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Sam Heldman


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Wednesday, March 05, 2003
No. 02-196 National Park Hospitality Assn. v. Department of the Interior

Ok. I know that this is a day late. Two days late, considering that the intent was that predictions be made before the day of oral argument. I have no excuse. Nevertheless, I have not read anything about the oral arguments, so here is my prediction:

This case is about whether contracts entered into by the National Park Service with the companies that run concessions at national parks are covered by the provisions of the CDA. No, not the Communications Decency Act, but the Contract Disputes Act of 1978. The CDA provides more advantageous and uniform treatment to claims under the contracts that it covers.

In the decisions below, the Court of Federal Claims and the D.C. Circuit held that the concession contracts were not “procurement” contracts because they did not involve the purchase by the government of services for itself. By the text of the CFC, it applies to all contracts for the “procurement” of property or services.

It seems to me that the petitioners’ argument that a “contract for procurement” is not a “procurement contract” is unavailing. I admit that I was convinced after reading the petitioner’s brief, but then, I know nothing about government procurement. The petitioner glossed over most of the government’s arguments, failing to answer why “procurement” should mean something different in this case than it does in other areas of procurement law. I predict the Court will AFFIRM.

What I find to be an interesting question about this case is that the NPS has a disclaimer in its model contracts specifically denying that the CDA applies to them. My question is, can an agency bargain for a contractor to forego any remedies it might have under the CDA, if the CDA would otherwise apply? On the one hand, that would defeat the intent of Congress in enacting the CDA, that contractors would have uniform remedies. However, it seems clear that if a contractor had a claim, and through negotiation came to a settlement with an agency, the agency could require the contractor to disclaim any further remedies under the CDA as a condition of the settlement. Such a contractual provision should be enforceable; otherwise, the agency would be crippled in its ability to reach settlements.

But then, why couldn’t the agency just contract out of any CDA liability in advance? If it can, then the contractor would be estopped from asserting such claims, because part of the consideration provided under the contract was the specific disclaimer of CDA claims. Although I have not done any research to support this analysis, I nevertheless offer it as another reason the Court will affirm.

No. 02-361 United States v. American Library Assn.

This is a case about free speech and the spending power, two of my favorite subjects. Congress enacted The Children's Internet Protection Act (CIPA), providing that libraries that are otherwise eligible for federal funds for internet access must have some sort of software that prevents anyone from accessing obscenity or child pornography, and that prevents minors from seeing “visual depictions” that are “harmful to minors.” If a library fails to implement such measures, it faces the loss of federal assistance.

So the question is, by this spending condition, is the federal government inducing libraries to violate the First Amendment? If so, the spending condition is beyond the Spending Power, because inducing a constitutional violation cannot be said to be in furtherance of the General Welfare.

Well, let’s take this one piece at a time. Congress can ask the states to do things that it could not order them to do by attaching strings to federal funds under South Dakota v. Dole. So, even though it might violate the 10th or 21st Amendments if the federal government were to require that all states raise their drinking age to 21, Congress can encourage such laws by making them a condition federal highway funds. A state has the discretion to set its drinking age, so encouraging that action is not unconstitutional.

In this case, the government asks that libraries prevent access to obscenity and child pornography, and to “harmful” depictions in the case of minors. The respondents argue that such an action by libraries necessarily would violate the First Amendment, but I just don’t see it. Libraries are not required to have access to the internet at all, so the lack of any access does not violate the First Amendment. Nor, I think, would it violate the First Amendment if a Library simply allowed access to its own public web site and no other. If one imagines that each site is a collection that the library makes an affirmative decision to include or not include, then eventually one reaches the conclusion that the library can add the entire internet, save whichever collections (ie. sites) it feels like not including. Prior decisions have applied only rational review to a library’s decision to include or not any particular material in its collection.

Thus, because the selection of materials on the internet, save those, access to which would result in the loss of federal funding, would not violate the First Amendment, the spending condition here is valid. I predict the Court will REVERSE.

No. 02-258 Jinks v. Richland Co.

The question here is “Whether the tolling provision of the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d), invades state sovereignty in violation of the U.S. Constitution's Tenth Amendment and its Necessary and Proper Clause.”

As a total aside, ever since the first year of law school, I have always found objectionable the prevalence of “questions presented” that begin with the word, “whether.” I object for two reasons: First, the result is a fragment. “Whether x is true,” is not a sentence. “Is x true?” That’s a sentence. Furthermore, the fragment isn’t even a question, in that it’s not a sentence and does not end with a question mark. Of course, I realize that if you begin the sentence with “The question presented is,” then you get a complete sentence that correctly uses the word, “question,” in that question can be defined as “a subject or point open to controversy.” I also realize that my minor annoyance will not change the way questions presented are, well, presented. Nevertheless, I had to get that off my chest.

Okay, so back to Jinks. What the “question presented” means is this: A federal court has jurisdiction to hear certain state-law claims that are related to the same transaction or occurrence as a claim being pursued in federal court. The court has discretion, however, to decline to hear such cases if they are too complex and will predominate over the federal questions. When such a case is dismissed, the applicable state statute of limitations is tolled during the time that the state-law claim is pending in federal court, and for 30 days thereafter.

That only makes sense. If a litigant brings her case to federal court, she should not have to simultaneously file in state court. After all, she will expect that the federal court will review the issue. If it turns out that the cause of action is dismissed from the federal suit, should she be prevented from filing if the state statute has run in the mean time? Of course not.

The wrinkle is when this is applied to a suit against the state itself, or in this case, against a county. The county, as an arm of the state, enjoys some degree of sovereign immunity. The state gets to decide under what terms it can be sued in its own courts. So, if the state decides that the county can only be sued during the state statute of limitations, without any tolling due to a federal case, does the federal law violate the 10th Amendment by mandating that the cause is tolled?

Well, the federal government says no. They thought of this when they first passed the supplemental jurisdiction statute. Basically, in order for the federal courts to function properly, the cause has to be tolled, thus, tolling is appropriate under the Necessary & Proper Clause.

In this case, the Supreme Court of South Carolina disagreed. The court thought that although it may be necessary, it is not proper that the federal government tell the state when it may be sued. How will the Supreme Court decide? I’m not really sure. I’m going to guess that the Court will REVERSE. The states have already consented to be sued, and it would create a whole host of problems if parties had to file separate suits just to protect against the eventual dismissal of the federal cause of action and tolling of the statute.