Law in Plain English: Wood v. Moss

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Wood v. Moss

Argument: Mar 26 2014 (Aud.)

Discussion: Michael Moss and other anti-Bush protesters brought a Bivens action against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. The protestors' complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them (but not another group of pro-Bush demonstrators) to create a security perimeter around the President. The Nith Circuit ruled that the anti-Bush protestors had alleged a plausible First Amendment claim and that Agents Wood and Savage were not entitled to qualified immunity.

Issue: The questions before the Court are (1) whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the president by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade; and (2) whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.

Holding: In a unanimous decision, the Supreme Court ruled that the agents were entitled to qualified immunity.

Law in Plain English: Plumhoff v. Rickard

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Plumhoff v. Rickard

Argument: Mar 4 2013

Discussion: In March 2001, a police officer in Georgia rammed a vehicle from behind to stop it following a high speed chase. As a result of the ramming, the suspect lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. The suspect was badly injured and was rendered a quadriplegic. In 2007, the Supreme Court ruled that a police officer did not violate the constitutional rights of a suspect when he tried to terminate a chase by ramming the car from behind. In a July 2004 chase, three West Memphis police officers fired shots into a vehicle that had repeatedly rammed police cruisers and (allegedly) revved its engine when the officers surrounded the vehicle. Both occupants of the vehicle were killed. On constitutional claims under 42 USC § 1983, the District Court determined that the officers were not entitled to qualified immunity for their actions. The Sixth Circuit affirmed, and analyzed the 2004 incident using the standard set by the Supreme Court in the 2007 case, as opposed to the clearly established law that existed at the time of the 2004 incident. In other words, the Sixth Circuit analyzed the case under a standard that did not exist when the incident occurred.

Issue: The questions before the Court are (1) whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.

Holding: In a 9-0 decision, the Supreme Court ruled that the officers' conduct did not violate the Fourth Amendment because they acted reasonably in using deadly force; they did not fire more shots than necessary to end the public safety risk. Even if the officers' conduct had violated the Fourth Amendment, the officers would still be entitled to summary judgment based on qualified immunity.

Law in Plain English: Michigan v. Bay Mills Indian Community

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Michigan v. Bay Mills Indian Community

Argument: Dec 2 2013 (Aud.)

"Tendentious, junk-drawer arguments like this one are best left out of a brief. They waste opposing counsel's time and ours. We reject the argument here." State v. Bay Mills Indian Community, 695 F.3d 406, 416 (6th Cir. 2012)

Bay Mills Casino in Vanderbilt, MI.
Image from 500Nations.com.

Discussion: The Bay Mills Indian Community entered a Tribal-State compact with the State of Michigan, pursuant to the Indian Gaming Regulatory Act (IGRA), which permitted the tribe to conduct gaming activities on Indian lands. Bay Mills then purchased 40 acres of land in Vanderbilt, Michigan (more than 100 miles from the tribe's reservation) to construct a small casino. The State of Michigan and the Little Traverse Bay Bands of Odawa Indians ("Little Traverse") brought suit to prevent Bay Mills from operating their casino. Little Traverse sued Bay Mills on the theory that its Vanderbilt casino (total slot machines: 84) would divert millions of dollars of revenue from Little Traverse's vastly larger casino in Petoskey, Michigan — a high-end community located on the shores of Lake Michigan. The District Court entered a preliminary injunction ordering Bay Mills to stop gaming at the Vanderbilt casino. The Sixth Circuit vacated the injunction, holding that the District Court lacked jurisdiction over some of the plaintiffs' claims, and that Bay Mills's sovereign immunity bars the others. As a result, they vacated the injunction.

Issue:  The questions before the Court are (1) whether a federal court has jurisdiction to enjoin activity that violates the IGRA, but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

Holding: In a 5-4 decision, the Supreme Court ruled that Michigan's suit is barred by tribal sovereign immunity.

Law in Plain English: Millbrook v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

For an earlier discussion of sovereign immunity in relation to this case, see here. For an earlier discussion of sovereign immunity related to other cases, see here.

