Thursday, August 27, 2015

Decision time

The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*

[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.

So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.

Posted by Howard Wasserman on August 27, 2015 at 12:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.

I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here  that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.

One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.

Posted by Howard Wasserman on August 26, 2015 at 06:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Saturday, August 22, 2015

The hole in Mireles v. Waco

One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).

That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.

Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.

[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.

By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.

Posted by Howard Wasserman on August 22, 2015 at 11:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Tuesday, August 18, 2015

Settlement in Hood County, TX

A couple initially denied a marriage license by the County Clerk of Hood County, TX, has settled the lawsuit, recovering more than $ 44,000 in attorney's fees.

On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.

Posted by Howard Wasserman on August 18, 2015 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Monday, August 17, 2015

Show Me a Hero

If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.

Based on the first two hours, this is definitely worth the viewing time.

Posted by Howard Wasserman on August 17, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, August 13, 2015

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her  name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.

2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.

3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.

[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.

Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.

Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, August 12, 2015

Benforado on cameras and perspective

Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.

Posted by Howard Wasserman on August 12, 2015 at 03:15 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions. 

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 11, 2015

Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.

Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.

Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.

Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.

Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.

Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.

Posted by Howard Wasserman on August 11, 2015 at 05:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Monday, July 20, 2015

Teaching Open Source Civ Pro: My (current) Hybrid Approach

This month I am blogging about my journey to try and teach civil procedure from completely open source materials.  This post is a bit of a confession -- I have not yet made it all the way to completely open source materials.  After the jump, I'll outline why I'm still reliant on a book (although not a casebook), and my plans to eliminate this reliance within the next year or so.

When I decided to undertake the project of teaching from my own materials, I didn't realize quite how big the project would be.  I figured it wouldn't be too time consuming: after all, I was already fairly certain about what cases I like to teach, so I thought that preparing the materials would just be a matter of editing the cases, putting them in order, and adding a few notes and comments where necessary.  Boy, did I underestimate how much work this would be.  (Note:  civil procedure is a five credit course at Brooklyn Law School where I teach, so doing this for a 3 or 4 credit course would, presumably, be slightly less time consuming).

I had a few part time research assistants do the initial work.  They downloaded the text of cases, removed all hyperlinks, and all extraneous information (syllabus, extended captions, parallel citations, unnecessary string citations, etc.).  I then had them take a first pass at editing the cases themselves.  Each RA had copies of a few casebooks to work from, and I told them what I liked and disliked about the editing style in each book.  After they edited the cases, they submitted the documents to me in "track changes" format, and I made the final edits.  I have to say that this process was very instructive for me.  In many cases, this was the first time in several years that I had read the full text of many of the cases that I routinely teach.  This reread was refreshing and made me think very hard about the edits.  It had a very big and, I think, a very positive influence on what I teach and how I teach it.  But that, of course, took a good deal of time.  

As it turned out, it took more or less a whole summer just to edit and format the cases and put together the statutory and rule supplement.  I was able to write notes and comments for one chapter, however, they were still a bit rough and "not ready for prime time."  My RAs had other full time work (work that I insist they prioritize and take seriously -- after all, that is the work that will be much more important to their careers), and I was using my summer to write an article.*

This left me with a problem:  could I really teach the class entirely from cases, statutes, and rules with no other materials whatsoever?  I quickly decided against this.  For one thing, civil procedure (at my institution) is taught to first year students in their first semester.  While I might consider teaching from cases only to upper-level students, I think that starting law school is disorienting enough without the complete "hide the ball" approach that is a stack of edited cases with no commentary.  Short summaries of the history of certain doctrines, and summaries of other decisions provide a vital context for understanding many of the topics.  Moreover, some topics are better taught through pure narrative and explanation rather than the "case method," such as the mechanics of service of process or the mechanics of discovery.

I decided to solve this problem by assigning my students a treatise that I had formerly ordered as a recommended book, Introduction to Civil Procedure (Rich Freer) from Aspen's student treatise series.  On the syllabus I gave two different types of reading assignments from Freer:  One set were the pages that are mandatory.  This served as the notes and comments and contextual material that one might ordinarily get from the text book.  The second set were "recommended pairings," meaning that these were the pages that the students might want to read for extra help and context to go along with the topics we studied.  In my past experience teaching from a casebook, my students had frequently cited Freer as the most helpful text on their course evaluations, and it was based largely on this student endorsement that I felt comfortable assigning this text.  It was already a book that I recommended highly to students and that many of them were already buying.

This, of course, means that I am far from teaching a "free" course.  Currently, students must obtain the course packet, either by downloading and printing it themselves, or by buying a printed copy from the school for $20.  The Freer treatise costs about $70, but is available cheaper if it is rented or bought used.    While this is an improvement over a $200+ casebook and a $40+ statutory supplement (plus a $70 recommended hornbook or outline), it is certainly not free.

I have found that this worked smoothly as a matter of teaching.  The students did not seem to mind switching between the two texts.  In the meantime, I've been slowly writing my own interstitial materials for each unit of materials, and I'm about halfway there.   My hope is to be free of the treatise by the fall of 2016 or 2017, and return to assigning the treatise (and other supplemental materials) as a recommended text.

A final note on teaching more directly from the treatise:  it has enhanced class discussion.  Because a student treatise will be more direct in summarizing cases, their facts, and their holdings, I have been able to use class for a more thorough discussion of reasoning, policy and doctrine.  This is a modified and light form of the "flipped classroom" that has become popular as of late.  I have enjoyed this innovation, and it has influenced how I've been writing the introductory material and notes for my own materials.

*Yes, I do spend my summers writing articles.  It has been debated ad nauseum on this and other blogs whether this is a good or appropriate use of professors' time and compensation.  Suffice it to say that I accept the world as it is: a world in which I am expected to produce scholarship and in which I enjoy doing so.  It was not realistic for me to abandon scholarship wholesale for an entire summer so that I could write a casebook.  But it should also be noted that I have been able to undertake this teaching project without sacrificing the ability to write altogether.

Posted by Robin Effron on July 20, 2015 at 02:53 PM in Civil Procedure, Teaching Law | Permalink | Comments (7)

Tuesday, July 14, 2015

Teaching "Open Source" Civ Pro -- a Recap and a Revisit

A few years ago, I blogged (here and here) about my plans to teach “open source” civil procedure by using my own materials that students could access at little or no cost to them.  I've now taught the course twice with my own materials, although I have not yet reached my goal of completely open source or completely costless to students (more on that later).

During my guest stint here this month, I’ll write about how that’s been going, highlighting things that have worked well and challenges that I still face.  I’m looking forward to readers’ comments with suggestions for improvements and additions to my efforts.  I’ll also devote a few posts to challenges inherent in teaching specific topics within civil procedure with a call for creative ways to teach some of this material.  

Feel free to start posing questions or thoughts in the comments and I'll try to incorporate that in my posts over the next few weeks.

Posted by Robin Effron on July 14, 2015 at 03:50 PM in Civil Procedure, Teaching Law | Permalink | Comments (3)

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, July 10, 2015

Mootness spreads

So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.

When I wrote about Nebraska's mootness argument, I explained why voluntary cessation from the state agreeing to abide by Obergefell should not be sufficient to moot the case, or at least not sufficient to justify vacating the district court judgment and order. But looking at these new motions, particularly from Alabama, I I think I have identified a more fundamental problem in their arguments. State officials are arguing that Obergefell conclusively resolved the constitutional question of same-sex marriage across the country, so there is nothing for the district courts to do here and no need for a district court judgment and injunction against officials in these states.

But that misunderstands what a Supreme Court opinion does and how precedent operates. The Supreme Court decision established the operative constitutional framework and analysis, but it it spoke only to the laws in Ohio, Michigan, Kentucky, and Tennessee and the obligations of officials in those states. As to any other state, it is necessary for another court to apply that constitutional framework, as precedent, to the laws and actions in that state. Even if the answer is obvious, since the precedent is binding and there is no way to distinguish it, that additional step is necessary, at least so long as there remains a genuine threat that this other state's anti-SSM laws might be enforced (and within the parameters of mootness doctrine).

In a sense, the states are trying to have it both ways. For months, many states and state officials insisted that a decision by a lower federal court was not binding on non-parties, did not require non-parties to do anything, and did not protect non-parties. This argument was, in fact, correct, although it happened to work to the state's advantage. Now states are trying to argue that a SCOTUS decision is, in essence, a nationwide injunction applicable to all bans on same-sex marriage and to all officials in all 50 states. This argument is, in fact, incorrect, although it also works to the state's advantage.

The most ironic example of this is Kansas. After the Tenth Circuit twice declared that the Fourteenth Amendment guarantees a right to marriage equality (in cases from Utah and Oklahoma) the Kansas Attorney General initiated a state mandamus action to stop a Kansas county clerk from issuing licenses to same-sex couples until a judge in the District of Kansas decided a constitutional challenge to Kansas' ban. Clearly, in the AG's view, binding precedent was not alone sufficient to justify compliance; there needed to be a decision by a court expressly addressing Kansas law and its enforcement by Kansas officials. And never did Kansas officials suggest that the Tenth Circuit's constitutional decision mooted the challenge to Kansas' law. But the Tenth Circuit's decision on the meaning of the Fourteenth Amendment is as binding on federal courts within the Tenth Circuit as a decision by SCOTUS. So if the extra step is necessary to apply circuit precedent, it must also be necessary to apply SCOTUS precedent.

Posted by Howard Wasserman on July 10, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, July 08, 2015

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 


The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (tlgrove@wm.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on July 8, 2015 at 04:15 PM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sanctions?

Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft  short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.

One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?

Posted by Howard Wasserman on July 8, 2015 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.

Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:

1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.

2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.

3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.

4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by  delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.

Posted by Howard Wasserman on July 6, 2015 at 02:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 02, 2015

General Jurisdiction After Daimler

In Daimler AG v. Bauman and Goodyear v. Brown, the Supreme Court held that corporations do not subject themselves to general--or "all purpose"--jurisdiction simply by conducting continuous business in a state.  Instead, a corporation's contacts with a state are only sufficient for general jurisdiction if they are so "constant and pervasive" as to render the corporation "essentially at home."  But Daimler and Goodyear left open some important questions about general jurisdiction--for example, whether a corporation that registers to do business and appoints an agent for service of process in a state consents to general jurisdiction there.

