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Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.


Jonathan Adler has a good takedown of the expanded standing analysis, in which Judge O'Connor continues to find injury from the existence of a law absent any risk that the law could be enforced against the plaintiffs. The court relies on the correct principle that a person need not violate a law to have standing, but ignores that those cases required the plaintiff to show at least a genuine threat that the law would be enforced against him and that some penalty would result. He insists that no case requires an assessment of whether the plaintiff is injured by "disregarding" the law. It is true that courts do not put it in those terms, but that is implicit in the requirement of a threat of enforcement, which is triggered by someone disregarding the law.

O'Connor relies on Steffel v. Thompson, in which standing derived from Steffel's stated intention to resume handbilling and the express threat of the police to arrest him for trespassing (as they had his friend) if he did so. He also relies on Clements v. Fashing, in which the plaintiffs (challenging a state law that deemed candidacy for one office as resignation of an existing office) did not announce their candidacy for office, because that announcement would be deemed a resignation. That is, the plaintiffs in both cases would be subject to some mechanism for enforcing the law and it was that enforcement mechanism that caused the injury. In no case did the court find injury based on a statutory obligation that provided for no means of enforcement and no consequences.

O'Connor also tried to get cute, noting that "Chief Justice Marshall never asked whether William Marbury would be injured if he ignored the law and began serving as a justice of the peace without an official commission from James Madison." But that is because Marshall recognized that had Marbury done so, court personnel would have ignored him, not given him a courtroom in which to work, not carried out his orders, and perhaps asked the the Marshals physically remove him from the premises. All of which reflects the enforcement of the challenged law.

Two additional thoughts on standing. First, in a prior post, Adler analogizes the mandate-with-no-penalty to 4 U.S.C. § 8, which provides that "no disrespect should be shown to the flag of the United States of America" and enumerates what civilians and civilian groups cannot do with the flag. Obviously, the law is unenforceable under Texas v. Johnson. But we never get there, because the U.S. Code provides no mechanism for enforcement and imposes no penalties for failing to follow those rules. No court would accord standing to a plaintiff who argues "I want to use the flag as a covering for a ceiling (prohibited by § 4(f)), but I am refraining from doing so because I do not want to break the law," because the plaintiff would suffer no enforcement and sanction for using the flag to cover the ceiling.

Second, standing was established in part because the ban, even if not enforced to keep these plaintiffs out of the United States, sent a message of religious exclusion and made them feel less than full members of the community because of their religion. Some critics of those decisions derided this as "snowflake standing"--the plaintiffs feel bad and are hurt in their delicate snowflake sensibilities. But that does not sound much different than what the plaintiffs are arguing here-they will feel bad (their delicate sensibilities undone) if they have to act contrary to what the written law, otherwise unenforceable, requires them to do.

Appellate Review

The point of these orders was to pave the way for immediate review of the declaratory judgment. All parties had asked for certification of interlocutory review under § 1292(b), but Judge O'Connor instead certified a final judgment on one-but-less-than-all claims. But on the Con Law listserv, Marty Lederman identified a problem--it is not clear that the court finally resolved even one claim. The plaintiffs asked for a declaration that the mandate is invalid and a permanent injunction prohibiting implementation or enforcement of ACA; the court granted the former, but never addressed or reached a conclusion as to the latter remedy. A judgment, even on one claim, may not be final if remedial issues remain on that count.

Another commenter on the listserv suggested two possible outs. One would be to deem the certification of finality as the denial of the injunction. A second would be to treat the improper Rule 54(b) certification as a § 1292(b) certification and proceed that way. Otherwise, the court would have to dismiss the appeal for lack of jurisdiction and send the case back to the district court to enter the injunction (thereby creating appellate jurisdiction under § 1292(a)(1)) or to certify under § 1292(b).

One question is why Judge O'Connor proceeded this way, since the parties all requested a § 1292(b) certification and not a 54(b) certification. One thought is that he did not want to certify that there could be "substantial ground for difference of opinion" as to constitutional validity or severability. O'Connor has gone to great rhetorical lengths in all of his opinions and orders to make this seem like an obvious, not-at-all-close case with one obvious result, in which defendants can prevail only by demanding that courts acts in an invalid, unlawful, illegitimate, impermissible activist way. Section 1292(b) would require Judge O'Connor to declare that it might be possible for a court, acting in a legitimate way, to reach a different conclusion. That he does not want to certify.

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink



Surly you are going to " love " that preliminary injunction ( Federal judge blocks New York City law requiring data disclosure by home-sharing sites )here:


Posted by: El roam | Jan 4, 2019 4:58:40 PM

Just correction to my comment :

Arbitrary act of the legislator,not of the government as written by me.


Posted by: El roam | Dec 31, 2018 7:28:46 PM

Thanks for that update indeed. Although it may seem, that the injury is not really particularized and concrete and deviates from previous guidance and rulings, it is not really so finally :

This is because, one may wonder, why there is a law, if violation of it, wouldn't bear any sanction. The natural perception of any citizen, is that the law must be obeyed, this is the the whole idea of one civilized society :

Fear from law, renders the society more civilized. So, it is natural expectation and perception. Once, the law is not enforceable ( since doesn't bear sanction according to both posts ) it is senseless and arbitrary. And :

That is what they claim ( the plaintiffs ) that it is an arbitrary act of the government. Such act naturally, hurts the public trust. And :

If it is indeed arbitrary, who knows, if it wouldn't be forced arbitrarily one day or later.

Furthermore :

Even if in the eyes of the law , or the lawmaker, it doesn't bear any sanction or penalty, maybe in the eyes of other persons, or institutions it does in different manners. One may think of one person, avoiding any medical coverage, and having problem with getting job, since the employer, may simply excuse it, or showing a pretext, that this particular candidate or applicant, has no medical coverage, and he has the right to dismiss him, since it is against the law simply.

Such showing, is clearly, particularized and concrete, no less than others.

Concerning the question of :

" why judge O'Connor proceeded this way, since the parties all requested a 1292(b) certification not 54(b) certification " it seems that Rule 54, provides in relevant part, I quote :

" only if the court expressly determines that there is no just reason for delay "

And he has asserted so ( the judge ) :

Plus, for the reasons discussed in the below stay analysis, the Court finds there is “no just reason for delay[ing]” appeal of the December 14, 2018 Order. See Pilgrim Enterprises, 170 F.3d at 539.

End of quotation :

Yet, it doesn't really explain why such alternative over the other ( interlocutory appeal ) but I shall check further later....maybe has to do with the uncertainty created by the invalidation of the personal coverage. Not so sure, I shall check further.


Posted by: El roam | Dec 31, 2018 6:58:38 PM

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