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 (5)

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.

__

*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)

Thursday, April 30, 2015

Upon further review . . .

I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.

But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.

So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.

Posted by Howard Wasserman on April 30, 2015 at 11:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.

I can see four possibilities, although I would like to hear more (or hear why my three are wrong).

First, the district court might raise the issue sua sponte and issue an order to show cause why the injunction should not be dissolved; the state officials will have to respond and either distinguish Obergefell (or the state laws at issue there) or acknowledge that changed legal circumstances require the injunction be dissolved. Judges are not obligated to raise merits issue in this way (contra subject matter jurisdiction). But they often will do so, especially when it means getting cases off their dockets. And the judge has incentive to do this, precisely to prevent state officials from not enforcing laws they do not like.

Second, someone might intervene in the district court and file the motion to dissolve. It might be a county clerk arguing that the injunction is compelling him to act in a way contrary to controlling Supreme Court precedent. Or it might be one of the sponsors of the voter initiative that produced the constitutional amendment (a Rule 24 intervenor need not have Article III standing).

This involves a couple of tricky FRCP 24 issues. First, it is not clear who would be able to intervene as of right under FRCP 24(a)--would a clerk or the initiative sponsor claim an "interest" relating to the case that will be impaired or impeded and is not adequately represented? If not, then intervention could only be permissive under 24(b) and subject to the court's discretion. In the initial Oregon litigation, the district court denied permissive intervention by the National Organization for Marriage, even on behalf of an anonymous county clerk who claimed a religious objection to having to issue licenses to same-sex couples. The question is whether the intervention analysis changes if the dispute is over the continuing validity of an injunction that is inconsistent with new Supreme Court precedent, as opposed to the validity of the underlying law. Certainly the district judge may be more willing to permit 24(b) intervention in this situation than in the underlying action.

Third, someone--again, probably a county clerk or the initiative proponents--goes to state court, themselves or on behalf of the state, seeking a mandamus ordering the Governor or AG to do their duty and file the motion to dissolve the federal injunction. Whether this option is available and depends on specifics of Oregon law.

Fourth, state processes in Oregon (another voter initiative or some other process to amend the state constitution) repeals the 2004 constitutional amendment, perhaps moving very quickly to do so. As my colleague argues, the political culture has so changed in Oregon in just a decade that no one wants to defend the ban or to reinstate it by taking steps to dissolve the federal injunction.

Thoughts? My original post assumed that state officials would be anxious to dissolve the injunctions. This example shows that there may be a few states where that will not be true.

Posted by Howard Wasserman on April 29, 2015 at 08:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

What if SCOTUS rejects marriage equality?

I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).

But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via  federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California);  2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?

1) The states return to the district court supervising the injunction with a motion to dissolve under FRCP 60(b)(5) or (b)(6). The argument is that there has been a "significant change" in the legal circumstances, in that the conduct the injunction prohibited (denying marriage licenses to same-sex couples) has become constitutionally permissible; the injunction thus is no longer equitable, as it is based on a judicial decision that is no longer valid in light of the prevailing understanding of the Fourteenth Amendment announced by SCOTUS. It seems pretty obvious that an injunction based on some extrapolation from Windsor, Lawrence, Romer, and general Equal Protection principles cannot survive a decision from SCOTUS expressly declaring that  same-sex marriage bans do not violate the Fourteenth Amendment. So the motion will be granted, the injunction will be dissolved, and the state law barring issuance of licenses to same-sex couples will again be enforceable.

2) This situation presents three paths to the same outcome. First, these states could simply present Obergefell to the court of appeals, which will apply it to reverse the district court judgments and to order final judgment entered in favor of the states on the constitutional issues. Alternatively, the court of appeals could shift the work back to the district court by summarily vacating and remanding for reconsideration in light of Obergefell, with the district court itself applying Obergefell to enter judgment in favor of the state. A third possibility is for these states to file the sameRule 60(b) motion in the district court. Under FRAP 12.1 and local rules in several Circuits (including the Eleventh, one of the places in which appeals are pending), a district court can make an "indicative ruling" on a motion (including a Rule 60(b) motion) that it otherwise lacks jurisdiction to resolve because the case is in the court of appeals; if the district court indicates its intent to grant the motion, the court of appeals can remand the case to allow the district court to grant the motion and to enter the revised judgment. Under any approach, the result is that the injunction will be dissolved and the state ban on same-sex marriage again becomes enforceable.

3) These marriages remain valid. The states granted licenses to these couples under a federal injunction that had been appealed and had become final. The state of the law in these states was that prohibitions on same-sex marriage were invalid and unenforceable, meaning these couples were legally entitled to those licenses and state officials were legally obligated to grant them. And that remained the state of the law until the district court dissolved the injunction.

