Eugene Volokh's Blog, page 161
February 20, 2025
[Eugene Volokh] One More First Amendment Case to Watch
Another First Amendment case that the Court will consider this Friday, but on the religion side, is (briefs at the link); here's the question presented:
For centuries, Western Apaches have centered their worship on a small sacred site in Arizona called Chí'chil Biłdagoteel, or Oak Flat. Oak Flat is the Apaches' direct corridor to the Creator and the locus of sacred ceremonies that cannot take place elsewhere. The government has long protected Apache rituals there. But because copper was discovered beneath Oak Flat, the government decided to transfer the site to Respondent Resolution Copper for a mine that will undisputedly destroy Oak Flat—swallowing it in a massive crater and ending sacred Apache rituals forever.
Petitioner challenged this decision under the Religious Freedom Restoration Act and the Free Exercise Clause. In a fractured en banc ruling cobbled together from two separate 6-5 majorities, the Ninth Circuit rejected both claims. Although the court acknowledged that destroying Oak Flat would "literally prevent" the Apaches from engaging in religious exercise, it nevertheless concluded that doing so would not "substantially burden" their religious exercise under RFRA, relying on this Court's pre-RFRA decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). And while the majority acknowledged that singling out Oak Flat for destruction is "plainly not 'generally applicable,'" it rejected the free-exercise claim "for the same reasons"—no substantial burden.
The question presented is:
Whether the government "substantially burdens" religious exercise under RFRA, or must satisfy heightened scrutiny under the Free Exercise Clause, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
Prof. Stephanie Barclay (Georgetown) and Matthew Krauter also have an interesting forthcoming article in the University of Pennsylvania Law Review, The Untold Story of the Proto-Smith Era: Justice O'Connor's Papers and the Court's Free Exercise Revolution, that bears on this case and on the religious exemption debate more broadly:
Justice O'Connor's recently released Supreme Court papers reveal the untold story of how the Court systematically dismantled religious accommodation protections in the decade leading up to Employment Division v. Smith. While Smith's abandonment of strict scrutiny for neutral, generally applicable laws shocked the nation in 1990, this Article demonstrates that the decision marked the culmination of a carefully orchestrated retreat from the compelling interest test of Sherbert v. Verner and Wisconsin v. Yoder.
Through parsing conference notes, draft opinions, and internal correspondence, we document how the Office of the Solicitor General's persistent campaign against religious exemptions found increasing receptivity from the Court throughout the 1980s. The papers also reveal that several Justices in the proto-Smith era were skeptical of how practical it would be to offer religious accommodations to a diverse range of religious minorities. The Court described these groups as "odd ball religions," or "squeaky wheel" faiths with "eccentric beliefs" that the Court struggled to understand and worried would be too difficult or "unimportant" to protect.
Of particular significance, the papers demonstrate that Lyng v. Northwest Indian Cemetery—sometimes treated as consistent with Sherbert jurisprudence—was actually a pivotal step away from that jurisprudence and toward Smith's neutrality rule. Four of the five Justices in Lyng's majority acknowledged their analysis would have been "different" if the case had involved the original logging plans rather than just road construction, suggesting the internal affairs doctrine may have served as an expedient rather than principled limitation. This historical evidence has immediate implications for current litigation, particularly Apache Stronghold v. United States—a case with a cert petition currently pending before the Supreme Court. In the decision below, the Ninth Circuit recently held that the Religious Freedom Restoration Act incorporated Lyng's restrictive approach to religious land use claims as part of the Sherbert/Yoder era. Understanding Lyng's true close connection to Smith lends support to the conclusion that Lyng is part of the proto-Smith era that RFRA replaced.
But this article also has enduring significance far beyond the Apache Stronghold case. A majority of the Justices on the Supreme Court have recently signaled an interest in revisiting the constitutional legal standard that will govern religious exemption requests under the Free Exercise Clause. Strikingly, the papers reveal that throughout this transformative period, the Court never seriously engaged with the historical understanding or textual meaning of the Free Exercise Clause.
Instead, the Justices' retreat from Sherbert and Yoder was driven primarily by consequentialist concerns about religious accommodation's impact on government operations. The total lack of focus on the original meaning of the Free Exercise Clause provides additional reason to question the precedential value of Smith. Our examination of the Court's dramatic free exercise transformation leading up to Smith thus offers valuable insights—and perhaps a cautionary tale—for its current doctrinal reassessment.
The post One More First Amendment Case to Watch appeared first on Reason.com.
[Josh Blackman] Harlan Virtual Supreme Court Semifinalists
[Twenty-two teams of high school students presented oral arguments on Free Speech Coalition v. Paxton.]
The topic for the 13 Annual Harlan InstituteVirtual Supreme Court competition is Free Speech Coalition v. Paxton. Twenty-two teams of high school students presented oral arguments in the semifinal round. The teams were superb. Truly, these high school students could compete in any law school moot court competition. The Round of 8 will be held the week of February 24, 2025.
Semifinal Match #1
Semifinal Match #2 Team #20177 v. Team #20128 https://www.youtube.com/watch?v=hxrKE...Semifinal Match #3
Semifinal Match #4 Team #20603 v. Team #20129
Semifinal Match #5
Semifinal Match #6
Semifinal Match #7
Semifinal Match #8
Semifinal Match #9
Semifinal Match #10
Semifinal Match #11
Semifinal Match #12
Semifinal Match #13
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[Josh Blackman] Today in Supreme Court History: February 20, 1933
2/20/1933: The 21st Amendment is submitted to the states.
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February 19, 2025
[Eugene Volokh] Wednesday Open Thread
[A belated thread today.]
Sorry about that: Didn't properly schedule it, and then was traveling much of the day.
The post Wednesday Open Thread appeared first on Reason.com.
[Eugene Volokh] Two Free Speech/Gender Identity/Sexual Orientation Cert. Petitions that the Court Will Consider Friday
[1.] In (briefs at link, if you're interested), the question presented is:
L.M. is a student whose public school promoted the viewpoint that sex and gender are limitless, based on personal identity, and have no biological foundation. The school invited students to voice their support for this view. But L.M. disagreed and responded by wearing a t-shirt to class that said "There are only two genders." After the school censored him, he wore a protest t-shirt that said "There are [censored] genders." Despite no past or present disruption, the school district prohibited both t-shirts.
The district court upheld this censorship based on the rights-of-others prong in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The First Circuit affirmed based on Tinker's substantial-disruption prong, though it said L.M.'s t-shirts likely failed the rights-of-others prong too, applying a novel test for ideological speech alleged to demean characteristics of personal identity.