The U.S. Court of Appeals for the Federal Circuit is poised to decide that question in Acorda v. Mylan and AstraZeneca v. Mylan, two patent cases coming out of the District of Delaware.  As I've written about, personal jurisdiction is generally not an issue in patent infringement cases because defendants are usually subject to specific jurisdiction in the forum state (i.e., defendant sells the accused product in the forum state, and that contact gives rise to plaintiff's claim).  However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman Act, so the specific jurisdiction analysis is more complicated.  (For the record, I believe Mylan is subject to specific jurisdiction in Delaware in both of these cases, but the focus of this post is general jurisdiction).

The question in Acorda and AstraZeneca is whether, after Daimler, registering to do business in Delaware constitutes consent to general jurisdiction, as the Delaware Supreme Court decided long before DaimlerSee Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988).  The district judges split on the question; Judge Stark held in Acorda that Mylan consented to general jurisdiction, while Judge Sleet reached the opposite conclusion in AstraZeneca.  I agree with Judge Stark that Daimler did not "sub silentio, [] eliminate consent as a basis for jurisdiction."  In other words, Daimler addressed non-consensual submission to general jurisdiction through contacts, not through consent.   

The cases are currently being briefed at the Federal Circuit (which granted interlocutory review), and will likely be argued in the fall.

Posted by Megan La Belle on July 2, 2015 at 02:14 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

Tuesday, June 30, 2015

Some movement in Alabama

After a smattering of news and small initial steps in response to Obergefell in Alabama, Monday produced some definitive news.

1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.

2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.

3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.

4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.

This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.

Posted by Howard Wasserman on June 30, 2015 at 12:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 29, 2015

Texas responds to Obergefell

Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.

I believe Josh basically has it right, although I would offer a few caveats.

First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell--does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.

Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk's office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?

Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say "No licenses to same-sex couples from noon-1 p.m."

Posted by Howard Wasserman on June 29, 2015 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Sunday, June 28, 2015

Is the question moot?

Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.

This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.

I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.

But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?

Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.

Thoughts?

Posted by Howard Wasserman on June 28, 2015 at 11:49 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Saturday, June 27, 2015

More on SSM in Alabama

According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.

Posted by Howard Wasserman on June 27, 2015 at 04:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

More of what happens next (Updated)

A follow up to this post and more details:

1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.

2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."

3) I want to say a bit more about the remarks by Mississippi Attorney General Jim Hood that "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction. I said this was inartfully stated, but basically right. And it goes to the basic distinction at work here, between precedent and injunction (and the question of its scope).

The Supreme Court's mandate requires district courts in four states to issue injunctions against enforcement of the laws in four states by some defendants as to certain plaintiffs. None of them are in or about Mississippi. There is an injunction barring the Governor and A/G of Mississippi from enforcing that state's ban as to two couples; that injunction is presently stayed, meaning they are not obligated to comply with the injunction and to issue licenses to the two named couples until that stay is lifted. So Hood is correct as a matter of the law of injunction.

But Obergefell is precedent, binding on all courts, even those in Mississippi, that bans on same-sex marriage are unconstitutional. So any other couple in the state could have filed a new lawsuit against Hood seeking an injunction prohibiting continued enforcement of Mississippi's ban and compelling issuance of licenses; that court would have to issue the injunction, under the binding authority of a SCOTUS decision. The judge might be swayed by the continuing Fifth Circuit stay, but perhaps not; since the stay was in place pending Obergefell, the district court might feel free to issue a new injunction now that SCOTUS has spoken. So Hood is incorrect as a matter of the law of precedent.

The point is it is not as simple as saying Hood is wrong or issuing dangerous advice, as someone says in this article. Hood is right that the existing injunction does not take effect until the stay is lifted--but that only applies to two plaintiff-couples. He is wrong that SCOTUS precedent is not yet effective in the state, as a matter of influencing a court in a new case.

According to this story, Louisiana Governor (and GOP presidential candidate) Bobby Jindal essentially made the same argument as Hood--no mandate has issued for Louisiana to issue licenses, thus Louisiana officials are under no obligation to issue licenses to same-sex couples. And like Hood, he is right, unless and until a federal judge slaps an injunction on Jindal and others.

Posted by Howard Wasserman on June 27, 2015 at 11:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, June 26, 2015

What happens next?

I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).

Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.

And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.

Stay tuned.

Posted by Howard Wasserman on June 26, 2015 at 08:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, June 15, 2015

Strange Bedfellows #6: Streams of Commerce

This post is part of the Strange Bedfellows series.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.”  Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause. 

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states. 

The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation.  As Justice Holmes opinion said:

When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.

This ruling was only ten years after SCOTUS had ruled in United States v. E.C. Knight Co., 156 U.S. 1 (1895) that federal antitrust laws could not reach the purportedly local activity of operating a sugar refinery.  The tension between the two rulings was fairly obvious.  In both cases, an economic combination (monopolization in E.C. Knight, price fixing in Swift) affected customers in other states with regard to their purchase of a commodity food item, yet only one could be federally regulated.  After decades of back and forth over where the “stream of commerce” began and ended, NRLB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) put the entire framework to rest:

We do not find it necessary to determine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the government invokes in support of the present act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.

Now consider the stream of commerce as used in modern personal jurisdiction decisions.  World-Wide Volkwagen v. Woodson, 444 U.S. 286 (1980), said in widely quoted dicta:  “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”  The opinion did not cite to any Commerce Clause decisions, but instead to a well-known Illinois Supreme Court decision—Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)—that did not use a riparian analogy, but noted that goods had passed from one state to another “in the course of commerce.”  The image of a stream helpfully captured the idea for a jurisdictional context.  If a person poured poison into a river in one state, knowing that it would be carried downstream and cause injury in another state, personal jurisdiction in the second state ought to be proper. So too for pouring injurious items (like malfunctioning automobiles or radiator parts) into the stream of commerce.

Since World-Wide Volkswagen, SCOTUS has not been able to clearly articulate when a manufacturer has a legitimate “expectation” that its goods will be purchased in the forum state, and hence whether it has been properly introduced into a stream of commerce that predictably flows there.  Fractured decisions in Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery Ltd v. Nicastro, 131 S.Ct. 2780 (2011), have left confusion about how the concept should be applied. 

The stream of commerce under the Commerce Clause is not regularly taught, since it has been successfully interned.  The stream of commerce remains a live topic in Civil Procedure.  Some useful comparisons can nonetheless be made.

Both lines of “stream of commerce” cases involve a similar problem: when should a person’s local activity, having effects elsewhere, give rise to legal consequences outside the home state? Both also involve line-drawing problems: where should the stream of commerce be declared to begin and end? In both settings, the stream of commerce concept seems to have been introduced as a way to soften an otherwise draconian rule that prevented the government from taking action desired by the political branches.  And in both settings, the concept has been an unreliable guide to deciding concrete cases.  In response to the doctrinal confusion, Justice Kennedy’s plurality opinion in Nicastro sought to inter the stream of commerce metaphor, but unlike Jones & Laughlin, there was no majority willing to take that step.  If Justice Kennedy’s view in Nicastro prevails, the stream of commerce concept would be banished from personal jurisdiction because a conservative court perceived that it allowed governments to do too much—contrasting with Jones & Laughlin, where the stream of commerce was be banished from the Commerce Clause because a newly liberal Court perceived that it forced government to do too little.

 

Posted by Aaron Caplan on June 15, 2015 at 11:42 PM in Civil Procedure, Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

First Annual Civil Procedure Workshop

The First Annual Civil Procedure Workshop, jointly hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law, will take place July 16-17 at Seattle University. Details can be found in the link; it sounds like a great program. Contact Brooke Coleman (colemanb@seattleu.edu) with any questions.

Posted by Howard Wasserman on June 15, 2015 at 09:52 AM in Civil Procedure | Permalink | Comments (0)

Saturday, June 13, 2015

Aggregate Agency Adjudication

At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States.  Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts.  As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often.  And there are lots of reasons why.  But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively. 

I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog.  So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court.  In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury.  But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that).  Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years. 

Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise."  Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously.  I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons?  What are strengths and weaknesses of this kind of approach?  

The Vaccine Program uses two types of omnibus proceedings.  The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993).  For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master  then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing. 

According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:   

Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.

The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action.  But there are some drawbacks.  First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions.  Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure  vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."  

To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions.  And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence."   But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.  

Posted by Adam Zimmerman on June 13, 2015 at 12:28 AM in Civil Procedure, Deliberation and voices, Torts | Permalink | Comments (0)

Friday, June 12, 2015

Three-judge district courts in constitutional reform litigation

At Balkinization, David Gans discusses the use of three-judge district courts in conservative-leaning impact litigation challenging campaign-finance reform and voting rights rules. Gans argues it reflects "a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them."

I do not buy the argument that the three-judge district court procedure is in any way relevant or to blame for the doctrinal trends Gans is decrying. First, as Gans notes, the most significant recent case--Shelby County--did not come from a three-judge court, but SCOTUS took the case anyway and a narrow majority gutted the Voting Rights Act. Second, and more importantly, the three-judge district court does not benefit conservatives or liberals as much as it benefits whoever happens to be bringing the legal challenges. As Gans himself acknowledges, three-judge district courts were a central feature in litigation challenging Jim Crow and other discriminatory policies during the Civil Rights Era, with the NAACP and other litigators designing legal strategy specifically to get into a three-judge court; this  enabled plaintiffs to avoid hostile individual district judges in favor of a broader panel and to get cases to SCOTUS more quickly. But that current challenges are being brought by conservatives and creating constitutional doctrine that Gans obviously dislikes does not reflect anything about the wisdom (or lack thereof) of the three-judge process. If we accept constitutional impact litigation as a legitimate use of the courts, it cannot matter who is bringing the challenge or the positions they are urging; the complaint can only be about the doctrine, not the process that got us there.

