Column: Civil Rights in the Full Second Circuit (New York Law Journal)
by Christopher Dunn — Earlier this month the Second Circuit agreed to have the full court hear an appeal from a man who federal officials allegedly spirited out of Kennedy Airport and on to a plane that would take him to Syria to be tortured. This decision is highly unusual in that the Second Circuit rarely hears such “en banc” appeals, having apparently issued only a handful of rulings over the last decade.
Unusual as they may be, an examination of these en banc decisions reveals a clear pattern: When the full court has taken up an issue in the last 10 years, it usually has been an important civil rights issue. Aside from a case about the forum non conveniens doctrine and one about the alleged unconstitutional vagueness of a federal wire-fraud statute, the cases in which the full court issued merits rulings involved the constitutionality of a federal statute requiring termination of prison-reform consent decrees; the scope of criminal defendants’ right to jury determinations in sentencing; the right of incarcerated felons to vote; and the extent to which China’s “family planning” practices entitled people to political asylum here in the United States. In three of these four cases, the court ruled against the civil rights claim.
Undoing Decades of Prison-Reform Litigation
Going back to the beginning of the most recent 10-year period, the full court in 1999 addressed the constitutionality of the Prison Reform Litigation Act of 1995 (“PRLA”). The PRLA directed “immediate termination” of any prison-condition consent decree entered in federal court unless the decree contained express findings of unlawful conditions and unless its relief was narrowly tailored to the unlawful conditions found by the court. Because systemic-reform consent decrees often lacked such findings and almost always included relief well beyond specific unlawful conditions, the PRLA threatened to wreak havoc on prison reform litigation.
Following the statute’s enactment, New York City sought to terminate prison decrees in seven different cases in the Southern District. Judge Harold Baer held that the statute was constitutional, vacated – rather then terminated – the decrees, and denied the plaintiffs the opportunity to create a new record of findings that would support continuation of the decrees. On appeal, a Second Circuit panel agreed with Judge Baer’s determination about the constitutionality of the PRLA but took the important step of holding that the statute simply barred future enforcement of decrees in federal court, leaving intact enforcement in state court.
Upon the City’s request, the court then accepted the case for en banc review, which did not go well for the plaintiffs. In Benjamin v. Jacobson, the full court concluded that the PRLA was constitutional, reasoning that the separation-of-powers doctrine and the due process and equal protection guarantees did not bar Congress from curtailing ongoing injunctive relief. It then rejected the panel’s effort to preserve the decrees’ protections through state-court enforcement, ruling that the PRLA mandated complete termination of decrees that did not meet the statute’s requirements. Finally, in the one nod to the plaintiffs, the full court did hold that the District Court had erred in refusing to allow the plaintiffs to create a record of ongoing legal violations that would support continued enforcement, and it therefore remanded the case for further proceedings on that narrow issue. No judges dissented.
Embracing the Sentencing Revolution
In 2000 the United States Supreme Court upended criminal sentencing practices when it ruled, in Apprendi v. New Jersey, that factual findings related to enhanced sentences had to be made by juries, not judges. This ruling, which arose of out a case in which a defendant had received an enhanced sentence based upon a judge’s finding that racial bias motivated his actions, prompted the full Second Circuit to examine the propriety of federal judges imposing sentences in federal drug cases based on their findings about the quantities of drugs involved.
In United States v. Thomas, Northern District Chief Judge Thomas McAvoy had sentenced a defendant to a term beyond that specified in the federal sentencing guidelines after making factual determinations about the quantities of cocaine the defendant had been dealing. A panel rejected the defendant’s challenge to his sentence, but the Supreme Court granted certiorari and remanded the case for reconsideration in light of the Court’s intervening decision in Apprendi, prompting the Second Circuit to hear the matter en banc.
The central issue before the court was whether the requirement that juries determine facts used in sentencing was limited to particular types of criminal offenses or stated a general proposition of constitutional law. In a unanimous opinion, the full court readily concluded, as the Supreme Court’s remand suggested, that Apprendi applied across the board. As the Second Circuit noted, in Apprendi the Supreme Court stated that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Given this, the Second Circuit concluded that the sentencing court could not enhance a sentence “based on a drug quantity if the Government has not charged drug quantity in the indictment and proved it to a jury beyond a reasonable doubt.”
Rejecting Felon Voting Rights
Two years ago the Second Circuit splintered badly in a challenge to a New York statute denying felons the right to vote. Section 5-106 the Election Law provides that no person convicted of a felony “shall have the right to vote at any election” unless pardoned or discharged from parole or unless the maximum sentence has expired.
