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Category: Appellate

Fourth Circuit Pulls No Punches in en banc Ruling on Second Immigration Order

In writing for the majority in the Fourth Circuit’s May 25, 2017 en banc decision on the second Immigration Order, Chief Judge Roger L. Gregory pulled no punches.  The combined opinions of the Court in International Refugee Assistance Project v. Trump (No. 17-1351) span 206 pages, but in the opening paragraph of his majority opinion, the Chief Judge puts a dagger into the Administration’s arguments.  He writes:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex Parte Milligan, 71 U.S.  (4 Wall) 2. 120 (1866), remains “a law for rulers and people, equally in war and in peace.”  And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with the vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

There’s no ambiguity in these words.

This Blog Post is the EDVa Update’s seventh posting on the Immigration Orders.   We posted previously on EO-1 back on February 3, 7, and 14, and then on EO-2 on March 20 and 30, and again on April 21.

Thirteen of the Fourth Circuit’s fifteen judges participated in the en banc argument (two judges recused themselves—more on this below).  Chief Judge Gregory’s opinion is joined by six other judges from the court.  There are two concurring opinions (including substantially concurring votes with the majority), and three dissents.

The bottom-line result is that the Fourth Circuit affirmed the Maryland District Court’s nationwide preliminary injunction barring enforcement of Section 2(c) of Executive Order 13780, the second Immigration Order signed by President Trump.   The decision was probably expected, but the vitriolic tenor of the majority opinion is still a surprise.

The same Executive Order is the subject of an injunction entered by a Hawaii federal judge.  That ruling is also on appeal, and a three-judge panel from the Ninth Circuit heard oral argument on May 15, 2017.  That panel is not yet ruled.

On June 1, 2017, the Administration filed in the U.S. Supreme Court its Petition for a Writ of Certiorari and for an emergency stay of the decision.  A stay requires the affirmative votes of five Justices.

Isolation of the Judicial Review Issue

The issue at the core of the Immigration Order battle is whether in the immigration context the federal courts should look behind the facial justifications given for the Executive Order.  The campaign statements of candidate Trump allegedly evidenced an anti-Muslim animus, and post-inauguration statements by the President and his advisors were alleged to confirm this animus.  But it was generally conceded that the obvious flaws in EO-1 were corrected and that EO-2 was facially neutral.

In the briefing and at the oral argument, the Administration aggressively defended the second Immigration Order as facially legitimate, and argued that for this reason the Court should look no further.  The Plaintiffs alleged that the Order’s stated purpose was given in bad faith, and therefore, the federal courts must consider whether the Plaintiffs made the requisite showing of bad faith.

Fourth Circuit’s Majority Analysis

The Fourth Circuit moved to the core issue finding “that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose.”

The Court then delivered its key finding: “Plaintiffs have made a substantial and affirmative showing that the government’s national security purpose was proffered in bad faith, we [therefore] find it appropriate to apply our long-standing Establishment Clause doctrine.”    Chief Judge Gregory concluded that “the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.”  The opinion discusses the now familiar evidence from the litigation on both the first Immigration Order and the second Immigration Order.   “[T]he Government’s argument that EO-2’s primary purpose is related to national security . . . is belied by evidence in the record that President Trump issued the first Executive Order without consulting the relevant agencies, . . . and that those agencies only offered a national security rationale after EO-1 was enjoined.´  This leads to the circuit court’s conclusion, “[L]ike the district court, we think the strong evidence that the national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a ‘litigating position’ than is the actual purpose of EO-2.”

The Chief Judge then again applied the dagger:

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the in the name of the Constitution’s separation of powers.  We declined to do so not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.  The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

Judge Keenan offered a concurring opinion, which Judge Thacker joined.  Judge Wynn added his own concurring opinion.

The Three Dissents

Judges Niemeyer, Shedd, and Agree wrote dissenting opinions.

In his dissent, Judge Niemeyer accepted the Administration’s argument that in the immigration context the federal courts should not look beyond the given facially legitimate and bona fide reasons for the Immigration Order.  He concludes, “considering the Order on its face, as we are required to do . . . it is entirely without constitutional fault that the Order was a valid exercise of the President’s authority . . . “Judge Niemeyer would draw the line as barring any further court review.  But after this defense was breached, he is deeply troubled by the majority’s willingness to rely on statements made by candidate Trump during the presidential campaign.

The second dissent, by Judge Schedd, joins with Judge Niemeyer, but adds a practical public interest analysis.  He concludes that “the district court’s public interest analysis misses the mark.”  When weighing the public’s interest, as courts are required to do when considering preliminary injunctions, the national security interests of the nation seem to have been swept under the rug.  Judge Shedd would deny a preliminary injunction on the ground that a balancing of interests favors enforcement of the Order.