For the best history of the three-judge process, including its role during the Civil Rights Era and its restriction in the '70s (based on the perception that they no longer were necessary), see Michael Solimine's 2008 article.

Posted by Howard Wasserman on June 12, 2015 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, June 11, 2015

Judicial Specialization, Patent Cases, and Juries

Judicial specialization has long been a topic of debate among patent lawyers and scholars.  In recent years, critics (including Seventh Circuit Judges Diane Wood and Richard Posner) have questioned the wisdom of granting the U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction over patent cases.  Yet, judicial specialization in patent cases is not limited to the Federal Circuit.  Over the past decade or so, certain federal district courts--particularly, the Eastern District of Texas and the District of Delaware--have become patent litigation "hot spots," and the judges in those districts have developed substantial patent expertise.  Moreover, Congress established the Patent Pilot Program in 2011 "to encourage enhancement of expertise in patent cases among district judges" by funneling patent cases in certain districts to designated judges.

Proponents of judicial specialization argue that it promotes efficiency, uniformity, and predictability for litigants, while opponents claim that specialized courts are subject to bias, capture, and tunnel vision.  Recent scholarship also addresses the question whether specialized courts are more likely to compete for lawsuits, or participate in "forum selling," as discussed here and here.

I am currently working on a paper, Influencing Juries in Litigation Hot Spots, that explores a different problem with specialized trial courts: the potential to improperly influence the jury pool.  The situation with patent cases in the Eastern District of Texas, recently highlighted on John Oliver's show, provides a prime example.  In the Eastern District of Texas, repeat litigants like Samsung have attempted to generate goodwill with the citizens of Marshall and Tyler (i.e., potential jurors) by sponsoring an ice skating rink outside the courthouse, granting college scholarships to Marshall and Tyler students, and donating television monitors to the local high school.  While the small towns of Marshall and Tyler have no doubt benefitted from Samsung's public relations campaign, the cost to our justice system--where juries are supposed to be impartial--is arguably too high.  

 

 

Posted by Megan La Belle on June 11, 2015 at 06:56 PM in Civil Procedure, Intellectual Property, Judicial Process | Permalink | Comments (1)

Wednesday, June 10, 2015

One-stop Civ Pro shopping

I am not sure it would be possible to write a better Civ Pro exam than Newberry v Silverman, a recent decision from the Sixth Circuit (H/T: Alex Stein of Cardozo). The case has almost everything we cover in the 1L course--removal, transfer of venue following removal, personal jurisdiction (and its effect on transfer of venue), choice of law following transfer, FRCP 9(b) pleading for fraud, and the granting of leave to amend factually insufficient pleadings.

Posted by Howard Wasserman on June 10, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 09, 2015

JOTWELL: Thornburg on Schwartz on the information benefits of discovery

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Joanna C. Schwartz, Introspection Through Litigation (Notre Dame Law Review), which explores the ways that discovery enables and incentivizes institutional litigants to examine and change their own actions and processes. I was particularly intrigued in how the substantive rules surrounding § 1983 litigation (notably Monell) actually undermine those information-gathering and "introspection" incentives.

Posted by Howard Wasserman on June 9, 2015 at 08:51 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, June 08, 2015

The Bellwether Settlement

A curious thing is happening in a Bergen County court in New Jersey.  A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."  

By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims.  A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.

But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement.  It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful.  The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.

A few thoughts beneath the fold.

I suppose many bellwether trials are really bellwether settlements in disguise.  Many of the cases that parties select as the "bellwether," as it happens, end up settling on the eve of trial. And because counsel in multi-district litigation share information, when enough cases settle, the parties learn how to structure a global settlement. So, here the court just chose to proceed based on the not-altogether-crazy idea that no case would reach a trial on the merits.  But the court's complete embrace of a "bellwether settlement" scheme raises interesting questions.  What do "bellwethers" mean when the procedures and outcomes lack any connection to the decisions a jury might reach?  

Most proponents of bellwether trials often assume some role for a jury in resolving a complex dispute.  First, bellwether trials provide a "dress-rehearsal" for other jury trials likely to come in a large case by helping parties hone their evidence and their arguments.  Second, a bellwether jury verdict assures that any eventual settlement bears some relationship to the merits of the dispute.  Third, the prospect of a jury trial in complex litigation wards off the threat of collusion and assures that the plaintiffs' counsel have sufficient bargaining strength in settlement negotiations.  Cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997) ("Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer... and the court would face a bargain proffered for its approval without benefit of adversarial investigation"). Fourth, a bellwether jury serves an important democratic function with deep roots in the history of American adjudication--providing bulwark against unelected judges who may harbor biases about what makes for a fair global resolution.

By dispensing with the jury entirely, bellwether settlements risk all of these important benefits.  But you could argue they have other advantages.  According to Judge Martinotti, the process yielded important information about claims, remedies and strategies that parties often would not share in preparation for a high-stakes trial. First, although bellwether trials provide a good way to measure how random members of the community  value common claims, they don't necessarily help counsel learn how random beneficiaries of a global settlement will value those same things. When the end-game is a global settlement, a focused sampling of arms-length negotiations could help counsel better identify solutions from the ground up.  

Second, bellwether settlements also avoid the problem of outlier or clustering verdicts--unexpectedly high or lottery-like jury awards that are difficult to average and threaten the chances of a more global settlement.  See Alvin K. Hellerstein, Managerial Judging: The 9/11 Tort Responder Litigation98 Cornell L. Rev. 127, 161-163 (2012)("at most, [bellwether trials would] have brought about settlements in individual claims or small clusters of claims, [but the] parties would not have had sufficient information to effect a wholesale global settlement."); Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts,44 Loy. U. Chi. L. J. 561, 575 (2012) ("[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.")

Finally, many leading members of the steering committees claimed that the structured mediations built "trust" among counsel in ways that don't easily occur until much later in multi-district litigation.

Bellwether settlements are part of a larger long-term trend taking place in the American courthouse.  As public courts export more cases to private dispute resolution--like mandatory arbitration--they also have imported values from ADR to find new ways to creatively resolve disputes, using court-annexed arbitration, special settlement masters and magistrates, and "problem solving" courts.  See Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights, 124 Yale L.J. 2084 (2015)(describing policies that "press trial-level judges to become conciliators, to deploy other individuals as “neutrals” to mediate or to arbitrate in courts, and to outsource decision making to the private market").  The result may be solutions that promise more speed, input, legal access, and as some have described, "paths to justice" than traditional trials.  

But the challenge is to determine what role our courts should play when large cases and "vanishing trials" push them to move outside their traditional public role as adjudicators--hearing adverse claims, supervising controlled fact-finding, and interpreting law. Judge Martinotti continues to play that traditional role in many complex cases. But like other judges in complex litigation, here his role seemed more like a public broker in a complex settlement marketplace--helping the parties set ground-rules and open the lines of communication to encourage people to enter into valuable contracts, exchange information about them, and in the process, and build trust necessary to forge a much larger, global settlement.   

Posted by Adam Zimmerman on June 8, 2015 at 06:57 PM in Civil Procedure, Deliberation and voices, Judicial Process, Torts | Permalink | Comments (0)

Friday, June 05, 2015

Patent Reform and Substance-Specific Procedural Rules

In 2011, Congress passed the America Invents Act, the most comprehensive patent reform legislation in more than half a century.  Yet, Congress is currently considering further patent reform, which appears to be moving forward with the Senate Judiciary Committee approving the bill yesterday.  The current reform measures are designed primarily to curb "patent litigation abuse" by creating special procedural rules for patent cases, including heightened pleading standards, restricted discovery, and more liberal fee-shifting. 

This latest reform effort raises a number of questions.  Some scholars argue that there's simply not enough data to support the legislation, while others say the reforms are unnecessary because courts and other institutional actors have already taken steps to address patent litigation abuse.  Commentators have also claimed that the reforms may seem reasonable in theory, but the actual proposed legislation is too broad and will harm our innovation economy.  I would like to focus on a different question: Are substance-specific procedural rules for patent cases appropriate and, if so, who should make those rules?

Although trans-substantivity is a hallmark of the Federal Rules of Civil Procedure (FRCP), there has been some movement away from this principle recently.  As I discuss in a recent article, that trend is particularly pronounced in the patent context where almost a third of federal district courts have adopted patent-specific local rules, and many individual judges use special standing orders for patent cases.  So there seems to be some consensus about the utility of specialized procedural rules in patent cases, but should it be Congress, district judges, or the Judicial Conference that decides the content of those rules?  I believe the Judicial Conference, which is responsible for proposing amendments to the FRCP, is in the best position to draft a uniform set of procedural rules for patent cases.  While far from perfect, the FRCP rulemaking process is more transparent, balanced, inclusive, and deliberate than the process for enacting legislation or adopting local district court rules.   

 

Posted by Megan La Belle on June 5, 2015 at 10:09 AM in Civil Procedure, Intellectual Property | Permalink | Comments (1)

The return of summary adjudication?

For a long time, SCOTUS had a great deal of mandatory jurisdiction. Prior to 1976, actions to enjoin enforcement of constitutionally defective federal and state laws were heard by three-judge district courts with direct and mandatory review by SCOTUS. Prior to 1988, SCOTUS had appellate (mandatory) jurisdiction over state court judgments that invalidated federal statutes or upheld state statutes in the face of federal (usually constitutional) challenge. This obviously played some role (how much is an empirical question that I would like to explore someday) in the Court's docket being significantly larger from the '60s through the mid-'80s. One way the Court handled that larger docket was through summary and memorandum dispositions (both to affirm and to reverse) of some of these mandatory-jurisdiction cases (again, the numbers are for future exploration).

For now, I am wondering whether the Court's seemingly increasing practice of summary grant-and-reverse decisions--part of what Will Baude described as the Court's Shadow Docket and which Richard further discussed--reflects a return to this practice. Monday's decision in Taylor v. Burke (which I discussed Wednesday) is the latest example of the practice, which is especially prominent in certain types of cases (notably § 1983/qualified immunity and habeas) involving certain types of outcomes (predominantly, although not always, where the government/officer lost in the lower court). As before, summary procedures allow the Court to speak to and resolve a greater number of cases, even if not in the fullest fashion.

