard of, New York divested its courts of jurisdiction to hear damage claims against correction officials. As a result, those courts would have lacked jurisdiction to hear Section 1983 suits against prison guards. Justice Stevens's majority opinion held that this jurisdictional statute was actually an attempt to immunize prison officials under Section 1983. Haywood was 5-4. Justice Thomas wrote the dissent, which was only joined in part by Chief Justice Roberts, and Justice Scalia and Alito. The quartet agreed that New York should prevail under longstanding precedent.  But only Justice Thomas was willing to go a step further and say those precedents were wrong. In short, even if state judges are bound to enforce federal law, state legislatures have complete and total control over the jurisdiction of the state courts. If a plaintiff does not like those rules, he can bring a Section 1983 suit in federal court. It has long bothered me that Justice Scalia did not join all of Justice Thomas's dissent in Haywood, but such is life. (Update: I previously wrote the case was 8-1, which it sort of was for the issue I was talking about, but it is better to call it 5-4.)

Fast-forward to the present. On Friday, the Supreme Court decided Williams v. Reed. On the holding, the Court split 5-4. Justice Kavanuagh's majority opinion held that state courts must allow a Section 1983 claim to proceed where a state exhaustion requirement "in effect immunizes state officials" from liability. In my view, this case goes beyond Haywood. The Court expands federal court oversight of state court jurisdiction. 

I see this decision as vindicating the supremacy of federal courts. You may recall that Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh dissented in Mallory v. Norfolk Southern. I see that position as parallel to Williams. Of course, Justices Sotomayor and Jackson joined the majority, though I suppose the context was different enough. Yet I'm not sure that the Chief was fully on board with the Haywood expansion. 

Justice Kavanaugh explains how limited this opinion was. He stresses the Court reverses on a "narrow ground" and "emphasize[s]" the opinion is "narrow." Kavanaugh writes that his decision "resolves this dispute but is careful not to go beyond this Court's existing precedents." You know a five-member majority is fragile when this sort of language is added. Chief Justice Roberts assigned this opinion to Justice Kavanaugh. I suspect the Chief then conditioned his joining on this sort of limiting language. The federal supremacists issued a ticket good for one ride.

Justice Thomas wrote the Williams dissent, which had two parts. Part I was joined only by Thomas. And Part II was joined by Thomas, as well as Justices Alito, Gorsuch, and Barrett. Part II argues that the majority misconstrued, and indeed expanded Haywood. I find that analysis quite compelling. I also think that the issue was waived, and that Justice Kavanaugh botched the facial/as-applied analysis. (I have to imagine this part was very important for Justice Barrett's join, especially in light of NetChoice.) 

But Justice Thomas was alone in Part I, regrettably. Thomas repeats his call that Haywood was wrongly decided based on "first principles." (Chief Justice Rehnquist used this phrase in Lopez.)

This case is straightforward under first principles. Our federal system gives States "plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action." Haywood v. Drown, 556 U. S. 729, 743 (2009) (THOMAS, J., dissenting). The Constitution allows States to hear federal claims in their courts, but it does "not impose a duty on state courts to do so." Id., at 747. Thus, "[o]nce a State exercises its sovereign prerogative to deprive its courts of subject-matter jurisdiction over a federal cause of action, it is the end of the matter as far as the Constitution is concerned." Id., at 749. . . .

Our precedents also err in establishing the requirement at issue here—that state jurisdictional rules be "neutral," even in the absence of a directly conflicting federal law. See infra, at 5. The Supremacy Clause does not of its own force"constrai[n] the States' authority to define the subject-matter jurisdiction of their own courts." Haywood, 556 U. S., at 750 (THOMAS, J., dissenting).

Thomas also explains that plaintiffs are free to bring suit in federal court. This case is much ado about little.

Justice Thomas also wrote a glorious footnote that takes a potshot at Charles Reich. I suspect Justice Alito regrets not joining this footnote about his former constitutional law professor. (Alito has many times told the story about how Reich abandoned his class in the middle of the semester to go to San Francisco.)

