Month: September 2022

From Myles v. U.S., decided Friday by the Ninth Circuit (Judge Marsha Berzon, joined by Judge Carlos Bea and District Judge Richard Bennett), here is the court’s summary of the procedural history and of plaintiff’s allegations:

After she was discharged from her position as an Immigration and Customs Enforcement … agent, plaintiff Kui Z. Myles brought national origin discrimination and retaliation charges before the Equal Employment Opportunity Commission …. Following a multi-day trial, the EEOC upheld the charges and ordered that Myles be reinstated with backpay. Myles then worked at ICE for several years without incident. In 2013, however, she reported to ICE that she was again experiencing harassment. In response, she alleges, Department of Homeland Security … agents—including ICE officers, DHS special agents, and other high-ranking DHS officials—invented baseless criminal wage theft charges against her….

Myles is a naturalized United States citizen born in China. In 2005, she applied for and accepted a position as an Immigration Enforcement Agent at ICE, an agency within DHS. Before beginning her official work duties, Myles attended a mandatory federal training program. During the program, she was subjected to a hostile work environment by her co-workers and instructors on account of her Chinese national origin. After raising concerns about this treatment, Myles was denied access to certain computer systems, was not issued pepper spray, was not permitted to work in the field, was denied bus driving training, was erroneously charged with “absence without leave,” and was ultimately terminated. After a multi-day trial, Administrative Law Judge … Kathleen Mulligan found DHS liable for discriminatory and retaliatory conduct against Myles based on her Chinese national origin, and ordered Myles reinstated with an award of back pay and benefits, compensatory damages, compensation for emotional distress, and attorneys’ fees and costs.

Following her reinstatement, Myles consistently received “[e]xcellent” and “[o]utstanding” performance evaluations. But, after several years of uneventful service, Myles reported to ICE that she was again experiencing harassment, this time at the hands of her direct supervisor Armando Lares. As a result, Lares was subject to disciplinary action, including “being placed on administrative duty status” and temporarily losing overtime privileges and the “right to carry a firearm.”

About one month after Lares’ disciplinary action went into effect, he falsely reported to DHS that Myles was illegally housing undocumented Chinese nationals. A team of at least five DHS agents—including David Gassmann and Steven Lovett, both defendants in this case—surveilled Myles for eight months, taking extensive video footage of Myles and her family. When the surveillance revealed that Myles was not illegally housing any undocumented individuals, Gassmann was encouraged by Lovett and other DHS officers, including defendants Brian DeMore, Francis Jackson, and David Marin, to manufacture evidence that would support a criminal case against Myles for wage theft and presented the manufactured evidence to federal law enforcement officials.

Upon review of the evidence the DHS officials had marshalled against Myles, the United States Attorney’s Office refused to press charges. According to Myles’s complaint, the Office concluded that the evidence appeared to be “fabricated” and observed that “the matter [was] an employment issue and not a criminal one.” Undeterred, Gassmann presented the case to the Orange County District Attorney’s Office (“OCDA”); his presentation included knowingly false statements and intentional misrepresentations. The OCDA then filed a criminal complaint against Myles in California state court, alleging one count of grand theft by an employee under California Penal Code § 487(b)(3).

In December 2014, Gassmann and another DHS agent asked Myles to meet with them “for a talk.” When she arrived, they arrested her and transported her to the Santa Ana jail, where she was booked and detained. In connection with the arrest, the OCDA released several press statements “in which false statements were published about [Myles] stating she acted illegally, took advantage of her public position, and was unethical.” About one month later, Jackson, Deputy Field Officer for ICE, recommended that Myles be either suspended indefinitely without pay or terminated. Marin, an ICE Deputy Field Officer, subsequently placed Myles on indefinite suspension without pay, a status that continued until late November 2017.

The state criminal case against Myles was pending for almost three years. During that period, DHS agents tampered with witnesses and committed perjury and obstruction. Myles “underwent significant financial hardship” including selling her property, exhausting her savings, and withdrawing retirement funds to support her family and to pay for her defense. She experienced “significant emotional and physical distress, humiliation, shame, despair, embarrassment, depression, physical and mental pain and suffering and anguish, loss of earnings, loss [of] pay grade, loss of security clearance at her job, loss of the right to carry service-issued and personal firearms as a law enforcement officer, loss of status[ ] and future status, and loss of other benefits.”

