A major loophole in constitutional law leaves this plaintiff without a remedy

This case exposes a major loophole in constitutional law. That loophole means that the plaintiff, who accuses federal agents of false arrest, malicious prosecution, and the fabrication of evidence, cannot maintain her lawsuit, and it was dismissed prior to trial.

The case is Sigalovskaya, v. Braden, issued on August 27. Plaintiff alleges that federal agents working for Department of Homeland Security conducted a warrantless entry and searched her home and falsely claimed she confessed to taking pornographic photos of her child. This resulted in plaintiff's arrest and the temporary loss of guardianship of her two children, as well as placement on the sex offender registry. If the allegations are true, this is a terrible thing. However, this is a Bivens action, not a case brought under Section 1983, which permits such lawsuits against state and local police. Since there is no federal counterpart to Section 1983, she pled this case under Bivens, a Supreme Court ruling from 1971 that said the Constitution provides for claims against federal officials who violate constitutional rights, but only in limited circumstances. On the eve of trial, after the Supreme Court issued Egbert v. Boule, 596 U.S. 482 (2022), which further scaled back the Bivens remedy, the district court dismissed the case in its entirety. The Court of Appeals affirms in an unsigned ruling that has three separate opinions.

The Supreme Court has allowed few claims under Bivens -- those involving search and seizure, due process , and employment discrimination. In nearly a dozen other cases, the Supreme Court has turned away other Bivens claims, holding that plaintiffs must satisfy a significant hurdle: if the case is meaningfully different from the claims already permitted under Supreme Court jurisprudence, then the court considers whether "special factors" indicate that the judiciary is less equipped than Congress to provide a remedy for the injured party. In other words, if the Court thinks Congress is better suited to deal with this, then there is no Bivens remedy. 

The problem for plaintiff is that while search and seizure claims are permitted under Bivens, this case involves a fabrication of evidence claim, the primary focus of this lawsuit. Judge Perez says this in her concurrence. Other Circuit courts have already held that fabrication claims are not permissible under Bivens, making this a "new context case." In a new context case, we ask whether there are any other avenues for relief beyond a lawsuit. Judge Lee notes there is an internal, administrative remedy available for violations like this, though that avenue for relief will not be the same as a lawsuit. That is enough to bring this case out of Bivens for good. Judge Perez also writes a concurrence, noting also that the Department of Homeland Security has a mechanism in place to handle grievances like this. Again, that will never be comparable to a full-blown lawsuit, but the Supreme Court says that is enough under Bivens to remove this case from the limited Bivens universe.

Judge Lynch dissents in part, agreeing that the malicious prosecution claim is barred under the Supreme Court's Bivens case law but also stating that Bivens allows plaintiff to sue for false arrest. He goes on to summarize the quandary created by the Supreme Court on Bivens, noting that four Justices have recognized that the Bivens "charade is untenable" in that some claims are permitted and others are not based on an incomprehensible legal standard. Judge Lynch states that the lower federal courts are doing the best they can on this issue in trying to comply with Supreme Court rules even though the Court "has not offered a coherent, intellectually honest basis for reflexively distinguishing case that are 'materially distinguishable' from Bivens itself." These are strong words.

The limited remedy under Bivens is one of the great loopholes in the American legal system. Section 1983 permits a plethora of civil rights lawsuits against state and local officials, but there is no federal counterpart to Section 1983, which is why the Supreme Court created Bivens in the first place. It would be easy for Congress to remedy this omission, but that will not happen in this political climate, and Congress has had 54 years to fix this. It has not. When you consider how the President is threatening to bring federal troops into American cities, any civil rights violations flowing from that maneuver may not have any court remedies under the line of cases that have narrowed the Bivens doctrine.

EEOC may continue investigating the charge after the plaintiff files a Title VII lawsuit

The Second Circuit holds that the Equal Employment Opportunity Commission has authority to continue investigating discrimination claims even after the agency issues a right-to-sue letter and the complainant becomes a plaintiff in court. 

The case is EEOC v. AAM Holding Corp., issued on August 25. The EEOC was created when Congress enacted the Civil Rights Act of 1964. The agency investigates employment discrimination claims, and a key provision under Title VII is that you cannot bring a Title VII claim in court without first filing a charge of discrimination with the EEOC, which will investigate and try to mediate the dispute but will ultimately close out the file when the plaintiff decides that court is a better option than an overworked federal agency that may or may not conduct a thorough investigation.