* Petitioners' suit implicates other precedents that may not withstand scrutiny. I doubt that petitioners have a true due process interest in "mere Government benefits and entitlements." Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 201, n. 3 (2023) (THOMAS, J., concurring). Tellingly,the Court's original expansion of the Due Process Clause into this context came without meaningful legal analysis. The Court simply highlighted the social importance of "entitlements," which had come to make up "[m]uch of the existing wealth in this country," and which only the poor had been theretofore unable to effectively enforce. See Goldberg v. Kelly, 397 U. S. 254, 262, and n. 8 (1970) (citing C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255(1965); C. Reich, The New Property, 73 Yale L. J. 733 (1964)). As Justice Black recognized at the time, it "strains credulity" as a textual matter "to say that the government's promise of charity to an individual is property" protected by the Fourteenth Amendment. 397 U. S., at 275 (dissenting opinion).

Amen.

Thomas also casts doubt on whether Section 1983 even creates a cause of action. Here, Thomas cites an important new article by Tyler Lindley.

Moreover, further examination may be required as to whether §1983 can provide petitioners a cause of action in any event. Cf. T. Lindley, Anachronistic Readings of Section 1983, 75 Ala. L. Rev. 897, 900–901 (2024) (contending that, as originally understood, §1983 did notprovide a freestanding cause of action).

This statement is consistent with Thomas's opinion in DeVillier v. Texas, and his dissent in Wilson v. Hawaii. These cases recognize that the Constitution does not create positive causes of action for relief. 

Conservatives routinely call on Justice Thomas to retire. Would any replacement continue to make such important and principled contributions to the law? Does anyone else have the right combination of courage and curiosity?  I am doubtful. 

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[Josh Blackman] Today in Supreme Court History: February 22, 2005

2/22/2005: Kelo v. City of New London argued

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[Eugene Volokh] No Injunction in Electronic Privacy Information Center v. U.S. Office of Personnel Management

Today's opinion is here. I'm on the run, and can't add more right now, but I thought I'd pass it along.

UPDATE: Just got back, and thought I'd post this excerpt:

Plaintiffs allege that, since February 20, 2025, USDS [DOGE] personnel have obtained unprecedented access to information systems across numerous federal agencies, including Treasury and OPM. In this regard, Treasury operates the Bureau of Fiscal Service ("BFS"), which manages "a federal payment system that distributes nearly 90% of all federal payments, including Social Security benefits, tax refunds, and vendor payments." The BFS payment systems contain the sensitive personal data, such as full Social Security numbers, of "tens of millions of individuals." OPM manages the Enterprise Human Resources Integration ("EHRI") system, which is "responsible for maintaining the integrity of the electronic Official Personnel Folder (eOPF), which protects information rights, benefits, and entitlements of federal employees." The EHRI contains "Social Security numbers, dates of birth, salaries, home addresses, and job descriptions of all civil government workers, along with any disciplinary actions they have faced." Plaintiffs further assert that the BFS and EHRI systems and the information contained therein are typically protected by information security protocols mandated by the Federal Information Security Act of 2014 ("FISMA"), privacy protections established by the Privacy Act of 1974 (the "Privacy Act"), and supervision by trained personnel.

Plaintiffs allege that, at the direction of the DOGE Defendants, the Government Defendants have abandoned these safeguards by providing the DOGE Defendants with unlawful access to sensitive and protected data in the BFS and EHRI systems and allowing the data to be used for prohibited purposes. On January 27, 2025, after being confirmed as Secretary of the Treasury, Defendant Scott Bessent granted USDS personnel access to the BFS payment systems, allegedly giving USDS personnel the ability to "stop payments from the federal government."