Millbrook v. United States

Millbrook is a prisoner that alleged he was sexually assaulted by corrections officers. He filed suit under the Federal Tort Claims Act, which waives the Government’s sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers "who [are] empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." This section is  referred to as the "law enforcement proviso." The question before the Court was whether the FTCA waived sovereign immunity for the intentional torts of prison guards when they were acting within the scope of their employment but were not actually exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law." In a unanimous opinion, the Supreme Court ruled that the waiver of sovereign immunity effected by the law enforcement proviso extended to acts or omissions of law enforcement officers that arose within the scope of their employment, regardless of whether the officers were engaged in investigative or law enforcement activity, or were executing a search, seizing evidence, or making an arrest. As a result, Millbrook's suit can go forward. The practical impact of this decision is that prisoners will be able to bring claims against prison guards or other law enforcement officers for any conduct that arises within the scope of their employment, regardless of whether it was investigative or law enforcement activity, or executing a search, seizing evidence, or making an arrest.

Law in Plain English: Levin v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Levin v. United States

Levin scheduled cataract surgery at a Navy hospital, but withdrew his consent before the operation started. The doctor performed the surgery anyway, and Levin sued for battery. However, the federal government has sovereign immunity. As a result, it cannot be sued unless it waives this immunity. The Federal Tort Claims Act waives the government's sovereign immunity in certain circumstances, primarily when someone acting in their capacity on behalf of the United States causes damage. However, certain torts, such as battery, are exempted from this waiver. So under the FTCA, someone cannot sue the government for battery by someone acting on behalf of the United States. On the other hand, The Gonzalez Act provides that this particular exemption doesn't apply to "any cause of action arising out of a negligent or wrongful act or omission in the performance of medical...functions." The question in this case was whether Levin's lawsuit could be brought against the United States for battery by his military doctor acting within the scope of his employment. In a unanimous decision, the Supreme Court ruled that the Gonzalez Act effectively repealed the exemption in the FTCA for these particular circumstances. As a result, Levin's claim can go forward. The practical impact of this decision is that Gonzalez Act claims of the sort raised by Mr. Levin will be able to be brought even if the FTCA exempted certain torts.

For more posts on sovereign immunity, see here, here, and here.

SCOTUS in Plain English: United States v. Bormes

This is one in a series of posts designed to describe Supreme Court decisions in plain English. For more detail and background on the legal issues, see the link to the case at SCOTUblog below. For similar posts, click here.

United States v. Bormes

James Bormes sued the United States under the Fair Credit Reporting Act (FCRA), claiming that a receipt they provided to him revealed too much information about his credit card. Bormes brought his case in federal court under the Little Tucker Act, which authorizes claims against the government under $10,000. The Supreme Court found that the Little Tucker Act does not waive the government's sovereign immunity (sovereign immunity provides that the government cannot be sued unless that immunity has been waived, or if the government consents). The FCRA specified its own procedures for making claims, and the courts should consider whether the FCRA itself (not the Little Tucker Act) waives the government's sovereign immunity. As a result, Bormes's suit will be transferred to the 7th Circuit on that issue. The practical impact of this decision is those alleging violations by the United Staes cannot use the Little Tucker Act to get their claims into federal court.

Sue who, me? Why you wanna sue me?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

46. Presumption Against Waiver of Sovereign Immunity. A statute does not waive sovereign immunity--and a federal statute does not eliminate state sovereign immunity--unless that disposition is unequivocally clear (p. 281). An important corollary to this presumption (and especially in the Millbrook case discussed below) is that such waivers of sovereign immunity should be strictly construed. Soriano v. United States, 352 U.S. 270, 276.

Sovereign immunity provides that the government (whether that be the federal, state, or local government) cannot be sued unless that immunity has been waived, or if the government consents.

Here's one example: in an earlier post, I discussed under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed. That discussion hinged on Section 80 of the WMATA Compact, which reads in part:

80. Liability for Contracts and Torts

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function...

