Tuesday, November 28, 2017

The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida. He wrote about Oil States prior to argument.
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Although in a less spectacular way that in some other oral arguments, yesterday’s oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC put competing judicial philosophies on brief display.  Emily Bazelon, Eric Posner, Cass Sunstein, and others argue that one major “judicial philosophy,” by seeking to limit the discretion of administrative agencies, “would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”  Another judicial philosophy of “minimalism” and “majoritarianism,” according to Sunstein, would result in “reasonable” regulations being upheld from constitutional challenges.  There was a subtext of this struggle between constitutional worldviews as the justices questioned attorneys in Oil States.

The Ancient Doctrine of Vested Rights

Apart from the private rights theory of Article III that has been the focus of most briefing and commentary on Oil States, Justice Breyer highlighted the “vested rights” theory, commenting that it “had great popularity in the 19th century and might have moved Justice Story but in fact has happily sunk from sight.”  Justice Gorsuch had described Justice Story as concluding that once a patent is granted, it is a private right secured to its owner.  This sets up a potential 5-4 or 6-3 split in which Justice Breyer writes or joins an opinion strongly defending the administrative state from constitutional counter-majoritarianism, with Justice Gorsuch on the other side.

Constructing Left and Right in Article III Jurisprudence

In the era of the Greatest Generation, the Supreme Court’s left tended to take the side of due process and an independent judiciary, while the right found administrative adjudication to be acceptable.  This may play out a little bit differently in Oil States than in Northern Pipeline.  In the latter, Justice Brennan, typically associated with the judicial left, wrote a plurality opinion seemingly confining Article I courts to a small area covered by three categories, adding that an independent judiciary shields litigants from judges subject to “improper influences not only by other branches but by colleagues as well.”  Three conservative justices, led by Justice White, maintained that Article III’s preference for an independent judiciary should be balanced in an ad hoc fashion with “congressional values and … responsibilities.”

However, even Justice Brennan wanted to distinguish, and perhaps allow non-Article III courts to adjudicate, rights created by Congress as opposed to by the common law or state statutes.  This possibility led to much dialogue at yesterday’s oral argument about whether, not being obligated to create patent rights, Congress may condition them upon post-grant agency proceedings, or whether on the other hand, as Allyson Ho argued for Oil States, “in the Article III context, where Congress is taking a category of cases that have been adjudicated in courts for centuries and removes those cases -- withdraws those cases to a non-Article III tribunal, that impacts … the individual rights guarantees that Article III [contains]….”

The Oil States oral argument is being presented as a clash between a left that supports the PTO, and a right led by Justice Gorsuch that is defending private property.  In 2011, the four justice who are often portrayed as the Court’s liberals rejected Justice Brennan’s opinion in Northern Pipeline as an “analysis that did not command a Court majority …. and that was subsequently disavowed” in, among other cases, CFTC v. Schor, 478 U. S. 833 (1986).  They would have revived the principle from Crowell v. Benson, 285 U. S. 22 (1932), that Article III provides a right to appeal a judgment to an independent judge, not a right to a judge who initially decides all factual issues.  Therefore, in Crowell, an administrative adjudication of a private employer’s liability to an employee under a federal harbor worker’s compensation law, subject to appeal to federal district court for noncompliance with law or lack of support in the record, was consistent with Article III.  Except for patents being “property,” perhaps unlike an employer’s defense to a federal statutory claim, it would be a small step from that premise to say that the PTO can revoke patents, subject to appeal to the Federal Circuit for legal error or lack of evidence.

Defusing the Northern Pipeline Bomb

Justice Kennedy possibly signaled a fifth vote in favor of inter partes reviews passing Article III muster when he distinguished Stern v. Marshall, 564 U.S. 462 (2011), as involving a right not created by Congress.  In Stern, the Court held that a non-Article III court could not render a final judgment on a state law counterclaim, despite its relationship to a claim voluntarily filed in bankruptcy court by the counterclaim defendant.  As Malcolm Stewart pointed out for the government, “Stern versus Marshall and Northern Pipeline … are really directed at a different sort of problem,” because the “adjudicator was being asked to determine whether one party was liable to another for a violation of [state] law.”  This argument might be gaining some traction, despite the argument that Northern Pipeline merely echoed McCormick Harvesting and American Bell in insisting that private rights be enforced (or set aside) in Article III courts.

Introducing a Parade of Horribles

Justices Ginsburg and Sotomayor questioned counsel for Oil States about whether the PTO must allow its worst mistakes to be perpetuated if patents are private rights immune from revocation by the PTO, or by anyone other than a lay jury for that matter (assuming genuine issues of fact as to validity).  Justice Sotomayor asked whether, “somehow at the founding in 1789, given the replete English history of the crown and the Privy Council … sidestepping any judicial adjudication of validity, …  in 1789 the founders intended to change that system as radically as to say, no, we're not going to permit … the legislature to change the terms of a patent grant?” 

None of the justices seemed to question whether the Privy Council was thought in 1789 to have the power to revoke issued patents.  For justices who share this premise of the government in the case, it may seem to open Pandora’s Box to make flawed and foolishly granted patents administratively irrevocable, without a good constitutional reason to do so.  (Incidentally, patent law historians H. Tomás Gómez-Arostegui and Sean Bottomley make a strong case in their amicus brief that between 1780 and 1800, the Court of Chancery sitting as a law court sent patent validity issues for final judgment to the King’s Bench, and that the Privy Council’s power to revoke patents had fallen into disuse and virtually out of living memory.)

The Takings Turn

Justices Breyer and Gorsuch seemed concerned that a patent owner who has invested large sums of money in manufacturing a product may be divested of the patent rights by a non-Article III court.  This led to a line of questioning about whether the government could declare land held for decades to be subject to revocation by administrative panels within the Department of the Interior, before the landowners could sue other private parties for trespass.  

As Justice Kennedy pointed out, the Constitution refers to a congressional power for “securing” to inventors the “exclusive right” to their discoveries, not securing to Congress or the presidency the discretion to adjust issued patents in the public interest, etc.  The observation echoed a statement by the Supreme Court in 1888: “The patent, then, is not the exercise of any prerogative power or discretion by the president, or by any other officer of the government, but it is the result of a course of proceeding quasi judicial in its character, and is not subject to be repealed or revoked by the president … or the commissioner of patents, when once issued.”

The Takings Clause analogy to the Article III problem may cut both ways for Oil States, however.  Justice Roberts asked:

What is … the relationship between your position and the takings clause? The government can certainly diminish the value of your property rights quite extensively when it comes up with [a] new regulation. You have a lot that you think you could have built a mansion on, and then the government passes a law and you can only build a shed on it and … yet we often … give the government a lot of leeway in saying that … that they don't have to pay compensation. So, if the government can restrict your property right in real property to that extent, why can't it do so with respect to patent rights?

Most of the way through Mr. Stewart’s argument, Justice Breyer suggested reserving the Takings Clause question for another day, perhaps after a ruling in favor of the government on Article III.  Interestingly, these portions of the argument invert the supposed politics of the Court, as Chief Justice Roberts normalizes the regulatory erosion of property rights in the public interest, and Justice Breyer suggests that a massive disruption of investment-backed expectations is a taking.

Shoring up the Schor Test

One outcome of Oil States might be a decision upholding the inter partes review system of the America Invents Act, but clarifying why it is a special case and that other investments are not at risk of being caught up in administrative revocation under White House pressure.  Chief Justice Roberts asked whether the multi-factor Article III test articulated in Schor provides sufficient guidance to investors contemplating the manufacture and launch of a patented product.  Schor seemingly expanded Crowell into Justice White’s ad hoc balancing test from Northern Pipeline for sustaining non-Article III procedures.  Schor, which had the backing of seven justices, Justices Brennan and Marshall dissenting, looks to broadly-framed “factors”: whether the courts maintain the “‘essential attributes of judicial power’” despite the administrative adjudication at issue, “whether the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.”  A firm requirement of historical understandings that a claim did not exist or was decided administratively and outside of law courts in 1789 would be more protective of judicial independence under Article III, and of the right to a civil jury.  Alternatively, a consent theory based on the possibility of a reexamination of patent claims by the PTO under a 1980 statute at the time Oil States filed could decide this case, without endorsing Schor.