As a consequence of granting this access, Plaintiffs assert that Secretary Bessent and the Treasury Department disclosed personal information contained in those systems to individuals not authorized by law to access them. After USDS personnel received access to the BFS systems, the official USDS/DOGE account on Twitter/X tweeted that it was "stopping improper payments." Similarly, Elon Musk, "an individual who is either Acting USDS Administrator or otherwise exercising substantial authority within USDS," stated on his personal Twitter/X account that "[t]he @DOGE team is rapidly shutting down these illegal payments." Plaintiffs further allege that, upon information and belief, USDS and Treasury personnel are unlawfully exfiltrating identifying information from the BFS payment systems and redisclosing the information to individuals not employed at Treasury, and that USDS is moving to "stop approved payments to federal contractors, charities that provide social services, and other federal departments."

On January 20, 2025, Plaintiffs allege that Musk and USDS personnel entered OPM's headquarters and took control of the computer systems. According to Plaintiffs, at least six USDS agents were given "broad access to all personnel systems, including the EHRI system," giving them the ability to access databases that "store medical histories, personally identifiable information, workplace evaluations, and other private data.

Plaintiffs further allege that, on information and belief, the USDS personnel who have access to Treasury and OPM systems "lack training in applicable security safeguards for personal information, do not have relevant Treasury or OPM experience, may not have necessary security clearances, and may not be federal employees." As such, Plaintiffs contend that the Government Defendants' grant of systems access to the DOGE Defendants constitutes unlawful disclosure of personal data—including social security numbers and tax information—belonging to tens of millions of people stored in the BFS systems and the unlawful disclosure of personal data belonging to millions of federal employees stored in the EHRI system….

As an "alternative" theory of complaint, Plaintiff Doe 1 alleges that, as a career civil servant, OPM retains her personal information on EHRI, including her Social Security number, home address, and disciplinary record. Plaintiffs also allege that Doe 1 and many of EPIC's members have filed federal tax returns electronically within the last six years. As a result, the BFS systems contain extensive financial information about them, including statutorily protected return information. Plaintiffs therefore assert that their "sensitive, confidential, and personally identifiable information has been unlawfully accessed and endangered by DOGE." Plaintiffs further assert "[b]eyond the immediate harm of disclosure, Plaintiffs face substantially elevated risk of: data errors which could interfere with their paychecks or other employment benefits, purposeful withholding of payments to which they are legally entitled, and identity theft."

The Court notes that Defendants dispute the claim that USDS personnel have obtained access to these information systems. Instead, Defendants assert that

In response to lawful Executive Orders issued by President Trump, Treasury and OPM have assembled teams of the agencies' own employees, including detailees, to oversee implementation of the new Administration's policies to root out waste, fraud, and abuse across the federal government. Although these teams liaise with USDS—a component of the Executive Office of the President—it is the agencies' employees, and only those employees, who have access to the data systems containing the personal information upon which Plaintiffs premise their claims.

Defendants therefore contend that Plaintiffs' claims of unlawful access to the information systems by USDS personnel cannot be correct….

In their Motion, Plaintiffs argue that "[t]he longer Defendants are permitted unauthorized access to these sensitive systems, the more likely it is that they will access or further disclose Plaintiffs' individual data, and the longer Plaintiffs' data remains at a heightened risk of exposure or exfiltration by hostile actors." Plaintiffs further allege that Defendants "can easily and immediately misuse [personal identifying information] in violation of law by arbitrarily stopping payments through access to the BFS system, as they have publicly claimed to do," or by "bring[ing] adverse employment actions on the basis of information in the OPM system." Finally, Plaintiffs allege that there is a substantial risk of Plaintiffs suffering future identity theft because OPM's network is regularly subject to hacking attempts, and that these attempts are more likely to be successful as a result of Defendants' actions. The Court is unpersuaded.

Plaintiffs' fears of future harm are much too speculative and would require the Court to make several leaps in reasoning in order to warrant injunctive relief. For instance, Plaintiffs have not provided concrete evidence that Defendants are actively misusing or even attempting to misuse their sensitive data. The hypothetical scenarios that Defendants will withhold payments or bring adverse employment actions based on Plaintiffs' sensitive data are unsupported by the record before this Court. And to accept Plaintiffs' argument based on the exfiltration of their information by hostile actors, the Court would have to conclude that Defendants' conduct is causing an increased likelihood of hacking, that any resulting breach would target the specific systems containing Plaintiffs' information, that Plaintiffs' information would be specifically targeted, and that such a breach would lead to identity theft or other tangible harm, economic or otherwise.

