CONFIRMED JUDGES, CONFIRMED FEARS

January – August 2004 Update

A Further Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans

People For the American Way Foundation

October 7, 2004

Ralph G. Neas President

2000 M Street, NW ♦ Suite 400 ♦ Washington, DC 20036 Telephone 202.467.4999 ♦ Fax 202.293.2672 ♦ E-mail [email protected] ♦ Web site http://www.pfaw.org

CONFIRMED JUDGES, CONFIRMED FEARS

JANUARY - AUGUST 2004 UPDATE

A Further Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans

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In January 2004, we published Confirmed Judges, Confirmed Fears: A Preliminary Look at How Appellate Judges Nominated by President Bush Are Already Threatening the Rights of Ordinary Americans.i The report examined whether President George W. Bush has made good on his repeated claims that in selecting nominees for the federal courts, he is looking for judges who will interpret the law, not make it. Our review was conducted against the backdrop of significant opposition from Senators and others to a number of the President’s nominees, who, opponents contended, have a record of trying to re-make the law to undermine civil and consumer rights, constitutional liberties, environmental protections, and the authority of Congress to protect these and other rights. Pursuant to its constitutional responsibility, the Senate has declined to consent to some Administration nominees because of such concerns, although it has confirmed the overwhelming majority.

Our preliminary review last January of the record of the most important of President Bush’s confirmed judges -- those who sit on the federal courts of appeal –- indicated that the President has fallen far short in keeping his promise. As we discovered, in many key cases with divided rulings in the significant areas of concern raised about Administration nominees, appellate judges nominated by President Bush had already written or joined opinions seeking to significantly limit congressional authority and protection of individual rights.

This update to our review includes cases decided between January 1, 2004 through August 31, 2004.ii The review includes all cases decided by split decisions, regardless of the position taken by Bush nominees. This review revealed, however, that the same disturbing trends that appeared in our preliminary review have continued. In cases decided during the first eight months of 2004, appellate judges nominated by President Bush have written or joined almost 50 opinions seeking to limit congressional authority and protection of constitutional, environmental, consumer, and individual rights.

Again, this is particularly true of Bush-nominated judges who received significant opposition and concern, including , , John Roberts, , Charles Pickering, and William Pryor. These judges have issued a number of opinions, primarily in dissent, that sought to:

• deny the right of American POWs tortured during the Gulf War to sue Iraq

• strike down a city’s “living wage” ordinance

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• uphold the constitutionality of a state’s discriminatory anti-abortion license plate

• strike down as unconstitutional the application of an important provision of the Endangered Species Act

• explicitly overturn court precedent protecting constitutional rights by preventing important controversies from being held moot

• refuse to rehear a ruling upholding a law forbidding gay men and lesbians, even those who have served as foster parents, from adopting children

• make it harder for victims of discrimination in employment to obtain punitive damages under Title VII

In addition, in the eight months covered by this report, appellate judges nominated by President Bush, controversial and non-controversial, have in a number of cases prevented, or through dissents sought to prevent, individual Americans from having their day in court and presenting their claims to a jury.

One way in which Bush judges have sought to deny litigants access to justice is through summary judgment, a procedure that allows a judge to rule on a case as a matter of law only when there is no genuine dispute of material fact. In a number of these cases, Bush judges have been specifically criticized by their colleagues for improperly applying the summary judgment standard and denying plaintiffs their day in court despite the existence of important evidence supporting their claims. Appellate court judges nominated by President Bush have written or joined opinions that, through summary judgment, dismissal of claims, and similar procedures, have sought to:

• deny a fired 61-year-old worker the opportunity to present his claim of age discrimination, even though there was evidence that the company president had directed that he be fired because of his age

• deny the right of a polio victim to bring a claim for wrongful denial of health insurance benefits

• deny a female professor the opportunity to present her claim of unequal pay due to sex discrimination, despite supporting evidence

• deny a fired 53-year-old worker the opportunity to present his claim of age discrimination, despite evidence that the company had systematically removed employees in their fifties in order to replace them with much younger workers