Judge Agee joins with the other dissenters, but states as a separate basis for his dissent the questionable standing of the remaining Plaintiffs.  Obviously, if the remaining Plaintiffs have no standing, the Court could end the case.

Judge Wilkinson’s Recusal

Judge J. Harvey Wilkinson recused himself because his son-in-law is the acting Solicitor General who argued the case for the Administration.  While the recusal was legally appropriate, Judge Wilkinson’s absence deprives the decision of the analysis from one of the Fourth Circuit’s thought leaders.  His vote would not have changed the result, but if Judge Wilkinson had participated and had joined the majority, or had provided a concurring opinion, then the Administration might be very hesitant to push this case to the Supreme Court.  On the other hand, a strong dissent from Judge Wilkinson would have added gravitas to the Administration’s arguments.

Summary

The Fourth Circuit’s en banc decision in International Refugee Assistance Project v. Trump does not come as a surprise, based upon the oral argument.  The circuit court perhaps could have decided for the Administration by adopting Judge Trenga’s analysis (see EDVa Update March 30, 2017 Post, EDVa Back in the Immigration Fray: Judge Trenga Provides Qualified Win for President Trump’s New Immigration Order), but it went decidedly the other way in its 10-3 decision.  The surprise is the vitriolic tenor of the majority opinion.   The en banc argument was civil, as is always so in the Fourth Circuit.  But the opinions evidence deep-seated and intense views on the role of the federal courts and on the veracity of the Trump Administration, and certainly the Chief Judge pulled no punches when he wrote for the majority.

The late-breaking news is that the Administration has filed its Petition for Certiorari with the U.S. Supreme Court.  An early vote on the request for a stay (which can come this month before the summer recess) would signal the Court’s leaning on the issues.

Supreme Court of Virginia Addresses the Reach of Conspirator Liability under the Virginia Business Conspiracy Act

The Supreme Court of Virginia recently addressed conspirator civil liability under the Virginia Business Conspiracy Act, Va. Code §§ 18.2-499 and -500.  Borrowing from Illinois law, the Court recited that “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”   While the case does not really change the substance of Virginia law, the opinion in Gelber v. Glock offers language that will likely appear in every future Virginia brief on conspirator liability and in the conspiracy jury instructions.

Tucked into the back of a 39-page opinion dealing with a family feud over an estate, the Supreme Court provides its tutorial on conspirator liability.   Admittedly, this is not federal law, but VBCA claims often appear in E.D. Va. litigation when state claims are before the federal court under diversity jurisdiction or pendent jurisdiction.

The Family Feud Case

The case is Gelber v. Glock, Record No. 160500 (June 22, 2017), a decision from an appeal heard during the Supreme Court of Virginia’s February 2017 Session.  The facts are those of the classic family feud.  In an early will, Mrs. Gelber left her estate to be divided among her five children.  Subsequent estate documents seemingly altered this directive—Mrs. Gelber’s real and personal property was to go to just one of her daughters.  The Executors sued on multiple theories, including a claim that the lucky daughter was part of a civil conspiracy with one of her sisters and a brother-in-law.

The Circuit Court for Henrico County granted a Motion to Strike the conspiracy claim.   The Supreme Court found no error in this circuit court ruling.  Given this straightforward appellate finding, the Supreme Court perhaps likely could have addressed the conspiracy Assignment of Error in a single paragraph.  But the Justices chose to give us a powerful tutorial on conspirator liability under the VBCA.  The tutorial is perhaps dicta, but it is nonetheless part of the Supreme Court opinion.

The Language of the Virginia Business Conspiracy Act

The VBCA is a two-part statute found in Title 18 of the Virginia Code, the criminal law title.  Va. Code § 18.2-499 identifies the elements of the criminal conspiracy. The next section, Va. Code § 18.2-500, provides for civil remedies for conspiracy violations.  Subpart A of the section reads:

Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff’s counsel, and without limiting the generality of the term, “damages” shall include loss of profits.

The Reach and Purpose of Civil Conspiracy Liability

The real punch from the Gelber decision is the confirmation of conspirator liability beyond the primary tortfeasor.  The decision explains, “the object of a civil conspiracy claim is to spread liability to persons other than the primary tortfeasor.”  Gelber at 37.  The Court expands its discussion in footnote 21.  Quoting from Beck v. Prupis, 162 F. 3rd 1090, 1099 n. 18 (11th Cir. 1998), aff’d, 529 U.S. 494 (2000), the Gelber Court adds that “[i]n a civil context … the purpose of the conspiracy claim is to impute liability– to make X jointly liable with D for what D did to P.”   This is language is straight from Prosser and Keeton on Torts § 46 (5th Ed. 1984).