Sometimes the EEOC decides the case is worth investigating even after the plaintiff abandons the agency process and dives into court. What happens now? This case explores what the EEOC can do after it issues the right-to-sue letter.

The case involves dancers at adult entertainment clubs who allege widespread sexual harassment and a hostile work environment. They filed an EEOC charge to that effect. The EEOC then began investigating by issuing subpoenas to the clubs seeking employee pedigree information. Over the employers' objections, a federal court ruled the subpoenas were proper and sought relevant information. During this battle, the women got their right-to-sue letter and filed suit in federal court. The employers then argued that the subpoenas were moot because the plaintiffs were proceeding on their own. The Court of Appeals (Cabranes, Lohier and Sullivan) disagrees.

The Second Circuit reviews Title VII and the provisions that created the EEOC, holding that the agency's authority to investigate a discrimination charge does not expire when the plaintiff files her own lawsuit. The Fifth Circuit interprets Title VII that way, but the Second Circuit disagrees, creating a circuit split that the Supreme Court will have to untangle some day. For now, the law in the Second Circuit is that the right-to-sue letter does not terminate the EEOC's authority to continue the investigation. The Court reasons it this way:

The EEOC’s broad public interest and role in combating employment discrimination supports our view that its authority to investigate a charge extends beyond the issuance of a right-to-sue letter. A central component of the EEOC’s role is to pursue the public’s interest in enforcing employment discrimination laws even where that interest is distinct from, and may exceed, the private interest of the aggrieved charging party. Congress reinforced the agency’s mandate “to secure more effective enforcement of Title VII” by arming it with the tools necessary to do so: investigation, conciliation, mediation, civil enforcement, and intervention in charging parties’ civil actions.

Plaintiffs cannot sue the judge for denying them a gun license

Can you sue a state court judge under the civil rights laws because he denied you a firearms license? The plaintiffs in this case did so, but the Court of Appeals says the law does not provide for such lawsuits, and the case is dismissed.

The case is Kellogg v. Nichols, issued on August 18. We have two plaintiffs. Each had their gun license denied by Jonathan Nichols, a state court judge in Columbia County, just south of Albany. Judges have authority to grant or deny gun licenses under state law. The judge said one plaintiff cannot have a gun license because of his criminal arrest history and inadequate explanations for not disclosing that history in his application. The other plaintiff's criminal history also led the judge to believe he lacked the maturity to own a gun. Hence, this Section 1983 lawsuit against the judge under the Second and Fourth Amendments.

Ever since the Supreme Court gave life to the Second Amendment in 2008, we have seen an increase in gun rights litigation. Some of these cases succeed, as the Supreme Court is granting gun owners broad rights under the Constitution. But the law has held for years that you generally cannot sue judges for their judicial rulings.

The Court of Appeals (Raggi, Wesley and Lohier) holds the plaintiffs cannot sue the judge in his individual capacity because it is settled law that judges have immunity from lawsuits for decisions made in their judicial capacity. Acts arising from individual cases before the judge are deemed judicial in nature. Firearms licensing ruling fall into this equation. While the law is settled in this area, plaintiffs want the Second Circuit to overturn a key precedent on this issue, Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020). But the Court of Appeals does not overturn its prior rulings without direction from the Supreme Court or an en banc sitting of the Second Circuit, where all the active judges convene for that purpose. That rarely happens, and for now, it has not happened here. A three-judge panel is not free to discard precedent so easily.

What about the lawsuit against the judge in his official capacity? In this branch of the lawsuit, plaintiffs want to enjoin enforcement of the state firearms licensing law and criminal statutes punishing gun possession for self defense, and they relatedly want a declaratory judgment that the judge violated the Second and Fourth Amendments. This portion of the ruling is more complicated than the individual capacity claim and explains why it took nearly a year for the court to issue a ruling. The Second Circuit holds there is no case because there is no live case or controversy under Article III of the U.S. Constitution. The holding is that "there is no live case or controversy between New York state court judges serving as firearms licensing officers and litigants challenging the State's licensing scheme." Since Judge Nichols acted as a judicial officer in denying the gun licenses here and the plaintiffs and Judge Nichols are not parties "having adverse legal interests with respect to the Plaintiffs' claims for declaratory and injunctive relief."