Bush-nominated appellate judges have also written or joined other troubling opinions that have sought to:

• deny the right of citizens harmed by corrupt police officers to sue police supervisors who likely knew about but failed to investigate the corruption

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• make it harder to bring claims of race discrimination in lending

• uphold a county sheriff’s practice of broadcasting live video of pre-trial detainees housed in the county jail on the Internet

• make it harder for workers to bring claims of unlawful retaliation in employment under Title VII

• deny protection to workers who had been fired in violation of federal law

• give immunity to a municipality for the rape of a mentally retarded girl by its sheriff

• make it harder for victims of sexual harassment in the workplace to sue their employer

• adopt Attorney General Ashcroft’s “individual rights” theory of the Second Amendment

• deny protections to the disabled under the Americans with Disabilities Act

This update to Confirmed Judges, Confirmed Fears, like our original report, underscores the importance of careful Senate scrutiny of the Bush Administration’s judicial nominees.

D.C. CIRCUIT DECISIONS

John Roberts, D.C. Circuit

• Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004): right of tortured American POWs to sue Iraq under terrorism exception to the Foreign Sovereign Immunities Act

Seventeen American soldiers who had been held as prisoners of war and tortured by Iraq during the Gulf War brought suit under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein. This statutory exception to the immunity of foreign states from suit for money damages applies to claims for such damages for personal injury or death caused by torture or other acts of terrorism.

The district court entered a default judgment against the defendants after they failed to appear and awarded compensatory and punitive damages to the plaintiffs totaling more than $959 million. The United States moved to intervene to contest the district court’s subject matter jurisdiction, arguing that the Emergency Wartime Supplemental Appropriations Act (EWSAA) “made the terrorism exception of the FSIA inapplicable to Iraq and thereby stripped the District Court of its jurisdiction” over the suit. 370 F.3d at 43. The district court denied the motion as untimely and the United States appealed.

All three members of the D.C. Circuit panel agreed that the district court had erred in denying the motion to intervene. On the merits of the jurisdictional question, however, Judges Harry Edwards and David Tatel rejected the government’s argument and held that the district court did have jurisdiction over the case.iii In an opinion concurring in the judgment, Judge Roberts

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disagreed, and would have adopted the position of the government that the EWSAA “deprived the courts of jurisdiction over suits against Iraq” for damages resulting from torture and other terrorist acts. Id. at 65. The result would have been to deprive Americans tortured in Iraq of any possible relief in federal court.

Although the majority considered the jurisdictional issue “an exceedingly close question,” id. at 51, it concluded that there is nothing in the language of the EWSAA or in its legislative history “to suggest that Congress intended by this statute to alter the jurisdiction of the federal courts under the FSIA.” Id. at 57. In addition, the majority noted that the position of the government and Judge Roberts would lead to the “perplexing result” of restoring Iraq’s immunity “even for acts that occurred while Iraq was still considered a sponsor of terrorism.” Id. at 56. The majority explained that “[t]his perplexing result appears even more bizarre when the sunset provisions” of the relevant portion of the EWSAA are taken into account. Id. According to the majority, if the government were correct in its interpretation of the ESWAA, the federal courts would be deprived of jurisdiction only during the period from May 7, 2003 (the date of a Presidential Determination carrying out the authority of the EWSAA) until September 30, 2004 “over a suit against Iraq based on events that occurred while Iraq was designated as a state sponsor of terrorism.” Id. at 55. The majority found “little sense” in such an interpretation of the EWSAA. Id. at 57.

• Barbour v. Washington Metropolitan Area Transit Authority (WMATA), 374 F.3d 1161 (D.C. Cir. 2004): power of Congress to require states accepting federal transportation funds to waive Eleventh Amendment immunity from disability discrimination lawsuits

In this 2-1 decision, Judge Roberts joined Judge Merrick Garland in holding that Congress has the authority under the Spending Clause of the Constitution to condition states’ receipt of federal transportation funds on the waiver of their sovereign immunity from suit in federal court under § 504 of the Rehabilitation Act. The majority also held that WMATA had in fact waived its Eleventh Amendment immunity by accepting federal financial assistance. The court’s ruling allowed the plaintiff to proceed with his lawsuit against WMATA in which he alleged that WMATA had fired him because he suffers from a mental disability, in violation of the Rehabilitation Act.