This speculative chain of events is insufficient to establish irreparable harm, as Plaintiffs' claims are based on a series of possibilities, any one of which may never materialize. See Beck, 848 F.3d at 275 (referring to the plaintiffs' fear of identity theft as an "attenuated chain of possibilities" where the court had to "assume that the thief targeted the stolen items for the personal information they contained" and then assume that the thieves would "select, from thousands of others, the personal information of the named plaintiffs and attempt successfully to use that information to steal their identities"). "As the Supreme Court noted in Winter, the possibility of irreparable harm does not constitute a 'clear showing' that the plaintiff is entitled to relief."

Given the extraordinary nature of the remedy and the speculative, attenuated nature of the potential harm that Plaintiffs face, the Court cannot issue injunctive relief based on the current record before it….

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[Eugene Volokh] Court Voids Discipline of Public School Teacher for Two 2020 Anti-Bernie-Sanders Posts

From today's decision in Caggiano v. Duval County School Bd., decided by Florida Court of Appeal Judge Scott Makar, joined by Judges Harvey Jay and Adrian Soud:

Thomas Caggiano taught mathematics in the public school system of Duval County, Florida, for over twenty-five years with positive employment evaluations and no prior discipline. That was until he made politically tinged Facebook posts that led the Duval County School Board to initiate disciplinary charges against him. Caggiano contests the School Board's ruling that two of his posts violated the teacher code of conduct thereby justifying a three-day suspension, a reprimand, and diversity training….

The School Board asserted that seven of Caggiano's posts [posted around the time of the 2020 election] violated the teacher code of conduct. The hearing officer characterized the posts/reposts as "memes," describing them as "amusing or interesting pictures, videos, etc., that are spread widely through the internet or social media—or comments to memes or articles."

The hearing officer (also referred to as an administrative law judge) found that two of the seven posts did indeed violate the teacher code of conduct:

[a] A repost from a Facebook entity called "Messenger of Liberty," which states: "My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he's been spit on, punched and had a bottle thrown at him! I'm curious to see what happens when he goes outside."; …

[d] A repost from another individual, which appears to be a "screen grab" from a Fox News segment, which states, at the top, "MAN AND WOMAN," and which then states: "A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…" The "screen grab" attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970's (the exhibit copy is unclear), and Mr. Caggiano's handwritten notes next to this exhibit states: "Bernie said this!" ….

The administrative law judge concluded that the two "Facebook posts or reposts concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped." On that basis, the administrative law judge concluded that Caggiano violated the teacher code of conduct because he:

Failed to exercise best professional judgment and integrity. Failed to maintain the respect and confidence of his colleagues, students, and parents, as well as failed to sustain the highest degree of ethical conduct. Failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Intentionally exposed students to unnecessary embarrassment or disparagement. Failed to take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which he is affiliated. Engaged in "immorality," which is "conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual's service in the community." Engaged in conduct that denigrates or shows hostility or aversion toward an individual because of his/her actual or perceived identity with regard to gender….

The court held this violated Caggiano's First Amendment rights:

At the outset, it is important to emphasize that the charges against Caggiano involve no use of school resources, no communications or contact with students, and no improper conduct on or with school property; they do not involve false or defamatory statements about the school district, administrators, teachers or students; they do not involve matters of school administration. The swirl of controversy about Caggiano's treatment of a transgender student formed no basis for the charges against him; the School Board chose not to pursue sanctions for the incident, which plays no role in this appellate proceeding. Instead, the disciplinary charges involve only Caggiano's two Facebook posts made from his own personal computer, which were both reposts of third-party content that was derogatory of a candidate in the 2020 Presidential election, Senator Bernie Sanders….

