Constitutional Law

Judge Garland has authored a number of First Amendment opinions—here, we’ve selected five that cover a wide spectrum. In Lee v. Department of Justice, 428 F.3d 299 (2005) (Garland, J., dissenting), Judge Garland voted against denial of rehearing en banc in the Wen Ho Lee case, arguing that the panel’s application of the Privacy Act would have chilling effects on the press. And in Initiative and Referendum Institute v. U.S. Postal Service, 417 F.3d 1299 (2005), he voted to reverse a district court which upheld a Postal Service regulation banning petition signature collection outside of post offices.

However, in three cases he sided against finding a speech restriction to be impermissible. National Association of Manufacturers v. Taylor, 582 F.3d 1 (2009) rejected a facial and as applied challenge to a federal statute requiring disclosure of organizations contributing money to registered lobbyists and actively participating in their lobbying activities. In Mpoy v. Rhee, 758 F.3d 285 (2014), he found a schoolteacher’s e-mail reporting classroom problems not to be protected by the First Amendment. And most recently, in Wagner v. Federal Election Commission, 793 F.3d 1 (2015), he authored an opinion rejecting a challenge to a statute barring federal contractors from making federal campaign contributions.

We’ve included two detainee cases, Saleh v. Titan Corp., 580 F.3d 1 (2009), where Garland discussed federal preemption in a case involving abuses at Abu Ghraib prison, and Parhat v. Gates, 532 F.3d 834 (2008), a review of a Combatant Status Review Tribunal’s classification of an ethnic Uighur as an enemy combatant. Finally, we’ve included Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (2003), a Commerce Clause case.


Parhat v. Gates (2008)

Huzaifa Parhat, an ethnic Uighur, fled persecution in China, arriving at a Uighur camp in Afghanistan in June 2001. In October 2001, U.S. air strikes destroyed the camp, and Parhat crossed into Pakistan, where he was detained by Pakistani officials who turned him over to the U.S. military. In June 2002 he was transferred to Guantanamo Bay. At a Combatant Status Review Tribunal held in July 2004, Parhat was determined to be an enemy combatant on the theory that he was affiliated with a Uighur independence group known as ETIM, which allegedly had associations with al Qaida and the Taliban. Parhat’s affiliation with ETIM was inferred from the fact that an ETIM leader ran the Uighur camp where Parhat lived and received pistol and rifle training. Parhat denied any association with al Qaida or the Taliban, and repeatedly stated that his only enemy was the government of China. He filed a petition seeking relief under the Detainee Treatment Act and, in the alternative, for a writ of habeas corpus.

As Parhat was not a member of al Qaida or the Taliban, the government had to prove three elements to designate him as an enemy combatant: (1) Parhat was part of or supporting ETIM; (2) ETIM was associated with al Qaida or the Taliban; and (3) ETIM is engaged in hostilities against the U.S. or coalition partners. However, as to the second and third elements, the government’s evidence did not disclose its source, making it insufficient to support the Tribunal’s determination, as it did not allow the Tribunal to assess its reliability. “[W]e neither prescribe nor proscribe possible ways in which the government may demonstrate the reliability of its evidence,” Garland wrote. “We merely reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government’s charges, in contravention of our understanding that Congress intended the court to engage in meaningful review of the record.” Thus, the court directed the government to release Parhat, transfer him, or to expeditiously convene a new CSRT.

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Wagner v. Federal Election Commission (2015)

Under the Federal Election Campaign Act, contractors negotiating or performing federal contracts are barred from making federal campaign contributions. Jan Miller, an individual government contractor seeking to make contributions to federal candidates and political parties, brought an as applied challenge, claiming that the Act violated his First Amendment and equal protection rights.

First, the court held that the government asserted a “sufficiently important interest” in protecting against quid pro quo corruption and its appearance, and interference with merit-based public administration. The court, in finding that these justifications were furthered by the provision, recounted a lengthy history of corruption involving government contractors that continued to the present day. And the court rejected Miller’s argument that formalized competitive bidding rendered the current system largely immune from political interference. Finally, the contribution ban employed a means closely drawn to avoid unnecessary abridgment of associational freedoms. The court rejected Miller’s arguments that the statute was overinclusive. A total ban on federal contributions, as opposed to a limit, was permissible, as the contracting context sharpens the risk of corruption; the ban extending to political parties was permissible given the small degree of separation between party committees and public officials; and, the court noted, the Act struck at the dangers Congress most feared, while still allowing contractors the freedom to engage in other forms of political expression. The court also rejected Miller’s claim that the statute was underinclusive, finding grounds to justify FECA’s exclusion of PACs and LLCs formed by contractors, federal employees, and individuals seeking government benefits or positions.