Judge Sentelle dissented, and would have held that Congress lacked the power under either the Spending Clause or Section 5 of the Fourteenth Amendment to condition the receipt of federal transportation funds on a waiver of Eleventh Amendment immunity from federal lawsuits under the Rehabilitation Act.

• United States ex rel. Totten v. Bombardier Corp., 2004 U.S. App. LEXIS 18231 (D.C. Cir. 2004): limiting claims under the False Claims Act

Edward Totten, a former Amtrak employee, brought this action under the False Claims Act, charging that two private companies had delivered defective rail cars to Amtrak and had submitted invoices to Amtrak for payment for them from an account that included federal funds. The district court dismissed the case, holding that, under the False Claims Act, the false claims must have been presented to an officer or employee of the United States government, and that, since Amtrak is not the government, the Act did not apply.

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Totten appealed, and in a 2-1 ruling in which Judge Roberts wrote the majority opinion, the D.C. Circuit affirmed. Judge Roberts stated that the plain language of the statute required the claims to “be presented to an officer or employee of the Government before liability can attach,” and that it was not sufficient for the claim to be paid by a federal grantee using money provided by the government to pay the claim where the grantee was not a department or agency of the government. 2004 U.S. App. LEXIS 18231 at *2, *6.

Judge Merrick Garland dissented, stating that “[u]nder the court’s interpretation, the government cannot recover against a contractor that obtains money by presenting a false claim to a federal grantee,” and that the “court’s ruling immunizes [from False Claim Act liability] those who defraud” a government-funded corporation that receives billions of dollars in federal funds, merely because the grantee does not re-present the claims to the government. Id. at *41. Judge Garland criticized the majority’s interpretation of the Act as “inconsistent with its plain text” as well as “not just inconsistent, but irreconcilable. with the legislative history” of the 1986 amendments to the Act. Id. at *42.

Judge Garland further noted that the government, arguing as an amicus curiae on behalf of Totten, had warned that the interpretation of the Act adopted by the majority “leaves ‘vast sums of federal monies’ without False Claims Act protection.’” Id. at *41 (citation omitted). According to the government, this interpretation will “‘significantly restrict[] the reach of the False Claims Act in a manner that Congress did not intend, withdrawing False Claims Act protection with respect to a broad swath of false claims inflicting injury on the federal fisc.’” Id. at * 81-82.

FIRST CIRCUIT DECISIONS

Jeffery Howard, First Circuit

• Metts v. Murphy, 363 F.3d 8 (1st Cir. 2004)(en banc): challenge to Rhode Island redistricting plan

Judge Howard joined the majority in this en banc ruling, which allowed African American plaintiffs to proceed with their challenge to a redistricting plan adopted by the Rhode Island legislature in 2002. The plaintiffs had filed suit in district court, contending that the plan changed the proportionate sizes of the African American population and Latino population within a certain single-member state Senate District in such a way that the African American population’s vote was diluted in violation of Section 2 of the Voting Rights Act. The district court dismissed the complaint, and a divided three judge panel of the court of appeals reversed and remanded for further proceedings.

The defendants successfully petitioned for rehearing en banc, and, on rehearing, the court of appeals vacated the district court’s judgment and remanded for further proceedings, giving the plaintiffs the opportunity to pursue their claims. Judge Howard joined the majority in holding that it was premature for the district court to dismiss the complaint based only on the pleadings without allowing the plaintiffs to develop any evidence. Judges Selya and Torruella dissented, claiming that factual development was not necessary, because “[g]iven the small size of the identified minority group in this case and the magnitude of the crossover voting on which it must rely, the claim necessarily fails.” 363 F.3d at 13.

