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Case 8:17-cv-01596-PJM Document 88 Filed 01/29/18 Page 1 of 4

Josh Blackman | 202-294-9003 | 1303 San Jacinto Street, Houston, TX 77002

January 29, 2018

Dear Judge Messitte:

Amici Curiae Scholar Seth Barret Tillman and the Judicial Education Project (“JEP”) are
grateful that during oral arguments, the Court referenced an argument that was advanced in our two
briefs: that Plaintiffs’ complaint should have been pleaded against Donald J. Trump in his individual
capacity, not against the President in his official capacity. During the hearing, counsel for Plaintiffs
represented that they would file an amended complaint in due course raising individual capacity
claims. Before such a request is granted as a matter of course, Tillman and JEP submit this letter as a
friend of the court to alert Your Honor of certain potential problems with the expected Rule 15
motion. We had hoped to raise these concerns during oral argument, but our motion for leave to be
heard at argument was denied. [ECF No. 85]. To that end, even if the Plaintiffs’ motion is unopposed
by the Defendant, Tillman and JEP request that amici on both sides of the case be afforded a brief
opportunity to respond to the difficult questions that would be raised by Plaintiffs’ newly proposed
novel theory of their case. We are not asking for the expected motion to be denied, but rather to allow
amici a reasonable opportunity to provide this Court with useful information that may otherwise be
unavailable, which—as the Court knows—is something we have done since the outset of this

F.R.C.P. 15(a)(2) provides that “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” The Fourth Circuit has recognized that “leave to amend a pleading should be denied only
when the amendment would be prejudicial to the opposing party, there has been bad faith on the part
of the moving party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986). There are no allegations of bad faith, but there are at least four reasons why
an amendment could be “prejudicial” or “futile.”

First, Plaintiffs have waived this issue. The Attorneys General of Maryland and the District
of Columbia are sophisticated parties who are very familiar with the distinction between suits against
an officer’s individual and official capacities. They defend such claims on a regular basis,
particularly in the context of prisoners’ rights litigation. They are the chief law officers of a state and
the federal capital, and they are both supported by many dedicated, expert staff attorneys. They are
all also familiar with what any first-year law student is taught: plaintiffs can, should, and, indeed,
must plead in the alternative (when permissible to do so). They must avoid claim splitting, and they
must bring all causes of action or legal theories at one time in one complaint. Here Plaintiffs failed to
plead both against the President in his official capacity and against the President in his individual

Furthermore, these Attorneys General are supported by leading constitutional litigators and
prominent legal academics who no doubt understand this simple premise of civil litigation. For
example, Amici Curiae Administrative Law, Constitutional Law, and Federal Court Scholars in
support of the Plaintiffs raised the issue of official and individual capacity. [ECF No. 56-1 at 12].
This two-paragraph discussion fairly put the Plaintiffs on notice that this was a live issue. In these
circumstances, it is difficult to ascribe Plaintiffs’ decision to omit individual capacity claims as a
simple pleading error or oversight. Unless the Plaintiffs can persuade this Court to the contrary, their
decision to bring only official capacity claims should be viewed as a deliberate litigation strategy.
(As we will discuss later, by having made this choice, Plaintiffs avoided several difficult questions of
first impression.)