Copyright Lurking in the Background

Although the government was asked whether the PTO could hear infringement actions consistent with Article III, copyright small claims and initiatives such as the Stop Online Piracy Act did not come up.  The government’s response to the question, however, indicated that such evasions of Article III would be difficult to sustain due to the lack of historical precedents.  Presumably the answer was aimed at compulsory agency adjudication and not to voluntary small claims tribunals like the proposed Copyright Claims Board.  If Oil States is based on a consent theory tied to a patent application being filed subject to a statutory scheme that warns the applicant that an issued patent may be reexamined or revoked, there will be few implications for copyright damages actions outside of Article III courts.  However, if five or more justices adopt broad readings of Crowell, Schor, or the Northern Pipeline dicta concerning congressionally-created rights being subject to congressional remedies and limitations, the copyright small claims movement will have a major precedent to draw on in Congress and during constitutional challenges.  

From a copyright perspective, the Oil States oral argument was noteworthy for what was not said.  Given the briefing on the Seventh Amendment and the fact that Justice Thomas wrote one of the landmark opinions in Seventh Amendment jurisprudence, some might have looked forward to a discussion of the right to a jury trial and the implications of Feltner v. Columbia Pictures, 523 U.S. 340 (1998).  The Seventh Amendment and the concept that jury trials shall be “preserved” did not come up, other than in the start of the government’s argument.  Justice Thomas did not ask any questions, and Justice Alito asked only one: whether Congress, which had the power not to enact any patent regime, was within its rights to enact one issuing patents subject to post-grant cancellation.  If the Court lumps the Seventh Amendment inquiry together with the jurisprudentially distinct Article III inquiry, and resolves the latter by expanding Crowell, Schor, or some other doctrine justifying non-Article III courts, collateral attacks on default judgments involving small copyright claims may fail.

Posted by Howard Wasserman on November 28, 2017 at 11:25 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida.

The Future of Intellectual Property and the Administrative State: Oil States v. Greene’s Energy

Efficient dispute resolution is something of a Holy Grail in intellectual property (IP).  Several of the major innovations in the field over the past two decades chased it: WIPO domain name dispute resolution, the statutory license process for webcasters and digital downloads of cover songs, the introduction of an theory of induced infringement into copyright jurisprudence affecting online intermediaries, the evolution of copyright filters such as ContentID and Audible Magic CopySense, and the America Invents Act of 2011.  The results have been mixed in many cases. 

The question being presented to the Supreme Court this week is whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure in certain IP disputes.  The Patent Trial and Appeal Board of the U.S. Patent and Trademark Office (PTO) has been considering more than 1,000 petitions per year, on average, for inter partes review (IPR) of patent claims that were not novel or that were obvious considering the prior art.  Patent law specialists comb through voluminous filings citing often obscure technical publications and foreign patents in a way that would be too time-consuming and expensive if done for each of the 500,000 patent applications submitted annually.

While the cancellation of an improvidently issued patent is a relatively narrow issue, the broader questions of when an Article III court should review the validity of rights underlying a claim for money damages, and when a jury trial is available as of right for such a claim, will have broader implications.  Most notably, the Court’s opinion in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, will affect the default judgments that are likely to multiply in copyright cases if small claims legislation is passed to reduce the cost of enforcing copyrights.

Many years ago, the Federal Circuit resolved a constitutional challenge to the system of reexamining issued patents whose validity would traditionally have been handed to a jury for resolution.  The court began with the principles that patents are property rights protected by the Fifth Amendment from deprivation without due process and from takings without just compensation and public use.  It emphasized that a patent is a right to exclude granted to generate value through licensing, and to encourage risk-taking that will advance the useful arts.  Prior to a 1980 statute, which became effective in 1981, Article III courts handled the cancellation of issued patents’ claims.  The plaintiff in the challenge had been issued patents in the late 1970s based on an application from 1959, but on the eve of jury trial in 1982, the case had been continued pending a reexamination under the new statute.  The Federal Circuit rejected the plaintiff’s Fifth Amendment, Seventh Amendment, and Article III claims against the Commissioner of Patents and Trademarks, holding that patents are “public rights” dependent on a government grant under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).  The Court in Northern Pipeline looked for a textual commitment of a class of cases to the executive branch to limit the Article III power, or a comparable “historical understanding” that executive officials could decide certain matters.

The basic premise of Northern Pipeline and its predecessors is somewhat problematic.  The fact that England had certain practices does not necessarily make them compatible with the Bill of Rights.  The Seventh Amendment and Article III Judicial Power were intended to protect life, liberty, and property from the executive and legislative branches, which could “overwhelm[]” the British judiciary.  Even Northern Pipeline distinguished territorial courts, courts-martial, and other traditionally non-“judicial” forms of dispute resolution from Congress enacting legislation to assign issues to Article I courts under an Article I power such as the Commerce Clause or the Copyright and Patent Clause.  As the Civil Jury Project at NYU argues in its amicus brief, the exemption of “public rights” from the Seventh Amendment lacks “support in the amendment’s history or text, and if interpreted too broadly would empower Congress to sidestep civil juries altogether.”  Justice White articulated better and more manageable distinction between public rights and private ones in 1977, in holding that the Seventh Amendment is not violated when Congress “created a new cause of action, and remedies therefor, unknown to the common law….”  Causes of action known to the common law are different, this theory would suggest. 

The Solicitor General of the United States and the PTO point out, as do many amici, that the Supreme Court adopted a seemingly broad standard for public rights in 2015, that bills seeking to cancel a patent were historically equitable in nature and therefore not subject to jury trial, and that the Privy Council--an entity linked to the English Crown--could void patents based on lack of novelty or filing by someone other than the true inventor.  The executive branch frequently strips individuals of their property rights, and IPRs are an easier way to do so, they claim.

The Obama administration defended the AIA as alleviating “problematic” aspects of patent litigation by enabling or accelerating post-grant review of issued patents.  It criticized the court system as allowing “legitimate innovators” to be “tied up” in litigation.  Some innovators even had to settle cases, the administration lamented.

In the New York Times, Eduardo Porter argues that drug prices will be lower under the AIA, and that there is no evidence that a “stringent” patent system helps the economy in any event.  The first point seems to be undermined by evidence that pharmaceutical prices have risen more rapidly under the AIA regime, reaching an annual percentage rate of increase in 2015 that was double the rate in 2010 (p. 29 of the link).

A better argument is that the PTAB will save potential infringers litigation costs.  Perhaps this argument proves too much, however.  How would many of the companies seeking to preserve a low-cost way to invalidate patents feel about low-cost methods to uncover accounting irregularities, wage and hour violations, or unpaid copyright royalties to musicians?

Another interesting question is whether the AIA will reduce prices, which are kept high by patents.  Professor Porter links “stringent” patents to research claiming that there has been a “drastic increase” in pricing power – or markups (roughly sales minus cost of goods sold) – among all publicly-traded firms, and also among the larger set of all IRS tax filers.  Interestingly, the trend line on markups starts to change dramatically in about 1980, just before efforts to strengthen U.S. patentholders’ positions.

Again, there are reasons to doubt this claim. 

First, the research on markups attributes the enhancement of pricing power to a broad array of intangibles, which have increased in number and in strength alongside patents: copyrights, trademarks, franchises, and other intangible assets.  Starting with brand value alone, it reached the impressive level of $790 billion in 2017 at 10 companies alone, including $184 billion for Apple and $48 billion for Facebook’s.  Patents like those on the iPhone interface can be invented around without too much difficulty many times, even when they aren’t canceled under the AIA, but brand value is elusive.  Trade secrets can also be quite valuable, as Alphabet’s Waymo alleges in its lawsuit against Uber.  Perhaps trade secret theft does not cost the economy $300 billion annually, as an advocacy group asserts, but trade secrets in aggregate may be worth tens of billions of dollars.  Disney’s effort to take in 65% of the revenue from screenings of next month’s The Last Jedi illustrates how copyrights can drive markups, especially after a transaction like the $4 billion deal for Lucasfilm.  Intangibles other than trademarks, copyrights, and trade secrets have also proliferated, such as the millions of derivatives contracts on five U.S. banks’ balance sheets, bearing a notional value of more than $220 trillion.   