The two-part [First Amendment test for government employee speech] that has evolved is whether (a) the employee spoke on a matter of public concern (i.e., one of significance or importance in society at large), and, if so, (b) whether the employee's right to free speech outweighs the employer's interest in an efficient workplace without disruption…. This two-part judicial analysis is known as the Pickering-Connick test ….

Caggiano's two reposts and his accompanying commentary address a matter of public concern: a Presidential candidate. The Fox News screenshot from the Jesse Watters show depicted a vulgar statement made by Senator Bernie Sanders at a time when he was a college student. The statement was newsworthy because it reflected poorly on the candidate and his judgment. Caggiano's comment that "Bernie said this!" merely expressed his surprise at the statement.

Likewise, the repost of the Bernie 2020 T-Shirt schtick is clearly political humor that is derisive of the candidate; its purpose is to commentate in a humorous (to some) manner that Senator Sanders was lacking support, perhaps even within his own ranks. It is hard to imagine, as the School Board did, that this type of attempt at humor was anything more than an innocuous political joke fallen flat.

Because the two reposts involved a matter of public concern, the next question is whether they presented a risk to the School Board's interest in running an efficient workplace that is free of disruption. On this point, no evidence was presented that the two reposts had any meaningful impact on the School Board's operations or that they created any disruption. Indeed, the bulk of the evidentiary focus was on Caggiano's other posts (that were deemed non-actionable) and the uncharged incident involving a transgender student. Next to no evidence exists that anyone had ever seen the two posts, let alone been offended to the point that the school workplace was potentially disrupted in any way.

The notion that Caggiano was himself encouraging violence by reposting the Bernie 2020 T-Shirt joke or was degrading women by reposting the Fox News screenshot is wholly insupportable and wildly off-the-mark. At best, the reposts demonstrated that Caggiano disliked Senator Sanders (for his use of sexist language) and was amused by sophomoric humor (that in no way promoted violence). The posts occurred outside of the school, on Caggiano's own time and computer, and amounted to little more than harmless political chitchat; they collectively amounted to the proverbial hill of beans.

Because Caggiano's two reposts involved a matter of public concern, and the School Board entirely failed to show any risk or actual disruption of its operations due to the reposts, the Pickering-Connick balance tips entirely in Caggiano's favor….

Jason E. Bloch and Kelly B. Mathis represent Caggiano.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Idling buses, an iPhone non-search, and high seas cocaine.]

New on the Short Circuit podcast: Do NIMBYs like big bats and they cannot lie? Plus some remands and removals.

