Ali v. Hogan

• Decision Date: 26 October 2020
• Docket Number: Civil Action No. CCB-19-78
• Parties: Saqib ALI v. Lawrence HOGAN, et al.
• Court: U.S. District Court — District of Maryland

496 F.Supp.3d 917

Saqib ALI

v.Lawrence HOGAN, et al.

Civil Action No. CCB-19-78

United States District Court, D. Maryland.

Signed October 26, 2020

Lena F. Masri, Gadeir F. Abbas, Justin Mark Sadowsky, Council on American Islamic Relations, Washington, DC, for Saqib Ali.

Adam Dean Snyder, Office of the Attorney General, Baltimore, MD, for Lawrence Joseph Hogan, Jr., Brian E. Frosh.

MEMORANDUM

Catherine C. Blake, United States District Judge

In this action, the plaintiff, Saqib Ali, raises a First and Fourteenth Amendment challenge to Maryland Governor Lawrence Hogan's Executive Order Prohibiting Discriminatory Boycotts of Israel in State Procurement. Before the court is Governor Hogan's motion to dismiss (ECF 25) and Attorney General Brian Frosh's motion to dismiss (ECF 26). The matter has been fully briefed, and no further oral argument is necessary.¹ For the reasons stated herein, the motions will be granted.

FACTS & PROCEDURAL HISTORY

Mr. Ali is a computer software engineer and has "experience designing, developing, testing, deploying and maintaining complex software systems for government contracts for the US Department of Defense." (ECF 22, Am. Compl., ¶¶ 4, 44). He has also "dedicated himself to education and advocacy regarding the plight of the Palestinian people" and he "works to enlist as many members of the public as possible in joining him in non-violent opposition to Israel's maltreatment of Palestinians." (Id. ¶ 47). To that end, he is involved with the "Boycott, Divestment, and Sanctions" ("BDS") movement, which "seeks the peaceful end of Israeli discrimination against and maltreatment of Palestinians" by "impos[ing] economic pressure on Israel to cease its settlement activity in Palestinian Territory." (Id. ¶ 15). For example, he "refuses to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine," he advocates for others to join the BDS movement, and, in 2014, he "organized ‘Freedom2Boycott in Maryland,’ a coalition of statewide grassroots activists opposed to Maryland's legislative proposals targeting the BDS movement" which "helped to defeat Maryland's anti-BDS legislative proposals." (Id. ¶¶ 48, 50).

On October 23, 2017, Governor Hogan issued Executive Order 01.01.2017.25, titled "Prohibiting Discriminatory Boycotts of Israel in State Procurement." The preamble refers to the Declaration of Cooperation between Maryland and Israel, and notes that "[b]oycotts of people or entities because of their Israeli national origin, or residence or incorporation in Israel and its territories, undermines the Declaration of Cooperation." (ECF 25, Ex. A, Executive Order ("EO"), preamble). Section A of the Executive Order defines "Boycott of Israel" as "the termination of or refusal to transact business activities, or other actions intended to limit commercial relations, with a person or entity because of its Israeli national origin, or residence or incorporation in Israel and its territories." (EO § (A)(1)). But "Boycott of Israel" does not include actions that are (1) not commercial in nature, (2) for business or economic reasons, (3) because of the specific conduct of the party, (4) against a public or governmental entity, or (5) forbidden by the United States pursuant to 50 U.S.C. § 4607.² Section B of the Executive Order states that:

Executive agencies may not execute a procurement contract with a business entity unless it certifies, in writing when the bid is submitted or the contract is renewed, that:

1. it is not engaging in a boycott of Israel; and

2. it will, for the duration of its contractual obligations, refrain from a boycott of Israel.

Section C of the Executive Order provides that all requests for bids or proposals issued for contracts with executive agencies shall include the following certification to be signed by the bidder:

The undersigned bidder hereby certifies and agrees that the following information is correct: In preparing its bid on this project, the bidder has considered all proposals submitted from qualified, potential subcontractors and suppliers, and has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier, refused to transact or terminated business activities, or taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin, or residence or incorporation in Israel and its territories. The bidder also has not retaliated against any person or other entity for reporting such refusal, termination, or commercially limiting actions.