4) I am not sure of the answer to this. Mike Dorf argued here that there is no basis in federal constitutional law to "grandfather" some marriages, which would effectively give permanent force to a judgment that has been subsequently reversed. The validity of these marriages ultimately would be a matter of state law, unhindered by the U.S. Constitution. That sounds right, but I welcome competing arguments.

Thoughts?

Posted by Howard Wasserman on April 29, 2015 at 12:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Saturday, April 25, 2015

If I've lost the media . . .

I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with  Orin Kerr and with me.

But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.

Posted by Howard Wasserman on April 25, 2015 at 11:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, April 24, 2015

Repost: First Annual Civil Procedure Workshop

The first annual Civil Procedure Workshop will be held at Seattle University School of Law on July 16-17, 2015.

Scholars have been selected to present their work in small panel sessions, with distinguished faculty providing commentary. Panels proceeding on Thursday, July 16 will cover a wide range of topics. On Friday, July 17, the Workshop will focus on the class action. In the morning, junior scholars will present work focused on aggregate litigation, and Judith Resnik will provide a keynote address over lunch. In the afternoon, scholars and members of the Class Action Rules Subcommittee of the Federal Civil Rules Advisory Committee will participate in a roundtable discussion of proposed amendments to Rule 23. Confirmed commentators include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, and Tobias Barrington Wolff.

We welcome all civil procedure scholars to attend this Workshop. The Workshop will provide meals for registrants, but registrants must cover their own travel and lodging costs. We have reserved a block of hotel rooms near the workshop at a discounted rate. Please contact Brooke Coleman (colemanb@seattleu.edu) if you would like information about reserving these rooms. Finally, if you are planning to attend, please register here.

Please feel free to contact us with any questions. Thank you and best of luck as the semester winds down.

Brooke Coleman (Seattle), colemanb@seattleu.edu

Liz Porter (UW), egporter@uw.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu

Posted by Howard Wasserman on April 24, 2015 at 10:28 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, April 23, 2015

Forum selection, upside-down

The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.

It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?

Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.

The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.

Posted by Howard Wasserman on April 23, 2015 at 03:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (22)

Additional thoughts on Wong and June and the FTCA

I have a SCOTUSBlog opinion analysis on Wednesday's decision in U.S. v. Wong (along with U.S. v. June). A  divided Court (Kagan writing the majority, for Kennedy, Ginsburg, Breyer, and Sotomayor) held that the statute of limitations in the Federal Tort Claims Act is not jurisdictional and is subject to equitable tolling.

This is the right conclusion--both that the statute is not jurisdictional and that it is subject to equitable tolling. But I have some additional thoughts after the jump.

The problem is that the Court continues to erroneously conflate the concepts of jurisdictionality and mandatoriness--using "jurisdictional" as inaccurate shorthand for "mandatory" (or "non-tollable," to the extent that is word). Properly understood, a statute of limitations should never be jurisdictional, because it has nothing to do with vesting a court with authority to hear and resolve the issues in a case. Timeliness goes to whether the pleader can bring and move forward with the claim in a court of proper jurisdiction. But that leaves unresolved whether the statute of limitations is or should be mandatory--understood and applied as "brooking no exceptions," to use language from Justice Alito's dissent. And the Court's inaccuracy on this spawns inaccuracy in Congress, which continues to legislate with the jurisdictional/non-jurisdictional divided in mind, rather than thinking expressly and explicitly about mandatory/less-than-mandatory. Or better, thinking expressly and explicitly about a rule (timely filing) and exceptions to the rule.

The Justices at least recognized this gap in Wong and the possible need to shift the analysis away from jurisdictionality language and to a direct focus on mandatoriness. Justice Kagan dropped a footnote agreeing that Congress could preclude equitable tolling of a nonjurisdictional limitations period, but punted on the issue by insisting that the government had made no arguments for non-tolling independent of arguments about jurisdictionality. Justice Alito's dissent sought to separate the issues, at least in part. Acknowledging that the Court might want to avoid the jurisdictional label given everything it entails, he insisted that § 2401 is nonetheless not subject to tolling. As I explain in the review, Alito argued that "'Forever barred' must mean something. It is 'no weak-kneed command,' nor is it 'qualified or aspirational.' These words are absolute and 'brook[] no exceptions.'” While the right approach, Alito's textual argument does not support the conclusion. All statutes of limitations offer a textual command--the claim is barred if not filed withing X period. If the statute offered a textual basis for tolling (through less-emphatic language or through enumerated exceptions), then a court would not be utilizing equitable tolling, it would be applying statutory tolling provisions. Congress still needed to do something more than it did in § 2401 to foreclose a court from wielding its inherent equitable discretion to toll.