The difference is that the earlier practice was (at least arguably) necessary to handle the heavier caseload that Congress had imposed on the Court; the Justices could not address so many cases if they had to give plenary review to each of them. On the other hand, necessity does not dictate the current practice--the Court is not doing this because it has no other way to handle these cases or because it would be unduly burdened by giving plenary review to more cases. Instead, it reflects the Justices' strategic choice to reach more cases and issues, often towards a particular substantive end, but without expressly acknowledging an expansion of its jurisdiction or its certiorari practices and without, as Baude puts it, their "otherwise high standards of transparency and legal craft."

Posted by Howard Wasserman on June 5, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 04, 2015

Armstrong and Implied Public Rights of Action

Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month.  I'd like to begin by raising a question about the enforcement of federal law:  May federal courts imply public rights of action when Congress has not expressly authorized it?  

I have written about this question before here and, to a lesser extent, here.  The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants.  Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc.  (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.)  The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.

Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs.  For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983.  And in Armstrong they collided.

Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action.  How, then, have federal courts granted injunctions against state officials without express congressional authorization?  Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young.  Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.  

It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court.  One possibility is "not much."  As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.  

What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement.  Here's where Justice Breyer's concurring opinion interests me.  He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."  Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy.  As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters.  Justice Breyer's citation to Arizona presents a puzzle:  Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement?  If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.

To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States.  Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity.  I've never been comfortable with the view that Article II alone implies and even requires public rights of action.  In some cases other constitutional provisions or statutory provisions will support implied public rights of action.  That leaves equity, which Armstrong reaffirms "in some circumstances."  Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.   

Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters.  Justice Scalia offers some examples where federal courts may fashion equitable remedies.  Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out.  Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson.  (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.)  If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action.  By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact.  His concern was that private remedies may interfere with agency expertise.  And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.  

Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement.  Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter.  Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.   

Posted by Seth Davis on June 4, 2015 at 10:10 PM in 10th Anniversary, Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Wednesday, June 03, 2015

Next Stop: Crazyville, AL

(H/T for the title: My colleague, Tom Baker)

As I believe I have written here before, my law school mentor, Marty Redish, used to tell us that when our legal analysis matched our political preferences, we should go back and rethink the legal analysis [ed: To be clear: The conclusion may remain the same, but we should do it again to be sure.] I thus can feel a slight sense of academic pride in defending the various moves by Roy Moore and other officials and advocates in Alabama--people with whom I agree on virtually nothing--trying to stop marriage equality.

But this move about ends that. The relators in the state mandamus action have moved for "Clarification and Reaffirmation" of the mandamus order, in light of Judge Granade's decision to certify and enjoin plaintiff and defendant classes, effectively making the federal injunction statewide. The relators argue that Judge Granade has made her injunction superior to the state mandamus, that she overruled the state supreme court, that she created an unnecessary conflict, and that her decision is a "direct assault" and "unprecedented attack" on the mandamus order and on the state judiciary. In other words, the identical criticisms that people on the other side leveled against the relators and the mandamus given the existing federal injunction--but if those arguments were wrong then (and they were), don't make them now.. They also argue that Judge Granade should have abstained in deference to the state proceeding, particularly under Burford. More problematic is the rhetoric in the motion, which uses some form of the word "legitimate" or "illegitimate" around fifteen times in seventeen pages, both in describing Judge Granade's decisions, as well as in describing the likely eventual decision from SCOTUS.

Ulimately, I am not sure of the point of the motion. No one doubts the mandamus remains in effect. And no one doubts that probate judges might find themselves under conflicting orders (once the stay on the class injunction is lifted), which is inherent in concurrent jurisdiction and not such an unusual occurrence (especially given that abstention is always discretionary). And the relators are genuinely deluded if they believe, as they suggest in a long footnote, that the mandamus will have any effect on SCOTUS's decisionmaking in Obergefell.

Posted by Howard Wasserman on June 3, 2015 at 12:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

What hath Pearson wrought?

Michael Dorf and Scott Michelman comment on Monday's summary grant-and-reverse in Taylor v. Barkes, another qualified immunity case. The Court held unanimously that the right at issue (to have jails create and implement sufficient suicide screenings) was not clearly established; no SCOTUS precedent established such a right, the lower courts were divided, and Third Circuit precedent, even if it could clearly establish, was not on point. The analysis sounded very much like San Francisco v. Sheehan, which Richard discussed at the time.

I want to pull on a small thread that both Michael and Scott raise--how 2009's Pearson v. Callahan makes Taylor (and other cases) possible. Pearson overruled Saucier v. Katz, rejecting the rigid "order of battle" in which a court must first decide whether the plaintiff's right was violated on the facts at hand (on summary judgment or in the complaint) before considering whether that right was clearly established. Pearson unanimously held that, while this order of battle is typically appropriate, it is not required. A court may save judicial resources and time by deciding that a right is obviously not clearly established without getting into the weeds of a possibly difficult constitutional question. It is not surprising that lower courts have taken Pearson at its word and regularly assume a violation and reject the right as not clearly established (I discuss two examples from the Fifth Circuit, although with a focus on summary judgment analysis, here).

What is perhaps unexpected (I certainly did not anticipate it) is how the Justices themselves have used Pearson. It offers a simple, cheap, and powerful tool for protecting law enforcement officers and other government officials from judgments* the Justices regard as erroneous, without expending the time and resources on plenary review, necessitating substantive constitutional lawmaking (which Michelman discusses as something that can cut for or against civil rights plaintiffs), or violating the Court's self-imposed limit against granting plenary certiorari review solely for error correction. Pearson enabled the summary reversal in Taylor; the Court could get the defendants out from under the adverse decision in six pages, with little work and no need to engage in substantive Fourth or Fifth Amendment analysis. It similarly enabled Sheehan; the Court could hang onto and quickly resolve the "clearly established" issue, even while DIGing or avoiding the substantive issues and without having to really address the cert.-worthiness of that issue standing alone.

[*] Actually, not even judgments in most of these cases, but the erroneous denial of summary judgment or 12(b)(6) and the burden of having to litigate any longer.

Posted by Howard Wasserman on June 3, 2015 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, May 28, 2015

Sixth Circuit Becomes First Appellate Court to Address Choice-of-Law Problem in Direct-File MDLs

Last week, the Sixth Circuit issued an opinion only a civil-procedure geek like me could love.  The court held that in MDL cases, the trial court should apply the choice-of-law rules of the state in which the case would have normally been filed, rather than the rules of the state in which the MDL court sits, even if the plaintiff chose to file directly in the MDL court. See Wahl v. Gen. Elec. Co., No. 13-6622 (6th Cir. May 22, 2015).

This blend of MDL procedure and application of the Erie doctrine arises because some MDL courts permit plaintiffs to file directly in the MDL court, rather than file initially in a proper venue and then await MDL transfer.  (For background on the MDL process, see Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation79 Fordham L. Rev. 1643, 1663-67 (2011).) The direct-filing option is unusual; in most MDLs, the plaintiff initially files in a proper forum, and the Judicial Panel on Multidistrict Litigation then transfers the case to the court vested with MDL jurisdiction. See id. at 1664. These MDL transfers are for pretrial proceedings only; eventually, the MDL court must return the case to the original forum for trial. Lexecon Inc. v. Milberg Weiss Bershad & Lerach, 523 U.S. 26 (1998).  And, outside the MDL context, the Supreme Court requires trial courts to respect the choice-of-law rules of the plaintiff's originally chosen forum, even when the case is subsequently transferred to a more-convenient forum under 28 U.S.C. § 1404(a). See Van Dusen v. Barrack, 376 U.S. 612 (1964). Thus, MDL courts traditionally apply the choice-of-law rules of the state in which the transferor court sits. But when an MDL permits the plaintiff to file directly in the MDL court, the court in which the plaintiff would have filed (but for the MDL) is technically not a "transferor court."  



The plaintiff in Wahl sued General Electric for injuries sustained by a defective drug. She filed directly in the MDL court (in Ohio), rather than in her native Tennessee. But the case was transferred to Tennessee after pretrial proceedings. And,seeking to avoid Tennessee's statute of repose, the plaintiff argued that Ohio choice-of-law rules should apply, because she had initially filed in Ohio.

The Sixth Circuit rejected that argument. The decision appears to be premised primarily on the fact that Ohio was not a proper venue; the plaintiff had filed directly in Ohio because the MDL was situated there, which was purely fortuitous. See Wahl, slip op. at 10 ("she took advantage of the procedural mechanism the MDL made available to increase efficiency of filings"). Absent the MDL proceedings, the plaintiff could not have filed in Ohio--and if she had done so, the case could have been transferred because of the improper venue. See 28 U.S.C. § 1406(a). Noting that courts tend not to follow the Van Dusen rule for § 1406(a) transfers (confining that rule instead to convenience transfers under § 1404(a)), the Sixth Circuit likened the transfer from Ohio to Tennessee in the direct-file MDL context as a § 1406(a) transfer. And, in a § 1406(a) transfer, the applicable choice-of-law rules are those of the state of the transferee court.

The policy behind the Wahl ruling makes sense. But its application could be more complicated in future cases. In Wahl, for example, there appears to have been no disagreement that Tennessee was both a proper forum and the forum where the plaintiff would have filed but for the MDL. But an MDL plaintiff may have a choice among multiple venues. If she has that choice--but nevertheless chooses to file directly in the MDL court--determining which state's choice-of-law rules to follow may be much more complicated.


Posted by Andrew S. Pollis on May 28, 2015 at 11:33 AM in Civil Procedure | Permalink | Comments (3)

Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.

The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):

The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.

The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.

My fuller thoughts after the jump.

First, Hash raises a genuine issue. All else being equal, this is how a couple would try to get around preclusion. And he is correct that the class definition should and generally will be merits-blind. True, it probably wasn't in this case, in part because, as another commenter notes, the class action is a follow-up to two previous individual injunctions in the same action, so we know exactly how Judge Granade comes out on the constitutional question. But it will not always be so.

