Keeping Tabs on the Ninth Circuit
January 15, 2021 - This Week at the Ninth

This Week at the Ninth: Habeas and Hair Loss

This Week at the Ninth: Habeas and Hair Loss

This week, the Ninth Circuit declines to extend a recent Supreme Court decision on retaliatory arrest to the immigration bond revocation context, and resolves a particularly hairy preemption question about state-law challenges to dietary supplement labeling.

The Court holds that the Supreme Court’s decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), does not apply to a noncitizen’s claim that Immigration and Customs Enforcement (“ICE”) unconstitutionally retaliated against him for his speech when revoking his bond and rearresting him.

Panel: Chief Judge Thomas, Judge Schroeder, and Judge Berzon, with Chief Judge Thomas writing the opinion.

Key Highlight: “We need not define the precise extent of Nieves’s applicability in the immigration context here. However, we decline to extend a rule this closely dependent on § 1983 case law and the particularities of criminal arrests to Bello’s habeas petition.”

Background: Jose Bello-Reyes arrived in the United States without documentation in 2000 at age three.  ICE arrested him in May 2018, initiated removal proceedings, and released him on a $10,000 bond a few months later. After his release, Bello became an outspoken critic of ICE’s policies and practices.  Bello was arrested for driving under the influence in January 2019, and was sentenced to five days in jail.  On May 13, 2019, Bello spoke at a rally protesting local  law enforcement’s involvement with ICE, a “videotaped, livestreamed, and widely publicized event.” He read a poem he wrote called “Dear America,” which criticized ICE. Less than thirty-six hours later, at 6:30 AM on May 15, 2019, ICE officers arrived at Bello’s home with a warrant stating that they had “probable cause to believe that [Bello] is removable from the United States.”  ICE had revoked his previous bond, ordered him re-detained, and increased his bond to $50,000. Detaining him in a holding cell at ICE’s processing facility, ICE agents refused to let Bello use the bathroom, causing him to urinate in his clothes while handcuffed, and told him, “We’ll see if you can get your friends to raise the bond money again.” Later, at ICE’s detention center, a guard asked Bello, “You think you’re famous and you’re going to get special treatment?” Bello filed a petition for a writ of habeas corpus, arguing his arrest and redetention was unconstitutional retaliation for his protected speech.  A magistrate judge denied the petition, applying the Supreme Court’s recent decision in Nieves, which held that the presence of probable cause generally defeats a retaliatory criminal arrest claim for damages under 42 U.S.C. § 1983.  Alternatively, the magistrate judge held that Bello’s claim would fail under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), because he had not “demonstrated definitively that ICE would not have rearrested him absent his speech.”

Result: The Ninth Circuit reversed.  The Court concluded that “Nieves, a suit for damages brought under 42 U.S.C. § 1983 and arising out of a criminal arrest, should not be extended to Bello’s habeas challenge to his bond revocation.”  First, the Court reasoned, “problems of causation that may counsel for a no probable cause standard are less acute in the habeas context” because a habeas petitioner “need not identify a particular violator, only that his confinement is unconstitutional.”  And second, Nieves “arose out of the criminal arrest context, where evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case,” whereas here “no equivalent benchmark exists where ICE is revoking bond rather than arresting in the first instance” because that decision is entirely discretionary.  Extending Nieves to cases like Bello’s, the Court reasoned, “would effectively eliminate almost any prospect of obtaining release on habeas for actually retaliatory, unconstitutional immigration bond revocation.”  The Court declined to “define the precise extent of Nieves’s applicability in the immigration context,” but noted that it at least did not extend to Bello’s case. In a footnote, the Court also opined that even if Nieves did apply, it would not necessarily foreclose Bello’s claim because ICE only had probable cause for his initial arrest, and the re-arrest for bond revocation.

Because Nieves did not apply, the Court “remand[ed] to the district court to apply the Mt. Healthy standard, the default rule for First Amendment retaliation claims.”  The lower court had misapplied that decision, the Court said, because it should have “first determine[d] whether Bello demonstrated that retaliation for his speech was a motive for revocation of his bond and, if so, then shift the burden to the Government to demonstrate that it would have taken the same action even in the absence of the protected conduct.” Noting that “the “timing of ICE’s decision to rearrest [Bello] is highly suggestive of retaliatory intent,” the Court sent Bello’s case back for “the district court to apply this burden-shifting standard in the first instance.”

The Court holds that the Federal Food, Drug, and Cosmetic Act (FDCA) preempts state-law challenges to labeling that accurately describes a dietary supplement's general effect on the human body. 

Panel: Judges Murguia, Lee, and Korman (E.D.N.Y), with Judge Lee writing the opinion.

Key Highlight: “[T]he plain language of the FDCA and its implementing regulations clarifies that a structure/function claim addresses only the general role of an ingredient/nutrient on the human body. It does not purport to convey the product’s health impact on the general population.”

Background:  Target sold biotin, a dietary supplement, with a label saying that it “helps support healthy hair and skin.”  Seeking to fight his hair loss, Todd Greenberg purchased a bottle.  After a friend subsequently told him that biotin would not stimulate hair growth, Greenberg filed suit on behalf of a putative class.  Invoking California’s consumer protection laws, he alleged that the labeling on the bottle he purchased was misleading.

At summary judgment, the parties did not dispute that biotin does, in fact, generally support healthy hair and skin.  But Greenberg relied on his expert’s opinion that most people obtain more than enough biotin from their diets, and thus taking supplements would promote hair growth only among the minority of people who suffer from some sort of biotin deficiency.  The district court granted Target’s motion for summary judgment on the ground that federal law preempted Greenberg’s claim.  

Result:  The Ninth Circuit affirmed.  As the Court explained, the Food and Drug Administration (FDA) has authority to regulate dietary supplements, and it has authorized labels of those products to contain what are known as “structure/function claims.”  Such a claim simply “describes the function or role of an ingredient or nutrient on the human body,” without purporting to claim that the supplement can cure or treat any diseases.  These statements are permissible so long as: (1) they are truthful; (2) the label prominently states that the FDA has not evaluated the claim and that product is not intended to diagnose, prevent, or treat any disease; and (3) the label does not claim that the product will diagnose, prevent, or treat any disease.  FDA guidance further provides that a supplement manufacture can substantiate such claims by showing “evidence of an effect on a small aspect of the related structure/function.”  Any label that satisfies these requirements is covered by the FDCA’s express preemption provision, which preempts any state law claims that would impose requirements different from those imposed by the FDA.

The Court held that the biotin label at issue here satisfied these requirements.  The Court explained that even if taking biotin would not help most people, that did not render the labeling false or misleading under the FDCA or the FDA’s governing regulations.  Rather, all that was required was that there be some “substantiation for the ingredient’s function on the human body, not the health impact of the product as a whole.”  The Court reasoned that “under Greenberg’s logic, virtually any structure/function claim for dietary supplements would be potentially misleading”—most people do not, for example, have a Vitamin C deficiency such that Vitamin C supplements would boost their immunity, but that does not mean that Vitamin C does not generally “boost immunity.”    And because the challenged biotin label also included the FDA’s required disclaimer and made no assertions regarding biotin’s ability to treat or cure any disease, its “helps support healthy hair and skin” was a federally authorized “structure/function” claim.  Greenberg’s state-law claims were therefore preempted.