The First Circuit's novel legal standard and analysis conflicts with this Court's decisions and those of ten other circuits in a multitude of ways. The question presented is:
Whether school officials may presume substantial disruption or a violation of the rights of others from a student's silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school's opposing views, actions, or policies.
[2.] In (briefs at the link), the question presented is:
Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God's design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions," while allowing conversations that provide "[a]cceptance, support, and understanding for … identity exploration and development, including … [a]ssistance to a person undergoing gender transition." Colo. Rev. Stat. § 12-245-202(3.5).
The Tenth Circuit upheld this ban as a regulation of Chiles's conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.
The question presented is:
Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.
Much worth following, I think.
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[Paul Cassell] The Crime Victims' Rights Movement's Past, Present, and Future (Part II - the Present)
[The modern crime victims' rights movement has been remarkably successful in inserting the victim's voice into criminal justice processes.]
This post is the second of three posts, serializing my comprehensive law review article on the crime victims' rights movement. In yesterday's post, I described the movement's roots in the history of private prosecution. This post describes the movement's last several decades, during which the movement has successfully created participatory rights for victims throughout America's criminal justice system.
The modern victims' rights movement began to stir in the late 1960s, coalesced in the 1970s, and gained momentum in the early 1980s. The movement has continued ever since "as one of the most significant and successful forces for reshaping the criminal justice process." The movement's birth can be traced to the confluence of five developments: (1) the creation of an academic field of victimology; (2) the introduction of state victim compensation programs; (3) the rise of the women's movement; (4) an increase in crime and an accompanying dissatisfaction with the criminal justice system; and (5) the growth of victim activism.
In late 1982, the President's Task Force on Victims of Crime published a report, calling for victims' rights to be enshrined in criminal justice—and also for adoption of a federal constitutional amendment protecting victims' rights. The Task Force's report catalyzed crime victims' rights efforts across the country. Indeed, the Task Force Report and other similar recognitions of victims triggered "a literal explosion of federal and state action to increase crime victim access to and participation in the criminal justice process."
In 1986, four years after the Task Force released its report, the Justice Department surveyed changes in the criminal justice landscape concerning victims. The Department found that nearly 75 percent of the Task Force's proposals had been implemented to some degree, including the creation of a new Office for Victims of Crime in the Department to help implement the reforms.
Perhaps the most important change sparked by the President's Task Force was the creation of specific crime victims' rights in criminal justice processes. Before 1982, the victims' rights movement had spoken generally about protecting victims' "rights" in criminal cases. Beginning in 1980, states began establishing specific victims' rights by enacting statutory and constitutional victims' bills of rights. Wisconsin was the first state to create a specific list of victims' rights. In 1981, four more states followed suit, and, by 1989, 42 states had enacted statutes called a "victim bill of rights" and most of the remaining states had adopted similar statutory protections.
States also began to add protection for victims' rights in their own constitutions. In 1982, California passed Proposition 8, which was the first state constitutional victims' bill of rights. In a 1984, an ad-hoc gathering of national victim's rights groups decided to first seek constitutional protection for victims' rights in the states before undertaking the significant effort that would be required to pass a federal constitutional amendment—a "states-first approach." The next six amendments that were adopted came from Rhode Island (1986), Florida and Michigan (1988), Texas and Washington (1989), and, perhaps most important, Arizona (1990). These six amendments exhibit a trend from largely aspirational language (Rhode Island's) to more specific guarantees of rights for victims (Arizona's).
These early victims' rights amendments seemed to spur other states to action. In 1991, New Jersey added a state constitutional amendment. In 1992, Colorado, Illinois, Kansas, Missouri, and New Mexico followed suit. In 1993, Wisconsin joined. In 1994, Alabama, Alaska, Idaho, Maryland, Ohio, and Utah added amendments. In 1996, Connecticut, Indiana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, and Virginia also added amendments. Oregon passed an amendment that same year, only to see the Oregon Supreme Court overturn it on technical grounds surrounding the initiative process. The court ruling lead Oregon's voters to swiftly reenact an amendment in 1999. In 1998, Louisiana, Mississippi, Montana, and Tennessee approved amendments. Thus, at the turn of the century, 32 states had state constitutional amendments protecting crime victims' rights. As victims' rights advocates had hoped, the state amendments had set the stage for a push to amend the United States Constitution to add a victims' rights provision.
To place victims' rights into the federal Constitution, the National Victims Constitutional Amendment Network and other advocates approached the President and Congress. In 1996, Senators Jon Kyl (a Republican from Arizona) and Dianne Feinstein (a Democrat from California) introduced a federal victims' rights amendment, with the backing of President Clinton. The Amendment was designed to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation."
In the late 1990s and early 2000s, Senators Kyl and Feinstein made various efforts to pass a federal amendment. While these efforts were unsuccessful, the result was the federal Crime Victims' Rights Act (CVRA). The CVRA originated in an April 2004 decision by Senators Kyl and Feinstein to seek a comprehensive federal statute rather than immediately pushing for a federal constitutional amendment. The movement supported their tactical decision. In exchange for backing off from the federal amendment in the short term, victims' advocates received near universal congressional support for a "broad and encompassing" statutory victims' bill of rights. This "new and bolder" approach not only created a string of victims' rights but also remedies for violations of victims' rights and funding for victims' legal services. Since the CVRA's enactment in 2004, victims have increasingly asserted rights in federal cases. And, when their rights have not been respected, some victims have used the CVRA provisions allowing enforcement actions in trial and appellate courts. I've previously blogged about my Epstein case and my on-going Boeing case, which are examples of CVRA enforcement actions.
After the federal CVRA was enacted in 2004, victims' advocates began to look at how to improve state enactments. As with federal enactments, a primary concern was the enforcement of victims' rights. Modern victims' rights enactments known as "Marsy's Law" were part of the story. The namesake for this effort was Marsy Nicholas, a 21-year-old senior at the University of California at Santa Barbara. In multiple ways, the criminal justice system served to escalate the pain and trauma of Marsy's family. Through Marsy's brother, Dr. Henry T. Nicolas, this tragedy gave birth to the Marsy's Law initiative—Proposition 9, the California Victims' Bill of Rights Act of 2008. The initiative sought to enshrine substantive and enforceable victims' rights in the California Constitution. When voters approved the initiative in November 2008, it became the nation's most comprehensive constitutional victims' rights enactment.