Standing and mootness takes center stage in this disability rights case against the State of New York

Suing under the disability discrimination laws, the disabled plaintiffs and a disability rights organization allege the New York State Department of Health waited too long to transfer disabled individuals from restrictive institutional facilities to community-based residential settings. The case was dismissed at the district court, but the Court of Appeals revives the claim for the individual plaintiffs but not the organization, which lacks standing to sue.

The case is AH v. New York State Dept. of Health, issued on August 13. First, the organizational claim. Disability Rights New York is a plaintiff, and they obviously have an interest in the outcome of this case. SRNY claims it has standing because it would stand in the shoes of individuals with disabilities. The Court of Appeals holds that this "novel theory of congressionally authorized representational standing." SRNY argues that when Congress passed the relevant statute, it granted DSNY the right to bring suit in its own name on behalf of disabled individuals. But the Second Circuit says this has no basis in Supreme Court precedent. The Second Circuit holds that Congress cannot erase the constitutional standing rules (under Article III) "by statutorily granting the right to sue to a plaintiff who would not otherwise have standing."

Standing may not be a sexy issue, but it is an important issue. Organizations have standing to sue in certain instances, and when they can do so, they bring resources and expertise to the table and can advocate for their constituents in a way that perhaps their constituents cannot. But, as noted above, the rules for this are strict, and DRNY cannot satisfy them in this case.

As for the individual plaintiffs, the district court held their claims were moot based on pre-motion letters that convinced the trial judge that the claims were no longer justiciable. The state's letter said the plaintiffs had been moved out of their facilities and there was nothing left to sue over. The Court of Appeals (Park, Lee and Perez, dissenting in part) reverses, holding that letter briefs on this issue are not enough when the mootness rules require that the parties be afforded more due process to make their case, usually through full briefing, which allows the parties to develop the record. While a letter brief might sometimes do the trick, that is a rare occurrence, only applicable when the issues were primarily legal and the lawsuit had substantial deficiencies. Not the case here. It is simply not obvious the issues in this case are moot. The case returns to the district court for full briefing on this issue.

Judge Perez dissents from the standing portion of the ruling, starting that the majority has misread Supreme Court precedent and applied the standing rules too rigidly in ruling against DRNY. Judge Perez writes:

the majority opinion assumes, without analysis, that Congress has no role to play in articulating the relationships that can support representational standing, that the courts alone are the supreme federal lawmakers in this area, and that a few discrete doctrinal categories exclusively occupy the field. This view rests on a surface-level reading of precedent and fails to grapple with the complex interplay between the legislative and judicial powers throughout the Supreme Court’s standing cases. In fact, as explained below, the statutes at issue here fit comfortably within Congress’s limited, but nonetheless meaningful, power to shape the standing inquiry within the boundaries set by Article III.

NFL arbitration agreement is invalid

Professional football coaches sued that National Football League for racial discrimination, but the NFL moved to compel arbitration because the plaintiffs signed an arbitration agreement. Normally, the courts uphold arbitration agreements on the basis that the parties signed a contract and and deal is a deal and, let's face it, federal courts like arbitration because that's one less case to worry about and the understanding is that JAMS and AAA have good "neutrals" who can do the case justice. But there are exceptions, and this case highlights one of them.

The case is Flores v. New York Football Giants, issued on August 14. This is a putative class action, so the venue will determine if the plaintiffs recover a ton of money (thanks to a sympathetic jury) or a lesser amount (thanks to a single arbitrator). The venue may also dictate who wins or loses, as most plaintiffs want a jury of normal, everyday people, and not a stuffy arbitrator. 

The problem for the NFL is that the arbitration mechanism is not JAMS or AAA but the NFL Commissioner's office. Under the Federal Arbitration Act, arbitration agreements are legal and will be enforced against the plaintiff if the arbitration mechanism provides sufficient due process rights for the plaintiff. You'll get that in JAMS or AAA arbitrations, more or less, but enough to make it a fair fight. The Court of Appeals (Cabranes, Lynch and Lohier) notes, in an effort to be clever, that you can settle disputes in any number of ways, including playing ping pong or flipping a coin, but the FAA demands much more than that.