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SECOND CIRCUIT DECISIONS

Barrington Parker, Second Circuit

• Wilson v. Nomura Securities International, Inc., 361 F.3d 86 (2d Cir. 2004): interpretation of offer of judgment in race discrimination case

Judge Parker joined Judge Winter in ruling against the plaintiff in a race discrimination in employment case that had been settled by the plaintiff’s acceptance of the defendants’ offer of judgment. The plaintiff had brought claims under federal law (Title VII) as well as under the New York City Human Rights Law. The defendants’ Offer of Judgment provided the plaintiff with $15,000 “inclusive of all costs available under all local, state or federal statutes accrued to date.” 361 F.3d at 88. After accepting the offer, the plaintiff moved for an award of attorney’s fees.

The district court held that, since Title VII defines “costs” as including attorney’s fees, the plaintiff was not entitled to an award of fees under that statute. However, the court did award attorney’s fees to the plaintiff under the New York City law, which does not define costs as including such fees. In a 2-1 ruling, the Second Circuit reversed the award of fees, holding that the legal work on the plaintiff’s municipal claim was “essentially indivisible” from the work on the federal claim, and therefore the “acceptance of the [o]ffer settled all of [the plaintiff’s] rights to attorney’s fees.” 361 F.3d at 88.

Judge Newman dissented, and would have held that the parties were bound to the precise terms of the offer, which “did not say ‘inclusive of costs and attorney’s fees,’ as most careful lawyers would have said if they wanted the settlement to preclude a claim for attorney’s fees.” Id. at 91. Judge Newman stated that the majority’s opinion “imports into the word ‘costs’ a meaning that it does not have under applicable municipal law and unjustifiably rewards the Defendants for their counsel’s inattention to careful drafting.” Id. at 91-92.

Reena Raggi, Second Circuit

• Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004): damages for loss of liberty resulting from unlawful detention

Judge Raggi dissented from the majority’s 2-1 ruling in favor of plaintiff Robert Kerman, who had brought claims under 42 U.S.C. § 1983 against New York City and several police officers charging that his Fourth Amendment rights had been violated by his involuntary detention and hospitalization. Kerman, who had a history of depression, had called his girlfriend and “stated that he might purchase a gun to commit suicide and might kill his treating psychiatrist.” 374 F.3d at 97. Kerman’s girlfriend called 911, and the police were sent to Kerman’s apartment. Kerman, who had just taken a shower, partially opened the door while wrapped in a towel and the police burst through. Kerman was knocked to the floor by the door and his towel came off. The police handcuffed Kerman, still naked, and searched his apartment for a gun but did not find one. Half an hour later, paramedics arrived, and the police officer in charge instructed that Kerman –- who had remained handcuffed and naked this entire time -- be placed in a “restraint bag” and taken to Bellevue Hospital, where he was held overnight for observation.

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Kerman sued for damages for the deprivation of his liberty and other harm. The jury found that Kerman was entitled to nominal damages for his Fourth Amendment and false imprisonment claims against the officer in charge, because the officer had “failed to prove that probable cause existed to keep Kerman in custody and cause him to be taken to the hospital.” Id. at 106. The judge refused, however, to instruct the jury that it could award compensatory damages for Kerman’s loss of liberty. The jury found that Kerman had not proven that he had suffered injuries resulting from the detention and involuntary hospitalization, and therefore concluded, based on the jury instructions, that he should not be awarded compensatory or punitive damages. The district court entered judgment dismissing all of Kerman’s claims.

On appeal, Kerman argued that he should have been given a new trial with respect to compensatory damages for his loss of liberty. In a 2-1 ruling, the Second Circuit agreed. The court explained that “where the jury has found a constitutional violation and there is no genuine dispute that the violation resulted in some injury to the plaintiff, the plaintiff is entitled to an award of compensatory damages as a matter of law.” Id. at 124. The court held that it was a fundamental error for the district court to have failed to instruct the jury “that it could consider awarding compensatory damages for an injury that was inherent in a confinement found to be unlawful.” Id. at 132. The court remanded the case for a new trial “on the issue of the amount of compensatory damages to be awarded to Kerman for loss of liberty.” Id. at 133.