Special education student sues D.C., claiming inadequate education under IDEA. D.C. Circuit: Summary judgment for D.C. There's no flaw in the student's individualized education program, even if he didn't reach the desired "educational outcome." Concurrence: Summary judgment is an awkward fit for IDEA cases. Even with a closed record, factual disputes remain. We should use Rule 52 bench trials instead. Eylea is a very expensive macular-degeneration drug ($2,000+ annual Medicare copay) with a far cheaper competitor. To appeal to patients, the drug manufacturer wants to reduce that copay. But giving a copay rebate directly to the doctor or patient is an illegal kickback, so instead the manufacturer gives the money to a charitable foundation that then distributes copays. Still a kickback, says the feds, which makes the Medicare claims the doctors file "false or fraudulent" under the False Claims Act. First Circuit: Not quite. There's no false or fraudulent claim if the doctor would've purchased Eylea anyway. The kickback must be a but-for cause. Bus company allegedly idled its buses for more than five minutes at a few Massachusetts bus stops, including the Harry Agganis Way shuttle stop. Apparently this violates state law and through some complicated regulatory machinations therefore violates federal law. Who knew? A few environmental groups. But do they have standing? District court: No more than anyone else who breathes air. Dismissed. First Circuit: Well, depends on the facts. Undismissed and remanded to figure those out. A student in Ludlow, Mass., informs school officials that they prefer to use a different name and pronouns. School officials honor that request, and, pursuant to an unwritten policy, do not divulge anything to the student's parents. Parents eventually find out and allege the policy violates their fundamental parental right to direct the upbringing of their children. First Circuit: A fundamental right, yes, but not one implicated by the school maintaining its own environment and declining to disclose this information to parents. And it survives rational basis. Dismissal affirmed. A U.S.-Egypt dual citizen alleges that in the 1990s Egypt expropriated his shares in an Egyptian paper company, causing him a loss of over $15 mil. He obtains a ruling and a ministerial decree in Egypt that purportedly require his compensation. Unable to collect for years, the dual citizen eventually sues Egypt's minister of finance in New York state court, who removes to federal court. There the suit is dismissed after the court finds it was effectively a suit against Egypt. Second Circuit: The minister is entitled to invoke the Foreign Sovereign Immunities Act, and the dual citizen waived any argument that an exception to that immunity applies. Dismissal affirmed. Is using an iPhone camera to see through a tinted window a search? Nope, holds the Second Circuit. Kyllo (that case about using a thermal scanner on a house) doesn't apply to cars. And touching the car while holding the camera isn't a search either. Jones (that case about putting a GPS tracker on a car) doesn't apply when a physical trespass isn't the source of the information. Generally speaking, parties involved with meth are not the winners in federal court. So what the hell needs to happen for the Fourth Circuit to find plain error, allow one of those defendants to withdraw his plea, and start talking about "egregiously impermissible government conduct"? The answer, apparently, is not "a new or isolated incident from the United States Attorney's Office in the Eastern District of North Carolina." Active service member living at Fort Campbell, Ky., is murdered. The feds prosecute her estranged husband and he's convicted. The fact that the fort is within the United States' "special maritime and territorial jurisdiction" is established by judicial notice, not by the jury. Was that wrong? Sixth Circuit: No. Concurrence: This is a question without precedent, so I look to history. And in 1833 SCOTUS used a book called Stoddard's Louisiana to discern admiralty jurisdiction. Which seems good to me. An Illinois man was set to be released from custody on the Friday of a Presidents' Day weekend, but releases aren't processed on weekends or holidays, so they kept him locked up until the following Tuesday. Seventh Circuit: Bummer, but it's just four days and doesn't violate the Eighth Amendment. Years-long feud between a Minnesota cattle farmer and state regulators over feedlot permits and alleged violations culminates in a record $152,724 penalty. Farmer raises a due process claim (for permit delay) and a First Amendment retaliation claim (for the fine). District court: Dismissed. Eighth Circuit: Remand. No "protected property interest" in the permit—so the due process claim's dead. But the retaliation claim is revived—regulators allegedly fined farmer for lawful pushback, like petitioning the state legislature for help. Defendant: Sure, I routinely showed up to move marijuana shipments at my brother's giant marijuana warehouse from which you eventually seized almost half a ton of marijuana, but who's to say I really knew the bags I was moving contained marijuana? Eighth Circuit: The jury. The jury said you knew that. And, since they had darn good reason to think so, conviction affirmed. The caption reads Missouri v. Trump, but in this case the Eighth Circuit actually strikes down a Biden administration student-loan forgiveness program after the Supreme Court nixed its first attempt based on a different statute. Statutory-interpretation aficionados will enjoy cameos from the major questions doctrine, Loper Bright, and nationwide APA vacatur. Does the Driver's Privacy Protection Act prohibit state officials from sharing motor vehicle records with other states to improve voter registration files? Eight Circuit: We can't say, but we do know the Act doesn't allow private lawsuits against state officials and agencies. Congress enacts the Pregnant Workers Fairness Act, and the EEOC issues a regulation extending the Act's protections to employees who have abortions. A bunch of states sue to invalidate the reg. But do they have standing? Eighth Circuit: The states are employers the Act directly regulates and Congress has explicitly abrogated their sovereign immunity. Case undismissed. Ninth Circuit: Section 230 of the Communications Decency Act means that, while the adult men who used Grindr to contact and eventually assault the minor plaintiff might be liable, Grindr can't be sued for hosting that contact in the first place. In which the Ninth Circuit politely notes (over a dissent) that the plaintiff has standing to object to the Air Force's failure to conduct an environmental review before deciding to dispose of unexploded ordinance on a nearby Guamanian beach because conducting that review might have persuaded the Air Force to, like, not do that. During a nighttime patrol outside of Reno, Nev., Bureau of Land Management rangers spot a group of motorcyclists riding around without lights. When one motorcyclist refuses to stop, the rangers give chase and arrest him. The motorcyclist is indicted for, inter alia, "driving an off-road vehicle on public lands at night without a taillight." He argues the statute authorizing that regulation unconstitutionally delegates legislative authority to the Secretary of the Interior. Ninth Circuit: The statute provides a "sufficiently intelligible" principle: developing a long-term management strategy to realize the land's value in a sustainable way. That's enough even though violations can result in criminal penalties. Reversed and remanded. This Tenth Circuit panel has some internal disagreement about how to allocate the burden of proof when a guard and an inmate dispute whether a prison sexual encounter was consensual, but that disagreement doesn't matter much at summary judgment when both the inmate's testimony and the video (!) of the encounter make it seem plenty nonconsensual. Sensationalists and yellow journalists might focus on this Tenth Circuit panel's disagreement over whether a transgender prisoner forced to stay in a housing unit that doesn't match her gender identity states an Equal Protection claim, but the loyal staff at Short Circuit wants you to know that footnote 15 in the majority opinion is more than a page long. Generally speaking, parties involved with meth are not the winners in federal court. So in a more typical result, here's the Tenth Circuit ruling for a Denver-area police officer who shot and killed a deranged man who charged at the officer inside a burning home. [Your editors, who hate qualified immunity, think this case is a good example of the protection for law enforcement already embodied in the reasonableness standard of the Fourth Amendment.] The Constitution gives Congress broad power to "define and punish . . . Felonies committed on the high seas[,]" which means (says the Eleventh Circuit) that if Congress says you go to prison for having a honkload of cocaine on your boat, then you go to prison for having a honkload of cocaine on your boat.