The court rejected Miller’s equal protection challenge as well. Miller said the statute subjected individual contractors to a ban that didn’t apply to two categories of similarly situated persons: (1) entities/individuals associated with firms having government contracts and (2) individuals who are regular employees rather than contractors. But the court declined to take the unprecedented step of applying strict scrutiny to analyze a contribution restriction under equal protection. Garland cited Ruggiero v. FCC, which held that “[a]lthough equal protection analysis focuses upon the validity of the classification rather than the speech restriction, the critical questions asked are the same. We believe that the same level of scrutiny … is therefore appropriate in both contexts.” Since the government interests were legitimate, and there was no question that the classification was designed to vindicate those interests rather than disfavor a particular speaker or viewpoint, the challengers could fare no better under an equal protection argument than they could under the First Amendment itself.

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Lee v. Department of Justice (2005)

Wen Ho Lee, a scientist employed by the Department of Energy, was investigated on suspicion of espionage, a case that resulted in a plea agreement in which Lee pled guilty to one count of mishandling of classified computer files. Lee brought an action against the DOE, DOJ, and FBI, alleging the agencies improperly disclosed personal information about the investigation to the news media. Lee issued subpoenas to several journalists seeking testimony and documents relating to the leaks. The journalists moved to quash the subpoenas, which the district court denied. When the journalists had been deposed and refused to answer certain questions, the district court held them in contempt, which they appealed. The D.C. Circuit held that the journalists’ interest in protecting their sources was outweighed by Lee’s interest in compelling disclosure of the source of the leak, and thus the journalists’ failure to answer questions warranted a finding of civil contempt. The journalists sought rehearing en banc, which was denied.

Garland dissented from the denial of rehearing en banc. He started by noting that the Privacy Act is available not only to individuals; ostensibly, a former public official seeking to learn who leaked information that forced them to resign could use the Act to compel disclosure. Moreover, the “centrality” and “exhaustion” requirements of the Act would be satisfied in most cases. “[I]f the reporter’s privilege is limited to those requirements, it is effectively no privilege at all. Plaintiffs wielding Privacy Act suits will routinely succeed in putting reporters who receive whistleblower leaks to the choice of testifying or going to jail.” Garland cited Zerelli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) for the proposition that the privilege should prevail in all but the most exceptional cases; the preferred position of the First Amendment and the importance of a vigorous press must be kept in mind. In determining claims under the Privacy Act, Garland would have weighed the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.

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National Association of Manufacturers v. Taylor (2009)

Under the Honest Leadership and Open Government Act of 2007, registered lobbyists must disclose organizations that contribute more than $5,000 to the registrant and actively participate in the planning, supervision, or control of the registrant’s lobbying activities. The National Association of Manufacturers filed suit contending that the HLOGA violated the First Amendment facially and as applied.

The court found that the provision survived strict scrutiny. The purpose of the provision, according to the statute, was to increase public awareness of the efforts of paid lobbyists to influence public decisionmaking, a compelling interest per United States v. Harriss, 347 U.S. 612 (1954), and Buckley v. Valeo, 424 U.S. 1 (1976). NAM argued, based on floor statements, that the purpose was to force disclosure of participants in so-called “stealth coalitions,” but this was rejected on the ground that it confused what was otherwise clear and unambiguous statutory text. The court also rejected NAM’s argument that Congress’s findings were insufficient to support the informational interest, noting, among other things, deference to congressional findings. Finally, the court found that the provision advanced the informational interest and was narrowly tailored. The disclosure regime Congress chose was far less restrictive than direct regulation, and arguably advanced First Amendment values.

On the as applied challenge, the court rejected NAM’s argument that NAM was analogous to NAACP members exposed to reprisals, physical threats, and other hostility, NAACP v. Alabama, 357 U.S. 449 (1958); there was no evidence that NAM members suffered harm or retaliation as a result of NAM’s lobbying activities. The risks that NAM claimed its members would suffer were no different than those suffered by any organization employing lobbyists. The court also rejected a vagueness challenge, noting the use of the same or similar allegedly vague terms in other statutes that survived such a challenge, and noting the presence of a scienter requirement and a safe harbor.