After success in expanding victims' rights in California, a newly created organization—Marsy's Law for All—set out to provide meaningful and enforceable victims' rights in all other states and, ultimately, to amend the federal Constitution to enshrine victims' rights. From 2008 to today, Marsy's Law for All efforts have succeeded in placing modern and enforceable crime victims' rights into the state constitutions of ten states (California, Illinois, North Dakota, South Dakota, Ohio, Oklahoma, Nevada, Kentucky, Florida, Georgia, North Carolina, and Wisconsin). Because these include some of the nation's most populous states, one in three Americans now lives in a state with Marsy's Law provisions. Marsy's Law has created model language for state constitutional amendments, which will likely serve as the template for future victims' rights enactments. Of course, in some other states (e.g., Arizona), effective and enforceable victims' rights enactments already exist. Thus, while a "third wave" of victims' rights does not yet cover the entire country, the tide is rising.
But, more broadly, another part of the success of the modern crime victims' rights movement was the widespread cultural acceptance of victims' rights. Today, as a criminal case moves forward, the public expects that victims will play a role in the process.
For example, the victims' rights movement has successfully enshrined in the nation's criminal justice system a crime victim's right at sentencing to give a "victim impact statement." Many examples of victim impact statements could be cited, such as the Larry Nassar sentencing, as I've blogged about here and here. But the overarching point is that victim impact statements are now commonplace and seemingly uncontroversial. Indeed, the American Law Institute's Model Penal Code now provides for victim impact statements. And while a handful of critical academics are poised to pounce on any empirical evidence that victim impact statements increase sentencing severity, these critics remain disappointed: the available empirical evidence does not support the conclusion that victim impact statements lead to harsher sentences, much less harsher sentences based on race or other impermissible factors.
From the public's perspective, the widespread use of victim impact statements is as it should be. No longer can it be accurately said (if it ever could) that victims lack "any interest" in criminal proceedings. Instead, victims now clearly possess recognized interests in the proceedings: e.g., a right to present information relevant to sentencing. The crime victims' rights movement has thus clearly succeeded in returning victims to playing an important role in criminal justice.
You can download my full article here. I will be presenting the article as a keynote address at the University of Pacific Law Review's Annual Symposium on Friday, starting at 8:30 a.m. Pacific time. You can find more information about how to watch the symposium here. Tomorrow's post will conclude this series by discussing the crime victims' rights movement's future.
The post The Crime Victims' Rights Movement's Past, Present, and Future (Part II - the Present) appeared first on Reason.com.
[David Post] No Quid Pro Quo. So?
[With a deferred prosecution and a dismissal without prejudice, who needs a quid pro quo? ]
Paul Cassell notes here that the lawyers for Eric Adams have denied, and have offered to make their denial under oath, that there was any prior negotiated quid pro quo involved in the deal under which the DOJ has moved for a dismissal of criminal charges against Mayor Adams. The lawyers wrote:
What we never said or suggested to anyone was that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X.
As a consequence, Cassell writes, "the argument that the dismissal motion is inappropriate because a quid pro quo was negotiated has effectively collapsed. Period." (emphasis added). [Though Cassell adds: "To be sure, as noted in my earlier post, one can still legitimately debate whether the dismissal motion was appropriate."]
There's an air of unreality to all of this discussion about whether or not there was a prior negotiated quid pro quo, when in fact it makes no difference whatsoever. Who needs a prior express quid pro quo when you have a deferred prosecution and a dismissal without prejudice?!
Adams doesn't have to agree beforehand to anything for this to be entirely inappropriate. The threat of re-instituting prosecution does all of the work that a prior negotiated agreement would do - it gets Adams to do what the President wants him to do, because everyone involved understands that if he doesn't, the charges will be re-filed and he probably goes to jail. Whether the conversation in which the Attorney General tells Adams that the President would like it if ICE agents could freely enter NYC detention centers, schools, playgrounds, etc. takes place before the motion to dismiss is filed or after the motion to dismiss is filed is entirely immaterial. The result is precisely the same: Adams will take official action as Mayor that he would not otherwise take, not because it is in the interest of New Yorkers, but because of his personal interest in avoiding jail time.
Why else has the DOJ chosen to dismiss these charges without prejudice? What do they think might happen to get them to re-institute the prosecution down the road besides "he didn't play ball"?
And notice, by the way, that, as a coercive tool, the dismissal without prejudice route is far more efficient and effective than a prior negotiated quid pro quo deal. In the latter, you need to specify in advance what actions you want Adams to take; with the former, you can wait and see what you'd like him to do as things move along.
This is not just business as usual. I refer again - for the last time, I promise - to my earlier hypothetical, which needs no express quid pro quo to be effective, and chilling: the Attorney General calls up Justice Barrett, and the following one-sided conversation ensues:
Attorney General: "Justice Barrett, we have information that you have cheated on your taxes, information sufficient to bring forth an indictment against you. We're not going to do that now - but we reserve the right to do so in the future. And surely you know how interested President Trump is in the outcome of X v. Y, now coming before the Court. We know you'll do the right thing."
No quid pro quo needed. Justice Barrett doesn't have to say a word or agree to anything for this to work just fine as a kind of blackmail. [According to Robert Caro's LBJ biography, this was J. Edgar Hoover's preferred modus operandi when he was FBI Director; if the FBI had turned up damaging personal information about a high-ranking political figure, Hoover would dispatch his assistant Clyde Jenkins to speak to the official; Jenkins would inform him that they had the information, and then say something to the effect of "Don't worry; we're keeping it secret." At which point High-Ranking Official was, thereafter, in Hoover's pocket.]
You're free to believe that this is not what Trump is up to here, but I'm quite certain that it is.
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[Paul Cassell] How Should the District Court Evaluate the Motion to Dismiss the Charges Against Mayor Adams?
[Under existing Second Circuit caselaw, the district court will almost certainly need to approve the motion to dismiss. But existing Circuit law fails to take into account the Crime Victims Rights Act. And there may be a "victim" who rights are being ignored: New York City.]
Yesterday, I blogged about the Justice Department's pending motion to dismiss in the criminal case against Mayor Adams. My argument was that the dismissal motion was easy to justify, particularly given the new Administration's change in priorities for law enforcement. I also noted that the Department's dismissal motion would be subject district court review under a deferential "public interest" standard. I also criticized those who argued that the dismissal motion was a negotiated quid pro quo between the Justice Department and Adams—a position that was unequivocally corroborated by a letter to the court from Adams's defense attorneys.