Second, I do not believe this is unique to the marriage case, but rather is endemic to FRCP 23(b)(2) classes in constitutional actions. At pp. 7-8 of the class certification order, Judge Granade cites several 23(b)(2) precedents, with classes defined as, for example, "female students who seek to participate in varsity intercollegiate athletics" or "persons seeking abortions." These classes do not seem to be defined much differently than the class here, in that all are unspecified as to time. And I expect that, as Asher suggests in the comments to the earlier post, Judge Granade understood her injunction as applying to all people who wish to get married in the future. In fact, she cited one other case in which the class was defined as everyone who wished or expected to engage in some expressive activity in the future.

But does that raise due process concerns, in that someone will be bound in their future activity? Especially since 12(b)(2) requires neither notice nor opportunity to opt out of the class? I do not believe so for several reasons, somewhat tied to the nature of injunctive relief.

First, to the extent the government would argue issue preclusion, that generally does not apply to purely legal questions, such as the declaration that SSM bans do not violate the Fourteenth Amendment.

Second, even if the denial of the class injunction has claim-preclusive effect on every couple who may seek to marry in the future, this hypothetical couple will not be left without an option. Rather than filing a new action for an injunction--likely before Judge Granade, if in the Southern District--and having to face a preclusion defense, they could go back to Judge Granade as part of this action and seek relief from the judgment denying the injunction, under FRCP 60(b)(6) or (b)(5). The couple's arguments would be the same in both--the ban is, in fact, unconstitutional and the probate judge should be enjoined from enforcing it. And the trigger to both actions would be the same--some change in the law (for example, a decision from SCOTUS or the Eleventh Circuit) renders Judge Granade's denial of the injunction erroneous and inequitable. This, of course, is the converse of what defendants do to get out from under continuing injunctions and what the Alabama probate judges will do in Strawser if Obergefell comes out the opposite of what everyone expects. But it also is what an individual plaintiff would do, so why would it not work for class members?

Does this resolve the problem?

Posted by Howard Wasserman on May 23, 2015 at 04:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of

all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.

And she certified a defendant class of

all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.

In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."

Thoughts on the order and where this leaves us after the jump.

Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the  trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.

Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.

Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*

* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."

The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.

Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.

Posted by Howard Wasserman on May 21, 2015 at 10:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Part 2: Rule 23 and the Class Action – To Amend or Not to Amend?

As I posted last week, the Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule.  I summarized three of the class action subcommittee’s conceptual sketches last week.  Today, I will cover the remaining four.  (As a reminder, the full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book.  In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)   

If the subcommittee decides to put amendments forward, it wants to do so quickly.  The plan is to bring potential amendments to the Civil Rules Committee’s fall 2015 meeting.  This would mean that--assuming the amendments go through the process without a hitch—these proposals could become law as early as December 2018.   Once again, I bring these proposals to your attention because if academics want a voice in this debate, the time to enter the fray is now. 

Here are the remaining conceptual sketches: 

Dealing with Objectors.  Rule 23 allows for objectors to proposed settlements.  That objection, under the current rule, can only be withdrawn with the court’s approval.  Objectors are controversial, yet we have very little empirical data about what they do.  Some critics believe that objectors abuse the system by creating enough trouble for settlement so that they can get some payoff from the settling parties.  Others believe that the current provision requiring court approval for withdrawal keeps the bad actors away and that objectors are good for the system because they help judges see the potential pitfalls of a proposed settlement.  The current proposal does not take a position on the value of objectors, but it attempts to meet some of the criticism.  First, when an objector attempts to withdraw his or her objection, one proposed amendment would require the parties to file a statement with the court identifying any deal struck between the parties and the objector.   Second, another proposal would explicitly provide that the court has the authority to issue Rule 11 (or Rule 11-like) sanctions against objectors that do not make valid objections. 

Rule 68 Offers and Mootness.  In Genesis HealthCare Corp. v. Symczyk, the Court held that once a plaintiff’s Fair Labor Standards Act claim was mooted, she could not represent her co-workers in a collective action.  However, the Court did not directly decide the question of whether a full offer of settlement could indeed moot a case.  In Genesis Healthcare, the defendant made a Rule 68 offer of settlement to the plaintiff that she did not accept and that the district court did not enter.  Yet, the district and circuit courts determined that this offer—one that undisputedly satisfied her entire claim—mooted her case.  The Court explicitly avoided the issue of whether Rule 68 can be used this way.  Thus, the case had caused concern that defendants will simply “pick-off” representative plaintiffs by offering to settle their claims in full.  Genesis Healthcare was not a class action case, but the comparisons are inevitable.  And while previous Supreme Court precedent (United States Parole Commission v. Geraghty) holds that a class action representative cannot be similarly “picked off” after the class has been certified, the question of what happens before the class is certified remains open.  The subcommittee has a few proposals that would attempt to address this issue.  One is to amend Rule 23 to only allow a “tender of relief” to a class representative to terminate the case when (i) the court has denied class certification and (ii) the tender gives the representative complete relief such that the claim should be dismissed.  The second approach is to amend Rule 68 to state that it does not apply to class and derivative actions at all.  A final approach would amend Rule 23(e) to require that the proposed class representative and defendant file a statement identifying the terms of their settlement if that settlement is reached before a class certification decision.  As posted here earlier this week, the Supreme Court just granted cert on a case that seems to squarely present the issue addressed in these conceptual sketches (Campbell-Ewald C. v. Gomez (No. 14-857)).  Given that, these proposals may become a lower priority for the subcommittee. 

Issue Classes.  Civil Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”  This provision has caused some confusion among circuit courts because it is not clear whether, in the context of a 23(b)(3) class action, these 23(c)(4) issue class actions can be used when the whole case does not otherwise meet 23(b)(3)’s predominance requirement.  Given this confusion, the subcommittee is considering an amendment to Rule 23(b)(3) that would clarify that predominance is not a prerequisite to certification of issues under Rule 23(c)(4).  If this change is made, the subcommittee is also considering language that would allow for some form of interlocutory review of a decision to certify an issue under Rule 23(c)(4).

Notice.  In Rule 23(b)(3) class actions, notice giving each class member the right to opt out of the class is required.  Under existing case law, that notice must meet Mullane standards.  The question the subcommittee is exploring is whether or not the rule should clarify that methods of notice other than written notice through the US mail might be sufficient.  A proposal suggests allowing notice “by electronic or other means.”  In addition to this change the subcommittee is considering whether to require reasonable notice (not individual notice) in Rule 23(b)(1) and 23(b)(2) class actions.   When those class actions settle, Rule 23(e) requires notice, but if a case is fully litigated, no notice is required.  This proposal has been rejected in the past because it arguably increases the cost of class actions, something that might discourage lawyers from taking these types of cases in the first place.  

Posted by Brooke Coleman on May 21, 2015 at 05:12 PM in Civil Procedure | Permalink | Comments (0)

Monday, May 18, 2015

SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives

The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar:  whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.  

There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857).  The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context.  But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.). 

If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference.  Does it matter whether the plaintiff has already filed suit?  Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing.  Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)?  Does it matter how far the class-certification proceedings have gone?  All this remains to be seen.  All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).

The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action.  Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.  

How do you see this case coming out?

Posted by Andrew S. Pollis on May 18, 2015 at 10:54 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (2)

Justice Scalia was not pleased

Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.

While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."

Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.

Posted by Howard Wasserman on May 18, 2015 at 05:51 PM in Civil Procedure, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, May 14, 2015

Recent SCOTUS Decision in Bullard: Right Decision, Wrong Result

Last week, in Bullard v. Blue Hills Bank, the Supreme Court unanimously held that an order rejecting a bankruptcy debtor's proposed Chapter 13 plan is not final for purposes of appellate review.  The holding highlights a fundamental problem in appellate jurisdiction:  the lower court is often the gatekeeper of the right to appeal important interlocutory orders and--too often--jealously holds onto the key.

The debtor in Bullard sought to confirm a Chapter 13 plan that would have required him to pay in full the secured portion of his residential mortgage loan while discharging most of the unsecured portion (the latter a function of the fact that the value of the real property was less than the total loan amount).  The bankruptcy court rejected that plan because of the hybrid treatment of the debt--an issue as to which there was conflict in the case law.  The Bankruptcy Appellate Panel accepted a discretionary interlocutory appeal under 28 U.S.C. § 158(a)(3) and affirmed.  But the BAP then refused to certify the appeal for further review in the First Circuit under 28 U.S.C. § 158(d)(2) (analogous to 28 U.S.C. § 1292(b) in non-bankruptcy cases).  When the debtor appealed to the First Circuit, that court dismissed the appeal, concluding that the denial of a confirmation plan was not final, and the absence of BAP certification deprived the appellate court of discretionary jurisdiction over an interlocutory order.



The Supreme Court's holding is not itself remarkable.  It boils down, essentially, to a diatribe against the floodgates of appellate litigation that would result if interlocutory orders (even important ones) were always immediately appealable.  It's actually hard to fathom why the Supreme Court even bothered to hear the case.  No one would seriously contend, for example, that the denial of summary judgment (in a non-immunity case and involving no claim for injunctive relief) is subject to immediate appeal.  Refusing to confirm a bankruptcy plan is not meaningfully different.

The Court did not mean to suggest that there should never be a right of immediate review.  It acknowledged that the debtor's alternatives to an immediate appeal--either to proceed with an amended plan or to suffer dismissal of the bankruptcy proceeding--are both often unpalatable.  But the Court contented itself with the knowledge that in such circumstances, 28 U.S.C. § 1292(b) permits appeals from bankruptcy cases heard by district courts, and § 158(d)(2) permits appeals from bankruptcy matters heard by BAPs.  