Posted by Howard Wasserman on April 23, 2015 at 09:53 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, April 22, 2015

CFP: Eighth Junior Faculty Federal Courts Workshop

The University of California, Irvine School of Law will host the Eighth Annual Junior Faculty Federal Courts Workshop on September 11-12, 2015.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Erwin Chemerinsky (UCI Law), Evan Lee (UC-Hastings), Thomas Lee (Fordham), Carrie Menkel-Meadow (UCI Law), James Pfander (Northwestern), and Joan Steinman (IIT Chicago-Kent College of Law).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2015 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 19, 2015. Papers will be selected by a committee of past participants, and presenters will be notified by the middle of July. Those planning to attend must register by August 14, 2015. 

Please send abstracts to sdavis@law.uci.edu. Please contact Seth Davis with questions.

Posted by Howard Wasserman on April 22, 2015 at 09:31 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Saturday, April 18, 2015

Eleventh Circuit flunks Civ Pro

We just started Erie last week and one of my students found this Eleventh Circuit decision from March. The Erie analysis (at pp. 25-31) is so utterly ridiculous and facile as to make me wonder if any of the judges (or their clerks) ever took Civ Pro. (Note: The conclusion is right; it's the analysis that would warrant an F on an essay exam).

Posted by Howard Wasserman on April 18, 2015 at 06:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Wednesday, April 15, 2015

The Fifth Circuit Jumps the Non-Article III Shark

A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.

The facts of Hollingsworth are pretty straightforward; David Hollingsworth was tried and convicted before a federal magistrate judge in the Eastern District of Louisiana for simple assault at the Naval Air Station Joint Reverse Base New Orleans in Belle Chasse, a "federal enclave" that is within the "special maritime and territorial jurisdiction of the United States." No one disputes that Hollingsworth's crime is a "petty offense" under federal law, because the maximum sentence he could have received was six months' imprisonment. Hollingsworth was tried without a jury before a non-Article III federal judge, and, after an unsuccessful appeal to the district court, appealed his conviction to the Fifth Circuit on the grounds that such a trial (without his consent) before a non-Article III judge violated Article III and his Sixth Amendment right to a jury trial. 

Writing for a 2-1 majority, Judge Clement held that Hollingsworth's claims were foreclosed by the Supreme Court's 1973 decision in Palmore v. United StatesPalmore, readers may recall, upheld Congress's power to create a non-Article III court of general jurisdiction within the District of Columbia, almost entirely based upon Justice White's (flawed) analogy of the D.C. Superior Court to state courts. But while Palmore's reasoning has been heavily criticized, the basic proposition it establishes (that Congress can establish non-Article III courts in federal territories) is generally accepted today. Thus, Judge Clement concludes, "[U]nder Palmore, Hollingsworth has no constitutional right to trial before an Art. III court. . . . Pursuant to Clause 17, Congress could have referred all trials for crimes committed at Belle Chasse to an Article I judge, including felony trials.But Congress chose to refer only trials for petty offenses to federal magistrate judges."

In other words, Judge Clement reads into Congress's (in her view, greater) power to create non-Article III courts in federal territories the arguably lesser power to have magistrate judges try all offenses committed within those territories--and it's just Congress's good graces that stopped it from empowering magistrate judges to try anything other than petty offenses in this case. 

The problem with this analysis is that it misreads the relevant statutes, and thereby conflates two very different justifications for non-Article III adjudication. The justification for territorial courts is tied entirely to Congress's unique (and plenary) regulatory power over federal territories; the justification for trying petty offenses before magistrate judges is tied entirely to a different consideration--that there's no right to trial by jury in such cases, regardless of where they are committed (indeed, this is the almost tautological conclusion of Part II of Judge Clement's opinion). Thus, Hollingsworth was tried under the general (and aterritiorial) statutory authority that empowers federal magistrate judges to try petty offenses without a jury even if the defendant doesn't consent.

Indeed, the only reason why the territorial location is significant in Hollingsworth is because simple assault is only a federal offense (albeit a petty one) when committed within the "special maritime and territorial jurisdiction of the United States." But once it's established that Hollingsworth has committed a federal offense, the fact that it was committed on a federal enclave is irrelevant to the statutory (and, in my view, constitutional) authority of the magistrate judge. In other words, Hollingsworth has nothing at all to do with Palmore. Given that I don't think it follows from Palmore that magistrate judges can try any offense committed on federal territory (for a bunch of reasons that I plan to elaborate upon in future writings), it was therefore completely unnecessary for the Fifth Circuit to decide this (novel) question.