In another development yesterday, the district judge in S.D.N.Y. handling the matter (Judge Dale E. Ho) entered an order directing the parties (the Justice Department and Adams) to appear before him today to "address, inter alia, the reasons for the Government's motion, the scope and effect of Mayor Adams's 'consent in writing,' and the procedure for resolution of the motion."
In this post, I discuss what standard Judge Ho should apply in evaluating the pending dismissal motion, making three points: (1) existing Second Circuit case law is very deferential on issues relating to prosecutorial priorities, which would seem to dictate approval of the dismissal; (2) existing Second Circuit caselaw appears to improperly ignore the possibility that crime victims might exercise their congressionally protected right to be reasonable heard on dismissal motions; and (3) while some parts of the Adams prosecution appear to involve "victimless" crimes, at least one of the counts appears to involve a "victim"—specifically New York City, which has (allegedly) been defrauded of "matching funds" during the election process. If my analysis is correct, the judicial procedures for determining the dismissal will need to include the crime victim's right to confer and to be heard under the federal Crime Victims' Rights Act.
I. The Deferential Standard for Reviewing Dismissal Motions in the Second Circuit.
Turning first to the issue of what standard the district court applies in reviewing a motion to dismiss filed under Federal Rule of Criminal Procedure 48(a), let's start with the rule's text: "The government may, with leave of court, dismiss an indictment, information, or complaint" (emphasis added). The key issue that arises, of course, is how to interpret the "leave of court" requirement. The Advisory Committee Notes to the 1944 Amendment adding this language indicate that this requirement was a "change [in] existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts."
Interesting history underlies the 1944 Amendment, usefully recounted by (now-Virginia law professor) Thomas Frampton. In his June 2020 Stanford Law Review Online article, entitled "Why Do Rule 48(a) Dismissals Require 'Leave of Court'?", Frampton recounts forty-year-old old dicta in the "sole Supreme Court case interpreting Rule 48(a)," Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). As Frampton explains, there the Court stated that the "leave of court" language was added to Rule 48(a) "without explanation," but "apparently" this verbiage had as its "principal object …. to protect a defendant against prosecutorial harassment." Frampton's article argues that this position is simply wrong: "In fact, the 'principal object' of Rule 48(a)'s 'leave of court' requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants."
Perhaps the most famous case interpreting the "leave of court" requirement is the 2020 case involving Michael Flynn. There, the Justice Department moved to dismiss criminal charges against Flynn, and the district judge handling the matter, Judge Sullivan, appointed an amicus to argue against dismissal. I blogged about the case at that time--taking the position that the "victimless" crime alleged against Flynn was "a curious one for close judicial scrutiny of a Government motion to dismiss--closer scrutiny should be reserved for cases in which crime victims have a clear interest." Because what I wrote then appears to have some application to the Adams case, I recount some of my analysis about the Flynn case here.
In the Flynn case, the standard that the district judge was to apply in reviewing a motion to dismiss was generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court which had authority over Judge Sullivan) had previously explained the limited role that trial judges have in reviewing motions to dismiss:
Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain "leave of court" before dismissing charges against a criminal defendant. Fed. R. Crim. P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)'s "leave of court" requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one—"to protect a defendant against prosecutorial harassment … when the [g]overnment moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15 (1977).…
So understood, the "leave of court" authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct.
United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).
Ultimately, in a 2-1 panel decision in the Flynn case, the D.C. Circuit held that the district court could not even hold a hearing on the issue of dismissal. The panel held that "[t]his is not a case about whether 'a district judge may even hold a hearing on a Rule 48(a) motion.' Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by … probing the government's motives. On that, both the Constitution and cases are clear: he may not."
I was critical of the D.C. Circuit's panel decision at the time. I blogged that "the majority's reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role—albeit a limited one—for the district court in evaluating motions to dismiss. It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus."
Later, the D.C. Circuit en banc essentially agreed with my view, granting rehearing and ultimately holding that a writ of mandamus was not appropriate for superintending the district court's actions. The D.C. Circuit en banc held that all the legal questions could be reviewed on a later appeal from the district court. Thereafter, President Trump pardoned Flynn, and the case was ultimately dismissed as moot.
It appears that the law in the Second Circuit is generally the same as the D.C. Circuit, at least with regard to deference to prosecutors. Indeed, in a 2017 decision, the Second Circuit cited the Fokker decision repeatedly and favorably in rejecting a district court's efforts to involve itself in the the implementation of a deferred prosecution agreement. See United States v. HSBC Bank USA, N.A., 863 F.3d 125 (2d Cir. 2017). And in a 2022 decision, United States v. Blasczcak (cited by Judge Ho in his order directing a hearing), the Second Circuit said much the same thing:
Rule [48(a)] was not promulgated to shift absolute power from the Executive to the Judicial Branch. Rather, it was intended as a power to check power. The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional values.
United States v. Blaszczak, 56 F.4th 230, 240 (2d Cir. 2022).
The Second Circuit's Blaszczak decision is worth discussing a bit more, because it is the controlling Circuit precedent that will dictate Judge Ho's decision on the pending dismissal motion. Simplifying the facts, Blaszczak and other defendants were convicted of converting government property, wire fraud, and related conspiracy crimes in connection with misappropriating confidential information from the Centers for Medicare and Medicaid Services. The Supreme Court then decided Kelly v. United States, limiting what constitutes "property" or a "thing of value" under the federal fraud and conversion statutes. The Supreme Court remanded Blaszczak's case for reconsideration. In the Second Circuit, the Government then agreed with Blaszczak's submission that Kelly controlled and that his convictions should be reversed or remanded to the district court for dismissal.
The Second Circuit agreed with the Government that the convictions should be overturned and the charges dismissed. In its opinion, the Second Circuit italicized a lengthy quotation as setting out the deferential standard of review:
The disposition of a government's motion to dismiss an indictment should be decided by determining whether the prosecutor acted in good faith at the time he moved for dismissal. A motion that is not motivated by bad faith is not clearly contrary to manifest public interest, and it must be granted…. [T]he trial court has little discretion in considering a government motion to dismiss made pursuant to Federal Rule of Criminal Procedure 48(a). It must grant the motion absent a finding of bad faith or disservice to the public interest…. The disservice to the public interest must be found, if at all, in the motive of the prosecutor. Examples of disservice to the public interest include the prosecutor's acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.
Blaszczak, 56 F.4th at 240-41 (internal quotation omitted) (emphasis added by the Second Circuit).