OCDA Deputy District Attorney Nichols, who was assigned to prosecute the state criminal case, “became convinced” upon reviewing the evidence—including the 2008 EEOC decision; a Government Accountability Office report detailing widespread defects in overtime oversight within DHS; and video footage demonstrating that Myles was “working longer hours than many of her counterparts” and that the individual clocking out early was not Myles— that the criminal case against Myles “was without merit and filed in bad faith.” On November 13, 2017, Nichols moved to dismiss the criminal case because “she had come to the conclusions that [Myles] was being unlawfully discriminated against”; that Myles was innocent of any wrongdoing; that some of the evidence against Myles had been fabricated; and that DHS was “abusing the office of the OCDA” by using it as a tool “to unfairly prosecut[e]” Myles. The state court granted Nichols’s motion and the case was dismissed….

The Ninth Circuit held that Myles’ malicious prosecution could go forward:

Myles’s malicious prosecution claim was brought against the federal government. As a sovereign, the United States “is immune from suit save as it consents to be sued.” In the FTCA, the federal government waived its sovereign immunity with respect to certain tort claims arising out of wrongdoing committed by federal employees acting within the scope of their employment.

The sovereign immunity waiver in the FTCA is subject to several exceptions, one of which is pertinent here: the federal government has retained sovereign immunity for claims that are “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the” federal government….

Here, Myles alleges that federal government employees “knowingly made false allegations to the OCDA regarding [Myles’s] conduct … that directly led to her criminal prosecution”; “instigated, encouraged, and were actively involved in causing [Myles] to be prosecuted … on the felony charge of grand theft”; and “committed perjury by lying under oath about the charge against [Myles].” She further alleges that, to ensure the criminal case against her would be maintained, DHS officials tampered with witnesses, provided false statements to the OCDA, and fabricated evidence. Myles also alleges that the DHS officials “did not have probable cause nor did they reasonably believe that [Myles] was guilty of the charge against her.” “Their purpose was to retaliate against [Myles]” because she had reported internally that she was again experiencing national origin-based harassment in the workplace.

Getting into specifics, Myles alleges that DHS officials represented to the OCDA that she had “purposefully lied about overtime hours” in a manner that constituted “grand theft by an employee” under California Penal Code § 487(b)(3), even though they knew that she had not lied about her overtime hours. Video evidence, Myles alleges, demonstrated that she was “working longer hours than many of her counterparts” and “the person in the video who … was clocking out early was not, in fact,” Myles. She also alleges that DHS officials doctored evidence that she was submitting false overtime requests, including during a period in which she could not have submitted such requests because she was absent from the office on unpaid administrative leave….

The discretionary function exception was designed to prevent “judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” As decisions to knowingly lie under oath, tamper with witnesses, or fabricate evidence cannot be “grounded in” and are not “susceptible to” such analyses, the discretionary function exception does not provide refuge for such conduct. Put differently, the discretionary function exception “does not apply to law enforcement investigations when a federal employee’s tactics during an investigation had ‘no legitimate policy rationale.'” Conduct of the type alleged by Myles has no role to play in the legitimate functioning of government. Such conduct therefore is not protected by the discretionary function exception….

Our interpretation of the discretionary function exception is supported by the 1973 amendment to the list, in 28 U.S.C § 2680(h), of intentional torts exempted from the FTCA. Historically, the United States retained sovereign immunity for intentional torts committed by government agents, including malicious prosecution. But, following a string of botched drug raids in Collinsville, Illinois that captured national media attention, Congress amended 28 U.S.C. § 2680(h) to allow aggrieved persons to bring “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” actions against the federal government arising from the “acts or omissions of investigative or law enforcement officers.” …

As section 2680(h) broadened the application of the FTCA with respect to malicious prosecution actions arising out of the acts or omissions of federal investigative and law enforcement personnel but did not change the discretionary function exception, the two should not be read as coextensive. Yet, if the facts of this case—which, again, involve allegations of perjury, witness tampering, and fabrication of evidence—are insufficient to render Myles’s malicious prosecution claim outside the scope of the discretionary function exception, it is hard to imagine any malicious prosecution action covered by the section 2680(h) carve-out that would survive application of the discretionary function exception.

Any malicious prosecution action against investigative and law enforcement personnel would involve “decision[s] how to investigate, who to investigate, and how to present evidence to the proper authorities.” The district court’s interpretation of the discretionary function exception would thereby render the 1973 addition to section 2680(h) meaningless, in contravention of the “well-established principle of statutory construction that ‘legislative enactments should not be construed to render their provisions mere surplusage.'”