Second, the most patent-intensive products see some of the most remarkable declines in price despite increases in quality.  This contrasts with books, for example, which are sold today at quality levels often no better than those our forebears had access to, but at prices two to 15 times what they would have paid.  The very rich in the 1970s or 1980s might have paid millions of dollars for an iPhone, but it could not be had at any price.  Another interesting example is the PlayStation 2, presumably another “victim” of patents due to the many overlapping rights implicated by its games processor and graphics synthesizer chips, possibly including Nintendo’s 3D image processing patents.  The PS2 fell in price from $299 at launch to $99 in 2009, before the AIA was passed.  The Playstation 3, which had more than 100 times the power of the PS2, fell in price by Cyber Week 2012 to less than the PS2 at launch, or $219.

Third, the decline of startup activity that is supposed to be the mechanism for high markups – because large firms increasingly lack vigorous competition from newcomers – could just as easily be blamed on weaker patents as on “stringent” protection of patents.  The research in this area points to “transformational” entrepreneurs who want to revolutionize a product category or service sector, and who account for a disproportionate share of growth within industries.  Like many famous inventors who go on to become billionaires, such entrepreneurs may seek patent protection.  The PTO released a working paper in 2015 finding that among thousands of startups that went public or were acquired, those that had a patent application approved were 53% more likely to obtain venture capital or similar investments.  The National Venture Capital Association argues that patents “are the main way in which potential investors, namely venture capitalists, can assess whether a company has … a unique advantage.”

In any event, the AIA would not be the only or even the most efficient way to address high drug prices, even if that had been the goal of Congress or the White House.  The Patent and Trademark Office could simply issue a memorandum suggesting that examiners reject the sort of patents found invalid by the PTAB for combining existing dosing methods with expiring chemical compound (or drug) patents.

Turning to the issue of whether Oil States could help reign in a “stringent” patent system that is unhelpful by academic consensus, the system may be no stronger than years or decades ago, even as we learn more about its potential economic benefits.  The median patent damages award in 2016 was $6.1 million, down from 1997-2006.   Moreover, nearly two-thirds of patent holders are unsuccessful in court, not counting settlements, and only 2% of cases result in a damages award.  Recent research into innovation suggests that most significant inventions were not patented, and that Switzerland and the Netherlands were as innovative without patent systems as other countries with them were.  Even this work, on the other hand, emphasizes that correlation studies indicate that patentability is a “primary driver of innovation.”   For example, a study of inventions originating in 27 countries showed that the number of patent applications from a given country in the United States is strongly correlated with research and development investment by private industry in that country.  Brazil, China, India, and Russia have seen innovation and foreign investment increase markedly after providing stronger patent and trademark protection.  Global research and development spending has doubled in a 25-year period.

Critics of the PTAB suggest that it often comes out with conclusory and arguably wrong decisions.  So-called “objective evidence” that an invention is not obvious, for example, is typically downplayed by the PTAB, even though the Federal Circuit calls such evidence “critical.”  Vital discovery into documents probative of this issue is often denied to patentees.  Moreover, the PTAB arguably misapplied the definition of a “covered business method” from the American Invents Act in at least two cases.  It is possible that PTAB judges whose firm represented a party on a related matter more than one year prior to the institution of IPRs could decide IPRs in which the party is involved.  Finally, the pharmaceutical industry argues that IPRs have an “extraordinarily lopsided track record” and that “the PTO has admitted to reconfiguring panels to alter outcomes,” threatening due process.  While appeal to the Federal Circuit can and should cure most errors, the practice of summary affirmances undermines this safeguard.

Looking to the future, there are several ways in which a decision favorable to the PTO could affect the copyright system.  Congress might be encouraged to pass small claims legislation, and even to make it mandatory rather than voluntary subject to a potential default judgment, as current drafts envisage.  Although an action for damages involving copyright infringement is distinguishable from cancellation of a patent, which has more obvious equitable analogues, many of the arguments in Oil States point more broadly to considerations of deference to Congress, expert panels, cost reduction, and comprehensive statutory schemes.  If accepted by the Supreme Court, these theories may apply to a Copyright Claims Board staffed by copyright experts and handing out awards of up to $30,000 per proceeding, plus up to $5,000 in attorney’s fees against defendants who maintain unreasonable defenses.  The Copyright Office has even asked for comments as to whether injunctive relief should be included in such a regime.  Like the PTAB, such a regime might accelerate the process of dispensing with probing examinations of applicable arguments, and their submission to civil juries, in favor of fast and cheap decisions.

Posted by Howard Wasserman on November 27, 2017 at 09:31 AM in Civil Procedure, Intellectual Property | Permalink | Comments (2)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 13, 2017

JOTWELL: Effron on Trammell on precedent and preclusion

The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion. 

I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.

Posted by Howard Wasserman on November 13, 2017 at 03:06 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, November 01, 2017

A Rule 60 Mechanism for Baseball Playoffs?

As the baseball world turns to the greatest single game in any season -- World Series Game 7 -- Washington Nationals fans are still lamenting what might have been. The Nationals lost to the Chicago Cubs in the decisive Game 5 of the National League Division Series in a game that included a truly bizarre 5th inning that may have ultimately dictated the outcome. 

The powers-that-be at MLB have admitted that the umpires in that 5th inning made a crucial mistake, which surely changed the results of that 5th inning and could have changed the outcome of the game itself. Not only did that error potentially affect who won the game and thus which team moved on to the next round of the playoffs, it also may have inadvertently led the Nationals to essentially fire their manager, Dusty Baker, and hire someone else.

So here's my question: should there be a recourse for something like this occurring, similar to Rule 60 of the Federal Rules of Civil Procedure? Should the Nationals be able to ask MLB for "relief" from that "final judgment," especially in an extraordinary case such as this?

Let's first examine what happened in that crucial 5th inning. The Cubs had already scored two runs that inning, making the score 5-4 in Chicago's favor. With two outs, and a runner on second, Nationals pitcher Max Scherzer struck out Cubs batter Javier Baez. However, the ball went past Nationals catcher Matt Wieters for a dropped third strike, allowing Baez to go to first and the runner on second to score. Here's the problem: on Baez's swing-and-miss, his bat hit the catcher Wieters. Under MLB Rule 6.03, the umpires should have ruled that action to cause a "dead ball" on the spot, meaning that Baez would have been out and no runners would be allowed to advance. The inning should have been over. Here is the text of the rule:

If a batter strikes at a ball and misses and swings so hard he carries the bat all the way around and, in the umpire’s judgment, unintentionally hits the catcher or the ball in back of him on the backswing, it shall be called a strike only (not interference). The ball will be dead, however, and no runner shall advance on the play.

The umpires conferred after the play but ruled that Baez could advance to first and allowed the runner from second to score. They ruled that the ball was not dead. But as Joe Torre, MLB's Chief Baseball Officer, admitted

“You know, the whole rule interpretation — there’s rules, and then there’s instructions to the umpires. There’s separate books. And what Jerry’s feeling was, that the interference didn’t take precedent over the fact that the ball was already past [Wieters] when the contact took place.

“However, the rule states — and you probably have read the rule — that when contact is made — in other words, when the bat came around and hit the catcher’s mask — it’s a dead ball. It’s a dead ball. And that’s the one thing that should have taken precedence.”

Instead of that inning ending with Nationals down 5-4, one run scored on that missed call, and the Cubs scored another run that inning as well to go up 7-4. The Cubs eventually won the game 9-8.

Of course, we will never know how the game would have played out had the umpires made the correct call. But there's at least a plausible argument that the Nationals would have come back and won the game. The Cubs went on to the National League Championship Series (where they lost to the Dodgers). The Nationals had lost their second NLDS Game 5 in two years. And their manager, Dusty Baker, was told not to come back for next season -- mostly because he had not won in the playoffs.

