Ali v. Hogan

• Citation: 26 F.4th 587
• Decision Date: 18 February 2022
• Docket Number: No. 20-2266,20-2266
• Parties: Saqib ALI, Plaintiff – Appellant, v. Lawrence Joseph HOGAN, Jr.; Brian E. Frosh, Defendants – Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

26 F.4th 587

Saqib ALI, Plaintiff – Appellant,

v.Lawrence Joseph HOGAN, Jr.; Brian E. Frosh, Defendants – Appellees.

No. 20-2266

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2021

Decided: February 18, 2022

ARGUED: Gadeir Ibrahim Abbas, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Washington, D.C., for Appellant. Adam Dean Snyder, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Lena F. Masri, Justin Sadowsky, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Washington, D.C., for Appellant. Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Before KING, THACKER, and HARRIS, Circuit Judges.

Affirmed as modified by published opinion. Judge King wrote the opinion, in which Judge Thacker and Judge Harris joined.

KING, Circuit Judge:

Plaintiff Saqib Ali seeks to pursue 42 U.S.C. § 1983 proceedings in the District of Maryland against that State's Governor and Attorney General, challenging as unconstitutional an executive order of the Governor that prohibits boycotts of Israel by business entities that bid on the State's procurement contracts. In October 2020, the district court dismissed with prejudice Ali's lawsuit for want of Article III standing to sue. Ali has appealed that ruling and, as explained herein, we affirm the judgment. In so ruling, however, we modify the judgment and provide that the dismissal is without prejudice.

I.

A.

In October 2017, Governor Lawrence J. Hogan, Jr., issued Executive Order 01.01.2015.25 (the "Executive Order") entitled "Prohibiting Discriminatory Boycotts of Israel in State Procurement." See J.A. 28.¹ The Executive Order refers to a "Declaration of Cooperation" between Maryland and Israel, which has, "for more than two decades, enabled the successful exchange of commerce, culture, technology, tourism, trade, economic development, scholarly inquiry, and academic research." Id. Furthermore, it recognizes 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" between Maryland and Israel. Id.

The Executive Order recites that Maryland "has a longstanding and broad policy to refrain from contracting with business entities that unlawfully discriminate" through the "solicitation, selection, hiring, or commercial treatment of vendors." See J.A. 29. It specifies that "[t]he termination or refusal to transact business activities with people or entities because of their Israeli national origin, or residence or incorporation in Israel and its territories, is not a commercial decision made for business or economic reasons." Id. at 28. The Executive Order also recites that "[b]usiness entities that employ such unsound business practices" have "impaired commercial viability," "pose undue risks as contracting partners," and "may not provide the best possible products or services." Id.

Pertinent to this appeal, Section A of the Executive Order defines a "business entity" to include a "sole proprietorship," including any "contractor, supplier, or vendor ... that has submitted a bid or proposal for ... providing goods or services to the State." See J.A. 29-30. Additionally, Section A defines a "[b]oycott of Israel" as being "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."Id. at 29. That definition includes limited exceptions, such as actions taken that are "not commercial in nature," "for business or economic reasons," or "because of the specific conduct of the person or entity." Id.

Next, Section B of the Executive Order appears to broadly prohibit state contracting with business entities that engage in boycotts of Israel. It provides that state "[e]xecutive agencies may not execute a procurement contract with a business entity unless [that entity] certifies, in writing when the bid is submitted or the contract is renewed," that (1) the entity "is not engaging in a boycott of Israel" and (2) the entity "will, for the duration of its contractual obligations, refrain from a boycott of Israel." See J.A. 30.

Finally, however, Section C of the Executive Order spells out the required certification — which must be signed by the bidding entity — in terms that are more circumscribed than those of Section B. The Section C certification focuses on whether the business entity has engaged in anti-Israel national origin discrimination in preparing its bid, rather than on whether the bidder is otherwise engaging in a boycott of Israel. More specifically, the Section C certification reads as follows:

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. Without limiting any other provision of the solicitation for bids for this project, it is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to reject the bid submitted by the bidder on this project, and terminate any contract awarded based on the bid.

See J.A. 30-31. The same certification is included in Maryland's solicitation and invitation for bid documents, with minor changes in terminology so that it applies to both bids and proposals for state procurement contracts. Id. at 192.

B.

1.

In January 2019, plaintiff Ali filed a 42 U.S.C. § 1983 civil action in the District of Maryland, seeking both declaratory and injunctive relief. See Ali v. Hogan , No. 1:19-cv-00078 (D. Md. Jan. 9, 2019), ECF No. 1 (the "Initial Complaint"). Named as defendants were Governor Hogan and Attorney General Brian E. Frosh, each in his official capacity only. The Initial Complaint asserted that the Executive Order contravenes Ali's rights to free speech and assembly, as protected by the First and Fourteenth Amendments. According to the Initial Complaint, "Ali is a computer software engineer who wishes to submit bids for government software project contracts but is barred from doing so due to the presence of mandatory ‘No Boycott of Israel’ clauses" in the Executive Order. See Initial Complaint ¶ 4.

The Initial Complaint alleged that Ali, in his personal capacity, participates in the "Boycott, Divestment, and Sanctions" movement, or "BDS," which "seeks to impose economic pressure on Israel to substantially alter the country's practices and policies regarding Palestinians."See Initial Complaint ¶ 15. As part of that effort, Ali personally "refuses to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine." Id. ¶ 35. Ali 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. ¶ 34. For example, in 2014, Ali organized a group called "Freedom2Boycott in Maryland," described in his Initial Complaint as "a coalition of statewide grassroots activists opposed to Maryland's legislative proposals targeting the BDS movement." Id. ¶ 37. It was alleged therein that the Freedom2Boycott group "ultimately helped defeat [various] anti-BDS legislative proposals" prior to the Governor's issuance of the Executive Order. Id.

The Initial Complaint did not allege that Ali has engaged in boycotts of Israel in his professional capacity as a software engineer. Rather, it maintained that, as a result of Ali's personal boycotts of Israel-tied products, the Executive Order bars him "from even submitting a bid" for any state procurement contracts. See Initial Complaint ¶ 41. The Initial Complaint identified "two projects for which ... Ali is generally qualified" but cannot submit bids "due to the bids' inclusion of ‘No Boycott of Israel’ certifications required by [the] Executive Order." Id. ¶¶ 40-41. In explaining how the Section C certification bars Ali from submitting bids, the Initial Complaint specified that "Ali cannot certify in good faith that he has not ‘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.’ " Id. ¶ 42 (quoting Section C of Executive Order).

2.

In early October 2019, on the Governor's motion, the district court dismissed the Initial Complaint for lack of Article III standing. As explained in the court's memorandum opinion, it was significant to the court that — notwithstanding the broad language of Section B suggesting that the Executive Order reaches plaintiff Ali's personal boycotts of Israel-tied products — the Governor had presented an interpretation of the Executive Order in this litigation that "prohibits only national-origin discrimination against Israelis in the formation of a bid for a state contract." See Ali v. Hogan , No. 1:19-cv-00078, at 1, 2019 WL 4861198 (D. Md. Oct. 1, 2019), ECF No. 20 (the "First Dismissal Opinion"). To limit the scope of the Executive Order, the Governor's construction relies on the narrower language of the Section C certification. Under that interpretation, "Ali and...