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[Eugene Volokh] Insulting E-Mail to Ex-Lawyer Wasn't Unprotected True Threat or Fighting Words

From JDT v. DMT, decided Wednesday by Michigan Court of Appeal Chief Judge Michael F. Gadola and Judges Thomas C. Cameron and Matthew S. Ackerman:

Respondent was placed on probation … after pleading no contest to two violations of a personal protection order ("PPO") that prohibited him from contacting petitioner, his ex-wife. As a condition of his probation, respondent was barred from engaging in "any assaultive, abusive, threatening, or intimidating behavior."

The instant probation violation stemmed from a series of e-mails respondent sent over the course of a month to attorney Wayne Crowe, who represented respondent in his divorce proceedings and the PPO proceeding. {According to respondent, the attorney-client relationship ended after Crowe resigned from his law firm without notifying respondent or moving to withdraw as respondent's counsel.}

In the initial e-mails, which were sent only to Crowe, respondent referred to him as a "pussy" and a "negligent piece of shit," accused Crowe of "ignor[ing] child abuse" and owing respondent money, and stated, "Fuck you." In respondent's subsequent e-mails, he copied various other people, including the county prosecutor, and referred to Crowe as a "fraud" and a "twat," accused Crowe of breaking the law, and accused the presiding judge of ignoring evidence of child abuse and parental alienation.

Some of the e-mails included photos, such as a photo of the presiding judge and his family at a judicial investiture and another of respondent's children, edited to appear as though they were in a jail cell. Crowe reported the emails to respondent's probation officer, who filed a warrant request alleging a technical probation violation for respondent's "threatening/intimidating behavior" toward Crowe.