Thinking, now, of the parallel in civil litigation, it seems like this situation would call for a Rule 60-type remedy. Rule 60(b) provides

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason that justifies relief.

To be sure, courts are typically quite reluctant to grant a Rule 60(b) motion, but it happens at times, particularly when an error is obvious and egregious. 

What would a Rule 60(b)-type remedy for this baseball game look like? I suppose that MLB could restart the game from the end of the 5th inning, when the mistake occurred. For instance, in the famous 1983 Pine Tar game, the teams resumed play 25 days later from the spot in the game when the mistake happened. 

One crucial difference between the Pine Tar game and the Nationals playoff game is that the Royals in that 1983 incident put the game under protest right then, while the Nationals did not. But why should that make a difference? Rule 60(b) does not require an immediate objection to preserve the ability to bring the motion (Rule 59 has stricter timing requirements for challenging a final judgment). The whole point is to relieve an aggrieved party from the effects of a judgment that essentially was wrong or is otherwise inequitable.

Of course, resuming the Pine Tar game was easier given that the incident happened during the regular season. It would be virtually impossible to restart a playoff game, especially once the subsequent series has begun. Among other things, that would be wholly unfair to the next round opponent (in this case, the Dodgers). So maybe the practical difficulties counsel more strongly in favor of finality in the baseball context, even when the Federal Rules keep the door open just a sliver for mistakes in litigation.

In any event, I highly doubt the Nationals would have beaten the Dodgers in the next round, so none of this really matters. But the admission of a mistake that very well could have changed the outcome, and very likely led to the nonrenewal of the Nationals manager, raises interesting questions relating to the litigation-as-baseball metaphor.

OK, time to sleep -- tomorrow is Game 7!

(By the way, I attribute any errors in this post to my late-night Halloween candy and baseball induced stupor. I'll gladly grant a Rule 60 motion to revise it if there are any egregious mistakes.)

Posted by Josh Douglas on November 1, 2017 at 01:32 AM in Civil Procedure | Permalink | Comments (2)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, October 03, 2017

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 29, 2017

Palin v. NYT dismissed

Judge Rakoff of the Southern District of New York has dismissed Sarah Palin's defamation action against The New York Times, concluding that the allegations of actual malice, in conjunction with the testimony heard in questionable evidentiary hearing, showed that Palin had not pled facts plausibly showing that the editorial-page editor knew or recklessly disregarded the truth of statements about the connection between Palin's PAC publications (which featured gun-sites over "targeted" congressional races) and the Gabby Giffords shooting.

The order includes a lengthy footnote explaining the use of the evidentiary hearing. He justified it because a "court must have some knowledge of the context in which the underlying events occurred in order to carry out the function with which the Supreme Court has tasked it" --the "context-specific task" of evaluating plausibility. Also, neither party objected, the facts established by the testimony in the hearing are not in dispute, and no credibility determinations were made. And although he did not mention it, it appears that none of the testimony contradicted anything in the complaint. The testimony in the hearing was combined with the facts in the complaint and used to measure whether the facts showed actual malice.

But all this ignores FRCP 12(d), under which a court converts a 12(b)(6) to a motion for summary judgment when materials beyond the four corners of the complaint are used. Iqbal did not overrule or repeal 12(d), so the need for knowledge of the context cannot necessitate such hearings. It also would have been simple enough for the court to take the evidentiary hearing and convert to summary judgment (although perhaps the parties would have demanded some discovery, if only on actual malice). In short, obtaining and using information beyond the allegations of the complaint cannot be justified under the current rules without converting.

The merits discussion also appears to make the hearing unnecessary, because much of the analysis suggest that the problem with the complaint was legal insufficiency rather than plausibility-factual insufficiency. The problem was not a dearth of facts or the conclusoriness of the facts, but that the facts alleged, even if detailed, could not establish actual malice. For example, allegations of hostility towards Palin, economic motive to criticize Palin, and failure to comply with journalistic practices--alleged, in varying degrees of conclusoriness--all are insufficient, as a matter of law, to show actual malice.

All-in-all, a good First Amendment decision (I should add that there is some great language about the First Amendment, political speech, and the narrowness of actual malice), but reached in a procedurally incorrect way.

Posted by Howard Wasserman on August 29, 2017 at 06:30 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, August 27, 2017

The process of the Arpaio pardon and civil-rights enforcement under Trump

Josh Chafetz (Cornell) has a Twitter thread and WaPo op-ed arguing that the focus should be on the underlying racism, sadism, and abuse of power motivating the Arpaio pardon, not the fact that the pardon was for a criminal contempt conviction. In other words, the problem is that Trump pardoned a racist, sadistic serial abuser of state power, not that he pardoned someone who had been held in contempt. Josh suggests that we might want a President to pardon someone convicted of contempt, at least in some circumstances.

His example is the facts underlying United States v. Cox (5th Cir. 1965). Two African-American men testified in a federal suit against a state official, saying the official had refused to register them as voters; when he denied discriminating, the federal judge presiding over the case recommended that the two men be charged with perjury. DOJ investigated, but found no grounds for a perjury charge. Nevertheless, the judge ordered the case submitted to a federal grand jury, which convicted. When the US Attorney (acting on orders of Acting AG Nicholas Katzenbach) refused to pursue the indictment, the judge held the US Attorney in contempt and ordered Katzenbach to show cause why he should not be held in contempt. On direct review, the 5th Circuit reversed the contempt order, but refused to grant a writ of prohibition to Katzenbach, who had not yet been placed in any risk of contempt.

Procedure does matter, because of the circuitousness of that hypothetical pardon. The orders in Cox were for civil contempt, so a pardon would not have made a difference. To get to criminal contempt for a racist federal judge requires so many additional steps, including the cooperation of the US Attorney and Department of Justice. So you would need not only a racist judge, but a racist DOJ, with all its layers of review, that a subsequent President would choose to rebuke through a pardon. That all seems unlikely.

A second procedural issue involves civil contempt. To the extent this pardon sends a signal about civil rights enforcement, the effect may be federal judges relying more on civil contempt, including fines and jail for recalcitrant prison officials. Arpaio and Maricopa County had been held in civil contempt, but the judge chose not to enforce the citation against Arpaio (wisely, given the risk that it would have turned him into a martyr). Criminal contempt became necessary when nothing else worked and when Arpaio was voted out of office. But how plaintiffs frame cases affects available approaches to contempt going forward. Big structural-reform cases are brought against the entity, but courts are reluctant to impose sanctions such as fines or jail against non-parties, except as an extreme last resort. So expect civil-rights plaintiffs to spread the scope of their complaints to top officials in addition to the entity.

Posted by Howard Wasserman on August 27, 2017 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 25, 2017

More on pardoning Arpaio (Updated)

Thanks to Paul for flagging Marty Redish's NYT op-ed on the potential Arpaio pardon. Like Paul (and Marty), I do not know if the argument works. But I wanted to flag how his argument interacts with the version of "judicial departmentalism" I have been urging. My framing relies on Gary Lawson's version of departmentalism--the president can ignore judicial precedent as precedent he believes gets the Constitution wrong, but cannot ignore court orders. That includes the orders by which he is bound by as a defendant (e.g., the challenge to the travel ban) and the orders he must enforce on behalf of the federal courts involving other officials,even if he disagrees with the underlying constitutional judgment.*

[*] Lawson allows that the president might ignore a court order in extraordinary circumstances, but I put that to the side for the moment.

Marty's argument gives Gary's (and my) distinction a Fifth Amendment grounding. There is no functional difference between the president ignoring or declining to enforce a judgment and a president pardoning (or promising to pardon) another official who ignores court orders. If one violates due process, so does the other. And if departmentalism does not extend to one, it does not extend to the other.

Finally, if this becomes a concern, consider the federal courts' counter: Stop using criminal contempt and rely on civil contempt to enforce injunctions, including by jailing the recalcitrant official. There is no crime or conviction from which to pardon.