 This is a partial waiver of WMATA's sovereign immunity--and limited only to "proprietary" functions (see the original post for further discussion on what that is). Without this section, the presumption would be that WMATA does not waive its sovereign immunity. So the key here is that the waiver must be clear. Ambiguous is simply not enough.

The primary example of the federal government's (limited) waiver of sovereign immunity is the Federal Tort Claims Act (and is raised in the issue below, as we will see).

The Supreme Court will be presented with an opportunity to test this presumption in the case of Millbrook v. United States. Via SCOTUSblog, the issue is

[w]hether 28 U.S.C. §§ 1346(b) and 2680(h) [FTCA] waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law."

28 U.S.C. § 1346(b)(1) provides, in part, that the federal government waives sovereign immunity:

...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 2680(h) provides exceptions to the waiver, but also includes a proviso[1] which is an exception to the exception:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

The bold emphasis is mine, and is key to the outcome of this case. Is your head hurting yet? This is an Inception-quality statute right here. Let's recap:

1. The federal government has sovereign immunity.
2. § 1346(b)(1) waives that immunity for certain claims.
3. § 2680(h) lists several exceptions to the waiver; in other words, for those exceptions sovereign immunity is restored.
4. The proviso within § 2680(h) re-waives sovereign immunity for six of the eleven exceptions, provided that the acts or omissions in question are by investigative or law enforcement officers empowered to a) execute searches; b) seize evidence; or c) making arrests for violations of federal law.

Now, the facts of the case. Mr. Millbrook claims he was sexually assaulted by several prison guards. Whether or not those prison guards are "investigative or law enforcement officers" under the specific conditions as set forth in the proviso will ultimately determine whether or not his case is successful. In other words, the prison guards are most definitely investigative or law enforcement officers in general, but if the alleged assault did not take place while executing a search, seizing evidence, or making an arrest, then perhaps (if the Third Circuit was correct) the government's sovereign immunity remains intact. See Pooler v. United States, 787 F.2d 868, 872 (3d Cir.1986).

The Third Circuit affirmed the District Court for the government. Mr. Millbrook filed a pro se writ of certiorari, which the government opposed. Since then, the government switched positions and decided it wanted the case overturned, arguing that § 2680(h) is not limited by the three empowerment options (executing a search, seizing evidence, or making an arrest). As a result of the government's switch, the Court appointed Jeffrey Bucholtz, Washington, D. C. to defend the Third Circuit's ruling as amicus curiae.

In summary: does the proviso apply to (1) all "investigative or law enforcement officers" regardless of whether they are actually executing a search, seizing evidence, or making an arrest; or (2) is it necessary that the assault (or other tortious conduct) took place while executing a search, seizing evidence, or making an arrest. From a practical sense: in the first case, Mr. Millbrook's claim would go forward; in the second, it would not.

Unlike some of the other canons I've covered, this case has not yet been decided so there is no answer (yet). If I had to take a guess at the result of this case solely on the presumption against waiver of sovereign immunity (and especially in light of its corollary that waivers of sovereign immunity should be strictly construed), I would say the second option is more likely. That outcome would be odd, too; the government would win despite the fact that the government had argued against its original position. I guess it's safe to say the government will win, no matter what.

When the case is decided, I'll update this post with information from the opinion that is relevant to this presumption.

[1] The proviso itself is the subject of a canon (#21, p. 154) which states that "[a] proviso conditions the principle matter that it qualifies--almost always the matter immediately preceding." Here, it is common sense to read it that way.

WMATA, sovereign immunity, and AEDs

Reminder: I am not a lawyer (yet), and this is not legal advice.

Under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed in overcoming WMATA's sovereign immunity, for failing to properly maintain an installed automated external defibrillator (AED)?

To understand this, we need to review the concept of sovereign immunity and how it applies to WMATA; and more importantly, the associated waivers of sovereign immunity. Essentially, sovereign immunity is a principle that states are immune from being sued without their consent (or, by their own waiver).