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Rancho Viejo, LLC v. Norton (2003)

Rancho Viejo planned to build a 280-home residential development, but the U.S. Fish and Wildlife Service determined the construction plan would likely jeopardize the existence of the arroyo southwestern toad, an endangered species. The FWS warned Rancho Viejo that its plan would result in the “illegal taking” of a federally endangered species in violation of the Endangered Species Act. Rancho Viejo filed suit challenging the application of the ESA to its project as an unconstitutional exercise of federal authority under the Commerce Clause.

Applying the test in United States v. Lopez, 514 U.S. 549 (1995), the court found that the ESA’s “take” provision was an authorized regulation of activity having a substantial relation to interstate commerce: while there was no jurisdictional hook or congressional findings on the effect of housing construction on interstate commerce, the construction was plainly an economic enterprise, and Rancho Viejo failed to demonstrate that the regulated activity was without substantial interstate effect.

Rancho Viejo argued that United States v. Morrison, 529 U.S. 598 (2000) came close to adopting a categorical rule against aggregating the effects of noneconomic activity; whether the regulated activity is economic is outcome-determinative. But Garland wrote that this argument missed the mark. “The ESA does not purport to tell toads what they may or may not do.” What was being regulated was construction of the housing development, which has a plainly commercial character, in contrast to Morrison andLopez.

Rancho Viejo argued that to survive Commerce Clause scrutiny, a statute must be aimed at economic activity, not at some other purpose. But the court noted that the ESA has multiple purposes, one of which was unquestionably the commercial value of preserving species. Trying to discern a statute’s “true” or “primary” motivation is “an enterprise … fraught with both difficulty and danger.” Moreover, Garland noted that Rancho Viejo’s argument was undermined by the Champion-Darby-Heart of Atlanta Motel line of cases.

Finally, the court rejected Rancho Viejo’s argument that the ESA represented an unlawful assertion of congressional power over local land use decisions. The ESA does not constitute a general regulation of land use; it represents a national response to a problem of truly national concern, which cannot be addressed in the absence of coherent national policies.

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Initiative and Referendum Institute v. U.S. Postal Service (2005)

In Initiative and Referendum Institute, individuals and organizations attempting to collect signatures for petitions on sidewalks and other exterior areas of post offices challenged a USPS regulation banning the solicitation of signatures on petitions, polls, or surveys on USPS property. The court concluded that the regulation was unconstitutional when applied to a public forum. Although the Postal Service’s interest in minimizing disruption of postal business and unimpeded ingress and egress was content-neutral, the regulation was not narrowly tailored. The problems associated with solicitors arose only “occasionally,” meaning an across-the-board ban resulted in significant over-inclusiveness. Moreover, the Postal Service could achieve its aims through other means, such as bans on disturbing patrons and employees and bans on impeding entry. While such means may not stop patrons from being irritated, shutting off discourse solely to protect others from hearing it is dependent upon a showing that substantially privacy interests are invaded in an essentially intolerable manner—an element not met here. Further, the regulation did not leave open ample alternative channels of communication—it was not enough that the appellants could solicit signatures at other locations; one’s right to speech in an appropriate place cannot be abridged on account of the fact it can be exercised elsewhere. Finally, the fact that the Postal Service allowed other forms of communication, like leafleting and talking about an issue, did not save the signature solicitation ban; exacting scrutiny is applied to an absolute prohibition on a particular type of expression.

Because the regulation was unconstitutional when applied to a public forum, it would be facially invalid if a substantial number of post office sidewalks constituted public forums (which depended on the type of sidewalk), a fact issue that was remanded. But the court pointed out another facial flaw—it appeared to bar pure solicitation, i.e., asking patrons to sign petitions, even if the signatures themselves are collected off postal premises. Such a prohibition would be unconstitutional even if all postal properties were nonpublic forums. The court concluded that a limiting construction of the regulation allowing for such pure solicitation would cure the problem, at least with respect to exterior postal properties that did not constitute public forums.

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Mpoy v. Rhee (2014)

From the moment he assumed his position as a special education teacher at a DC elementary school, Bruno Mpoy found himself facing considerable problems on the job. He claimed that his hired teaching assistants behaved unprofessionally, undermining his authority in the classroom. He also complained about the dirty condition of his classroom and the lack of textbooks. His complaints to the principal, Donald Presswood, fell on deaf ears. Worse still, as Mpoy would later allege, Presswood had instructed him to falsify his students’ assessments to make it appear as if they were performing at a higher level. As Mpoy continued to complain to the principal, Presswood issued him disciplinary warnings and finally suspended him, without explanation.