That contentment was misguided, because the statutory bases for interlocutory appeal depend on the acquiescence of the very court whose decision is being appealed.  In Bullard itself, for example, the real problem was that the First Circuit should have been entitled to make that appellate-jurisdictional determination and apparently wanted to--but  the BAP blocked it from doing so.  Under § 158(d)(2), the First Circuit could have heard the appeal only if the BAP had first certified the issue as one involving:  (a) a question of law on which there was no "controlling precedent"; (b) a question of law requiring "resolution of conflicting decisions"; or (c) an issue the resolution of which would "materially advance the progress of the case."  The BAP refused such a certification "for reasons that are not entirely clear."

I have previously criticized the trial courts' gatekeeping function when it comes to interlocutory appeals of important issues.  See Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation 79 Fordham L. Rev. 1643, 1658-63 (2011); see also Andrew S. Pollis, Civil Rule 54(b): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev. 711, 762 (2013).  Bullard is just the latest example of that problem in action.  While I have no quarrel with the Supreme Court's determination that the denial of a bankruptcy confirmation plan is not a final judgment always triggering the right of appellate review, I continue to call for reform so that important issues warranting immediate appeal do not continue to be sacrificial lambs at the indelible altar of trial-court (or, in this case, BAP) sovereignty.

Posted by Andrew S. Pollis on May 14, 2015 at 11:49 AM in Civil Procedure, Judicial Process | Permalink | Comments (5)

Tuesday, May 12, 2015

Civil Rule 23 -- To Amend or Not to Amend?

The Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule.  The Advisory Committee has created a subcommittee with a rather broad statement of purpose.  The subcommittee has offered that it is open to any ideas for improving Rule 23, but it is not promising to propose specific amendments, or any amendments for that matter.  Not surprisingly, a number of constituencies are interested in this open agenda.  The subcommittee members have embarked on something of a listening tour.  They have attended or plan to attend over a dozen conferences.  (I am particularly pleased that they are coming to the First Annual Civil Procedure Workshop, an event that I am co-planning.)

While the Rule 23 agenda is not set, the subcommittee has put forth a set of proposed “conceptual sketches.”  The sketches include some proposed rule language, but the focus of the subcommittee at this point seems to be on gathering reactions to various areas of class action reform.  In this post and a consecutive post, I attempt to summarize these conceptual sketches.  While it is impossible to do justice to the subcommittee’s agenda in a short blog post, my hope is that this piques the interest of the academic community.  As we have learned from past rounds of Civil Rule amendments, the sooner the academic community weighs in on these issues, the more likely our voices are to be heard. 

Below I summarize three of the seven “conceptual sketches” the subcommittee is currently considering.  I will cover the others in a later post.  (The full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book.  In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)  Here are the first three sketches: 

Settlement Approval Criteria.  Rule 23(e) provides that the court must approve a class action settlement, compromise, or voluntary dismissal.  The rule does not provide much, if any, guidance as to what inquiry the court should make before this approval.  Thus, courts have diverged on what they look at when assessing settlement.  There is some overlap in criteria, but there is no consensus.  The ALI Aggregate Litigation Principles propose that a common set of factors be adopted, and the subcommittee is considering this idea.  The current conceptual draft requires that a settlement meet the following factors:  (i) the class representatives and counsel remain adequate representatives for the class; (ii) the relief is “fair, reasonable, and adequate;” (iii) the class is treated equitably; and (iv) the negotiation was not the result of collusion.   These factors, if adopted, would supersede other factors that circuits have followed.  However, the proposed conceptual sketch also includes a provision that would allow courts to disapprove of the settlement by considering “any other matter pertinent to approval of the proposal.”  In other words, the proposal would include a list of required criteria, but it would also leave room for courts to consider other factors unique to each settlement.   

Settlement Class Certification.  Under Amchem Products, Inc. v. Windsor, the Court reasoned that when courts are certifying a case for settlement it is proper to weigh the fact that the case will not be litigated.  Yet, the Court also stated that even when a Rule 23(b)(3) class action is being certified for settlement, it must meet the predominance requirement.  Under Rule 23(b)(3), plaintiffs attempting to certify their class, in addition to meeting the requirements of Rule 23(a), must also demonstrate that common issues predominate and that class adjudication is superior to individual litigation.  The Amchem Court understood that some of the superiority inquiry may not matter as much, at least with respect to how manageable a case is to litigate.  After all, the case would not be litigated, so the difference in managing individual or aggregate cases at trial is of no moment.  However, according to the Amchem majority, predominance was a different story.  Yet, in the context of settlement, many argue that predominance should not matter either.  The case is settling, which means that the question of whether common issues predominate might be of less concern.  In response to this ongoing question, the subcommittee is considering a rule (new Rule 23(b)(4)) that would permit certification for settlement as long as Rule 23(a) is met–although, this requirement is also being debated by the subcommittee—and as long as the “proposed settlement is superior to other available methods for fairly and efficiently adjudicating the controversy.”   Of course, the settlement must also meet the Rule 23(e) settlement requirements, as potentially revised.   This change would mean that Rule 23(b)(3) class actions—the most common class action—could be certified for settlement without having to meet the predominance requirements, a requirement that can otherwise prove quite difficult to satisfy. 

Cy Pres Treatment.  It is often impossible to distribute the entirety of a class action settlement to each individual class member.  Indeed, class settlement agreements contemplate this challenge and set up what is called a cy pres award.  (Cy pres is short for the French term “cy pres comme possible” which essentially means “as close as possible.”)  The cy pres award attempts to get the remaining funds to recipients who are “close enough” to the class members.  Recently, cy pres awards have garnered some negative attention, most notably from Chief Justice John Roberts who indicated when denying certiorari in Marek v. Lane that he would like the Court to “clarify the limits on the use of such remedies.”  In Marek, a class of Facebook users whose privacy had allegedly been violated by the company settled for roughly $10 million, but the money did not go to individual users.  Arguing that payments to the individual class members would be too small, the settlement provided that Facebook would pay over $6 million to a charity that would promote online privacy.  This case was very controversial, as indicated by the Chief Justice’s comments, and it has led to a call for better monitoring of cy pres awards.  The subcommittee is considering a proposal to do just that.  The proposal (a new part of Rule 23(e) on settlements) would require that when reviewing a cy pres award, the court should follow certain criteria.  The first is that settlement awards, to the extent possible, should be distributed to the individual class members.  If any money remains after those awards, the rule would require that the remaining money go to individual class members unless the amount is too small.  If individual distributions are not viable, the court can then approve a cy pres award that would directly benefit a recipient “whose interests reasonably approximate those being pursued by the class.”  Failing that, the award should go a recipient that would benefit the public interest.     

Posted by Brooke Coleman on May 12, 2015 at 02:14 PM in Civil Procedure | Permalink | Comments (2)

Move to Strike?

Accused rapist, former Florida State football star, and overall top pick in the recent NFL draft Jameis Winston filed a counterclaim (for defamation and tortious interference with business) in the federal civil action brought by his accuser (she filed in state court, Winston removed to federal court, and just filed his Answer). The pleading begins with a "Preliminary Statement" that runs 17 pages (of a 63-page document) in narrative form and recounts, in detail, all of the proceedings, statements, and evidence in the various proceedings over the sexual assault allegations. It also explicitly calls the plaintiff a liar. These pages read not like a pleading, but like the statement of facts in a trial or appellate brief.

Under the rules, this portion of the pleading is unquestionably improper. FRCP 10(b) is clear that a "party must state its claims or defenses in numbered paragraphs." And about the only thing that FRCP 12(e) Motions for More Definite Statement are still used for is challenging complaints that are written in narrative rather than paragraph form. These sorts of narrative preliminary statements are increasingly common in complaints. But they usually take up only a paragraph or two at the top of the complaint, not over 1/4 of the pleading. And Winston's lawyers realize the requirement of numbered paragraphs, since they repeat most of the key details, in numbered paragraphs, in the statement of the counterclaim in the third part of the pleading.

So should the plaintiff move to strike this introductory portion under FRCP 12(f)? It seems an appropriate move. It is redundant, since it all gets repeated, in a proper manner, later in the pleading. It is impertinent, since it gets into some direct and somewhat personal attacks. And it plays no role in the pleadings themselves, since the plaintiff need not respond to them. We also can at least speculate that Winston's lawyers intentionally drafted the complaint this way to ensure that the media noticed and reported the attacks on the plaintiff's character and credibility; the counterclaim allegations otherwise come at the end of the document (since new claims always come last in a responsive pleading) and thus likely would have been lost. The question is whether it is worth cost, especially since it has no practical effect beyond media reporting.

After the jump, a few more interesting Civ Pro features to this action that might make it a good teaching and/or testing case.

• The basis for removal was diversity. The complaint alleged that Klinman resides in Florida and Winston resides in Alabama (assume for the moment that "resides" was used as shorthand for "citizen," the operative word in the jurisdiction statutes). Winston grew up in Alabama and although he spent the last two years at FSU, it is not clear that he changed his domicile to Florida. Many students don't change domicile while they are students (as we all know from teaching Mas v. Perry). And Winston likely had no intent to remain in Florida, but was going to go wherever he was drafted. Ironically, he was drafted by Tampa Bay, so he may now become a Florida citizen. But the draft was two weeks after the complaint was filed, which is the relevant point in time to determine citizenship. Winston's subsequent change of domicile, if it happens, does not affect jurisdiction.

• The case was removed to the Middle District of Florida (which encompasses Orange County). But the Notice of Removal stated that Winston would seek to transfer venue to the Northern District of Florida (which encompasses Tallahassee) and consolidate the action with Klinman's Title IX lawsuit against FSU, which also was filed in the Middle District and transferred to the Northern District. My guess is that the court was swayed, and will be swayed again, by the fact that the relevant events, and thus witnesses and evidence, are located in Tallahassee.

• The defendant's goal of consolidating this case with the FSU case raises some issues. There obviously are common questions of fact to Klinman's claims against both FSU and Winston--the underlying alleged sexual assault and everything surrounding that. So limited consolidation--for discovery or other pretrial matters, for example--seems clear. The more interesting question is whether the cases could be consolidated for all purposes. Cases can be consolidated for all purposes only if they could have been joined in the first instance, which requires, in addition to the common question, that the claims arise "out of the same transaction, occurrence, or series of transactions or occurrences." This answer depends on how we conceptualize the transaction or occurrence giving rise to the claims against FSU. Is it the sexual assaul? Or is it the botched investigation and the school's alleged failure to enact and enforce Title IX-compliant policies protecting female students against sexual assault on campus.