Under the standard articulated in Blaszczak, it will be difficult for the district court to deny the motion to dismiss the charges against Mayor Adams. As I mentioned in my post yesterday, the Justice Department has explained its reasons for the motion to dismiss. One reason the Government gave focused on the issue of the pending criminal charges interfering with Mayor Adams's ability effectively enforce public safety and immigration laws:
[T]he Acting Deputy Attorney General … concluded that continuing these proceedings would interfere with the defendant's ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies. See, e.g., Executive Order14159, 90 Fed. Reg. 8443; Executive Order 14165, 90 Fed. Reg. 8467. The Acting Deputy Attorney General reached that conclusion after learning, among other things, that as a result of these proceedings, Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary for Adams to govern and to help protect the City.
This is a statement of "motive of the prosecutor"—that is, a statement of the Government's reasons for the dismissal motion. Almost by definition, that reason could not be a disservice to the public interest. The need to avoid interfering with the Mayor's ability to govern does not remotely approach the kinds of things that would justify rejecting the motion to dismiss, e.g., bribery, dislike of a victim, etc.
Nor does the reason appear to be pretextual. No one can doubt that the current Administration has made public safety and immigration initiatives some of their highest priorities. And, as I blogged about late yesterday, Mayor Adam's distinguished defense team made exactly this argument about how the criminal case was interfering with Mayor Adam's. They made the argument in a presentation to the Justice Department and a follow-on letter, which you can read here (as Appendix A). Interestingly, the letter points out that Mayor Adams has had his security clearance revoked due to the pending charges—a fact that plainly seems to be an impediment to his ability to secure the City's public safety. And in moving to dismiss, the Department has merely agreed with that defense submission. To reject the Department's motion to dismiss, the district court would now have to conclude that agreeing with the defense argument was so unreasonable as to amount to some sort of "bad faith." At least to my mind, finding it was "bad faith" to agree with the defense submission here seems implausible.
In my post yesterday, I skipped over a second reason for the dismissal motion that the Government has offered, which is now worth a brief mention. In the motion to dismiss, the Government explained that:
the Acting Deputy Attorney General concluded that dismissal is necessary because of appearances of impropriety and risks of interference with the 2025 elections in New York City, which implicate Executive Order 14147, 90 Fed. Reg. 8235. The Acting Deputy Attorney General reached that conclusion based on, among other things, review of a website maintained by a former U.S. Attorney for the Southern District of New York and an op-ed published by that former U.S. Attorney.
Once again, this was an argument advanced by Mayor Adams's defense attorneys in their letter here (as Appendix A). I won't belabor the point, but it would seem to be possible for prosecutors to review the argument and find it plausible.
Of course, these issues of possible "bad faith" and "disservice to the public interest" will be explored at greater length in future hearings. In this short post, it is impossible to cover all the issues. And I realize that distinguished commentators, such as law professor Bennett Capers, have made a contrary argument. So my limited point for now is that, based on the applicable standard of review, those who believe that the Court should deny the motion to dismiss have very much an uphill battle under existing Second Circuit law. (Yesterday, a former AUSA sought to be appointed as an amicus to argue against the dismissal. I won't analyze his arguments in depth, but you can read his motion here.)
II. The Second Circuit Has Not Considered Crime Victims' Interests in Dismissal Motions.
Now, let me shift gears and make a point against existing Second Circuit law. I believe that controlling circuit precedent (Blaszczak) is flawed and too narrow: It fails to recognize that crime victims have a right to be heard in opposition to dismissal motions. I made this general point when I blogged about the Flynn prosecution in 2020 and adhere to the same position here.
While as a substantive matter federal prosecutors have some discretion in deciding whether to dismiss criminal charges, an important procedural issue arises against the backdrop of expanding crime victims' rights in the federal criminal justice process: Should a judge consider a crime victim's view on the dismissal? In 2004, Congress adopted the Crime Victims' Rights Act (CVRA), guaranteeing victims greater rights throughout the process. Effectively implementing those rights throughout the federal criminal justice process would seem to require extensive changes to the Federal Rules of Criminal Procedure. And so, in 2006, when I was serving as a federal district court judge in Utah, I wrote a law review article comprehensively reviewing the kinds of changes that appeared to be appropriate to a number of the federal criminal rules. For Rule 48(a) dismissals, I proposed an amendment requiring the district court to consider the views of any victim on a dismissal motion, with language to be added to the rule as follows:
Rule 48. Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint…. In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.
I submitted my proposals for changing the rules to the U.S. Supreme Court's Advisory Committee for the Federal Rules of Criminal Procedure. After reviewing my proposals, the Advisory Committee essentially decided to adopt none of them. With regard to my proposal to amend Rule 48(a), the Advisory Committee disagreed with my suggested revision, while agreeing that victims have interests at stake:
The Subcommittee recognized that victims will have a great interest in whether charges are dismissed. The CVRA does not, however, explicitly address dismissals, and it speaks only of not excluding the [victim] from, and providing the [victim with] … a right to be reasonably heard at public proceedings in the district court. If the government moves for dismissal there is ordinarily no public proceeding. … In light of the statutory statement in 18 U.S.C. § 3771(d)(6) that nothing in the CVRA "shall be construed to impair the prosecutorial discretion of the Attorney General," as well as the separation of powers issues raised by judicial review of the government's decision to terminate a prosecution, the Subcommittee was not persuaded that the rule should be amended to require the court to consider the victim's views on dismissal. When there is no public court proceeding, the victim's views will be taken into account through the right to confer with the government under 18 U.S.C. § 3771(a)(5).
In a law review article a few months later, I explained my disagreement with the Advisory Committee's views. In particular, given that the CVRA promises crime victims in the federal criminal justice system a right "to be treated with fairness" and as well as a right to be heard regarding "release" or "plea," it seemed to me that as a procedural matter, the victim's views should at least be in front of the court as it evaluates a motion to dismiss.
Since I offered these views more than a decade ago, a few judges have acted to ensure that crime victims' views are considered on Government dismissal motions. In 2006, a case presenting the issue arose in front of me (U.S. v. Heaton). I ruled that that it was inappropriate to grant a Government motion to dismiss in a victim-related case unless the Government provided me with information about the victim's view on the dismissal. Similarly, in 2014, Judge Barry Ted Moskowitz cited my decision, reaching essentially the same conclusion.