After his suspension, Mpoy followed through on an earlier warning to Presswood that if the principal would not listen to him, he would report his concerns directly to the DC Chancellor, Michelle Rhee. In a detailed email, Mpoy informed Rhee of the conditions he faced at the school. Presswood subsequently secured Mpoy’s termination. Mpoy brought suit alleging, among other things, that DC Public Schools had terminated him because of his email to Rhee. Most significantly, he claimed that his single-sentence allegation in the email about Presswood’s student data falsification constituted First Amendment-protected speech and that his termination therefore violated the Constitution.

Chief Judge Garland filed the opinion for the court, affirming the lower court’s holding that Mpoy’s statement about Presswood’s misconduct did not constitute protected speech under the First Amendment, and that even if it did, Chancellor Rhee and the principal were entitled to qualified immunity. Applying the Supreme Court’s First Amendment balancing test in Garcetti v. Ceballos, as restated through a 2009 DC Circuit opinion, Winder v. Erste, Judge Garland held that Mpoy had made a statement pursuant to his official duties and therefore wasn’t speaking as a citizen for First Amendment purposes. Therefore, the Constitution would not insulate his communications from employer discipline.

The email, Judge Garland decided, was unprotected by the First Amendment because it reported conduct that interfered with his job responsibilities. In his email, Mpoy identified himself by his employment position, and complained for five pages about the other conduct that interfered with his job responsibilities. Because of this context, Judge Garland was convinced that Mpoy wrote this sentence not as a concerned citizen, but in the context of his official duties. Judge Garland also agreed with the district court that the school officials were entitled to qualified immunity because their termination of Mpoy based on the email was reasonable, given First Amendment precedent on the issue.

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Saleh v. Titan Corp. (2009)

In Saleh, Garland was the sole vote in favor of allowing lawsuits to proceed against military contractors for their abuse of detainees at the notorious Abu Ghraib prison.

Plaintiffs, Iraqi nationals who were imprisoned at Abu Ghraib during the Iraq War, brought tort claims against two contractors they claimed abused them during their time in custody. The key question was whether their claims were federally preempted by the Foreign Tort Claims Act. The majority held that they were; relying on the Supreme Court’s decision in Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (extending to military contractors a “discretionary function exception” shield from tort liability ), the court found that imposing liability on the contractors would conflict with the federal policy embodied in the FTCA’s combatant activities exception. The federal policy of removing tort liability from the battlefield, where traditional rationales for tort law are out of place, applied with equal force to military personnel and contractors. Thus, “when a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.”

Garland dissented. Under his reading of Boyle, preemption of the state law should only occur when a federal contract imposes a directly conflicting duty on a contractor. Here, that condition was not met—the contractors’ alleged acts were unlawful and without military authorization. Garland vigorously disagreed with the majority’s extension ofBoyle from the discretionary function exception the Boyle court recognized to a “combatant activities” exception. He noted that Boyle required discrete conflict between federal and state duties to preempt, yet preemption under a combatant activities exception is “extraordinarily broad.” He was also concerned that the court’s decision would open the door to extending other exceptions to government contractors, such as the exception protecting the government from suit for assault and battery even within the U.S. And Garland pointed out the lack of support for the majority’s view in Supreme Court precedent or the law of other circuits.

Moreover, Garland said, if Congress had intended to extend the protection against battlefield tort liability to government contractors, it knew how to do so. There was no indication that Congress intended to bar state law actions, nor did the executive branch share such a view; where the justification for preemption is not fairly traceable to the foreign policy choices of the political branches, preemption is inappropriate. Finally, Garland rebutted the majority’s concern that military policy would be subjected to 51 state sovereigns—that was not applicable here, as nothing suggested the abuse at Abu Ghraib was part of any military policy.

However, Garland continued, even if Boyle was extended to the combatant activities exception, the scope of the displacement of state law must be carefully tailored to coincide with the bounds of the federal interest being protected. Given that “combatant activities” entails control by the military, Garland would have found that preemption may be warranted when a plaintiff challenges activity authorized or directed by the military; however, that was clearly not the case here.

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