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The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.

In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.

In the Montgomery County case, Judge King wrote for a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]

The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.

With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.

Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center's] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)

Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.

Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.

Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.

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After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

  • Free pregnancy tests and pregnancy information
  • Abortion and Morning After Pill information, including procedures and risks
  • Medical services, including STD tests, early ultrasounds and pregnancy confirmation
  • Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff’s memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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This morning’s lively en banc proceedings at the Fourth Circuit in abortion-counseling-related First Amendment challenges did not produce clear signs of a winner, but raised questions (at least in my mind) about what legal issues the court took the cases en banc to address. There was virtually no discussion of commercial speech doctrine, and no judge or set of judges developed a line of questioning that would seemingly lay the foundation to displace strict scrutiny as the appropriate standard of review. That said, oral argument reveals only so much. After all, the panel dissent in one of the cases contained an analysis of commercial speech that was surprisingly detailed in light of the dissenting judge’s failure to lay the predicates for that analysis in oral argument before the panel. It is possible that something similar could happen here–though it is much harder to make that kind of move when writing for a number of judges rather than just for oneself.

The en banc court heard back-to-back oral arguments in First Amendment challenges to Baltimore and Montgomery County (MD) ordinances requiring certain pregnancy counselors to post signs about the limited nature of the services that they offer. The court’s decision to take these cases en banc vacated panel decisions that granted First Amendment victories to the challengers. (For my earlier coverage of the panel decisions, see here; for my earlier coverage of the oral argument to the panel, see here.) Judge Niemeyer authored those vacated panel decisions, which Judge Agee joined, while Judge King dissented. That configuration of a Niemeyer majority with a King dissent produced back-to-back en banc arguments earlier this year in cases involving the liability of military contractors for activities at Abu Ghraib and other locations in the Iraq war zone. Those arguments resulted in procedural holdings about the lack of appellate court jurisdiction rather than definitive merits rulings. Something similarly limited with respect to the merits may result from this morning’s arguments as well.

As the panel dissenter, Judge King was one of the most vocal questioners at oral argument in both cases. In the Baltimore case, Judge King (along with a few other judges) emphasized the need for more discovery and a better developed record. Given the substance of his dissent in the Baltimore case and the tenor of questioning by other judges, my best guess is that the en banc court will vacate the district court decision in the Baltimore case and remand for further development of the underlying facts. That is not to say I think that is the best decision, only that I think it the most likely decision in light of the limited information revealed at oral argument.

In the Montgomery County case, Judge King returned repeatedly to the “abuse of discretion” standard for appellate review of a decision to grant or deny a preliminary injunction. Even when counsel for Montgomery County correctly noted (against interest) that legal issues were to be reviewed de novo within the context of the abuse of discretion standard for the ultimate decision to grant or deny, Judge King continued to highlight the abuse of discretion standard. Some of Judge King’s questions dovetailed in some respects with Judge Wilkinson’s repeated invocations of “balance” in First Amendment analysis. These emphases, together with some other indicators from oral argument, may suggest a narrow affirmance of Judge Chasanow’s decision. That decision identified a difference between the two sentences that the ordinance compelled centers to include on their signs, and split the difference between the two. Judge Chasanow upheld the portion of the ordinance requiring centers to state that they do not have a licensed medical professional staff, but enjoined the requirement to state that the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider. Judge Wilkinson thought this split-the-difference approach was a sensible balance, and he may not have been alone in that view.

While I have more confidence with respect to the guess about the Baltimore case than the Montgomery County case, I do not have a high level of confidence in either guess. The military contractor en banc cases earlier this year provided much clearer indications of where the center of gravity was on the court at the time of argument. By contrast, there were a number of cross-cutting issues and interventions in these argument.  During portions of the second argument, for example, Judge Gregory and Judge Motz seemed more skeptical of Montgomery County’s ordinance than Judge Wilkinson, who in turn seemed more speech-protective than some of the other judges during argument of the Baltimore case.