Update: Trump pardoned Arpaio on Friday.

Posted by Howard Wasserman on August 25, 2017 at 01:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, August 15, 2017

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Friday, August 11, 2017

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

It turns out that Penn State (along with the larger public universities in Pennsylvania, such as Pitt and Temple) is a "state-related" university, as opposed to a state university. Although I am not sure of all the differences, state-related universities receive less funding and are entities created by state law that maintain affiliations with the state (sufficient to make them act under color for Fourteenth Amendment and § 1983 purposes), but are not treated as alter-egos of the state. District courts in Pennsylvania have held that Pennsylvania's state-related schools do not enjoy Eleventh Amendment immunity.

This matters because most circuits use the same analysis to identify an entity as an arm of the state for Eleventh Amendment purposes as for § 1332 purposes--that is, if an entity is an arm of the state entitled to Eleventh Amendment immunity, it is an arm of the state and not a citizen of the state for diversity purposes. That is how the federal court involved the West Virginia case. Because the prevailing view is that Penn State does not enjoy Eleventh Amendment immunity, it should follow that the district court has jurisdiction in this case.

I am curious to see if Penn State at least tries to move to remand or if it knows it will lose on the point. A recent possible comparison is Haywood v. University of Pittsburgh, a suit brought in federal court by--you guess it--the former football coach. Haywood included three claims--two for breach of contract (with jurisdiction under § 1332) and one for a violation of due process (with jurisdiction under § 1331); Pitt did not contest jurisdiction and the court reached the merits. This would suggest that a state-related university can be sued in federal court on diversity. But Haywood may be of limited use. The due process claim gave the district court original jurisdiction, with supplemental jurisdiction over the state claims, all regardless of diversity (Haywood did not assert § 1367 in the Complaint, which may just be unwise drafting). So it may have been that Pitt knew there would be jurisdiction anyway, regardless of the basis, so there was no point in contesting. The Penn State case squarely presents the question of the university's status for § 1332 purposes.

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Second, this decision may be as significant for its discussion of § 1983 doctrine, showing how qualified immunity makes damages liability difficult, if not impossible.

The City asked the court to pretermit the merits and grant qualified immunity (as had two prior Third Circuit panels) because the right was not clearly established. The court declined to "take the easy way out." In justifying this approach, the court pointed to several considerations that SCOTUS identified as benefits to merits-first: the importance and frequency of the constitutional issue, the need of police departments for guidance on the issue, the purely legal, non-fact-bound nature of the issue, and the quality of the briefing (with amicus briefs from several advocacy organizations, a group of First Amendment professors, and DOJ's Civil Rights Division).

Nevertheless, after recognizing the right, the majority held that the officers were entitled to qualified immunity because the right to record was not clearly established. There was no Third Circuit precedent and precedent from other circuits and from district courts was factually distinguishable (some of those cases based the right on the presence of expressive intent by the recorder, while the Third Circuit recognized a right to record, regardless of what the recorder planned to do with the recording). The court also refused to find the right clearly established based on Philadelphia Police Department policy recognizing a First Amendment right to record. The problem was that the plaintiffs sought municipal liability based on the failure of those policies to effectively instruct officers about this right; if the policies were ineffective, then they could not clearly establish the right so any reasonable officer would know there was a First Amendment right to record, as most officers did not know of the right.

Judge Nygaard dissented on qualified immunity. He argued that the right was clearly established given the unanimity in other circuits, Department policy, and 2012 DOJ recommendations that local departments establish policies to affirmatively set forth the First Amendment right;* those three things placed the right to record "beyond debate" and placed officers on unambiguous actual notice that they must allow members of the public to record their activities. Nygaard also argued that a reasonable officer's "lived experience" informed him of the pervasiveness of recording devices and their routine integration into daily lives, with the resulting First Amendment implications.

[*] Recent consent decrees with cities such as Ferguson and Baltimore included provisions requiring police departments to recognize and not interfere with the First Amendment right to record in public.

The majority's analysis demonstrates the unfortunate breadth of qualified immunity. Factual distinctions are always possible with precedent--the Third Circuit had previously accepted (or at least had not flatly rejected) that there might be a meaningful distinction between filming a sidewalk encounter and filming a traffic stop. It thus is possible that this decision will do nothing for the next case in which an officer prevents someone from recording, if the officer can find some small distinction to the incidents in this case--the recorder was on the same side of the street rather than across the street, the person was momentarily stopped from recording but not arrested, the plaintiff was recording a physical altercation rather than an arrest. The possible distinctions are boundless.

I also do not buy the reasons the majority rejected reliance on department policy as a basis to clearly establish the right. There is nothing inconsistent with saying that department policy should have placed a reasonable officer on notice that there was a constitutional right to record (thus clearly establishing the right) and that department policy was constitutionally insufficient because officers were ignoring it and department officials were not providing further training (thus establishing municipal liability). They go to different issues involving different standards.

On the other hand, SCOTUS' recent string of summary reversals rejects the big-picture approach to qualified immunity that the dissent took in relying on broad legal principles divorced from specific facts, with no applicable SCOTUS precedent. So while normatively preferable, Judge Nygaard's approach would  draw more attention and a possible summary reversal.

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, July 05, 2017

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.

 

For example, many arguments I’ve seen are openly prudential. They argue that upholding (or denying) jurisdiction in such-and-such a case would be a good policy idea, that it would make the legal system better rather than worse, that it would open courthouse doors to sympathetic plaintiffs or lift heavy burdens from sympathetic defendants. But the law does lots of things that are terrible policy ideas, in all sorts of ways: just think of the tax code. So it’s not clear why we should feel confident that any particular good idea would be the right answer on the law—or that any given bad idea is therefore the wrong answer on the law.

Other arguments root themselves in judicial doctrine: personal jurisdiction is present or not because the courts have so held, or because the best reconciliation of their past decisions would so hold, or (to be more Holmesian) because that’s what they’re most likely to hold in the future. On the most extreme account, personal jurisdiction is whatever the courts say it is, so it’s impossible for the courts to be wrong. But many people who deploy these arguments seem to use them to criticize judicial decisions—as if the courts have somehow made mistakes in predicting their own rulings. And even paying due respect to accumulated doctrine, what the courts seem to be saying here is that personal jurisdiction isn’t whatever they say it is: they keep rooting their jurisdictional holdings in other legal rules, with sources external to judicial doctrine alone.

Usually courts root their holdings in the Due Process Clause, ostensibly as generous here as elsewhere (“Turn it over, and turn it over, for all is therein”). But here, too, there’s little effort spent on identifying what counts as a good due-process argument—on what makes claims about jurisdiction-being-consistent-with-due-process true or false. It might involve the defendant’s burden, or the state’s legitimate interests, or fundamental fairness, or a political-theory concept like sovereignty, or history-and-tradition, or some complicated weighted sum of the above. (And over all of these looms the ghost of Pennoyer, which still casts its dark shadow over the U.S. Reports no matter how often academics declare that it was killed off, once and for all, by Insurance Corp. of Ireland or by International Shoe.)

Put another way, the same inattention to truthmakers that we see in con law debates shows up in personal jurisdiction too. This makes some sense, because personal jurisdiction is all about the scope of the powers exercised by various state or federal officials; that’s a topic in small-c constitutional law, whether or not it’s actually resolved by the contents of the U.S. Constitution. But it also explains some of the pathologies of personal-jurisdiction scholarship, because members of different schools will insist loudly on particular priors—the role of interstate federalism, the needs of plaintiffs, the apparently prophetic authority of von Mehren and Trautman—without trying to explain why other people ought to be convinced of them too, on grounds that they might share. There's no escape for civil procedure folks, who often imagine their field to be more rigorous and determinate than that of their con-law colleagues down the hall, from stating and defending their constitutional commitments.