In sum, we conclude that in malicious prosecution cases in which the plaintiff alleges that an investigative or law enforcement official fabricated evidence, tampered with witnesses, lied under oath, or otherwise knowingly offered false testimony to induce criminal charges against the plaintiff, the discretionary function exception does not shield the United States government from liability, as such misconduct does not constitute a policy judgment susceptible to social, economic, or political analysis.

And the court concluded that Myles’ allegations (while still allegations at this point) are sufficiently plausible for the case to go forward.

The post Malicious Prosecution Claim Against DHS Agents Can Go Forward appeared first on Reason.com.

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In previous posts, I criticized both the Biden administration’s legal rationale for the president’s massive student loan debt cancellation policy and a possible alternative justification for it. But many experts think these issues will never get their day in court, because no one will have standing to file a lawsuit challenging debt cancellation. Perhaps the administration sees this procedural issue as their ace in the hole: it doesn’t matter if the legal justification for your program is weak if no one can get into court to challenge it!

The problem of standing is a genuine challenge for opponents of the debt cancellation policy. But it need not be an insuperable one. There are at least three types of litigants who can plausibly get standing: one or both houses of Congress, student loan servicers, and colleges that do not accept federally backed student loans, but compete with those that do.

Under current Supreme Court precedent, plaintiffs have to meet three requirements to get standing to file a lawsuit in federal court: They must 1) have suffered an “injury in fact,” 2) the injury in question must be caused by the allegedly illegal conduct they are challenging, and 3) a court decision should be able to redress the injury.

In my view, the entire doctrine of standing is not a genuine constitutional requirement, and the Supreme Court should abolish it. But that’s highly unlikely to happen. So, for present purposes, I will assume the validity of current precedent. Whether it’s right or not, litigants will have to work within it.

The main potential stumbling block in this case is the requirement of “injury in fact.”  It may be difficult to prove that student loan cancellation injures anybody, in the sense required by Supreme Court precedent. Cancelling some of A’s student loan debt doesn’t necessarily injure B and C. The others may believe it is unfair they had to pay off all their loans themselves, while A doesn’t. But, with rare exceptions, current precedent requires some sort of tangible injury. Unfairness, by itself, isn’t enough.

It may be that taxpayers suffer a tangible injury, because loan forgiveness denies funds to the federal treasury, thereby forcing them to bear more of the burden of public expenditures. Any illegal expenditure of public funds necessarily diverts taxpayer resources away from duly authorized purposes. But the Supreme Court has long denied such taxpayer standing, in all but a few unusual circumstances, which aren’t relevant here.

I think taxpayers should have broad standing to challenge any unconstitutional expenditure of public funds. But this is another issue on which the Supreme Court is unlikely to go my way, anytime soon.

But while taxpayers generally do not have standing to challenge illegal uses of public funds by the executive, the Senate and the House of Representatives do! The US Court of Appeals for the DC Circuit so held in a 2020 case where the Democratic-controlled House of Representatives filed a lawsuit challenging Donald Trump’s attempt to divert military funds to build his border wall (a case which has many parallels to the present situation). The decision was written by prominent conservative Judge David Sentelle, who reasoned as follows:

[T]he House is suing to remedy an institutional injury to its own institutional power to
prevent the expenditure of funds not authorized. Taking the allegations of the complaint as true and assuming at this stage that the House is correct on the merits of its legal position, the House is individually and distinctly injured because the Executive Branch has allegedly cut the House out of its constitutionally indispensable legislative role. More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber’s unilateral authority to prevent expenditures….

To put it simply, the Appropriations Clause [of Article I of the Constitution] requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands. That is the injury over which the House is suing…

To hold that the House is not injured or that courts cannot recognize that injury would rewrite the Appropriations Clause. That Clause has long been understood to check the
power of the Executive Branch by allowing it to expend funds only as specifically authorized…

Sentelle’s reasoning is compelling, and pretty obviously applies to Biden’s loan forgiveness plan, no less than Trump’s border wall diversion. Under this approach, either the House or the Senate would have standing to sue, even if the other did not.

Of course neither house is likely to sue so long as Democrats control both of them. But that could change after the November election, when Republicans could potentially retake one or both of them (the House far more likely than the Senate). If so, they could rely on the border wall precedent to get the standing they need for a lawsuit.

Unfortunately, the House or Senate would likely have to file as an institution in order to get standing. The Supreme Court has ruled that individual members of Congress lack standing to sue the executive over fiscal issues.