Instead, the real question is whether non-Article III magistrate judges may generally try petty offenses without the defendant's consent. But as I've explained at some length in my (hot-off-the-presses) article on military courts, the Supreme Court has long equated the validity of non-Article III adjudication, at least in criminal cases, with the absence of a right to trial by jury. Note that this doesn't explain Palmore (where the defendant clearly did have a right to trial by jury), but that it does explain, among other lines of jurisprudence, nearly all of the Court's military justice case law, and the power of non-Article III federal courts in the insular territories (where the jury-trial provisions arguably don't apply) to try all criminal offenses.

In other words, instead of relying upon a settled line of non-Article III precedent (pursuant to which, contra Judge Higginson's dissent, non-Article III judges are allowed to try petty offenses), the Fifth Circuit unnecessarily (and, in my view, improperly) extended Palmore--a troubling enough precedent in its own right--to allow Congress to subject all offenses committed on federal territories to trial by magistrate judges. 

Oy.

Posted by Steve Vladeck on April 15, 2015 at 10:41 AM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (18)

An End to “One Size Fits All” Procedure?

The following is from former (and future) GuestPrawf Jordy Singer (New England)

That’s the upshot of a new report issued today by the American College of Trial Lawyers Task Force on Discovery and Civil Justice, and the Institute for the Advancement of the American Legal System.  The ACTL and IAALS collectively call for a new civil procedure regime characterized by fact-based pleading (for both plaintiffs and defendants), sharp discovery limits, case-specific rules and protocols, and extensive judicial management. 

Some details on the proposals, and a few thoughts on what it all means, after the jump.

The report is actually the latest in a series by the ACTL and IAALS, dating back several years.  In 2009, the two organizations issued a Final Report in which they articulated 29 principles for reforming the civil justice system.  (I served as the Director of Research at IAALS until mid-2010, and assisted in the preparation of the 2009 report in that capacity.)  Since that time, eight state courts and four federal courts have implemented new rules or have initiated pilot projects that incorporate one or more of the principles.  (I previously blogged about some of the pilot projects here.) The new report summarizes the findings of those pilot projects, and, in light of those findings, revisits the original ACTL/IAALS principles.  In this latest iteration, some principles have been changed, others discarded, and others reinforced. 

The primary theme of the new report is that pretrial procedures should be tailored to the needs of each case.  The authors call for case-specific rules and protocols, a pleadings regime that identifies contested issues at the outset of the litigation, and a discovery regime that focuses the parties exclusively on those contested issues.  Among other things, parties would be required to plead all known material facts needed to establish their claims and defenses.  Shortly after the commencement of litigation, parties would be required to produce all known and reasonably available non-privileged, non-work-product documents and things that support or contradict specifically pleaded factual allegations.  Subsequent discovery would be limited to information that would enable a party to prove or disprove a claim or defense, or impeach a witness.  Perhaps most importantly, judges would be empowered and encouraged to keep the pretrial process narrowly focused on the issues identified at the outset of the case.

I am generally sympathetic to the tenor of the proposed reforms, and certainly to the notion that a more focused pretrial process can lower discovery costs, lead to better settlements, and make trial a cost-effective and viable method of resolving disputed claims. Nevertheless, practical challenges remain.  For one, it is unclear whether the courts themselves are ready for the expanded judicial role that the authors envision.  The principles invest judges with the power and discretion to shape the pretrial process from an early stage, by holding regular case management conferences, limiting or even staying discovery, or requiring the parties to participate in alternative dispute resolution.  For this level of judicial involvement to work, the authors recognize that courts must have adequate resources, and judges must have adequate expertise and trial experience.  While many judges are up to the task, there are also a host of structural impediments within the court system: the calendar system in many state courts that rotates judges through a session every six months, the fact that most state trial judges face short terms of office and periodic election turnover, the relative inexperience of new judges who are appointed after a career on the criminal side of the docket, and the fact that information relevant to proportionality decisions may not always be available to presiding judges.

There are other practical challenges, of course; we are not yet in a 1938-style moment of fundamental and comprehensive change. But the authors have already shown their willingness to play the long game of implementation, and refine their principles in light of growing empirical evidence.   In the meantime, the new ACTL/IAALS report thoughtfully, ambitiously, and unapologetically its readers to think differently about the civil justice system.  It should engender significant discussion in the coming weeks, and is worth a close read for anyone interested in civil justice reform.

Posted by Howard Wasserman on April 15, 2015 at 08:31 AM in Civil Procedure | Permalink | Comments (0)

Wednesday, April 08, 2015

Where are June and Wong?

Back on December 10, the Supreme Court heard arguments in US v. June and US v. Wong, which together raised whether the limitations periods for bringing claims against the United States under the Federal Tort Claims Act were jurisdictional and not subject to equitable tolling. (I covered the cases for SCOTUSBlog). Four months later, the cases remain pending--one of only two cases from that sitting yet to be decided and despite the Court having quickly and unanimously disposed of the other jurisdiction case from that sitting.