The best way to understand the current confusion is probably to see where it came from. On my reading of the history, the phrase “due process of law” wasn’t supposed to enact substantive standards for jurisdiction—as opposed to a means of enforcing standards supplied by other sources, such as general and international law. Trying to squeeze detailed jurisdictional rules out of those four words is like trying to squeeze blood from a stone. So it shouldn’t surprise us that, after nearly a century of misattributing complex general- and international-law rules to a single phrase in the Constitution, we’d find our underlying jurisdictional principles hard to state or explain—much less to apply to new circumstances, or to ground in more general understandings of the law.

Likewise, it’s not surprising that standards derived from older doctrines of general and international law might prove somewhat awkward, from a policy perspective, in an era with more extensive cross-border activity. That’s why jurisdiction might be an area most properly addressed by statute. Looking to some future decision of the Court to sort everything out for us is a false hope: nine Justices and their clerks don’t have enough time to work out good policy solutions for all of America, and they also lack the legal authority to try. Congress may have the right to make certain kinds of arbitrary compromises, in pursuit of rough justice, that courts in our system don’t. Failing that, the courts will continue to muddle through. I wouldn’t call this pessimism, so much as appropriate caution about what judges and courts can properly achieve.

But it would help, in the meantime, if we who think and write about the subject were better about clarifying our terms, and about trying to argue with rather than against one another. If we think a result is bad policy, we should say that it’s bad policy. If we think that a holding is inconsistent with the deep principles of International Shoe, we should say that instead, and defend why those principles should matter to those who view them with indifference. And if we think that a particular decision is wrong on the law, we should be clear about what we mean by that, and on the sources of the legal rules that we invoke. Doing all this may not lead to consensus or agreement, at least not right away; but at least we’ll be talking about the same thing, which is the first step to understanding it.

Posted by Stephen Sachs on July 5, 2017 at 11:43 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Legal Theory | Permalink | Comments (3)

Wednesday, June 28, 2017

N.D. Ill. Pilot Program on Discovery Changes

The following was posted by past guest Robin Effron (Brooklyn) at the Civ Pro & Fed Courts Blog, on a pilot program in the Northern District of Illinois requiring parties to engage in mandatory discovery requests and production (beyond FRCP 26(a) disclosure). Here is the Standing Order and here is a "Users' Manual". Thoughts, comments, or predictions?

The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures.  The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."

This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions:  Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.  

A few interesting highlights from the discovery order:

Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess."  Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."

Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."

Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."

This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce.  More info here.

Posted by Howard Wasserman on June 28, 2017 at 08:10 PM in Civil Procedure | Permalink | Comments (3)

Monday, June 26, 2017

SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)

Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.

That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.

That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")

Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?

Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.

And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?

Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.

Posted by Stephen Sachs on June 26, 2017 at 11:34 AM in 2016-17 End of Term, Civil Procedure | Permalink | Comments (4)

SCOTUS Symposium: Perry v. MSPB

I wrote an analysis for SCOTUSBlog of Friday's opinion in Perry v. Merit Systems Protection Board. My post-argument prediction that Justice Gorsuch would dissent was correct, although I predicted a solo dissent and he got Justice Thomas to come along. I describe the opinion as Gorsuch announcing his presence with authority on statutory interpretation. This is a minor case, but it portends some sharp divisions in the coming years.

Posted by Howard Wasserman on June 26, 2017 at 07:49 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, June 20, 2017

Resolved, not moot

In Campbell-Ewald v. Gomez, SCOTUS held that a case does not become moot when the defendant makes an unaccepted offer of judgment. The Court expressly did not decide "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." In Fulton Dental v. Bisco, the Seventh Circuit said the result is not different, that a defendant can no more force a settlement by putting money in the court under FRCP 67, unaccepted by the plaintiff and with no judgment from the court, than offering the money and having the plaintiff reject the offer under FRCP 68. (H/T: Alert reader Asher Steinberg).

The Seventh Circuit tried to push back against characterizing this as mootness, saying it was more like the affirmative defenses of payment or accord and satisfaction. But the court was limited because SCOTUS discussed Campbell-Ewald as a mootness concern, rather than following the position urged by the S.G. that this is a merits concern. Like Campbell-Ewald, Fulton involved an action for damages for past harm incurred; such a case cannot become moot because the past injury remains and never goes away. Mootness should be limited to claims for prospective relief, where the plaintiff's injury is ongoing and something stops the injury.  The payment and acceptance of money as settlement of a case over a past injury means there should not be further litigation between these parties over this transaction-or-occurrence. But that is because the case was resolved, not because it became moot.

Posted by Howard Wasserman on June 20, 2017 at 03:10 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS OT16 Symposium: Jurisdiction and Power in Bristol-Meyers Squibb

I read the Court's opinion in Bristol-Meyers Squibb somewhat differently than Howard does. This doesn't strike me as a purposeful availment case; neither "purposive" nor "avail" (nor derivatives thereof) even show up until Justice Sotomayor's dissent. The majority accepts that BMS has various contacts with California, but denies that those contacts are related to the claims at issue, or that there's "any adequate link between the State and the nonresidents' claims." That looks like an argument devoted to the second prong of the specific jurisdiction test, not the first. (Though he's critical of the Court's holding, Adam Zimmerman apparently agrees on this point.)

Given that the modern three-prong test is largely of the Court's own invention, and not part of the preexisting law of personal jurisdiction, it's hard to say that one concept of "related to" is self-evidently correct. But there are four points on which I think the Court's opinion got it right.

  1. In Part II-B, the Court correctly reiterates that jurisdiction is about power, not fairness. Or, to put it another way, what's "fair" or "unfair" about jurisdiction is whether a particular government is fairly empowered to decide the case. What matters isn't the geography of the courthouse or the expense of putting lawyers and witnesses on a plane; a case might be properly heard in Manhattan but thrown out of court right across the bridge in New Jersey. What matters is who gets to decide. (So the majority properly, albeit silently, throws the contrary language in Insurance Corp. of Ireland under the bus.)

  2. On this view of jurisdiction, the ultimate outcome makes some sense. BMS makes allegedly defective pills in New Jersey and sells them in California and Kansas. Let's grant that California can determine whether those California sales were lawful. But where do its officials get power to make the same decision about the Kansas ones? Who put them in charge? Why should BMS have to obey the pronouncements of a California judge, appointed by California officials and retained by California voters, using California rules on procedure, discovery, evidence, or jury trial? Maybe what BMS did in Kansas was okay, maybe not. But why do Californians get to decide? "Why not Bill Gates, or the Pope?"

    The plaintiffs note that BMS sold the same pills in both places, so it's already made itself subject to the liability determinations of California courts. But in an adversary system like ours, the California courts aren't deciding what really happened; they're deciding who made the better showing in a particular legal proceeding, conducted according to particular rules. (That's why our preclusion doctrines have a variety of internal conditions or exceptions; even a favorable California judgment doesn't mean the Kansans would automatically win in Kansas.) So the power to decide whether BMS injured California plaintiffs doesn't automatically confer a power to make the same decision as to Kansans.

    (Note, by the way, that the Court has never really reconciled its holding on out-of-state damages in Keeton, or for that matter its relaxed standard for choice of law in Allstate, with the state-by-state restrictions it came up with in BMW v. Gore. I'm not sure how it would do that if it wanted to, or what the right answer would be.)

  3. The Court is also probably right that its ruling doesn't sound a death-knell for nationwide small-dollar actions. Plaintiffs could have sued BMS where it actually designed and manufactured the pills, or wherever it's incorporated or headquartered. True, they may not be able to sue all of the relevant defendants there. And there'll be many cases that of necessity are spread across multiple states. But that's not really a criticism of the Court's view of sovereign authority. If modern economic relations are so spread among the states that no one state has authority to determine the whole, isn't that an argument for, rather than against, dividing up the cases?

  4. Importantly, the Court explicitly reserves the question of how to handle these cases in federal court. I've argued before that most hard personal jurisdiction cases really belong in federal court; the United States government has undoubted authority to tell the parties what to do, and Article III enables jurisdiction over diversity cases for a reason. This doesn't happen today because Rule 4(k)(1)(A) unwisely forces federal courts to pretend that they're state courts for personal-jurisdiction purposes. As cross-border transactions grow ever more extensive, it'd be better if the energy now focused on the law of state personal jurisdiction were instead focused on reforming the rules for federal courts.