Because both of these appeals addressed the issuance of a preliminary injunction, the merits issue of the constitutionality of both ordinances was one step removed from straight-up consideration by the court. Issuance of a preliminary injunction depends on a court’s assessment of the moving party’s likelihood of success on the merits. This is a predictive judgment. If the Fourth Circuit were to hold that the district court in the Baltimore case should not have found a likelihood of success on the merits without allowing for further factual development, while the district court in the Montgomery County case made a reasonable split assessment of the movant’s likelihood of success in that case, that would still leave open the possibility that both ordinances could be completely enjoined down the road.

In my view, that would be the correct ultimate outcome in both cases. The reason for this assessment is the First Amendment standard of review. Both district courts, as well as all three judges on the original panel, thought that strict scrutiny was the appropriate merits standard of review for the preliminary injunction in the Montgomery County case. They were right. Judge King thought that discovery would have helped clarify the appropriate standard of review in the Baltimore case. He argued that Baltimore might have been able to develop evidence to show that the Baltimore ordinance regulated commercial speech. In my view, this argument is based on legal error.

At least as far as the questioning at today’s oral arguments is concerned, the possibility that commercial speech doctrine should apply on remand is the dog that didn’t bark. The qualifier “at least as far as the questioning reveals” is an important one. While Judge King’s questioning at the panel argument was largely favorable to the City, Judge King did not develop lines of questioning to support the analysis that his dissenting opinion ultimately contained. Perhaps a narrow procedural holding would be just an opening move in a push to ultimately apply the standard of review appropriate to regulations of commercial speech. If there is support for that kind of change in the doctrine, it was not revealed at oral arguments today. That is not to say that it did not exist, only that the arguments provided no evidence of the existence of such support. After this morning’s arguments, it remains difficult to see how either Baltimore or Montgomery County can avoid the application of strict scrutiny under First Amendment doctrine as it currently stands.

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By 11-3 vote, the en banc Fourth Circuit in Al Shimari v. CACI International has dismissed the consolidated appeals of military contractors who worked at Abu Ghraib and other locations in Iraq. The contractors had appealed from the denial of their motions to dismiss claims brought by Iraqi nationals. The defendants’ motions to dismiss were premised on various grounds related to their status as military contractors in a theatre of armed conflict.

Judge King wrote the opinion for the court, in which Chief Judge Traxler, and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd joined.

Judge Duncan authored a concurring opinion, in which Judge Agee joined, urging the district courts to “give due consideration to the appellants’ immunity and preemption arguments . . . which are far from lacking in force.”

Judge Wynn wrote a concurrence emphasizing that the court’s jurisdictional opinion “offers no guidance to the district court on the underlying merits of these matters.” (While this is true as a technical matter, the lawyers on both sides will undoubtedly parse the language very closely for future use in the litigation.)

Judge Wilkinson, Judge Niemeyer, and Judge Shedd dissented. Their grounds for dissent were set forth in dissenting opinions by Judge Niemeyer and Judge Wilkinson.

All told, the opinions take up 114 pages. It will take some time to digest them. In the normal case, the dismissal of appeals for lack of jurisdiction would mean the decisions go back down to the district court. But these consolidated cases are not normal cases, and they very well could end up in the Supreme Court next Term. If the contractors do seek Supreme Court review, that will place the Obama Administration in an awkward position given the “equivocal” nature of the position the federal government has thus far taken in the litigation (as observed by various Fourth Circuit judges at oral argument).

For some flavor of the passion aroused by this jurisdictional ruling, consider the following excerpts from the opening of Judge Wilkinson’s dissent:

The actions here are styled as traditional ones and wrapped in the venerable clothing of the common law. Even on common law terms, however, they are demonstrably incorrect, and the impact which tort doctrine will have on military operations and international relations magnifies the difficulties immeasurably. I dare say none of us have seen any litigation quite like this and we default if we accept uncritically or entertain indefinitely this novel a violation of the most basic and customary precepts of both common and constitutional law.

Sadly, the majority’s opinion does precisely this. After reading its decision, one could be forgiven for thinking that the issue before us is a simple jurisdictional question arising out of ordinary tort suits. But these are not routine appeals that can be quickly dismissed through some rote application of the collateral order doctrine. This case instead requires us to decide whether the contractors who assist our military on the battlefield will be held accountable through tort or contract, and that seemingly sleepy question of common law remedies goes to the heart of our constitutional separation of powers. Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically accountable executive. And in the absence of some contrary expression on the part of the Article I legislative branch, the basic principles of Article II require that contractual, not tort, remedies apply.