A second type of entity that could get standing to sue is student loan servicers. These firms collect student loan payments on behalf of the government, and the size of the fees they get depends in part on how much money is owed, whether the loan is delinquent, and how long the borrower takes to repay it. If loan forgiveness reduces delinquency rates, enables some borrowers to repay faster, or otherwise affects the amount servicing firms get paid, they pretty obviously suffer an injury in fact, and would have standing to sue. Fordham law Prof. Jed Shugerman has reached much the same conclusion.

It’s possible loan servicers will be afraid to sue, because they don’t want to antagonize the federal Department of Education. A good relationship with the feds may be necessary to ensure their continued profitability. But if any are willing to sue, standing shouldn’t be much of a problem. And one plaintiff is enough to get the issue to court. Even if most loan servicers prefer to stay out of it, one may be willing to take the risk. Alternatively, they could band together and sue jointly, thereby making it harder for the Department of Education to retaliate against them (since the Department may be reluctant to cut them all off).

A final category of plaintiffs who could get standing is colleges that refuse federal funding (including federal student loans), but compete with those who accept it. These mostly conservative-leaning institutions reject federal funds because they do not want to be subject to the regulations that come with them. Examples include Grove City College, and Hillsdale College. For obvious reasons, loan cancellation makes colleges that accept federal student loans more competitive relative to those that do not. The latter become relatively cheaper alternatives for students.

Courts have long recognized “competitor standing” to sue to challenge policies that strengthen the competitive market position of the plaintiff’s rivals. Perhaps the competitive injury here is small. Maybe only a few students are likely  to forego attending Grove City College or Hillsdale as a result of Biden’s actions. But even a small financial loss, such as nominal damages, is enough to qualify as an “injury in fact” under standing doctrine.

These three possibilities aren’t necessarily exhaustive. They are just the ones that most readily occur to me, and I admit I am far from being an expert on student loans. There may be other types of litigants who can also get standing to challenge Biden’s student debt cancellation plan. But these examples do suggest that standing need not be a show-stopper here. More likely than not, courts will eventually have to rule on the legal merits of the policy.

The post Does Anyone Have Standing to Bring a Lawsuit Against Biden's Student Loan Debt Cancellation Policy? appeared first on Reason.com.

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At a campaign rally, Trump said,

Fetterman supports taxpayer-funded drug dens and the complete decriminalization of illegal drugs, including heroin, cocaine, crystal meth, and ultra lethal fentanyl. By the way, he takes them himself.

The clip included above seems to support that. If the “he takes them himself” statement is false, could Fetterman (a public official) win a defamation lawsuit against Trump?

Yes, though he’d have to show, by “clear and convincing evidence,” that Trump spoke “with knowledge that it was false or with reckless disregard of whether it was false or not.” “Reckless disregard” in turn refers to a “high degree of awareness of … probable falsity” or “entertain[ing] serious doubts as to the truth of his publication.”

“[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.” But “[a]lthough failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category.” ” [A] deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the] charges” may well qualify as reckless disregard. (These quotes are from Harte-Hanks v. Connaughton (1989), a convenient summary by the Court of the misleadingly named “actual malice” test, which was set forth by New York Times v. Sullivan (1964).)

Now this is a subjective test—what did the speaker actually believe, and deliberately decide?—and not an inquiry into what a reasonable speaker would have done. Still, under the right circumstances, a jury can infer that the speaker must have realized the accusation was probably false (rather than just that he should have realized it), or must have deliberately decided not to investigate, and the jury can disbelieve a speaker’s claim that he was sincerely sure the statement was false.

So, if Fetterman can persuade the jury the accusation was false, and can also persuade the jury (again, by clear and convincing evidence) that Trump knew it was false or probably false, Fetterman would win. (I say “would” on the assumption that the jury follows the instructions.)

On the other hand, if Fetterman can’t do so—perhaps because Trump can point to some source for the accusation that the jury thinks he actually believed (whether or not he should have believed it)—then Fetterman would lose. And the case likely would go to the jury, if it’s a question of whose claims or denials to believe.

Some have pointed out that this rewards the crazy or the foolish, who actually sincerely believe unreasonable claims. But that is the nature, for better or worse, of the New York Times v. Sullivan subjective test.

Of course, none of this tell us whether it’s a wise move for Fetterman to sue, whether before the election or after. But that’s the general legal framework.

The post Could John Fetterman Win a Defamation Lawsuit Against Donald Trump, for Accusing Fetterman of Hard Drug Use? appeared first on Reason.com.

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