The obvious conclusion is that the Court is divided. The Court has generally been unanimous in its run of jurisdictionality cases over the past decade and almost always finds the issue to be non-jurisdictional. One glaring exception is John R. Sand, which involved the jurisdiction of the Court of Claims over an action against the United States (and thus on which the U.S. has waived its sovereign immunity). So while statutes of limitations ordinarily are not jurisdictional, tying them into a waiver of sovereign immunity potentially alters the analysis. My initial reaction to the argument was that the Court would treat the periods as non-jurisdictional fairly easily; the four-month delay has me rethinking the easy part, if not the conclusion.

Posted by Howard Wasserman on April 8, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, March 31, 2015

Is § 1983 superfluous?

I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.

The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.

How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*

* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.

But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.

** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.

Posted by Howard Wasserman on March 31, 2015 at 06:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Atlantic Marine, Forum-Selection Clauses & Erie

I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.

The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:

The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago. 

This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.

My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.

[Cross-posted at the Civil Procedure & Federal Courts Blog]

Posted by Adam Steinman on March 31, 2015 at 03:49 PM in Civil Procedure | Permalink | Comments (10)

Thursday, March 26, 2015

Better Call Saul does law

As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.

Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.

Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as  $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).

I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.

FRCP 11: Jimmy serves a "demand letter" (this is not necessarily a thing, even under New Mexico procedure, although many states require a plaintiff to serve a "Notice of Suit" letter) on the facility, which gets relayed to the facility's high-powered lawyer. The lawyer calls Jimmy and insists that "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."

This one is clearly wrong. Rule 11  applies to papers filed with the court, not to something sent to counsel before litigation has even commenced. Plus, who would they ask for sanctions--no court actually has jurisdiction, since no lawsuit has been filed. Moreover, according to every court of appeals except the Seventh Circuit, Rule 11 cannot be triggered by a letter, only by motion (this was the very point of the Rule 11 essay I assigned this semester).

Jimmy's brother says they need  to "start pulling case law--any precedent dealing with 18 U.S.C. §§ 1961-68": This is RICO, so they got the statute right. But pulling "any precedent" on all of RICO may kick back kind of a large amount of stuff; perhaps they should narrow their search a bit.

Cases to be read and Shepardized include:

    Sedima v. Imrex: This is a major case loosening up the availability of civil RICO, holding that actionable conduct need not have resulted in a criminal conviction or produced a "racketeering injury."

    Holmes v.  SIPC: RICO requires proximate cause

    Slesinger v. Disney: This could be any of several lawsuits in state and federal court over licensing rights for Winnie the Pooh, none of which involved RICO. My guess is that this one is an inside joke.

Statutes to be researched include:

    30-47-1 NMSA: State statute concerning criminal offenses related to abuse and neglect of residents in health-care facilities

    57-12-1-24 NMSA: State statutory provisions on unfair trade practices.

On the RICO question: The show makes a big deal about invoices showing that the fraudulently charged supplies crossed state lines, thus providing the interstate commerce hook. But is that necessary to make the RICO claim? Wouldn't it be enough that the facility itself substantially affects interstate commerce (as all such facilities do) and that it committed fraud? Does RICO require that the fraudulent act itself have an interstate hook?

 Two other exchanges worth noting:

    • Jimmy's brother says they should start with class cert., trying to get a conditional certification that will hold long enough to start discovery.

Whatever. It was never that quick or easy to get into discovery, even in 2002 (when the show takes place), the pre-historic days before Twiqbal and Wal-Mart. They are going to spend six months fighting over 12(b)(6) motions, regardless of class cert, before sniffing discovery.

    • The ALF will not allow Jimmy onto the grounds. Jimmy's brother says they need to "quash this prohibition against you--some injunctive relief, maybe a TRO."

What other kind of injunctive relief is there besides a TRO when time is of the essence? Plus, "quash" seems an inappropriate term when there was no court order, but simply a private property owner controlling who has access to its property. But this raises an interesting remedies question--Would/Should a court of equity issue a TRO requiring that Jimmy be given access to a facility that he is suing, given that his client(s) live there? Or would the clients need to make the motion, arguing that they are entitled to have their lawyer visit them in their homes? Or would a private ALF be allowed to keep their  residents away from their attorney when the residents are suing the facility through that attorney?

All-in-all, not bad. And a lot of fun to listen to.

Finally, check out The Legal Ethics of Better Call Saul, a blog operated by New York attorney Nicole Hyland that analyzes just how unethical Jimmy/Saul is being, at least under New York (as opposed to New Mexico) law.