The majority emphatically decides this weighty question by pretending not to decide, as its dismissal of these appeals gives individual district courts the green light to subject military operations to the most serious drawbacks of tort litigation. But arrogating power to the Third Branch in a contest over military authority is the wrong call under our Constitution, and there is no garb for this decision so benign as to obscure the import of what the majority has done.

We tread this territory at our peril. This decision is contrary to decades of Supreme Court admonitions warning federal courts off interference with international relations. Of course military contractors should be held accountable, and it is important that a framework be set in place to accomplish this task. But instead of establishing that framework, the majority succumbs to mere drift and in so doing places courts in the most damaging and least defensible legal landscape possible. None of us have any idea where exactly all this is headed or whether the damage inflicted on military operations will be only marginal or truly severe. At a minimum, however, today’s decision breaches a line that was respected by our predecessors on courts high and low. I would not cross this boundary even if the collateral order doctrine could cloak my steps. With all respect for my fine colleagues, I would remand these actions to the district court with direction that they be dismissed.

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A story by Ariane de Vogue of ABC News and a blog post by Steve Vladeck at Lawfare provide additional reporting and analysis of last week’s en banc Fourth Circuit oral argument in the Al-Quraishi and Al Shimari cases (links are to the now-vacated panel opinions). It is clear from the commentary that the federal government’s position is almost certainly understood differently inside the court than outside of it–perhaps deliberately so. If the Fourth Circuit does conclude that it lacks appellate jurisdiction, I would expect that the cases make their way back to the Fourth Circuit before they make substantial forward progress in the district court.

For those who have not been following these cases: The merits revolve around the potential tort liability of military contractors that assisted the United States military at Abu Ghraib. But the primary focus of the en banc court’s consideration was on appellate jurisdiction.

The appeals came to the Fourth Circuit based on the collateral order doctrine, which is an interpretation/implied exception to the finality requirement of 28 U.S.C. 1291. An alternative route to the Fourth Circuit’s reaching the merits of the appeal would be a remand for lack of jurisdiction (perhaps accompanied by a stay), followed by certification of a controlling question of law pursuant to 28 U.S.C. 1292(b). In a deft tactical retreat, counsel for defendant L-3 Services at oral argument suggested such a path as an alternative to straight-up dismissal of the appeal.

 

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One of the more unusual aspects of the two Fourth Circuit decisions issued yesterday came at the tail end of United States v. Taylor, in a partial dissent authored by Judge Davis.  The appeal involved, among other things, a sentencing enhancement imposed after application of the “modified categorical” approach under the Armed Career Criminals Act (“ACCA”).

As the fractured en banc opinions in the Fourth Circuit’s recent decision in United States v. Vann reveal, the court of appeals is deeply riven over the correct approach to sentencing enhancements using the modified categorical approach to analyzing what constitutes a violent felony under the ACCA. Even so, Judge Davis’s concluding advice about appellate strategy in Taylor is unusual in its directness.

After alluding to the “vagaries of the Supreme Court’s sentencing jurisprudence under the [ACCA],” Judge Davis contends that “only the Supreme Court itself can provide the clarification so urgently needed.” He continues: “In that spirit, I would suggest that [appellant's] counsel . . . save the taxpayers a few dollars and forego the customary petition for rehearing in this case and seek certiorari without inordinate delay.”

This is an unusual piece of advice to offer. It raises questions: Is Judge Davis suggesting that a petition for rehearing would be futile? If so, would that futility be apparent absent the implicit suggestion of futility? Should the statement be interpreted as directed more at other Fourth Circuit judges and at Supreme Court Justices than at counsel for appellant? Is this good advice, given the ferment in the Fourth Circuit over the application of ACCA enhancements and the low probability of Supreme Court review?

With respect to the last question, it is perhaps worth recalling the identity of the other panel judges. Judge Wilkinson authored the majority opinion and Judge Motz joined in that opinion. I have not undertaken independent research into each of these jurist’s views on the ACCA in relation to the views of their colleagues on the Fourth Circuit. As a general matter, however, it is usually a safe bet that there is not an en banc majority to overturn a panel opinion authored by Judge Wilkinson and joined in by Judge Motz.

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