Update: One more thing: The defendant makes several typical, although improper, moves in the answer: 1) Asserting a bunch of affirmative defenses, with no factual support and no possible basis in reality; 2) "Reserving" the right to assert other affirmative defenses; and 3) "Reserving" the right to assert other claims that discovery may reveal. The last two are harmless, but entirely legally meaningless. The right to amend is governed by FRCP 15(a). If that rule is satisfied, a party can amend even if he did not reserve the issue in original pleading reserved anything; if the rule is not satisfied, he cannot amend even if he reserve the issue. The first does not matter, because judges never care.

Posted by Howard Wasserman on May 12, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, May 08, 2015

Is public litigation better than private litigation?

The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened in Baltimore.

* Update: Sidenote: How do you pronounce this section orally? Is it "one-four-one-four-one"? Is it "fourteen-one-four-one"? is it "fourteen-one-forty-one" (which is my preference)?

Section 14141 allows DOJ to file a civil action and obtain an injunction to stop patterns or practices of unconstitutional behavior by state and local law enforcement. In a sense § 14141 is a public counterpart to private actions under § 1983. The "pattern or practice" language of § 14141 mimics the judicially imposed standard for establishing municipal liability and the liability standards basically overlap. Both actions result in potentially broad structural injunctive relief (or a consent decree) requiring judicial monitoring of a local law enforcement agency and significant, sometimes costly changes to agency practices. Both may involve wide-ranging investigations; DOJ conducts a broad independent investigation pre-litigation, while a private investigation only can be conducted through post-filing court-supervised discovery. But this seems like a small difference. Yet there is much greater resistance to private than public litigation of this type, even though the result will be the same. Complaints about "government by judicial decree" are frequently leveled at § 1983 litigation, but not as much as at § 14141 claims.

So the objection, it seems, is not to federal injunctions against local police departments, but to injunctions entered through private litigation and at the urging/advocacy of private parties. Put differently, many people are opposed to (or at least less comfortable with) injunctions entered through the efforts of private attorneys general than through the efforts of the real attorney general. But why should that be? Both causes of action are established by Congress, so they have the same underlying political legitimacy. The resulting decree will not necessarily be different. Private attorneys general undertake the investigations for which DOJ may lack the resources, time, or political will. Consider that the amount of § 14141 activity in the Obama Administration is substantially greater than the activity during the GWB Administration.** And consider that DOJ is going into places--Ferguson, Baltimore, Cleveland--where long-simmering tensions created by longstanding (unconstitutional) police policies and practices finally exploded, creating the type of large problem that warrants intervention by the federal government. Perhaps, however, if private litigants had more leeway to pursue smaller systemic violations, they could stop them before they reach this breaking point.

** The head of the Civil Rights Division for several years of the Bush Administration is now my dean. His division preferred informal negotiated cooperative resolution or letters of understanding rather than the adversarial, confrontational approach entailed in litigation and formal decrees.

This expanded use of § 14141 makes some sense in historical context. It was enacted in 1996 1994 (sorry for the typo), so the law is less than 100 years old. The last four years of the Clinton DOJ was still trying to make heads or tails of the law. The Bush DOJ had other enforcement priorities and, as noted above, a different approach. The current Department understands how the law works, should work, and can work, along with a renewed interest on local policing that has become a flashpoint. But the question remains whether it would have become less of a flashpoint were more private litigation possible.

Posted by Howard Wasserman on May 8, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, May 05, 2015

Scholarship Matters to the Court…in Federal Civil Rulemaking…Maybe, Kind of, Sort of

The good news:  I think the Court might have agreed with academic commentary, and further, might have even responded positively to that commentary.  The bad news:  This response has nothing to do with the Court’s current docket, but is instead about the Federal Rules of Civil Procedure.  Now, stick with me here because I think this is still good (and perhaps exciting) news.  As has been covered here, members of the Court have questioned whether academic scholarship practically matters.  Here is a place where I believe scholarship maybe, kind of, sort of made a difference.

As mentioned in a previous post and at the Civ Pro Blog, the Supreme Court approved and forwarded amendments to the Federal Rules of Procedure to Congress.  This is the penultimate step in the federal rulemaking process.  If Congress does not act before December 1, these rules will become law.  The discovery amendments have been the controversial focus of the current set of Civil Rule amendments, garnering literally thousands of comments during the rulemaking process.   But, I and a number of other scholars criticized the abrogation of Fed. R. Civ. P 84 and the official forms.  Our arguments varied, but one thing we all agreed upon was that abrogating Rule 84, and specifically abrogating Form 11, was problematic because of the controversy over pleading requirements following Twombly and Iqbal.  In short, deleting Form 11—a form that, according to the Court, remained good law after these cases—might be read as further restricting pleading under Rule 8. 

Scholars commented and testified to this effect before the Civil Rules Committee.  When considering these comments, the committee repeatedly noted that only academics had criticized this change.  In meeting minutes (at p. 558), the Rule 84 subcommittee stated that the change had “support from practitioners” and that  “[m]ost of the opposition seems to  reflect continuing academic distress with the Supreme Court’s recent pleading decisions.”  In the Civil Rules Committee Report to the Standing Committee (p. 60-61), the committee stated that it “has been concerned that most of the opposition to abrogation springs from the academic community.”  Yet, in spite of this rather consistent criticism, the committee moved forward with its proposal as originally published. 

The Court, however, appears to have agreed with the academics.  In its recent approval of the Civil Rule amendments, it changed Rule 84’s Advisory Committee Note to add, in pertinent part, that “[t]he abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.”  This is really something.  First, I have done some preliminary research, and I cannot find an example of the Court ever modifying an Advisory Committee Note when approving a federal rule of procedure.  (If anyone has an example of this happening in the past, please let me know.)  Second, the Court’s change directly responds to the academic concern that was raised during the rulemaking process.  Now, it could be that the Court arrived at the same conclusion on its own accord.  But, it is also entirely possible that the Court agreed with and responded to the consistent academic critique of this change.  It is not the exact result that many of us were seeking, but it gives me some hope that our scholarship does, in fact, make a difference…maybe, kind of, sort of.    

Posted by Brooke Coleman on May 5, 2015 at 09:42 AM in Civil Procedure | Permalink | Comments (1)

The next Erie/Hanna issue for SCOTUS?

The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.

This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.

Posted by Howard Wasserman on May 5, 2015 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, May 04, 2015

Welcome Change to Fed. R. Civ. P. 34 (Document Production)

Last Wednesday, the Supreme Court transmitted to Congress amendments to the Federal Rules of Civil Procedure, which will go into effect on December 1, 2015, absent Congressional action. There are a few goodies in these proposed amendments. But the one that makes me happiest is a sorely needed addition to Rule 34, governing requests for production of documents. The new rule will require responding parties to be clearer about the extent to which they withhold documents on the basis of an asserted objection.

The current version of the rule, of course, permits the responding party to object to a document request in lieu of producing responsive documents. See Fed. R. Civ. P. 34(b) (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”). Thus, if the request asks for copies of all communications between the responding party and her lawyer, the responding party would naturally assert a privilege objection, and that would be the end of it.  

The problem is that not all objectionable requests are so cut and dry. Objections with expansive time-frames, for example, may be too broad, but that overbreadth should not be fatal to the entire request—only to the overly broad portion. The current rule recognizes these situations and instructs that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” See Fed. R. Civ. P. 34(c).

Under the current rule, it’s often unclear whether a party who objects, but nevertheless produces some responsive documents, is withholding other documents on the strength of the objection. Let's say the request seeks records going back ten years.  The responding party objects to the time-frame and then produces records going back, say, three years.  Does that mean the responding party has withheld seven years of records? Or does it simply mean that the responding party had nothing more to produce?

An amendment to Rule 34(c) will require parties to answer that question from the outset. The first sentence of the amended rule will read: "An objection must state whether any responsive materials are being withheld on the basis of that objection." Simple. With one sentence, the rule will now require parties to be more candid about the practical significance of their objections.

I welcome this change. It will reduce some of the discovery gamesmanship and the related need for time-consuming  correspondence seeking clarification on the extent to which a party's objections served as bases for withholding documents. Bravo to the Committee on Rules of Practice and Procedure!

Unfortunately, there is no corresponding amendment to Rule 33, governing interrogatories—where responding parties also take advantage of objections to conceal whether they are withholding information. A change there would be welcome, too.  

Posted by Andrew S. Pollis on May 4, 2015 at 11:00 AM in Civil Procedure | Permalink | Comments (6)

Mass Compensation After September 11

Thanks to everyone for having me this month. For those of you who don’t know me, I write about complex litigation, mass torts and administrative law. Lately, I've been writing a lot about the issues that come up when mass disputes appear in unusual places—like administrative adjudication and agency settlements, federal prosecution agreements, private corporations, and even, the Presidency.   

Despite some personal experience with it, I haven’t written much about the mass litigation that followed September 11. (But see here). However, in the last few weeks, we've crossed two small milestones for thousands of recovery workers who claim they suffered toxic injuries at Ground Zero.  The first was announced by Sheila Birnbaum, the administrator of the new September 11 Victim Compensation Fund, which Congress reopened to pay claims brought by first responders.  After three years overseeing the Fund, Birnbaum announced that she had resolved $1 billion dollars worth of claims for over 4,400 first responders.  

The second appeared in an order by Federal District Judge Hellerstein, who has overseen almost all the September 11-related lawsuits since 2002.  After more than a decade of litigation, Judge Hellerstein's order noted the parties were in the "final stage" of settling recovery workers' claims in federal district court.  In re World Trade Center Disaster Cite Litigation, 2015 WL 1262283 (S.D.N.Y. Mar 15, 2015).  Judge Hellerstein’s opinion was just a small order among many. But it was related to a global $810 million settlement for recovery workers, brokered with the assistance of two other special masters (and established Tort scholars) James Henderson and Aaron Twersky. 