Posted by Howard Wasserman on March 26, 2015 at 09:31 AM in Civil Procedure, Culture, Howard Wasserman | Permalink | Comments (9)

Tuesday, March 24, 2015

SCOTUS Decision on Agency Determinations and Issue Preclusion

Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”

Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”

What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can.

Quoting a number of earlier decisions (citations omitted), Justice Alito writes:

“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”

The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”

Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:

The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.   

 [Cross-posted at the Civil Procedure & Federal Courts Blog]

Posted by Adam Steinman on March 24, 2015 at 11:10 PM in Civil Procedure | Permalink | Comments (0)

Monday, March 23, 2015

Two Interesting SCOTUS Cert Grants Today

Today’s order list from the Supreme Court includes grants of certiorari in two cases.

DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:

Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:

Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?

But the Court also asked the parties to address whether it even has jurisdiction:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?

[Cross-posted at the Civil Procedure & Federal Courts Blog

Posted by Adam Steinman on March 23, 2015 at 11:44 AM in Civil Procedure | Permalink | Comments (4)

Friday, March 20, 2015

Unusual SCOTUS Line-ups

When it comes to civil procedure, the Supreme Court has had its share of sharply divided 5-4 decisions. In many cases, we get the voting alignment attitudinalists would expect: IqbalWal-Mart, Concepcion, Comcast, Clapper v. Amnesty Int’l, Genesis v. Symczyk, to name some recent examples.

Sometimes, though, the Justices split in surprising ways. This Term’s decision in Dart Cherokee divided 5-4 over the whether (and by what standard) the Supreme Court could review a Court of Appeals’ refusal to hear a discretionary appeal under the Class Action Fairness Act. The majority—Roberts, Ginsburg, Breyer, Alito, and Sotomayor—concluded that review was proper. Scalia, Kennedy, Thomas, and Kagan dissented.

Another intriguing 5-4 split was Shady Grove. After analyzing Erie, FRCP 23, and the Rules Enabling Act, the majority concluded that federal courts were not bound by a state-law prohibition on certain kinds of class actions, even though Shady Grove was a diversity case arising under state law. In the majority were Roberts, Stevens, Scalia, Thomas, and Sotomayor. The dissenters were Kennedy, Ginsburg, Breyer, and Alito.

I’ve written elsewhere about why a case like Shady Grove might have generated such an unusual line-up. But the Shady Grove split also has a fascinating (if trivial) feature that I don’t recall seeing in any other Supreme Court decision. All of the Justices whose last names were in the second half of the alphabet were on one side, and all of the Justices whose last names were in the first half of the alphabet were on the other. I can’t think of an easy way to confirm whether this sort of voting pattern has ever happened before, so I figured I’d take advantage of my time on PrawfsBlawg to crowd-source it. Are readers aware of any other cases where the Court has split 5-4 along alphabetical lines?

Posted by Adam Steinman on March 20, 2015 at 04:27 PM in Civil Procedure | Permalink | Comments (9)

Wednesday, March 18, 2015

Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)

I was glad to see Dave get the Twombly/Iqbal train rolling this month. Whatever the debate surrounding the empirical impact of Twombly and Iqbal, federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.

These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”

Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”

I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Twombly overruled Conley” is a great sound bite if you prefer the maximalist reading of Twombly and Iqbal that one sees in Judge Niemeyer’s McCleary-Evans opinion. But it’s a huge oversimplification, especially when Twombly explicitly quoted and embraced the language from Conley that enshrined notice pleading into federal practice: “All the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

As for the decision to “retire” the “no set of facts” language itself, it’s important to pay attention to Twombly’s actual reasoning on this point. Justice Souter’s concern was that a “focused and literal reading” of that phrase would preclude dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” OK, let’s pretend that courts actually applied this “focused and literal reading” of Conley. And suppose I file a complaint that alleges:

1. [Jurisdictional statement]
2. The Earth is round.
Therefore, I demand judgment against one or both defendants for $ <_____>, plus costs.

One can imagine any number of facts that are consistent with both (1) the Earth being round, and (2) me having a claim for relief against the defendants. Thus, this complaint would “le[ave] open the possibility” that I “might later establish some set of undisclosed facts to support recovery.” Under the reading of Conley that Twombly retired, my complaint should pass muster.

Obviously this is not at all what Justice Black meant when he penned the “no set of facts” sentence in Conley. Nor was that nonsensical reading of Conley ever the foundation for classic notice-pleading precedents like Scheuer, Leatherman, or Swierkiewicz. But it was only this straw-man reading of Conley that Twombly “retired.”

