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Wednesday, April 27, 2016

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).

The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]

Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.

[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.

Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that  the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?

Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.

Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of  the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

But it makes perfect sense to treat A3 standing as distinct from prudential standing, because one can be abrogated by Congress and the other can't, which is a sensible line to draw.

Namely, if there's no injury in fact that's traceable to the challenged conduct and redressable by the requested relief, then there's no concrete case or controversy between this particular plaintiff and the defendant, and thus the plaintiff shouldn't be allowed to sue even if Congress purports to grant him a cause of action against the unlawful conduct.

By contrast, if there is an injury in fact that's traceable to the challenged conduct and redressable by the requested relief, but the challenged conduct doesn't violate the personal constitutional rights of this particular plaintiff, then there is a concrete case or controversy between this plaintiff and the defendant, and Congress should be allowed to decide whether to permit this plaintiff to seek redress by vindicating rights that are not personal to him.

To use CT's example: if Congress wanted to let anyone actually injured by an unlawful search policy to sue, even if they themselves weren't searched, that should be fine; but Congress shouldn't be allowed to let people who aren't injured at all to challenge that unlawful search policy, merely because they have an ideological axe to grind.

Posted by: Hash | Apr 27, 2016 6:52:05 PM

I think that another reason, besides injury-in-fact, that Heffernan has standing and the plaintiffs in Clapper or the hypothetical Fourth Amendment case don't, is traceability and redressability. Even if Heffernan asked for reinstatement, he'd get it if he won on the merits, as it appears the only reason Paterson had for firing him was the reason he says is unconstitutional. This isn't to say that all mistakes of this sort don't go to standing. Suppose Heffernan had burned some fabric in his office that looked like a flag, and was mistakenly fired for burning a flag in his office in violation of a flag-burning policy, even though setting fires in the office is a fireable offense generally. Or, he's fired both for setting fires and for burning a flag. There, a court could say that a decision holding the flag-burning policy unconstitutional wouldn't redress Heffernan's injury, or that, in the latter variation of the hypo, the injury isn't even traceable to the challenged policy. I can see why that sort of thing should be jurisdictional, as it goes to whether the court is deciding a real controversy or a theoretical dispute; I don't see why the question in Heffernan should be jurisdictional, since it seems to go solely to whether Paterson violated the First Amendment or not. Another problem I have with treating the Heffernan question as a standing question is that while in other cases there's a question of whether some plaintiff is the right plaintiff to challenge a policy, here there's no policy, per se - just a single firing and the motivation for it. It seems very odd to say that Heffernan is the wrong plaintiff to litigate the constitutionality of his firing.

Posted by: Asher Steinberg | Apr 27, 2016 3:27:00 PM

I'm more just pointing out that it makes no sense to treat them as distinct.

Posted by: Howard Wasserman | Apr 27, 2016 11:07:09 AM

Aren't you conflating Article III standing with prudential standing? The pltf here clearly suffered A3 injury in fact, which is fairly traceable and redressable. So the only arguable standing problem is prudential standing -- namely, the injury arguably isn't caused by a violation of his *own constitutional rights.* And, much like Lexmark, there's a good argument to be made that prudential standing is really just an aspect of cause of action / merits. (I believe lexmark dropped a footnote leaving that issue open.)

Posted by: Hash | Apr 27, 2016 10:57:57 AM

On the qualified immunity point: Doesn't the "clearly established" prong assume the perspective of the right-violator, including his mistakes of fact? (If memory serves, cases like Tolan v. Cotton don't speak to this due to the assumptions made given their procedural posture, but maybe that's wrong.) Anyway basically my thought is: If the "clearly established" issue boils down to whether a reasonable officer could have thought it constitutional to demote Heffernan, and if for purposes of that analysis we assume the facts as interpreted by Heffernan's boss, then that would explain why the "clearly established" prong has been a non-issue at least as to the case's central quirky question.

Posted by: anon | Apr 27, 2016 8:50:32 AM

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