In Hayden v. Pataki, the plaintiffs, representing classes of blacks and Latinos otherwise eligible to vote, argued that this disenfranchisement violated the federal Voting Rights Act. Congress had amended the Act in 1982 to encompass restrictions that had a disparate impact on racial minorities, regardless of whether the statute was passed for intentionally discriminatory purposes:
"No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of any citizen of the United States to vote on account of race or color..."
Given the breadth of this provision, whether the Act excluded felon disenfranchisement laws seemed straightforward.
Remarkably, the full court had attempted to resolve this issue ten years earlier but had failed when it had split evenly in Baker v. Pataki.
This time the court again was deeply divided, though a majority did emerge, albeit with a disquieting statutory analysis that seemed to go far out of its way to rule against the plaintiffs. At the outset, the court, in an opinion by Judge Cabranes, recognized the self-evident: “There is no question that the language... is extremely broad – any ‘voting qualification or prerequisite to voting or standard, practice, or procedure’ that adversely affects the right to vote – and could be read to include felon disenfranchisement provisions...”
Remarkably, despite the well-established principle that statutory analysis begins and ends with the text of statutes when those statutes are unambiguous, the court ruled that it was not bound by the statute’s unambiguous text: “In any event, our interpretation of a statute is not in all circumstances limited to an apparent ‘plain meaning.’”
Having liberated itself from the statute it sought to interpret, the court then turned to a series of extra-statutory sources, including language in the 14th Amendment implying endorsement of felon disenfranchisement, the Act’s legislative history, and concerns about altering the state-federal relationship. And its review of each of these sources led the court to conclude that the Voting Rights Act, notwithstanding its plain meaning, excluded felon disenfranchisement schemes.
Five judges dissented. On the issue of statutory interpretation, Judge Barrington Parker spoke for four of them in writing sharply that “[t]he operative inquiry on this appeal is not whether a historic policy of felon disenfranchisement, read next to odds and ends from legislative histories, indicates Congress’s intention to exclude felon disenfranchisement laws from the coverage of the [Voting Right Act]. Rather, this appeal begins and ends with the simple question of whether we should read an unambiguous remedial statute, intended to have, as the Supreme Court has emphasized, the ‘broadest possible scope,’ to allow the Hayden plaintiffs’ claims to go forward. I believe we should.”
Upending Political Asylum
The Second Circuit’s most recent en banc decision came last year in a case involving China’s widely condemned “family planning” policies. The petitioners in the three consolidated cases were unmarried partners (a fiancee and two boyfriends) of women who had been forced to have abortions in China. All three men had fled and sought political asylum in the United States.
In 1996 Congress passed a law granting asylum to a person “who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program.” One year later, the Board of Immigration Appeals (“BIA”), which has primary responsibility for interpreting immigration law, construed the new provision to extend asylum per se to the spouses of the direct victims of coercive family-planning policies.
The question confronting the full court last year in Lin v. United States Department of Justice was whether this rule should be extended to non-married partners of such victims. Not only did the court reject that proposition, it held that the BIA had erred in its ruling of ten years earlier about spousal asylum, a position that every other circuit that had addressed the issue had endorsed.
As in Hayden v. Pataki, in Lin the Second Circuit sought to interpret a federal statutory provision. Specifically, it considered whether the new asylum provision was limited to only those persons who personally had experienced forced abortions or sterilization or whether it extended to the spouses of such persons and even to the unmarried partners of such persons. And because the BIA already had ruled that the provision did protect spouses, the Second Circuit had to defer to that ruling unless it could conclude that the statute unambiguously foreclosed the BIA’s interpretation.
In concluding that the statute indeed did foreclose the BIA’s interpretation, the Second Circuit embraced “two cardinal rules” not evident in Hayden: “[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Invoking these rules, the court then held that the text of the new law so clearly extended asylum only to those who were the personal victims of coercive family practices that no further inquiry was necessary. In terms that are hard to square with Hayden’s conscious disregard of the plain meaning of the Voting Rights Act, the court stated:
"We do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and a potential parent. But such a loss does not change the requirement that we must follow the 'ordinary meaning' of the language chosen by Congress..."
Given its ruling that spouses did not qualify for asylum, the court held that neither did fiancees or boyfriends. It therefore denied relief to all three of the men seeking asylum on these grounds.
Consistent with this history, the Second Circuit’s recent decision to hear en banc the appeal in Arar v. Ashcroft promises to present the court with a number of important civil rights issues arising out of the federal government’s involvement in the rendition and torture of persons viewed by the government as terrorism suspects. That the full court decided on its own initiative to review a panel decision rejecting the plaintiff’s claims is a promising sign, though its recent en banc rulings leave one apprehensive about its approach to major civil rights controversies.
Christopher Dunn is associate legal director of the New York Civil Liberties Union