See the following from Morris v. WMATA (781 F.2d 218), which is a nice summation of the history of WMATA's sovereign immunity:

On November 6, 1966, Congress consented to, and enacted for the District of Columbia, a compact whose signatories were Maryland, Virginia, and the District of Columbia....The Compact created WMATA to operate a mass transit system for the District of Columbia and the surrounding suburban areas of Maryland and Virginia.

...

WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it. Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit....

The relevant portion of the WMATA Compact is Section 80. The section in bold below is important because this identifies WMATA's partial waiver of immunity:

80. Liability for Contracts and Torts

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.

So the distinction here is a matter of function: WMATA cannot be sued for "governmental" functions but it can be sued for "proprietary" functions. So, what is the difference? Let the courts answer (all citations omitted for clarity):

Federal courts...interpreting the WMATA Compact have adopted certain tests

to aid in their determination of which functions are “governmental” and thus immune from suit.

Activities that are “quintessentially governmental” fall within the scope of § 80's grant of

immunity. Such functions have been defined as those activities exclusively within the purview of the government by way of its legal and authoritative nature. The oftcited prototypical governmental function as pertains to WMATA is the act of maintaining a police force.

So, immunity applies to governmental functions but not proprietary ones. If a function is proprietary, a second test must be applied:

If it is not discretionary, as where a “statute, regulation, or policy specifically prescribes a course of action for an employee to follow,”  the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is “discretionary,” the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” commonly referred to, by the federal appellate courts, as the “discretionary function exception.” If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, “constitute[s] [a] ‘governmental’ activit[y] within the meaning of the ‘governmental/proprietary’ test” of section 80 of the WMATA Compact, and is thus shielded from tort liability.

Got it? Good (yeah, it's a little confusing to say the least!).

Essentially, the function must be both proprietary and also ministerial or WMATA's sovereign immunity applies.

Here's an example. In this case, "WMATA failed to maintain, repair, inspect, or operate the escalators at the Anacostia station such that they became wet and icy, and second, that WMATA failed to warn the public of the wet and icy escalators...WMATA concedes that its actions were not 'quintessentially governmental activities.'" So the first part of the test is conceded; the function of maintaining, repairing, inspecting and operating of escalators is not a governmental function, but a proprietary one. However, the court found that "discretion exercised over the maintenance, repair, inspection, and operation of the escalators is 'subject to policy analysis' and thus discretionary." So escalator maintenance fails the second test because it is discretionary and not ministerial. Thus, WMATA's sovereign immunity applies.

Can we assume that AEDs are similar to escalators in that the function of maintaining, repairing, and inspecting of AEDs is not a governmental function, but a proprietary one? I don't see any reason why not. Absent a strong argument otherwise, the first test appears to be met.

WMATA has much less of an argument if they want to suggest that function of maintaining, repairing, and inspecting AEDs is subject to discretion. There may be differing methods of dealing with escalators in cold and wet weather, but the maintenance of AEDs seems pretty straight forward. In fact, to have AEDs installed without a specific maintenance procedure seems negligent, no?

To establish that the function of  maintaining, repairing, and inspecting of AEDs as a ministerial function rather than a discretionary one, an argument would be bolstered by specific instructions, or policies, to check AEDs on a regular basis. A further example would be the District of Columbia's AED law which states in part that:

The defibrillator is maintained and tested according to the manufacturer’s operational guidelines, and written records of the maintenance and testing are maintained...

(For the record, I know the action took place in the Pentagon Metro Station in Virginia, I am simply citing the DC law as an example of a positive duty to maintain the AED device. I haven't found related laws in Virginia or Maryland yet).

This DC law (whether or not it is truly applicable to WMATA remains to be seen) seems to suggest a positive duty to maintain the AED device; such would make it (in my opinion) a ministerial function. Even absent specific laws in MD or VA, some cases suggest that certain organizations may have a duty to maintain.

In such a case, the function of maintaining AEDs would be both proprietary and ministerial and thus not subject to WMATA's sovereign immunity; as such, WMATA could be sued for failing to maintain the AED (this post does not elaborate on whether or not such failure contributed to the death of the passenger, although common sense suggests it is probable).

I am curious to hear your thoughts and opinions.