Once Twombly’s handling of Conley is clarified, this reality remains: there is not a single meaningful aspect of pre-Twombly case law that is explicitly rejected by Twombly or Iqbal. From the standpoint of the lower federal courts, at least, any approach to pleading that would defy pre-Twombly Supreme Court precedent is highly suspect.

[Cross-posted at the Civil Procedure & Federal Courts Blog

Posted by Adam Steinman on March 18, 2015 at 09:46 AM in Civil Procedure | Permalink | Comments (7)

Tuesday, March 17, 2015

Scope of injunctions

A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.

I want to suggest that the answer lies in two Younger cases--Steffel v. Thompson and Doran v. Salem Inn.

In both cases, multiple people wanted to engage in particular conduct but were prohibited from doing so by a state or local law--handbilling outside a shopping center in Steffel, perating nude-dancing establishments in Doran--that arguably violated the First Amendment. Also in both cases, one person was a defendant in an ongoing state criminal prosecution. And in both cases, SCOTUS held that Younger did not bar the action by those people who were not parties to those ongoing state proceedings. The key was that the federal action (and resulting injunction or declaratory judgment) would not interfere with any ongoing state proceeding, since the federal plaintiffs were not involved in any such proceedings, so there were no comity problems.

But implicit in both decisions is that the federal injunction also would not interfere with the pending proceeding against a different person, even when instituted by the same government official. In other words, enjoining Doran from prosecuting Salem Inn did not prohibit him from continuing to prosecute M&L (the bar that had violated the ordinance and been issued a summons) and enjoining Thompson from prosecuting Steffel did not prohibit him from continuing to prosecute Steffel's friend (who already had been charged with criminal trespass). This must mean that the injunction binds only the named defendant as to the named plaintiff. At most, the federal court's reasoning might convince the official to drop the state case. But he would not have been "ignoring" or "defying" the federal court to continue with the state proceeding against someone other than the federal plaintiff because he carried no legal obligation as to any other person. If enjoining Doran as to Salem also would have enjoined him as to M&L, then the Younger analysis would have changed, because the injunction as to Salem would have interfered with the ongoing state proceeding.

We can see the parallel to the federal litigation in Alabama. A federal court has enjoined Probate Judge Don Davis from enforcing the state's SSM ban as to the four or five couples in Strawser, just as the federal court enjoined Doran not to enforce the nude-dancing ordinance against Salem. But that injunction cannot prohibit Davis from enforcing the ban as to any other non-party couple (by not granting them a license), just as the injunction could not prohibit Doran from enforcing the ordinance against M&L, which no longer was a party to the federal action.

Again, SCOTUS did not speak about the scope of injunctions in either Doran or Steffel. But it clearly understood injunctions in this way. And that, it seems to me, resolves at least this part of the shouting in Alabama.

Posted by Howard Wasserman on March 17, 2015 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (6)

What conflict?

Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.

But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.

Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.

If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.

* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.

Posted by Howard Wasserman on March 17, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, March 16, 2015

Proceduralists' Shibboleths

Recently a call for nominations came out on the civil procedure listserv: what's the worst civil procedure case ever.  Nominations poured in--even as Pepperdine's excellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal.  In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars.  The decisions together appear to be politically conservative (fitting modern progressives' newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars' newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.

But here's the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in  or out of Court. In that way,  Twiqbal is a black hole for scholarship -- its sucks in quants and non-quants alike in, but nothing comes out.  

Consider two recent papers -- one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review.  As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that "a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal."  (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal,  conclude that whether "at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements." And yet, as they point out, "many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect."

What's going on? Is this motivated cognition by progressive proceduralists, who can't admit that the worst cases of their generation (or any!)  had no measurable effects? (That's not to say that Twiqbal hasn't had an effect in the world - just not one that is observable.)  Because their priors are so strong, later evidence is discounted.  As such, Twiqbal is quickly becoming a progressive proceduralist's shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded.  Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.

Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure - the beginning of a return to a pre-1938 code or fact pleading regime. Like Dole or Printz, it's a signal of a revolution that's coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively -- will Twiqbal be such an icon in another few generations?

Posted by Dave Hoffman on March 16, 2015 at 01:32 PM in Civil Procedure | Permalink | Comments (13)

Defending the barely defensible

This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).

Posted by Howard Wasserman on March 16, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, March 13, 2015

Would the Alabama Supreme Court prefer no marriage at all?

There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether (as a commenter on my last post noted). 

Here’s what the Alabama Supreme Court said (emphasis mine) on p.9

Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion. 

Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples? 

Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.

[Cross-posted at the Civil Procedure & Federal Courts Blog]

Posted by Adam Steinman on March 13, 2015 at 02:06 PM in Civil Procedure, Current Affairs | Permalink | Comments (10)

Wednesday, March 11, 2015

New developments in the Alabama same-sex marriage litigation

The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:

The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.

Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.] 

So now the ball is back in Judge Granade’s court (literally), where a few things have happened in the wake of the Alabama Supreme Court’s order. First, Don Davis filed an emergency motion to stay Judge Granade’s earlier injunction “until after the U.S. Supreme Court issues its ruling” in Obergefell. Second—as Howard posted on Monday—the Strawser plaintiffs have filed a motion to amend their complaint to, among other things, certify a class action. (Here’s the proposed amended complaint, including the class action allegations) The amendment would add some additional plaintiffs, three same-sex couples who have been refused marriage licenses in either Mobile County or Baldwin County; it also would add Tim Russell, the Baldwin County probate judge, as an additional defendant.

The proposed plaintiff class is: “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that 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.”

The proposed defendant class is: “all Alabama probate judges who are or may enforce Alabama’s marriage ban.”

There’s been no ruling yet on the class-certification question—nor have I seen any reports of what the timing will be on that. It’s worth noting, though, that Judge Granade herself suggested in an earlier order that “certification of plaintiff and defendant classes” could be proper in the event that probate judges who were not formally bound by her initial injunction refused to follow it. Alabama Attorney General Luther Strange—who is also a defendant in Strawser and was the subject of the first injunction Judge Granade issued—has filed an opposition to class certification.

Stay tuned. Also in Judge Granade’s court is another action brought by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but the Mobile County probate judge’s action on Searcy’s petition to adopt McKeand’s biological son was “qualified in nature,” and he refused to issue a final adoption order “until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.”

[Cross-posted at the Civil Procedure & Federal Courts Blog]  

 

Posted by Adam Steinman on March 11, 2015 at 11:13 AM in Civil Procedure, Current Affairs | Permalink | Comments (6)

Monday, March 09, 2015

I see your mandamus and raise you a class action

In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston). If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.

It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.

Posted by Howard Wasserman on March 9, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, March 04, 2015

Missing the signals

Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.

The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.

Posted by Howard Wasserman on March 4, 2015 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, March 03, 2015

Symbolic mandamus

Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.

SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.

This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action).  The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction. 

Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]

Posted by Howard Wasserman on March 3, 2015 at 11:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (27)

Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples

As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.

The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.

This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.

Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog

Posted by Adam Steinman on March 3, 2015 at 10:20 PM in Civil Procedure, Constitutional thoughts, Current Affairs, Judicial Process | Permalink | Comments (4)

Monday, March 02, 2015

The Dress, Justice Holmes & Erie

What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.

Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.

To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained: 

Books written about any branch of the common law treat it as a unit [and] cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately …. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State ….

If a lot of these quotes sound familiar, it may be because Justice Brandeis used them liberally in Erie Railroad v. Tompkins, where he wrote the opinion overruling Swift. Black & White Taxicab v. Brown & Yellow Taxicab, in fact, was Brandeis’ Exhibit A for Swift’s “mischievous results.” And everyone from first-year law students to Supreme Court Justices have been struggling with Erie ever since.

While White & Gold v. Blue & Black may have temporarily broken the internet, Black & White v. Brown & Yellow helped to recast judicial federalism as we know it. But rest assured that if the White & Gold dress reincorporates in Tennessee so it can sue the Blue & Black dress in federal court, you’ll hear it here first.

[Cross-posted at the Civil Procedure & Federal Courts Blog]

Posted by Adam Steinman on March 2, 2015 at 09:37 AM in Civil Procedure, Culture, Current Affairs | Permalink | Comments (6)

Wednesday, February 25, 2015

JOTWELL: Erbsen on Klerman & Reilly on forum selling

The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.

Posted by Howard Wasserman on February 25, 2015 at 11:23 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 24, 2015

Another twist in the march to marriage equality

Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).

First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.

Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.

Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.

Posted by Howard Wasserman on February 24, 2015 at 10:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, February 17, 2015

And more crazy in Alabama

With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an  Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.

The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.

First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.

Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.

Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.

Posted by Howard Wasserman on February 17, 2015 at 05:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, February 15, 2015

If possible, Alabama could get more confusing

Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.

So how will this play out and what effect will it have?

This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.

In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.

The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.

The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.

Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined;  the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.

On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.

Posted by Howard Wasserman on February 15, 2015 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, February 12, 2015

Lower federal courts and state administrative actions

Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.

But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.

So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.

Posted by Howard Wasserman on February 12, 2015 at 05:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Now we have a meaningful federal order

The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.

So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:

1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.

2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.

3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.

4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.

Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2.  In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.

Posted by Howard Wasserman on February 12, 2015 at 05:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Bazelon sort-of defends Roy Moore

Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.

Posted by Howard Wasserman on February 12, 2015 at 09:29 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)