Judge Raggi dissented, and would have held that because the jury had been instructed that it could award damages for any “emotional mental anguish” suffered by Kerman because of his false imprisonment, the jury had “considerable latitude in making a compensatory award.” Id. at 134. According to Judge Raggi, “[a] loss of liberty, by itself, does not warrant a compensatory damages award any more than any other constitutional violation.” Id. at 135. The majority expressly disagreed with what they called Judge Raggi’s suggestion “that there can be no compensatory damages for a loss of liberty unless that injury is reflected in emotional or economic harm . . ..” Id. at 129.

Richard Wesley, Second Circuit

• Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83 (2d. Cir. 2004): right of individual employed in both military and civilian capacities to bring Title VII racial harassment claim

Judge Wesley joined Judge Robert Sack’s majority opinion in this Title VII case upholding the district court’s grant of summary judgment against an African American plaintiff who had been employed by the military in both a military and civilian capacity. The plaintiff, William Overton, was a Guard Technician who was employed by both the New York Air National Guard, in a military capacity, and by the United States Department of the Air Force, in a civilian capacity. Overton contended that, during the course of his civilian employment, his civilian co-worker and later supervisor, who was also his military superior, had created a hostile work environment “by making racially offensive remarks and threatening Overton in a racially offensive manner.” 373 F.3d at 87. Overton explained that the conduct included such egregious statements as “‘Niggers belong on the basketball court rather than working on C5 aircraft.’” Id. Overton also maintained that he had been transferred in retaliation for filing discrimination complaints.

At issue in the case was whether Overton’s Title VII claims were barred by the so-called “Feres doctrine,” which prohibits suits against the military for injuries that “‘arise out of or are in

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the course of activity incident to [the plaintiff’s military] service.’” Id. at 88-89 (citation omitted). As the Second Circuit recognized, however, Title VII “creates a limited exception to the Feres doctrine that allows some lawsuits to be brought pursuant to the provisions of Title VII if the plaintiff is a civilian employee of the military.” Id. at 89. Although Judges Wesley and Sack acknowledged that the racially discriminatory conduct about which Overton had complained took place when he was working as a civilian, they nonetheless held that Overton’s Title VII suit was barred under the Feres doctrine because the “suit, if permitted to proceed, would likely affect [Overton’s] military relationship with” his supervisor. Id. at 96.

Judge Rosemary Pooler wrote a separate opinion concurring only in the judgment in which she harshly criticized the majority opinion, stating that it reflected a “fundamental misunderstanding” of Second Circuit precedent and “undermines what little civil rights protections were previously afforded civilian technicians employed in a dual capacity with the military.” Id, at 97. Judge Pooler accused the majority of improperly focusing on the nature of Overton’s employment relationship, rather than on the alleged discriminatory conduct, and specifically criticized such an “undisciplined expansion of the Feres doctrine.” Id. at 100. Because Judge Pooler found that some conduct about which Overton had complained related to military personnel decisions, and other conduct, though not “integrally related to any military function,” was not egregious enough to constitute a Title VII violation, she concurred that the defendants’ motion for summary judgment should have been granted. Id., at 98-100.

Judges Parker, Raggi and Wesley

• Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2004): constitutionality of ordinance imposing curfew on juveniles

Judges Raggi and Wesley were two of five judges who dissented from the Second Circuit’s denial of a petition for rehearing en banc filed by the Town of Vernon after a three-judge panel struck down a town ordinance imposing an 11 p.m. weekday and 12 midnight weekend curfew on juveniles. 353 F.3d 171 (2d Cir. 2003). (Judge Parker was in the majority.) A mother and her two teenage sons brought the litigation challenging the constitutionality of the ordinance. In a 2-1 ruling, the panel held that the curfew unconstitutionally interfered with “juveniles’ freedom of movement, that is, their right with parental consent to walk the streets, move about at will, meet in public with friends, and leave their houses when they please.” 353 F.3d at 172. According to the panel majority, “[t]his right to free movement is a vital component of life in an open society, both for juveniles and adults.” Id.