As I suggest below, each settlement effort raises interesting questions about the best way to gather highly contested scientific evidence in a massive dispute.  Public compensation schemes like the new September 11 Victim Compensation Fund can rely on innovative and experimental administrative law tools--like New York's unprecedented 71,000 member "health registry"--to collect massive amounts of new health information and flexibly adjust the way they compensate people over time. Settlements in court aren't as flexible, but aggregate litigation has other advantages.  Technological innovations in complex litigation--like Judge Hellerstein's comprehensive, searchable electronic database of 10,000 WTC claims discussed below--can sometimes allow decisionmakers to see patterns and trade-offs that an administrative agency won't when it decides each case, one at a time. 

Background of the WTC Litigation and the new September 11 Victim Compensation Fund

By way of background, immediately after September 11, New York City had to coordinate vast numbers of agencies, public health officials, uniformed officers, contractors and laypeople to clean up Ground Zero.  According to one FDNY report “the complexity of the activity performed at one site—rescue, recovery, demolition, and construction—at one time" was simply unprecedented.  (See New York City Fire Department. New York City Fire Department’s Deputy Assistant Chief Report No. 2003-P-000124).

The recovery effort was dangerous and hectic--firefighting in toxic fumes, urban search and rescue,  removing and demolishing hazardous materials from what came to be known as the "pile." And while some of the earliest responders to the WTC attacks were trained FDNY and New York police officers, many other responders--like electricians, ironworkers, demolition contractors, and volunteers--had never been trained in, or even advised about, how to use proper personal protective equipment.  Soon stories about unusual respiratory diseases, gastro-intenstinal illnesses and cancers among young recovery workers mounted.  Over 11,000 claims were filed in federal court, centralized before Judge Hellerstein, and settled in December 2010.  Congress also acted.  In the waning days of 2010, it reopened the September 11 Fund and set aside $2.8 billion to compensate what it estimated to be over 30,000 eligible workers at Ground Zero, in just five years. 

Both settlement systems share remarkable similarities.  Both involve talented and experienced special masters, seeking to develop streamlined procedures to handle the same bewildering array of injuries in the aftermath of September 11.  And from the beginning, each settlement effort faced the same enormous challenge: how to come up with a way to divide limited funds to accommodate thousands of claims, asserting over 380 different kinds of personal injuries, using novel scientific theories of causation? Despite their similarities, however, the Victim Compensation Fund and the WTC settlement relied on different tools to gather information and distribute funds. 

The September 11 Fund and the WTC Health Registry

The September 11 Victim Compensation Fund relies on an innovative administrative scheme. It's decisions are informed by a decade-old "health registry," established shortly after September 11, that today monitors more than 70,000 people.   To enroll, people completed a confidential baseline health survey in 2003. Each enrollee answered questions about where they were on September 11, their experiences and their health. This data not only allows health professionals to continue to compare the health of those directly exposed to the WTC disaster to the health of the general population, but it provides a nice way for the Fund to compensate difficult-to-confirm injuries based on the latest available science.

This is because, by statute, the National Institute for Occupational Safety and Health (NIOSH) at the CDC  periodically canvasses studies informed by this database. 42 U.S.C. sec. 300mm–22(a)(5)(A). The Victim Compensation Fund, in turn, relies on NIOSH's review and recommendations to determine and update what categories of illness are eligible for compensation.  This expert-driven process is commonly used by administrative agencies—like the FDA and EPA. 

By contrast, because it was a court settlement, Judge Hellerstein originally approved an overarching deal based on the best scientific information he had in 2010.  That presented what the court and his Special Masters called a "gut wrenching" problem for cases involving cancer.  Because of the long latency periods between exposure and the onset of cancer, at the time, there wasn't much evidence linking toxic exposure near the World Trade Center to the cancers suffered by the plaintiffs.  As a result, under the original settlement, some severe asthma claims stood to be compensated more than cancer claims.  (The September 11 Victim Compensation Fund originally denied cancer claims, altogether.  But it was able to change course and begin compensating victims with cancer based on new studies published in June 2012 (despite ongoing controversy in the scientific community.)  

The registry has some drawbacks.  First, it's under-inclusive--not everyone who is sick today had the foresight to sign up back in 2003. Second, the registry probably doesn't contain all of the information needed to draw comparisons between exposure and the onset of an illness (like whether the people in the registry were already at a higher risk of getting cancer because of family history or other risk factors).  But the program nonetheless represents an amazing undertaking.  With the  exception of the "Ranch Hand" study, which has tracked vietnam veterans exposed to Agent Orange since 1978, the size and duration of this monitoring effort is almost without precedent. Today, the WTC Health Registry is the largest registry to track the health effects of a disaster in American history.

The WTC Litigation and the "Core Discovery" Database

The WTC litigation enjoyed a different informational advantage.  Unlike the Fund, which would not know how to rank claimants' very different injuries or anticipate tough evidentiary problems until well into the claim process, private litigants were able to structure their settlement with information about everyone else’s claim in federal court.  This was, in part, because of the Court’s unique “core discovery" order—one which gathered personal, occupational, medical, geographic and other detailed information about all of 11,000+ claims already filed in federal court.*  Those claims were coded, and the results were entered into a searchable electronic database.  

Although a central purpose of multi-district litigation** is to coordinate discovery just like this, the innovative use of technology, participation and searchable information in such a massive litigation was new and indispensable to the final settlement. Information gleaned from the database helped the parties select "test cases" and understand how the resolution of one case would impact other similar cases.  Judge Hellerstein, James Henderson and Aaron Twersky later observed:

[T]he ability to perform Boolean searches covering thousands of plaintiff files allowed the Special Masters to determine interrelationships between and among responses. For example, not only could the age distributions of plaintiffs, the frequencies and severities of each type of disease, and the variety and frequency among plaintiffs’ pre-existing medical conditions be determined; but it was possible to identify correlations between the ages of plaintiffs and the severities of injuries suffered and whether the length of the plaintiffs’ exposure to the WTC site increased the severity of injury. Thus, by adding or subtracting from the criteria reflected in the various fields one could discern which factors strongly correlated with the severity of injury and which factors had a lesser impact, or no impact at all.

The VCF cannot rely on such a database, upfront--claims come in one at a time.  And while the "health registry" helps assess general relationships between exposure and disease, it does not collect the kind of detailed information about people available in court-ordered discovery, nor does it include everyone eligible to apply to the Fund).  To be sure, the Fund has other ways to collect information about all claimants. First, claimants only receive 10% of their awards upfront.  Claimants then must wait until 2017, after everyone has filed, before they can collect the remainder of their awards.  In some ways, this unique feature of the VCF gives its decisionmakers some flexibility to adjust awards depending on the number and nature of all other known claims. 

Second, the VCF has made Herculean efforts to reach out to other institutions--like New York City, employers, other general contractors, and victims groups--to obtain information about prospective claims. Not only can the VCF process claims faster with that information, but such coordination allows the fund to see and learn more about its claimants before they file with the VCF.  (And indeed this seems to be working, after a slow start, the fund now appears to be adjudicating cases faster then ever).

Conclusion

Over the past 15 years, the Supreme Court has significantly limited the ability of courts to certify class actions in mass tort cases. The fear is that conflicts of interests and individual issues will overwhelm any attempt at meaningful adjudication.  Some have suggested that the Supreme Court's jurisprudence in this area follows Lon Fuller's classical account of adjudication. Fearing that any attempt to comprehensively hear complex, multiparty actions will lead to coercive court-house dealmaking -- what Fuller labeled "polycentric" disputes that were best solved through negotiation and management -- the Supreme Court has insisted that such issues are better resolved through legislation, administrative schemes and public law.  See, e.g., Ortiz v. Fibreboard Corp.527 U.S. 815, 821 (1999) (reversing complex settlement that “defies customary judicial administration and calls for national legislation”); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 598 (1997) (quoting Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 42 (Mar. 1991). 

To that end, the new September 11 Victim Compensation Fund represents just such an effort. Congress created an administrative agency to determine eligibility standards, evaluate claims and distribute funds for each recovery worker at Ground Zero.  Based on an expansive study of New Yorkers in the wake of September 11, that agency, in turn, could update its process by consulting the country’s leading facility for the study of WTC-related disease. But like many public funds of its kind, the September 11 Victim Compensation Fund won't know who will decide to participate or the unique evidence require to establish some difficult claims until far into the application process.

Judicial decisions cannot be as flexible as adminstrative decisions, and I don't want to suggest that courts predict claim filings well.  (Parties to mass settlements can have a lot of trouble predicting the future.) But innovations in technology and judicial case management have allowed parties in court to know a great deal about the entire universe of pending claims and how to appropriately compensate them. Judge Hellerstein, with the assistance of two established tort scholars and the parties, generated a database of over 10,000 claimants with over 360 categories of injury. 

In some ways, this technological fix is simply a natural extension of what all multidistrict litigation tries to do--allowing a single judge to coordinate discovery and categorize common groups of claims for resolution. But such strategies also offer a possible response to Fuller's view about the futility of adjudicating "polycentric" disputes--where the number of interested parties is so large, and the ramifications so vast, that it is impossible for each person affected by the decision to offer proofs and reasoned arguments.  By adopting a unique and expansive form of data collection, Judge Hellerstein has introduced a modest way for courts to help parties chart the number, nature and interrelationship of claims for an otherwise, seemingly intractable dispute.

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*Such information included the plaintiffs’ pedigree, medical history, tobacco use, alleged injuries, medical tests, diagnoses, symptoms, treatments, workers’ compensation recoveries, hours worked, location of work, safety equipment worn, and training received.

**Technically, all cases were consolidated before Judge Hellerstein under the Air Transportation Safety and System Stabilization Act.  The same act that created the original September 11 Victim Compensation Fund also gave the United States District Court for the Southern District of New York exclusive jurisdiction over all claims "arising from, or related to," the terrorist-related aircraft crashes of September 11, 2001

 

Posted by Adam Zimmerman on May 4, 2015 at 03:39 AM in Civil Procedure, Judicial Process, Torts | Permalink | Comments (2)