At the probation violation hearing, Crowe testified that the e-mails made him fear for his safety. He also testified about several telephone calls in which respondent allegedly threatened him, although he could not recall the substance of those threats. After the presentation of evidence, respondent argued that the e-mails were constitutionally protected speech. The trial court disagreed, finding that respondent intended to threaten and intimidate Crowe, the e-mails caused Crowe to feel threatened and intimidated, and respondent's speech was not protected under the First Amendment because the language in his e-mails constituted fighting words. The trial court found respondent guilty of the probation violation [and] {sentenc[ed] him to five days' imprisonment and extend[ed] his probation for an additional six months}.

The court of appeals reversed, concluding that the speech didn't constitute an unprotected "true threat" of illegal conduct:

The right to free speech does not extend to "true threats," which are defined as statements in which "the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "Excluded from this category are jests, hyperbole, or other statements whose context indicates no real possibility that violence will follow." To establish a true threat, "[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence." The true-threat exception to the First Amendment encompasses only physical threats, and our Supreme Court explicitly declined to extend the exception to encompass nonphysical threats.

Here, the trial court failed to conduct a true-threat analysis, instead focusing on Crowe's subjective feelings of intimidation. In support of its finding that respondent's speech was threatening and, thus, not constitutionally protected, the trial court referenced specific e-mails, including:

one sent on November 29th at 9:40 to Mr. Crowe, where [respondent] says, "You're a negligent piece of shit. You ignore child abuse and you owe me money." …

Another e[-]mail … sent to numerous people, including Mr. Crowe, on December 22nd, but he specifically addresses Mr. Crowe by saying, "Fuck you, Wayne. You owe me a house. Your behavior is far more inappropriate than mine. You broke the law." And use of[,] "Fuck you, Wayne," together with, "You're a negligent piece of shit," and then the final e[-]mail specifically addressed to Mr. Crowe on November 24th of 2022 at 10:35 a.m., with the subject line of, "You're a pussy[,]" and the direct communication of[,] "Fuck you." These are the specific terms that the Court feels are intimidating and threatening in nature when provided in context with the other e[-]mails that have been admitted and together with Mr. Crowe's testimony regarding his conversations with [respondent] while he represented [respondent] that were threatening and inappropriate in nature.

The trial court instead should have assessed whether respondent intended "to communicate a serious expression of an intent to commit an act of unlawful violence" against Crowe or whether the purported threats were physical. The record would not have supported such a finding. Although respondent's e-mails were offensive and inappropriate, they did not express an intent to commit an act of unlawful physical violence. Accordingly, respondent's speech did not fall within the true-threat exception to the First Amendment.

The court also concluded the speech wasn't unprotected "fighting words":

Fighting words are "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction …." Speech made over the Internet, "far removed from any potential violence," is not "inherently likely to provoke a violent reaction."

The trial court reasoned that,

[i]f [respondent] were to approach Mr. Crowe and say, "Fuck you. You're a pussy," and the other threatening things that he said, I think it's very likely that would provoke a violent reaction. The fact that [respondent] hides behind a computer to make these threats and fighting words doesn't excuse them or make them any different.

We disagree. Although respondent's language might provoke violence if delivered in person, the fact that it was communicated via e-mail—"far removed from any potential violence"—renders it unlikely to provoke a violent reaction. Here, the medium of communication is a critical factor in determining whether the speech constitutes fighting words, and the trial court erred by disregarding it.

And the court rejected the prosecution's claim "that respondent's speech—which consisted of insults, epithets, and personal abuse—was not protected because it lacked expressive purpose and was meant solely to cause harm":

The record contains no evidence that respondent's speech inflicted harm on Crowe "by [its] very utterance." Additionally, respondent's e-mails repeatedly expressed grievances, including allegations that Crowe ignored child abuse and owed him money. Those statements demonstrate an expressive purpose beyond mere harassment. Speech with expressive content, even if offensive, does not fall within the narrow categories of historically unprotected speech. Accordingly, respondent's speech is protected under the First Amendment.

Note that some courts have evaluated speech restrictions imposed in probation conditions under a fairly government-friendly standard (see, e.g., Johnson v. State (Ind. App. 1995)). But this case applied generally applicable First Amendment principles, not any special rule related to probation conditions.

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