at 2–7]. the legal system. the case for an implied cause of action becomes even weaker because Congress’s statute . when action was called for. Additionally. the Defendant was represented not by the Justice Department. In regard to any individual capacity claim. and knowing waiver precludes an amended complaint. Under Ziglar. The Court may now need to hold an additional hearing. Federal Jurisdiction § 9. the Supreme Court has not seen fit to imply a constitutional cause of action against federal officials with respect to other rights-conferring provisions of the Bill of Rights. constitutes waiver. private counsel.S. All these difficulties are now necessitated by Plaintiffs who refused at each and every step in the litigation to do what every first-year law student knows to do: i. Tillman and JEP raised the official/individual capacity argument in our opening brief [ECF No. undoubtedly. 2016). Fifth. Instead. which was filed against the President’s individual capacity. 1843. 77 at 18-19]. Case 8:17-cv-01596-PJM Document 88 Filed 01/29/18 Page 2 of 4 Even if Plaintiffs were somehow unaware of this problem. 27-1 at 31 n. This Court “invited replies to those responses from any party or amicus curiae who wishes to do so. Plaintiffs should have either (1) rejected Tillman and JEP’s arguments. 520 U. and that the complaint should be amended. 77. These structural provisions have never been the basis for implied causes of action. although we have questioned whether the Foreign Gifts and Decorations Act.119]. For example.e. Plaintiffs’ decision to bring an individual capacity claim against the President may force him to retain new. is premised on the Foreign Emoluments Clause. These duties will put demands on the President’s time. but by private counsel. Defendant will need to raise an entirely new line of defenses. Jones. no cause of action exists to allow a suit against the sitting President in his individual capacity for violating the Constitution’s Emoluments Clauses. Ct. Finally. or (2) acknowledged that Tillman and JEP were correct. Finally. absent an additional round of briefing. As a result. in Clinton v.2 (7th ed. when the Court expressly invited a response. 388 (1971). § 7342(a)(1)(E). intentional.C. Unlike the traditional action brought under 42 U. which was fairly raised in the first six pages of a brief that this Court expressly invited. 403 U. However..S. and explained their reasoned basis for their objection. [ECF No. to the extent that the former statute is authorized by the latter constitutional provision. and such deliberate. this Court. the Supreme Court’s recent plurality decision in Ziglar v. Second. This rule would apply with even more force to structural provisions (as opposed to rights- conferring provisions) of the Constitution like the Emoluments Clauses. which would have been totally unnecessary had Plaintiffs addressed this issue in the first instance. 5 U.S. That defense only applies in an official capacity suit. Abbasi casts serious doubt on extending this doctrine to any “new Bivens context. Six Unknown Named Agents. Finding such counsel and bringing them up to speed in the instant litigation could cause many months of delay. courts should hesitate before creating a new legal fiction based on provisions of the Constitution that have never been interpreted by the Supreme Court at all. 1860 (2017). See generally Erwin Chemerinsky.” [ECF No. permitting Plaintiffs to amend in the proposed fashion will prejudice Defendant. and that. This inaction. 681 (1997).C. Defendant’s primary defense was grounded in sovereign immunity. Faced with this Court’s order. plead in the alternative. 72]. Plaintiffs simply ignored the issue. Indeed. and all of the parties wasted significant time and judicial resources to prepare for an oral argument that could not resolve the case at hand. It is true that the Supreme Court has implied a cause of action under the Fourth.” 137 S. and Eighth Amendments pursuant to the doctrine announced in Bivens v.S. and in our response [ECF No. § 1983—which allows suits against state officials in their official and individual capacities—Congress has never seen fit to create a cause of action based on the Emoluments Clauses. will cause conflicts with his many public responsibilities.