FOURTH CIRCUIT DECISIONS

Dennis Shedd, Fourth Circuit

• Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, 373 F.3d 589 (2004): distribution of sectarian group’s flyers to public elementary school students

Judge Shedd cast the deciding vote in this case in favor of the Child Evangelism Fellowship (“CEF”), a self-described “Bible-centered, worldwide organization composed of born- again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus

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Christ and to establish (disciple) them in the local church for Christian living.” 373 F.3d at 591-92. CEF had filed suit in an effort to require the Montgomery County, Maryland, Public School District to distribute CEF’s flyers for its “Good News Club” meetings to students along with other flyers from certain “governmental and non-profit organizations” that the district gave to students to take home to their parents. The school district, concerned about not violating the separation of church and state, had refused to distribute CEF’s flyers, and CEF sued, contending that the district had violated its rights under the First and 14th Amendments.

The district court denied CEF’s motion for a preliminary injunction, concluding that giving CEF access to the “take-home flyer forum” could violate the Establishment Clause. On appeal, the Fourth Circuit panel reversed in a 2-1 ruling written by Judge , joined by Judge Shedd, and held that CEF was entitled to preliminary relief on its Free Speech claims.

The majority rejected the school district’s argument that allowing CEF access to the “take- home flyer forum” would violate the Establishment Clause. According to the majority, “simply issuing a communication involving a religious organization during school hours does not render the communication state speech, nor does it invariably create a perception of endorsement or coercion by government officials.” Id. at 596. “[R]equiring students to carry home, among other items, a flyer containing an invitation to participate in a religious activity – an invitation that cannot be accepted absent parental consent – does not coerce religious activity in violation of the Establishment Clause.” Id. at 601.

Judge M. Blane Michael dissented, and would have held that the school district’s interest in avoiding an Establishment Clause violation was “sufficiently compelling” to justify denying CEF access to the forum. Id. at 602. According to Judge Michael, giving CEF access to the flyer forum would “impermissibly coerce [the district’s] students both to participate in and to support CEF’s mission” to evangelize young children. Id. at 603. Judge Michael took the majority to task for being “too quick to conclude that ‘controlling precedent . . . strongly indicates that permitting CEF access to [the flyer] forum does not run afoul of the Establishment Clause.’” Id. at 607. According to Michael, “I see nothing in the First Amendment, the Supreme Court case, or our own circuit cases that compels or suggest the result reached by the majority today.” Id.iv

Judges Shedd and Alyson K. Duncan, Fourth Circuitv

• Planned Parenthood of South Carolina, Inc. v. Rose: 373 F.3d 580 (2004): constitutionality of South Carolina’s anti-abortion license plate

This litigation was brought by Planned Parenthood of South Carolina, which challenged as impermissible viewpoint discrimination a South Carolina statute that authorized the issuance of “Choose Life” specialty license plates when comparable plates with a pro-choice message were not available. The district court declared the statute unconstitutional, and a three-judge panel of the Fourth Circuit affirmed. 361 F.3d 786 (4th Cir. 2004). The state’s petition for rehearing en banc was denied by the full court, 8-5, with Judge Alyson K. Duncan voting in the majority (along with, inter alia, Judges J. Michael Luttig, J. Harvie Wilkinson, and ). Judge Shedd wrote a dissenting opinion, joined only by Judge Karen J. Williams.

In his dissent, Judge Shedd contended that the panel’s decision had “unduly restrict[ed] the ability of elected officials to express the views of their constituents on any issue, however controversial.” 373 F.3d at 582 (emphasis omitted). According to Judge Shedd, the State should

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be deemed the “literal speaker of the ‘Choose Life’ message,” and therefore there was no First Amendment violation. Id. at 587. While Shedd conceded that “there can be no doubt that the primary purpose of the ‘Choose Life’ statute is to express the General Assembly’s current position on the abortion issue,” id. at 585, he argued that the only proper avenue for South Carolinians offended by the license plate was to vote against legislators who had passed the law.