The problem for the NFL is that the arbitration clause sends the dispute to the NFL Commissioner, who has authority to rule for one party or the other. But that is not an independent forum under the FAA. The Commissioner works for the NFL and, really, the Commissioner is the NFL itself. That is not a fair fight. The other problem with the agreement is that it does not provide the procedure for resolving the dispute in arbitration. That means the Commissioner unilaterally dictates the arbitral procedure. The NFL constitutional procedure "bears virtually no resemblance to arbitration agreements as envisioned and as protected by the NFL."

Court expands when you can bring a habeas action

This inmate was incarcerated at Sullivan Correction Facility. He claimed that his conditions of confinement were detrimental to his health because COVID-19 might have killed him without being released from jail due to his pre-existing health condition. He brought a habeas corpus petition, but the district court dismissed it because what plaintiff instead needed to bring a constitutional claim under Section 1983. The Court of Appeals reverses on that point of law but finds other reasons to dismiss the case.

The case is Diaz v. Kopp, issued July 30. If you care about habeas corpus and Section 1983, then this case is for you. The Court of Appeals took an interest in this case because the lower courts had disagreed on whether habeas is the right vehicle when the inmate seeks immediate from prison due to unconstitutional conditions of confinement, or whether the only procedural route is a Section 1983 claim. 

The Court of Appeals (Calabresi, Nathan and Lohier [in dissent]) notes that "the line between habeas and Section 1983 can be difficult to parse even for seasoned litigators." The Court holds that plaintiff does assert a habeas claim because he claimed it was impossible for inmates like him to practice safe COVID policies due to the nature of the statewide prison environment, and under those policies, he would therefore suffer cruel and unusual punishment in violation of the Constitution. As such, his release (attainable through a habeas petition) is necessary. Section 1983 is not the exclusive remedy for cases like this. "We hold only that a claim at the core of habeas does not cease being cognizable under habeas simply because the claim is based on unconstitutional conditions of confinement."

Despite clarifying the law in this area, plaintiff still loses the appeal on the merits: the Court holds that he has not alleged facts that would support his assertions that (1) he was severely at risk of death or long-term disability from COVID, (2) DOCCS was not capable of protecting him from COVID, and (3) the state had created unconstitutional conditions of confinement that can only be remedied by his immediate release from jail. This means the analysis in this case, expanding habeas rights, may not help plaintiff, but it will help other inmates.

Judge Lohier dissents, stating that the case is moot because plaintiff was transferred to a different facility after the state closed Sullivan Correctional Facility. Since plaintiff's claims were specific to Sullivan, where he was held when he filed the petition, and Sullivan is not longer in operation, the case is moot.

2d Circuit strikes down portion of New York's marijuana dispensary law

The dormant Commerce Clause may be the least interesting strand of constitutional law. But every few years, a case arises in the Second Circuit that invokes that provision. This time, we are dealing with New York State's mechanism for issuing licenses to sell legal marijuana. The state's procedure is stricken under the dormant Commerce Clause.

The case is Variscite NY Four v. New York State Cannabis Control Board, issued on August 12. When New York legalized marijuana, it adopted a method for issuing licenses to sell it. If you want a dispensary license, you stand a better chance if you or a close relative were convicted for a marijuana-related offense under New York law. The state argues this provision is merely restorative justice, not a constitutional violation nor economic protectionism, which would violate the Commerce Clause. The Second Circuit disagrees, granting the plaintiff organization a preliminary injunction against the state enforcing this provision.

The Commerce Clause says Congress has authority to regulate interstate commerce. The Constitution does not expressly provide for a "dormant" Commerce Clause. That is a creature of the Supreme Court, which holds the Commerce Clause is violated when the state practices "protectionism," favoring state entities without congressional authorization. The idea is that states cannot favor one state over another in regulating commerce. Hey, we are all Americans! 

The majority (Jacobs and Calabresi, with Livingston in dissent) holds that "Congress has given New York no clear permission to favor its residents over others whose businesses skirt the federal drug laws. Under traditional dormant Commerce Clause principles, New York’s prioritization of applicants with convictions under New York law is a protectionist measure that cannot stand." Plaintiffs convinced the Second Circuit to strike down this provision because they are from California and want a New York dispensary license. Since they were never convicted of any drug offenses under New York law, they are harmed by this statute simply because they are not New Yorkers and therefore lose priority in receiving a dispensary license.