This Court would benefit from a range of perspectives on these important questions. much less a President. Trump in his individual and official capacity. nothing prevents this Court from ruling on the Defendant’s pending motion to dismiss. we are merely asking for the Court to consider our perspective on this issue before it is resolved. While these novel questions could be addressed at the Motion to Dismiss stage. Professor Tillman has been researching this issue since August 2017. an amendment would not be a mere technical change in the pleadings. uncharted waters. 77 at 2]. and not damages. Indeed. 438 F. there is no opportunity for a judicially- created implied constitutional cause of action. By contrast. in any event.3d 404. Plaintiffs’ new position would be radically different from everything they have pleaded to date. As this Court has allowed in the past. qualified immunity would be automatically satisfied and Plaintiffs can in no circumstances enjoy any relief. an amended complaint would require the Court to decide whether there is a “difference between Donald J. 21]. the more proper posture to adjudicate these issues would be in response to Plaintiffs’ expected motion to amend the complaint brought under Rule 15. 15. and radically novel from all prior litigation against a federal official. Indeed. then Plaintiffs may not want to amend their complaint. Such a timeline would not unduly delay the case. nor are we asking the Court to prejudge it. No court (as far as we know) has ever confronted such a claim. The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue. They might strongly prefer to go directly to discovery. See Seth Barrett Tillman. To ensure this case continues to proceed expeditiously. Yale J. 2017). on Reg. it would constitute a radical transformation of the case. but for our prior publications (which predate the Defendant’s motion to dismiss) and briefs. In sum. and most importantly. 2006). A typical Bivens actions is a damages action.” [ECF No. This question implicates the separation of powers in profound ways. Tillman and JEP are not prejudging a motion that has not yet been filed. Amici are unsure if the President would have the benefit of qualified immunity. and should not be lightly considered. because the official capacity claims are fully briefed. parties and amici on both sides could jointly submit responses one week after the Defendant’s response to Plaintiffs’ expected Rule 15 motion would be due. If the Court finds that the official capacity claims are valid. If qualified immunity does apply (and we see no reason why it should not). because there is no clearly established law one way or the other. In any event. 427 (4th Cir.” Fourth. given that such an implied cause of action would be in novel. Rather. the official/individual capacity argument would not have been presented to this Court in the first instance by either of the parties. Case 8:17-cv-01596-PJM Document 88 Filed 01/29/18 Page 3 of 4 occupies the field. Relatedly. and one which would. In the alternative. Harvey. An amended complaint would thus “raise [several] new legal theor[ies]” and defenses. in addition to those of the parties.: Notice & Comment (Aug. likely be “futile. See Laber v. We have longstanding doubts whether any implied cause of action against a federal officer in his individual capacity could be used to seek exclusively a declaration or an injunction. and has not yet been able to identify any case where a court implied a constitutional cause of action against a federal officer in his individual capacity where the exclusive remedy sought was a mere declaration or injunction. if the Court dismisses the . 72]. Third. [ECF No. [See ECF No. Amici respectfully requests leave for all parties and amici who have previously participated in this matter to respond to Plaintiffs’ expected Rule 15 motion. rather. which began more than six months ago. this suit has always been about declaratory or injunctive relief. Where a federal statute occupies the field.

Texas 77002 Telephone: (202) 294-9003 Email: Josh@JoshBlackman. then a final judgment should be entered in favor of the Defendant. at best. in regard to this action.1 Sincerely. only indirect). Case 8:17-cv-01596-PJM Document 88 Filed 01/29/18 Page 4 of 4 complaint because the official capacity claims are not properly pleaded. and reduce the already-duplicative briefing. and there is some concern that these claims ought to be fully and fairly litigated. However. /s/ Josh Blackman Josh Blackman 1303 San Jacinto Street Houston. Indeed. if Maryland’s and the District of Columbia’s derivative tax claims arising from purported competitive injury suffered by the two convention centers are Counsel for Amicus Curiae Scholar Seth Barrett Tillman 1 To the extent that the Court is reluctant to dismiss this action because there would be no viable Emoluments Clauses actions against the President. if the Court finds that official capacity claims are not proper. then a new amended complaint could be filed focusing solely on the individual capacity claims.. the convention centers (i.” or that such claims have been knowingly waived. we continue to wonder: why are the convention centers not actually parties to this case? . Indeed. the convention centers are better positioned and would make better plaintiffs than the Plaintiffs before this Court (whose injuries are. the actual parties suffering purported competitive injury) remain free to vindicate those alleged harms. and that permitting an amendment to allow individual capacity claims would be “futile” or “prejudicial.e. Moreover. This streamlined process would simplify future steps in the litigation. we advise the Court that a similar action remains active in the District for the District of Columbia. and the action before the District Court for the Southern District of New York will be appealed in less than 30 days.