Even conservative Fourth Circuit judges recognized the clear First Amendment violation caused by the law. Judge Wilkinson, who voted to deny rehearing en banc, wrote an opinion expressing his belief that the state should not “use license plates to practice viewpoint discrimination.” Id. at 581. According to Wilkinson,

It is one thing for states to use license plates to celebrate birds and butterflies, military service, historical events, and scenic vistas. It is quite another for the state to privilege private speech on one side – and one side only – of a fundamental moral, religious, or political controversy. . . The fact that Americans have deep differences of opinion on subjects such as these is all the more reason to recognize the unifying force of the First Amendment principle – namely, that none of us has the right to compel assent to our views, but that all of us have the right to express them.

Id. at 581-82.

FIFTH CIRCUIT DECISIONS

Edith Brown Clement, Fifth Circuit

• Bratcher v. Nat’l Standard Life Ins. Co., 365 F. 3d 408 (5th Cir. 2004): class action certification in race discrimination case against life insurance companies

Judge Clement dissented from the majority’s 2-1 ruling in favor of African American plaintiffs in this civil rights lawsuit brought against life insurance companies that had issued low- value (“industrial”) life insurance policies over a number of decades. The plaintiffs charged, and the insurers’ records confirmed, that the companies had maintained dual rate and dual plan policies by race. In accordance with these discriminatory practices, the companies had placed African Americans “in policies offering the same benefits as do policies sold to whites, but at a higher premium,” and had “placed blacks in specially-designed substandard industrial policies providing fewer or lower benefits than do comparable plans sold to whites.” 365 F.3d at 412. Although the companies had ceased their discriminatory practices in the early 1970s, and some had voluntarily made adjustments to their policies, the plaintiffs estimated that more than 4.5 million of the policies remained in force. The plaintiffs sought “(1) an injunction prohibiting the collection of discriminatory premiums, (2) reformation of policies to equalize benefits, and (3) restitution of past premium overcharges or benefit underpayments.” Id. at 412-13.

The district court denied the plaintiffs’ motion to proceed with the case as a class action, a ruling that likely would have ended the lawsuit. As the Fifth Circuit majority observed, this suit “may be the ultimate negative value class action lawsuit” –- a lawsuit that would be too costly for each member of the class to litigate on his or her own. Id. at 411-412. The majority did reverse, holding that the district court had incorrectly applied the applicable principles for

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determining whether class action certification was appropriate in this case, and remanded the case for further consideration in light of its ruling.

Judge Clement dissented, and would have upheld the denial of class certification, claiming that the majority seemed “to muddle” the applicable standards of appellate review. Id., at 422-23. No Fifth Circuit judge on active service asked that the court be polled on the defendants’ petition for rehearing en banc, which was therefore denied. Id. at 411.

Edward C. Prado, Fifth Circuit

• Templet v. Hydrochem Inc., 367 F.3d 473 (5th Cir. 2004): reconsideration of summary judgment for defendants in toxic tort case in light of inadequate assistance of counsel to plaintiffs

Judge Prado joined Judge Harold R. DeMoss, Jr., in ruling against the plaintiffs in this toxic tort case stemming from the release of a mustard gas agent at a Georgia Gulf Corporation facility in Louisiana. The plaintiffs, Melba and Jimmy Irvin, were represented by a succession of attorneys, most of whom, as the dissenting judge recounts, did not serve them well. In fact, when the defendants filed a motion for summary judgment, then-counsel for the Irvins did not file any opposition to that motion. The district court granted the defendants’ motion and dismissed the case.