Posted by Stephen Sachs on June 19, 2017 at 03:38 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (1)

SCOTUS Symposium: Setting fire to House Bivens

"If you're cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not  set fire to the house." So said Justice Breyer in dissent in Ziglar v. Abbasi, in which the Court rejected Bivens claims against high-level executive officials brought by mistreated post-9/11 detainees (although left a small glimmer of hope for a claim against the warden), and in the process may have limited Bivens to claims against line officers for immediate violations of a small group of rights. In other words, the majority may have set fire to the House of Bivens.

 Some thoughts after the jump.

1) This was a 4-2 decision, with Justice Kennedy writing for a majority of the Chief, Thomas, and Alito, and Justice Breyer dissenting with Justice Ginsburg. Justice Sotomayor recused because she was on the  Second Circuit when earlier iterations of this case were heard, Justice Kagan recused (because she was SG when earlier iterations of the case arose), and Justice Gorsuch did not participate (he was not on the Court). It remains to be seen how much weight a decision from such a small Court will gain. Everyone likely assumes that the judgment would have been the same with a full Court, with Gorsuch joining the majority and Sotomayor and Kagan joining the dissent.

2) Two themes have been floating around the recent Bivens cases. One is the idea of "extending" Bivens to new contexts beyond the three cases in which SCOTUS recognized a claim and how the Court should hesitate to do so. The other is the connection between Bivens and implied statutory rights of action and the Thomas/Scalia position that Bivens was a "relic of the heady days in which this Court assumed common-law powers to create causes of action. Both ideas came home to roost today.

3) As for the second theme, Justice Kennedy timed the creation of Bivens to the rise of the implied right of action doctrine, noting that Justice Harlan relied on those cases in identifying an implied constitutional claim. It followed that the Court's narrowing of implied statutory rights makes "expanding" Bivens a "disfavored" activity. Both rest on separation-of-powers principles under which Congress, not the courts, should decide whether a damages remedy exists. If the Court is not implying rights of action, then it should not recognize "new" Bivens claims.

4) As for the first theme, this led the Court to crystalize a three-part test for whether a Bivens claim is available (both the majority and dissent agree on this test):

   a) If the case is different in a "meaningful way" from previous cases decided by SCOTUS, then the context is new. Factors that suggest meaningful differences include the rank of the officers, the constitutional rights involved, the generality or specificity of the right involved, the extent of judicial guidance of how the officer should respond, the statute under which the officer operated, the risk of disruption of other branches, or the presence of new special factors not considered in past cases. As to the high-level executive officers, this was a new context, involving high-level policy following a terrorist attack; as to the warden, this case involved a new right (Fifth Amendment rather than Eighth), less guidance as to constitutional obligations, and congressional action suggesting intent not to provide a remedy--all small differences, but "even a modest extension is still an extension."

   b) There is consideration of alternative remedies, although it is unclear how. The majority several times emphasized the availability of alternative remedies for the constitutional violations here, namely habeas and injunctive relief. Breyer treated this as its own second step. [Update: I will link to Steve's post at Just Security pointing out that habeas likely is not available to challenge conditions (as opposed to fact) of confinement and Kennedy himself hedged on whether habeas was available in this kind of case]

   c) Special factors counseling hesitation. Here, these include the national-security context, that this case entails challenges to and inquiry into federal policy discussions and decisions, that the claims go beyond ordinary law enforcement, that Congress has done nothing in its post-9/11 litigation to provide any remedies for detainees challenging their mistreatment, and that injunctive and habeas remedies are available (again, it is not clear where this belongs in the analysis). To the extent there is a balance to be struck between these special factors and the needs for deterrence of executive misconduct, it is for Congress to strike that balance. The Court did remand for the Second Circuit to do the special factors analysis as to the warden.

5) Justice Breyer was explicit that the above is the three-step test, but he saw the factors going the other way. He did not see this as a new context, or, if it was, the claim survived steps two and three.

6) Breyer calls the majority on what I believe has been a problem in the recent Bivens cases: the confounding of the constitutional merits, qualified immunity, and cause of action. Breyer works through the list of factors that the majority identifies for defining when a context is new, insisting that some go to whether a constitutional right was violated, some go to whether that right was clearly established so the officer enjoys qualified immunity, and some are better case as special factors for step three. But none should go to the cause of action. The majority makes this worse with its consideration of alternative remedies, which hangs around the analysis throughout the case, not belonging in any clear place. The majority seems to be in a hurry to get rid of cases such as this, but it does so by focusing so much on the cause of action rather than the substantive merits and substantive defenses. Or consider how the majority uses national security as a special factor counseling hesitation before recognizing the cause of action. That factor can be taken into account at other points--in pleading requirements, on the merits, in assessing immunity, and in shaping discovery. Given these existing safeguards, there is no need to double-count it at the threshold--that is setting the house on fire.

7) That last point gives rise to another problem Breyer addresses: The "anomaly" of different analysis for claims against state/local officers as opposed to federal officers (we might also call this a lack of parallelism between claims against the former compared with the latter). A plaintiff can pursue a § 1983 claim against a mayor or governor but not a Bivens claim against a high-level DOJ official, for the same conduct violating the same right. And even if claims fail, they fail for different reasons: The claim against the federal officer fails because there is no cause of action, while the claim against the state/local official fails because the right was not violated or because it was not clearly established. That distinction makes no sense.

8) Breyer closes his opinion with a point he made during argument about the special need for damages actions in the national-security context. Damages claims can be resolved after the emergency has passed, with more information about the situation and a cooler eye towards the facts. And courts may be less likely to to issue injunctive or habeas relief in the middle of an emergency. It therefore makes no sense to rely on those remedies to preclude the later damages remedy--damages play a special role, with courts able to consider after passions have died down. The majority's approach reflects the general favoritism towards injunctive rather than damages relief in the constitutional context.

9) Justice Breyer cites Jim Pfander's new book on Bivens and GWOT, at one point seeming to adopt Jim's view that Congress' decision not to immunize individual officers under the FTCA for constitutional violations reflects an intent to leave Bivens in tact as the means for remedying constitutional violations, while putting non-constitutional torts through the FTCA.

10) Steve Vladeck had a Twitter thread on this case, pointing out that Hernandez v. Mesa, another Bivens case, remains undecided and could pull back on some of what the majority did here. But he suspects if that were to happen, the opinions would have issued at the same time. I wonder if Hernandez will be resolved on qualified-immunity rather than Bivens grounds.

11) As I said in my earlier post, I now have to rewrite my Bivens chapter. Oh well.

Thanks for wading through a long post.

Thanks for sitting through a long post.

Posted by Howard Wasserman on June 19, 2017 at 03:04 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS Symposium: Narrowing specific jurisdiction

The post-2010 revival of personal jurisdiction in SCOTUS (after a two-decade absence) has been defined in part by narrowing general jurisdiction, including last month in BNSF. In Bristol-Meyers Squibb v. Superior Court, an 8-1 Court (per Justice Alito) turned the screws on specific jurisdiction. The Court held that there was no jurisdiction in California over claims by non-residents for non-forum injuries, even when caused by the same nationwide conduct. Justice Sotomayor again dissented alone, as she has been in the general-jurisdiction cases, continuing to play the Justice Brennan role of finding personal jurisdiction in almost every case. She criticized the decision as the "first step toward a similar contraction of specific jurisdiction." 

For the majority, there was no purposeful availment as to the non-California plaintiffs because they were not prescribed, did not purchase, did not ingest, and did not experience injury from Plavix in California; that other plaintiffs were injured in California was beside the point. There must be a connection between the forum and each specific claim, with "claim" meaning one plaintiff, one defendant, and one right. Keeton v. Hustler did not help, because defamation hatmed the people of the state even as to an outsider plaintiff and because the issue there was whether one plaintiff could pursue a full claim against one defendant. The majority closed by rejecting the "parade of horribles" that plaintiffs raised, insisting that there were lots of other forums plaintiffs could go: New York and Delaware (where BSM is essentially at home and subject to general jurisdiction), "probably" in other states with lots of injured plaintiffs (there were dozens of plaintiffs from Texas who all could sue there), and maybe federal court (an open question, but probably not at the moment, because there is no statutory authorization for such jurisdiction).