The Gelber opinion continues, in the same footnote 21, “[t]hus, a civil conspiracy plaintiff must prove that someone in the conspiracy committed a tortious act that proximately caused his injury; the plaintiff can then hold other members of the conspiracy liable for that injury.”  In support of this statement, the Supreme Court cites authority not only from the 11th Circuit, but also from the 8th Circuit, and from the Utah federal court and the Illinois Supreme Court.

The cited Eighth Circuit decision, Simpson v. Weeks, 570 F.2d 240, 242-43 (8th Cir. 1978), provides a clever analogy, “[t]he charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.”   The Utah federal court decision, Boisjoly v. Morton Thiokol, Inc., 707 F. Supp. 795, 803 (D. Utah 1988), explains that “[c]ivil conspiracy is essentially a tool allowing a plaintiff injured by the tort of one party to join and recover from a third party who conspired with the tortfeasor to bring about the tortious act.”

Finally, Gelber confirms that conspiracy liability is the same for low-level players as it is for conspiracy kingpins.  The cited Supreme Court of Illinois decision, Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill. 1994), offers, “[t]he function of the conspiracy claim is to extend liability in tort beyond the active wrongdoers to those who have merely planned, assisted or encouraged the wrongdoer’s acts.”

Summary: Gelber and VBCA Conspirator Liability

The Supreme Court of Virginia ranges far and wide for its authority on conspirator civil liability perhaps because a clear statement of civil liability tied to a conspiracy claim was previously missing from the Virginia case law.  For instance, plaintiffs looking for authority for conspirator civil liability have frequently cited Carter v. Commonwealth, 232 Va. 122 (1986), a criminal case about vicarious liability for the use on a firearm in a felony.  This is not to say that Virginia law was any different before Gelber, but that it was challenging to find on-target Virginia citations supporting conspirator civil liability.

Expect that the Gelber language will be prominent in trial briefs and jury instructions for future VBCA claims in the state courts and in the federal courts.

SCOTUS Vacates 4th Circuit Decision on Trump Immigration Order

Readers of the EDVA Update have followed our coverage of the challenges to President Trump’s multiple immigration Executive Orders, including challenges starting in both the Eastern District of Virginia and the District of Maryland.  While President  Trump received an initial loss and then a qualified win in the Eastern District, he did not fare so well in Maryland, leading to the Fourth Circuit case of International Refugee Assistance Project v. Trump.  In an en banc decision, the Fourth Circuit pulled no punches, handing a sharp loss to the President in a controversial decision.  The U.S. Supreme Court, however, has recently vacated the Fourth Circuit’s decision, effectively dismissing the case on mootness grounds.  As a legal matter, this wipes out the Fourth Circuit’s and lower court decisions in the case.

The Supreme Court acted after calling for letter briefs from both the Government and the ACLU on whether the case still presented a live controversy after President Trump issued a new Executive Order on September 24th superseding the previously-challenged order.  On October 10th, the Court sided with the Government and vacated the Fourth Circuit’s decision via an anti-climatic, short paragraph:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780. Because that provision of the Order expired by its own terms on September 24, 2017, the appeal no longer presents a live case or controversy. Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. We express no view on the merits. Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This ends the current litigation originating from the Fourth Circuit.  Yet, a new suit challenging the September 24th Executive Order was filed in the District of Maryland on behalf of the Council on American-Islamic Relations and six other plaintiffs.  It remains to be seen how far this case advances in the Fourth Circuit.

While the Supreme Court has halted the case coming out of the Fourth Circuit, it did not end a similar challenge originating out of Hawaii.  Trump v. Hawaii remains alive at the Court, likely because this case challenged an aspect of the original Executive Order that was not raised in the Fourth Circuit litigation, namely a 120-day suspension of admission of refugees into the United States that is still in effect.  That particular suspension, however, is scheduled to end on October 24th, which will likely render Trump v. Hawaii moot as well.  Apparently anticipating this, the Supreme Court has removed Trump v. Hawaii from its argument calendar.

The Hawaii Plaintiffs, though, are not going quietly.  In response, they sought leave from the district court to file an Amended Complaint challenging the September 24th Executive Order in the existing case.  While this tactic may permit the current litigation to survive, it is likely to cause the Supreme Court to either vacate the Ninth Circuit decision in the case, or to dismiss the writ of cert as improvidently granted (“DIG-ing” the case, in SCOTUS parlance).  Doing so will allow the case to survive for now, but the litigants will likely be forced to start afresh in the district court.