Thereafter, the Irvins obtained new counsel, who filed a motion to reconsider and vacate the order dismissing the case “to prevent manifest injustice.” 367 F.3d at 476. Along with this motion, the Irvins’ new counsel presented medical evidence that “arguably create[d] a dispute of material fact that would have allowed the [defendants] to defeat summary judgment.” Id. at 484. The district court denied the Irvins’ motion and the Irvins appealed. In a 2-1 ruling, Judges Prado and DeMoss affirmed the lower court ruling, over a strong dissent by Judge James L. Dennis.

According to the majority, “an unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration.” Id. at 479. The majority noted that the medical evidence presented by the Irvins in support of their motion for reconsideration was “well within the Irvins’ knowledge prior to the district court’s entry of judgment,” but they had failed to use that evidence to oppose the defendants’ summary judgment motion. Id. The majority also noted that while the Irvins were without counsel for five months, they were represented by counsel before the defendants filed their motion.

Judge Dennis strongly disagreed, explaining that the Irvins’ “‘default’ resulted, not through any fault of their own but because of egregious lawyer misconduct causing them virtually total deprivation of representation and the benefits of the adversary system of justice.” Id. at 483. Although the majority noted that the Irvins had been represented by counsel when the defendants’ summary judgment motion was filed, Judge Dennis pointed out that it appeared from the record that all that this attorney had ever done was attend one status conference. “He filed no papers with the court in response to the summary judgment motion and moved to withdraw from representation of the plaintiffs five days after the court granted summary judgment.” Id. at 484. Judge Dennis acknowledged the need for finality of judgements, but would have held that

in an extraordinary case such as this –- where plaintiffs had evidence arguably sufficient to survive summary judgment, submitted that evidence to the defendants, and failed to

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provide the evidence to the court in a timely manner due only to a complete abandonment by the legal system –- the district court misused its discretion in denying the [motion for reconsideration] without considering the relevant evidence submitted with it.

Id. at 485.

Edith Brown Clement and Edward C. Prado, Fifth Circuit

• Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc): immunity of police officials from suit charging retaliation for exercise of First Amendment rights and right to testify

Judges Prado and Clement were on opposite sides of the Fifth Circuit’s 10-5 en banc decision in this case, which was brought by two former instructors at a Texas police academy who faced retaliation for testifying against the police. Plaintiffs Dean Kinney and David Hall, then- instructors at the academy, had testified as expert witnesses in a lawsuit brought by the family of a teenager who had been fatally shot by a police sniper, explaining that the police sniper had used excessive force. After the trial, a number of police officials sent letters to the president of the academy’s parent college threatening to stop using the academy for officer training. Subsequently, police officials cancelled enrollments in classes taught by the two instructors and barred officers from taking their courses in the future. As a result, all of the courses taught by Kinney and Hall were cancelled, and, they contended, they were effectively forced to resign or take lower-paying jobs.

Kinney and Hall filed suit against seven police officials, their municipal employers, and a police chiefs’ association to which the officials belonged, charging that the defendants had “blackballed” them in retaliation for their testimony. Kinney and Hall contended that their constitutional right to free speech and their right to testify freely under 42 U.S.C. §1985 had been violated. All of the defendants moved for summary judgment on the merits, and the individual police official defendants also moved for summary judgment on the ground that they had a qualified immunity against the federal claims and state official immunity from a related state claim.

The district court denied the motion for summary judgment, and the officials filed an interlocutory appeal of the order denying summary judgment on their immunity defenses. A divided panel of the Fifth Circuit affirmed the district court’s denial of immunity on the free speech and §1985 claims. 301 F.3d 253 (5th Cir. 2002). The Fifth Circuit reheard the case en banc, and in a 10-5 ruling, affirmed the district court’s denial of qualified immunity on those claims. Judge Prado was in the majority, while Judge Clement joined separate dissenting opinions authored by Judges and .

The majority squarely rejected the officials’ contention that §1985 protects only fact witnesses, not expert witnesses, from interference with their testimony, noting that the plain language of the statute refers to “any witness.” 367 F.3d at 351. They also rejected the contention that Kinney and Hall had not stated a claim for a violation of §