The most recent case to consider these issues was a case I argued to the Fifth Circuit in 2023: In re Ryan. There, in a case involving a secret (and illegal) deferred prosecution deal the Justice Department orchestrated with The Boeing Company, the Fifth Circuit explained a parallel between the judicial authority that exists when the Government makes a motion to dismiss pursuant to a Deferred Prosecution Agreement and when it asks for dismissal of charges as part of guilty plea negotiations:
The emphasis we note, therefore, is that in both circumstances—full dismissal of charges to resolve a criminal prosecution or partial dismissal of charges to resolve a prosecution by guilty plea—courts retain adjudicatory responsibility, including an obligation to apply the CVRA. Public perception and confidence in the criminal justice system assume that when criminal charges are submitted for judicial resolution, the courts vigilantly will enforce the public interest, including Congress' command that crime victims are heard and protected. …
…[I]n both cases—an accepted/rejected Rule 11 guilty plea or a granted/denied Rule 48(a) dismissal—the public interest, especially that of crime victims, rests crucially on court-approval. In short, the judicial role stays present and constant throughout, and courts must validate the public interest, above all, including rights that Congress has given to crime victims.
The Fifth Circuit also cited my earlier decision in Heaton with apparent approval, explaining that "in passing on any government motion under Rule 48(a) [to dismiss] … the court will expect to see the prosecutor recount that the victim has been consulted on the dismissal and what the victim's views were on the matter." In re Ryan, 88 F.4th 614, 627 (5th Cir. 2023) (citing United States v. Heaton, 458 F. Supp. 2d 1271, 1273 (D. Utah 2006)).
My point here touches on the rights of crime victims—i.e., that whatever approach district judges use to evaluate Government motions to dismiss will apply to all such motions across the country, including those where victims have substantial interests. Thus, for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim's views before dismissing a case. Current Second Circuit law does not appear to envision this possibility.
Now, to be sure, it may well be that most Government dismissal motions continue to be granted, even when a victim objects. But process is important. As a procedural matter, consideration of the victim's view ensures greater fairness—and certainly greater perceived fairness.
III. The Adams Indictment Appears to Include a "Victim": New York City
At this point, the reader who has stuck with me may wonder why I'm discussing crime victims' rights. Isn't the prosecution of Mayor Adams a public corruption case—a "victimless" crime?
Here's where things get really interesting. It appears that a "victim" exists in the Adams case: New York City. While I don't have complete command of all the facts, if I'm right, this view would be a change from how the case has been handled so far. From what I can tell reading the docket sheet, the Biden Administration initially treated the case as not involving any "victim." (Note: In my view, that Administration had a poor track record in identifying cases in which "victims" were present and failed to confer when the law required it—a point that Danielle Sassoon, among others, has suggested.) And, more recently, from what I can tell, the incoming Trump Administration has simply followed the path set out by the previous Administration.
But regardless of who made the determination, under the federal CVRA, a "victim" is any "person" who is "directly and proximately" harmed by a crime. (Under federal law, a "person" generally includes institutions. See The Dictionary Act, 1 U.S.C. § 1.) For a comprehensive law review article collecting the relevant case law on the definition, see my article—Defining "Victim" Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments.
Turning to the Adams indictment, it alleges five counts, at least three of which (on initial read) do not appear to involve any "victim" under the CVRA. Counts 3 and 4 allege solicitation of a contribution by a foreign national, in violation of 52 U.S.C. §§ 30121 & 30109(d)(1)(A). It is not clear how such solicitation "directly and proximately harms" any individual or entity, although I would be open to hearing an argument about how candidates running against Adams might have been harmed. (Note: no such allegation is contained in the indictment.) Similarly, Count 5 alleges bribery, in violation of 18 U.S.C. § 666(a)(1)(B). The essence of the allegation is that Adams received benefits to help Turkish officials get the "Turkish House" through municipal fire and safety regulations. Here again, it is not immediately clear who was a "victim" of that bribery, although I'd be interested in hearing contrary arguments. (Note again: no such arguments are contained in the indictment.)
But Count 2 (and perhaps the related, parallel conspiracy count, Count 1) do appear, on initial read, to have an institutional victim: the City of New York. Count 2 alleges that Adams committed wire fraud, in violation of 18 U.S.C. § 1343, to obtain "matching funds." Specifically, Count 2 alleges that
From at least in or about 2018 through at least in or about 2024, in the Southern District of New York and elsewhere, ERIC ADAMS, the defendant, knowingly having devised and intending to devise a scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises, transmitted and caused to be transmitted by means of wire, radio, and television communication in interstate and foreign commerce, writings, signs, signals, pictures, and sounds, for the purpose of executing such scheme and artifice, to wit, ADAMS participated in a scheme to fraudulently obtain Matching Funds for the Adams Campaigns by falsely claiming that contributions qualified for Matching Funds when, in fact those contributions did not.
Indictment, ¶ 57 (emphasis added). Elsewhere in the indictment, the amount of the matching funds illegally obtained is alleged to be "over $10 million" based on "false certifications that the campaign complied with the law, when in fact Eric Adams … knowingly and repeatedly relied on illegal contributions." And the indictment further alleges that New York City has a "matching funds" program that distributes funds based on a candidate's compliance with the law.
As I read the indictment, then, it alleges that New York City was defrauded out of more than $10 million in funds—which would make New York City a "crime victim" under the Crime Victims' Rights Act. For example, the federal restitution statutes (which use a similar "victim" definition) have been commonly interpreted as extending rights to entities, including cities and municipalities. See, e.g., United States v. Ng Lap Seng, 934 F.3d 110, 116, 146 (2d Cir. 2019) (United Nations); United States v. Sawyer, 825 F.3d 287, 292-94 (6th Cir. 2016) (U.S. EPA); United States v. Mei Juan Zhang, 789 F.3d 214, 216-17 (1st Cir. 2015) (U.S. IRS); United States v. Butler, 694 F.3d 1177, 1184 (10th Cir. 2012) (Kansas); United States v. Bryant, 655 F.3d 232, 253 (3d Cir. 2011) (state medical school); United States v. Bengis, 631 F.3d 33, 40-1 (2d Cir. 2011) (South Africa); United States v. Leahy, 464 F.3d 773, 793 (7th Cir. 2007) (Chicago); United States v. Washington, 434 F.3d 1265, 1268-270 (11th Cir. 2006) (Ormond Beach police department); United States v. Ekanem, 383 F.3d 40, 42-3 (2d Cir. 2004) (USDA). Applying this conventional caselaw, New York City is a "victim" of Count 2 (and perhaps Count 1) of the crime alleged against Adams.
