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Monday, April 10, 2017

Upcoming procedure cases (Updated)

I have two previews at SCOTUSBlog today for procedure cases to be argued at the Court next Monday. In Perry v. Merit Systems Protection Board, the Court considers the proper court (the Federal Circuit or a district court) for reviewing a decision of the MSPB that some discriminatorily motivated adverse employment action is not appealable to the Board (this case follows on a 2012 decision, that I also covered, holding that such "mixed cases" are reviewed in district court). In Town of Chester v. Laroe Estates, the Court considers whether a person seeking to intervene  as of right as a plaintiff must have Article III standing.

Two quick additional points on Town of Chester. First, I want to flag the amicus brief of Aaron-Andrew Bruhl (William & Mary), urging the Court to hold not only that the Court should require intervenors to have standing, but also to hold that every original plaintiff must have standing and to reject the current doctrine that, so long as one plaintiff has standing, there is no need to inquire into standing of all other plaintiffs seeking undifferentiated relief (such as injunction barring enforcement of some law). The brief follows on Bruhl's article (forthcoming Duke L.J.) arguing that the doctrine of "one good plaintiff" violates Article III.

Second, this case, especially if the Court is willing to pursue Bruhl's argument, could be significant to the ongoing debate over universal (or nationwide) injunctions. The ongoing confusion over universal injunctions is over the permissible scope of an injunction. That, in turn, reflects confusion over who is (or can be) directly protected by the injunction as an enforceable judgment and who is (or can be) indirectly protected  by the injunction only as binding or persuasive precedent in a new lawsuit. Only parties enjoy the former benefits. By allowing people without standing to be plaintiffs, courts expand who is a party and thus who enjoys the direct benefits of the injunction. Pulling back on this conception of standing may go a way to correcting scope-of-injunction problems.

Update: These also will be the first cases heard by Justice Gorsuch, who was sworn in yesterday and will participate in the April sitting.* I will make a second, more-random prediction: Gorsuch will write Perry. It is the kind of cases that goes to the junior-most Justice (Kagan, then early in her third Term, wrote Kloeckner). It likely will be unanimous (although I cannot predict from the briefs which way) and there is a tradition of giving a new Justice a unanimous decision.

* My long-ago prediction that Scalia's successor would not be deciding cases until OT 2017 was off by two weeks, although I was right that the earliest anyone would be confirmed was mid-April. But I assumed that it would not be worth the candle for the new Justice to step-in for a week or two of cases, which turned out to be wrong. I also did not anticipate that the Court would hear 13 cases--about 20% of the merits cases for the Term--in these two weeks.

Posted by Howard Wasserman on April 10, 2017 at 03:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


I can't remember: Does Bruhl's brief/article extend to cases where the parties seek injunctive relief in a 23(b)(2) class action?

Posted by: Adam Zimmerman | Apr 11, 2017 11:37:26 AM

He does not mention it in the brief. He discusses class actions in the article, mainly arguing that any concerns in the class context should be understood not as standing problems, but as problems of Rule 23 certification and substantive law (e.g., if the issue is an injured class member, that is a question of substantive law, not standing).

Posted by: Howard Wasserman | Apr 11, 2017 12:05:18 PM

Class actions present some complications due to their representative nature. But in the case of the (b)(2) class action, I think that all of the members of a plaintiff class would have standing because they are all similarly situated (e.g., students attending a segregated school). A single brief standing analysis would cover the whole group.

Posted by: Aaron | Apr 11, 2017 3:19:58 PM

Thanks, Howard and Aaron. I remember briefly skimming the article a while ago, so I'll definitely have to read it again.

You probably discuss this, but the Fifth Circuit has a nice discussion over the range of approaches to Article III standing in class actions in the BP settlement. Some circuits exclusively focus on the Article III standing of the “named plaintiffs” or “class representatives.” In re Deepwater Horizon, 739 F.3d 790, 800 (5th Cir. 2014)(citing the Third and Seventh, as well as the Tenth (which only takes that approach in injunctive relief cases)). Id. Others instead ensure absent class members possess Article III standing by examining the class definition. Id at 801 (citing four other circuits).

Based on Howard's description, it sounds like you're closer to the latter camp. But it also sounds like you don't wade into the debate over Article III standing in so-called "no injury" class actions. (Or do you?)

Posted by: Adam Zimmerman | Apr 11, 2017 6:40:03 PM

Just re-read your article. Nice discussion.

Posted by: Adam Zimmerman | Apr 11, 2017 8:34:06 PM

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