This certification is included in Maryland's solicitation and invitation for bid documents, with slight changes in wording so it applies to both bids and proposals. (ECF 22 ¶ 34). It appears in the bid/proposal affidavit under the header "Prohibiting Discriminatory Boycotts of Israel." (ECF 25, Ex. B, Bid/Proposal Affidavit, § M).

Mr. Ali alleges that, although he "only boycotts Israel in his personal capacity, signing this certification would be intimidating." (ECF 22 ¶ 38). For example, it is not clear to Mr. Ali if the "other actions" clause is limited to the "in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier" clause, especially to the extent that Section C may cover what is more broadly prohibited by Section B. (Id. ). Additionally, he "cannot sign the oath because it requires Ali to support a political position he opposes." (Id. ¶ 56). According to Mr. Ali, he has not bid on at least six government contracts because he cannot sign the Section C certification. (Id. ¶¶ 53, 57).

Mr. Ali filed his initial complaint on January 9, 2019. (ECF 1). The defendants filed motions to dismiss and, as the court noted in its memorandum resolving those motions, the Governor asserted in his briefing and through counsel at oral argument that the language of Section B should be read as limited by the Section C certification, so the Executive Order "is but an Israel-specific reiteration of the general prohibition against national origin discrimination." (ECF 20, Memorandum, at 6). On October 1, 2019, the court dismissed Mr. Ali's complaint without prejudice, noting that "[g]iven the current allegations and the Governor's express disavowal of any prohibitive effect beyond national origin discrimination in the preparation of the bid, the court finds that there is not sufficient controversy to go forward on the basis of a direct injury." (Id. at 8). The court stated that if Mr. Ali wished to proceed on the basis of a direct injury, he should submit a bid. (Id. at 8–9). If Mr. Ali sought "to challenge Section C on the basis of what he alleged to be a content specific restriction, he must allege an injury in order to have standing to sue." (Id. at 9 n.4). Finally, if Mr. Ali wished to rely on the relaxed standing requirements applicable in First Amendment challenges, he must "file an amended complaint plausibly alleging that his First Amendment activities have been chilled or that despite the Governor's interpretation of the Order, ‘it is likely to deter a person of ordinary firmness from the exercise of First Amendment rights.’ " (Id. at 10–11 (quoting Cooksey v. Futrell , 721 F.3d 226, 236 (4th Cir. 2013) )).

Mr. Ali filed an amended complaint on October 29, 2019, asserting two counts. (ECF 22). First, he claims that the Executive Order abridges his freedom of speech and assembly, in violation of the First and Fourteenth Amendments. (Id. at 12). Specifically, he argues that the Executive Order and the mandated "No Boycott of Israel" certification in Maryland bids and contracts each constitute viewpoint discrimination; are void for vagueness; and are each a prior restraint on speech, an unconstitutional condition on contractors, and an ideological litmus test and compelled speech. (Id. ¶¶ 67, 70–72, 74). Mr. Ali also contests the Governor's "purported interpretation" of the Executive Order as being "inconsistent with its text." (Id. ¶ 29). Second, he claims that the Executive Order and the "No Boycott of Israel" certification are unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. (Id. ¶ 86).

STANDARD OF REVIEW

Issues of standing are analyzed under the rubric of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. See Taubman Realty Grp. Ltd. P'ship v. Mineta , 320 F.3d 475, 480–81 (4th Cir. 2003) (affirming district court's dismissal of complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) ). Plaintiffs bear the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must prove standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Ordinarily, "[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ; see also Pac. Legal Found. v. Goyan , 664 F.2d 1221, 1223 (4th Cir. 1981). When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), "the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Evans , 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) ). A Rule 12(b)(1) motion should be granted "only if the material jurisdictional facts are not in dispute and the moving party...