If I am correct that the City is a "victim" of the alleged crime, then the CVRA extends to the City various rights in the process. As relevant here, the City would have a CVRA right "to reasonably confer" with prosecutors before any dismissal. The City would also have a right to be treated with "fairness" throughout the process, which in my view encompasses the right to be heard about the proposed dismissal. And if the case were to reach the sentencing phase, the City would have a right to restitution to the tune of more than $10 million.
In this particular case, it is not immediately clear who would speak for "New York City"—the City's mayor or someone else. Perhaps Mayor Adams would respond that, though his defense attorneys, he has conferred for the City with the Government. But I don't think that such an argument (were it to be advanced) is correct. Adams's defense attorneys are working on his behalf representing him in his personal capacity, as their recent letter makes clear. See Letter (indicating that defense attorneys were "acting on behalf of Mayor Adams"). Moreover, so far as I can tell, there was never any conferral about how the dismissal might work, including such controversial issues as the fact that the dismissal was without prejudice.
In addition, the CVRA precludes Mayor Adams—a criminal defendant—from asserting crime victims rights. See 18 U.S.C. § 3771(e)(2)(B) (a criminal defendant may not be a "representative" of a victim); 18 U.S.C. § 3771(d)(1) ("A person accused of the crime may not obtain any form of relief under this chapter").
Finally, I am not an expert on New York law, but as a matter of standard protocol, the New York City Law Department apparently would need to be voice for the City in court proceedings. At least, that appears to be the position of the Law Department! The Department's website says that it "represents the City, the Mayor, other elected officials, and the City's many agencies in all affirmative and defensive civil litigation."
Of course, a victim's right to be heard does not mean a victim's right to veto the dismissal. And, as discussed above, existing Second Circuit caselaw does not make clear how a victim's objection should be weighed by the district court. But it appears to me that New York City—as a separate entity—has a CVRA right to be heard in the future proceedings regarding whether the charges should be dismissed. (It remains an interesting question whether City taxpayers would likewise have a right to be heard as "victims." My initial instinct is no, because the prevailing caselaw is that taxpayers lack standing to challenge spending issues, as demonstrated in cases such as Flast v. Cohen.)
Final disclaimers: Once again, the above analysis makes certain factual assumptions based on the public record materials I've been able to review. It may be that additional facts might change my analysis. And in this post, as in my others yesterday, I take no position on whether the charges against Mayor Adams are well founded or should now be dismissed. Nor do I seek to wade into issues regarding immigration law enforcement. My point here is simply that crime "victims" rights may be at stake in the process. It is important to have crime victims' interests considered in all criminal cases, including this one.
Update: I've cleaned up a few typos in the initial post.
The post How Should the District Court Evaluate the Motion to Dismiss the Charges Against Mayor Adams? appeared first on Reason.com.
[Eugene Volokh] Claim That Minnesota Agency Retaliated Against Rancher for Petitioning Legislature to Change Law …
[can go forward, the Eighth Circuit rules.]
From Wagner v. Scheirer, decided last week by Eighth Circuit Judge Bobby Shepherd, joined by Judges Jane Kelly and David Stras:
Wagner owns two separate cattle farming operations in Minnesota. The first is a cow/calf operation aimed at breeding, and the second is an animal feedlot operation aimed at raising cows until they can be sold for processing. Wagner's cow/calf operation takes place in several pastures around Minnesota, while his feedlot operation takes place in feedlots in Minnesota.
Notably, animal feedlots and pastures are not the same under Minnesota law. Feedlots generally use lots and buildings to house animals, while pastures are open grazing areas. The key distinction between the two is the amount of vegetative cover; feedlots are not required to maintain any vegetative cover, while pastures must generally maintain vegetative cover during the growing season.
This distinction is significant because Minnesota feedlots are subject to stricter regulations than pastures. Under Minnesota law, the MPCA [Minnesota Pollution Control Agency] has the authority to adopt permitting requirements for feedlots, but not for pastures. Permitting requirements for feedlots are intended to minimize manure runoff into water sources; pastures are exempt from the rules that feedlots are subject to because the vegetative cover of pastures slows the discharge of manure into water.
The distinction between feedlots and pastures under Minnesota law has been at the center of multiple feuds between Wagner and the Appellees (collectively Scheirer). In two instances in 2014 and 2015, Scheirer accused Wagner of violating certain laws and regulations applicable to animal feedlots and imposed penalties on him. Both times, Wagner denied the violations and disputed Scheirer's authority to regulate the properties—maintaining that they were pastures, not feedlots—but ultimately entered into agreements with Scheirer and paid a portion of the penalties to avoid costly legal fees….
Around 2019, after years of quarreling with Scheirer over whether parts of his cattle farming operation were pastures or animal feedlots, Wagner petitioned the Minnesota Legislature for clarification of the applicable statutes. The Minnesota Legislature responded by modifying the statutory definition of "pastures" in alignment with Wagner's broader interpretation.
Two years later, in March 2021, the MPCA filed an action in county court seeking to impose a $152,724 civil penalty against Wagner for new alleged violations within his feedlot operation. Internal MPCA documents show that in discussions about this potential penalty against Wagner, Wagner was identified as "the individual behind the legislation last year that added to the definition of pasture." If imposed, the penalty will be the largest the MPCA has ever imposed against an animal feedlot and one of only four penalties greater than $50,000 imposed against feedlots in MPCA history.
Wagner sued for (among other things) First Amendment retaliation based on the fine, and the court held the case could go forward, based on the documents in which MPCA identified Wagner as "the individual behind the legislation last year that added to the definition of pasture":
[Wagner] quote[d] the document directly and describe its context—that it was used by the MPCA in a document pertaining to the penalty against Wagner. Wagner's allegations here are more than mere "formulaic recitation[s] of the elements of a cause of action." They show that Scheirer made note of Wagner's protected activity while taking an adverse action against him. Given the "deferential" nature of the motion-to-dismiss standard, Wagner's Amended Complaint sufficiently alleged causation.
This conclusion is reinforced by the remainder of the facts Wagner pled. The 42-page Amended Complaint alleges that Scheirer had been imposing—and Wagner has been contesting—penalties on Wagner for years without resolving the underlying disputes. It also alleges that Wagner sought clarification from the Minnesota Legislature, received clarification that supported his interpretation of the rules, and was later subjected to the largest animal feedlot penalty in MPCA history. While this on its own may be insufficient to allege a causal link, we recognize that the Amended Complaint's "chronology" of events supports Wagner's "circumstantial claim of retaliatory action."
Wagner was only required to allege that Scheirer's improper motive was a but-for cause of Wagner's injury, not that it was the sole cause. "Often, events have multiple but-for causes," so it is possible that Scheirer had legitimate and retaliatory motives for taking the adverse action, and that both motives were but-for causes of the action. Recognizing the difficulty of pleading direct evidence of retaliatory intent, we hold that Wagner alleged just enough to allow an inference of retaliatory intent….
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[Eugene Volokh] Class Action Not Allowed in Suit Alleging Psychological Harm to TikTok Content Moderators
From yesterday's Order Denying Motion for Class Certification, by Judge Vince Chhabria (N.D. Cal.) in Young v. ByteDance Inc.:
[1.] The primary relief sought by Young on behalf of the class is forward-looking: he wants the Court to order TikTok to institute various protective measures to mitigate the risk that content moderators will suffer psychological harm from reviewing disturbing videos and photos. But Young has no standing to seek such relief in federal court. He is no longer employed as a TikTok moderator and has no intention of returning to that work. He had already left his job by the time he sued TikTok, so the "capable of repetition" doctrine is not available to him. Furthermore, even if Young had quit after he filed suit, he has not submitted sufficient evidence to support his assertion that no monitor would remain in the job long enough to pursue a class action.
[2.] The secondary form of relief Young seeks is something he calls a "medical monitoring fund." There is no mention of this proposed fund in the motion for class certification, much less an explanation of how it would work. On reply, Young makes general reference to it, but still doesn't really explain it. At the hearing, Young's counsel explained that TikTok should be ordered to put money in a fund that would be used to benefit the class in two ways: to monitor all class members for signs of emotional distress, and to provide people treatment (for example, therapy) in the event they need it.
Even after this explanation, the Court lacks the information necessary to assess whether such a fund would be feasible. For example, while Young uses the phrase "medical monitoring," he seems to be asking for more than that: by saying it's for treatment in addition to monitoring, he's proposing to provide compensation for injuries that have been or will be suffered by class members. In the same breath, Young says that this is "not a personal injury case," even though he is proposing that class members receive at least partial compensation for their personal injuries. Nor has Young explained how fund administrators would be able to determine whether any mental health condition suffered by a class member was caused by watching disturbing videos or by something else in their life, or some combination of both. It's not even clear, based on the parties' briefs, that this proposed fund should be considered retrospective relief or prospective relief, or a combination of the two. This is not to suggest that a fund could never be a proper remedy in a case like this, but Young has not adequately explained how it would work.
[3.] Young has not shown that the question of whether TikTok retained control over the moderators' work for the vendors (or exercised that control) is apt to generate the same answer across the class. Based on all the evidence (of how the software works, how moderators were trained, who trained them, etc.), perhaps it's possible that a jury could answer this question the same way for all class members. But it's undisputed that TikTok had much more direct involvement in the training and supervision of moderators who worked for third-party agencies (TPAs).
TikTok had less involvement in the training and supervision of moderators who worked for business process outsourcing vendors (BPOs). Based on these differences, it's possible—maybe even likely—that a jury would apply the "retained control" exception to TPAs but not BPOs. Only 335 people worked as moderators for TPAs, while more than 12,000 worked for BPOs. Young was one of the few who worked for a TPA, and he's the only named plaintiff, which means that the class certification motion is contemplating a trial where the vast majority of class members could be effectively unrepresented on a key threshold question in the case.
[4.] Even the number of TPA moderators—335—overstates the size of the class that Young could (if there were not so many other problems) represent. That's because more than two-thirds of these people signed arbitration agreements with the TPAs. (An even higher percentage of moderators signed arbitration agreements with the BPOs.) The Court already ruled that equitable estoppel prevented former named plaintiff Ashley Velez from suing TikTok in light of her arbitration agreement. This would likely apply to the other proposed class members who signed arbitration agreements—or at least Young has not shown how it wouldn't.
[5.] Tne element of Young's negligence claim is breach—that TikTok breached the standard of care for minimizing exposure to disturbing content, and/or for implementing measures to mitigate the psychological impact of that exposure. The evidence in the record creates some concern that this question could generate different answers across the class, because moderators received different explanations/warnings about the type of content they would be exposed to, because there could be variation in the type/amount of training they received, and because there may have been different mitigation measures available at their particular jobs.
It's not clear that this concern alone would defeat class certification—it may be that the question could be presented to the jury in a way that allows it to conclude that TikTok breached its duty to all moderators (or to none of them). But this adds to the weight of the concerns discussed above and below.
[6.] An additional element of Young's claim is demonstrating that TikTok's alleged breach of the standard of care caused him harm. Young has not shown that the jury could make the same finding on this element as to the entire class (or what would remain of the class after accounting for the arbitration agreements and the differences between TPAs and the BPOs).
Young responds that the harm in this case is not the actual mental condition (such as PTSD) that a moderator might suffer, but the risk of suffering from such a condition. That's fair, but then why does Young seek a fund that would compensate moderators for the harm they suffered—and without explaining how the harm could be connected to the content moderation as opposed to other potential traumas?
[7.] Up to this point, the reader may have been assuming that the same state law would apply to all proposed class members. That's not so. At the pleading stage, the Court assumed California law would apply, because neither side suggested that any other state's law would apply.
But now reality kicks in. The proposed class members worked in at least 24 different states, with fewer than 400 of those class members living and/or working in California. (It's unclear from the record how many of these 400 worked for TPAs and didn't sign an arbitration agreement.) As TikTok now contends (and Young is wrong that TikTok forfeited this argument), the law of the state where a given moderator worked will apply to that moderator's claim. That's obviously correct. See Cotter v. Lyft, Inc. (N.D. Cal. 2014). It's not clear whether there are significant differences in the law of the 24 states, but Young has not shown that there aren't.
[8.] Finally, the Court is not convinced that the class action device would be superior to individual adjudication in this context. This is not like a consumer case where each proposed class member's monetary harm is so low as to destroy any incentive to bring an individual suit. Nor is this like a wage-and-hour case where the individual recoveries could be small while proving liability and damages across the class is fairly mechanical. If a current or former moderator is suffering from PTSD based on TikTok's failure to protect them from the harm caused by disturbing content that TikTok knew its moderators would be exposed to, it seems likely that the moderator could present their evidence in an individual trial and obtain a substantial recovery, without having to deal with all the problems discussed in this ruling….
Jesse A. Cripps, Jr., Lauren Margaret Blas, Leonora Cohen, and Viola Li (Gibson, Dunn & Crutcher) represent TikTok.
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