Justice Sotomayor viewed the case as easy under the three-part Shoe analysis: 1) BSM purposefully availed given its massive sales and marketing in California; 2) the non-resident claims "related to" the forum because they have a "connection with" California, in that all plaintiffs in all states were injured by "the same essential acts" or "materially identical acts" to BSM's marketing and sales in California; 3) it was not unreasonable to make BSM defend the non-resident claims in California, since it already was defending the resident claims. Sotomayor also threw in an aside that she would measure jurisdiction first and foremost by fair play and substantial justice, elevating the third prong of the analysis to the first prong. She also pointed out, correctly, that the majority hasd no response to the "relate to" prong; it cited only Walden v. Fiore, a case that dealt with lack of minimum contacts, not whether those contacts gave rise or related to the claim. She also was correct as to Keeton--there is no meaningful distinction between a defendant haled into court by one non-resident plaintiff over nationwide conduct and haled into court by many non-resident plaintiffs over nationwide conduct. Sotomayor closed with her concerns about what this does to mass-tort litigation and the insufficiency of the alternative forums the majority suggests remain.

Some last thoughts:

1) I wrote after BNSF that BSM was the important personal-jurisdiction case for the Term. If general jurisdiction has narrowed, the solution is to broaden specific jurisdiction by broadening when a claim arises out of or relates to the contacts. But the majority did not go there, nor did it offer a good answer or guidance as to what arise out of/relate to means. Instead, it let the first prong--purposeful availment--do all the work by holding that BSM did not purposefully avail as to the non-resident defendants. But that is the problem. There should be no doubt that BSM purposefully availed, given its massive sales and advertising in the state (constituting both stream-of-commerce and seek-to-serve) and the fact that it is a nationwide corporation doing nationwide business; the question should have been whether those contacts gave rise to the non-res claims. But the majority did not frame the case in those terms. As in Nicastro (especially Justice Breyer's concurring opinion), the Justices seem unwilling to let the other two prongs of the analysis do any work.

2) What is Justice Ginsburg thinking? She wrote a sharp dissent in Nicastro. Otherwise, she wrote the three opinions narrowing general jurisdiction and joined the majority in the decisions narrowing specific jurisdiction. Sotomayor cited Ginsburg's Nicastro dissent in FN 3 in rejecting BSM's proferred narrow interpretation of relate to.

Update: A third point: The effect of this is to give large corporate defendants forum advantages over plaintiffs. A large group of plaintiffs wanting to pursue a corporate defendant must go to the defendant's home turn. Or they must go to federal court (maybe), which has shown itself to be more defendant-friendly in recent years. For many plaintiffs, neither is an enticing option.

Posted by Howard Wasserman on June 19, 2017 at 12:39 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, June 14, 2017

Remand in Haeger v. Goodyear

I covered Goodyearv. Haeger for SCOTUSBlog earlier in the Term, when the Court held that bad-faith attorney's fee sanctions must satisfy a but-for causation requirement. SCOTUS vacated the award (of $ 2.7 million) and remanded to the Ninth Circuit to decide whether Goodyear had waived its challenge to anything beyond $ 700,000 of the award. Last week, the Ninth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard. Judge Smith dissented from the remand. He argued that the record as to waiver was complete and that the court of appeals could decide the issue. He suggested that there was a waiver. And he opined on why the $ 2 million award satisfies the but-for standard SCOTUS introduced.

Posted by Howard Wasserman on June 14, 2017 at 11:24 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, June 13, 2017

SCOTUS Symposium: A departmentalist take on Morales-Santana

Richard's post about the Morales-Santana Court conflating judgment and precedent prompts a question: What if Congress and the Executive decide, in a fit of departmentalism, that the current differential treatment of unmarried-mother citizens is constitutionally valid? Congress refuses to amend the statute (or the President vetoes the proposed amendment) and the Executive continues removing people situated as is Morales-Santana by treating them as non-citizens, even while continuing to treat a comparable child of an unmarried-mother citizen as a citizen.

There is no judgment or order compelling Congress to change the law, something a court could not do in any event. There is no judgment compelling the executive to treat anyone other than Morales-Santana a certain way or declaring the rights of anyone other than Morales-Santana. A court cannot, through a declaratory judgment, adjudicate the rights of non-parties (I agree with Richard that this might be what the majority saw itself as doing). Departmentalism does not result in a constitutional stalemate (or devolves into judicial supremacy in practice) because at some point the judiciary has a final card in the form of a judgment in a particular case as to a particular person that government must follow on pain of contempt and that makes the Court's constitutional vision applicable to a person. The problem in this case, and in the cases likely to follow from it, is getting to that enforceable judgment that benefits some person in a way adverse to the government.

So let's play this out:

X is the child of  unmarried-father citizen who lived in the US for 4 years and 364 days, 1 year and 364 days after age 14, where the parents. The government seeks to remove. X cannot argue that removal is prohibited by a court order, because there is no judgment affecting him in place. So he goes into the BIA process, arguing that removing him as a non-citizen violates equal protection because unmarried-mother citizens (and their children) continue to be treated differently.  The BIA accepts his argument, following Morales-Santana (are BIA proceedings subject to the same rules of precedent as lower federal courts?). Or the BIA rejects his claim, but the court of appeals reverses, as it is unquestionably bound by Morales-Santana to hold that the differential treatment is unconstitutional. But now we are in the same place we are this morning--the statutory scheme is unconstitutional, but the court of appeals will be similarly reluctant to remedy by leveling up, meaning X remains subject to § 1409(a) (the 5/2 residency rule) and remains removable. And Congress and the executive remain free to ignore the precedential piece of the decision in X v. Sessions when it then seeks to remove Y, another child of an unmarried-father citizen.

How do we get out of this loop? One possibility is Mark Tushnet's suggestion that the court could/did order the government to exercise its discretion not to remove because the basis for removal was unconstitutional. If the government starts losing these cases and being unable to remove, it will amend the statute or change its enforcement mechanisms. A second possibility is that at some point the Court, tired of congressional or executive intransigence, remedies the violation in X's case by leveling up, requiring the government to subject X to the one-year exception and prohibiting removal. That will get Congress and the executive moving, to the extent they do not want one year to be the residency requirement for everyone.

This is all moot, because the government has agreed to level down for everyone going forward. But it shows the extent to which judicial supremacy has carried the day. The court can get away with an "order" such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.

Posted by Howard Wasserman on June 13, 2017 at 10:23 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

Posted by Howard Wasserman on June 12, 2017 at 12:46 PM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (4)

SCOTUS Symposium: Gorsuch's first opinion

My tentative prediction that Justice Gorsuch would write Perry v. MSPB was dealt a non-fatal blow today when Gorsuch wrote Henson v. Santander, a case involving the scope of the Fair Debt Collections Practice Act. As per tradition, it was a short (11 pages), easy, unanimous decision. Gorsuch may still write Perry--he almost certainly will have multiple opinions from the fourteen-case April sitting. But the chances went down a bit.

[Update on further consideration: During Perry arguments, Gorsuch seemed to question Kloeckner v. Solis, a unanimous 2012 decision (authored by Justice Kagan) holding that some MSPB decisions should be challenged in district court. Might he have convinced four Justices to overrule Kloeckner? Or at least to reject its application to a slightly different context? And might the Court be divided on the point, triggering a dissent from Kagan? If so, it might explain why Henson came out first--not only because it got done more quickly because he did not have to await a dissent, but because the practice is to release the easy, unanimous case first.]

Posted by Howard Wasserman on June 12, 2017 at 11:02 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, June 11, 2017

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

In a judicial-departmentalist world, a state government can disregard judicial precedent but cannot disregard a court order. A court order halts "this conduct" by "this defendant" (and those working with this defendant)  as to "this plaintiff." The question is what is "this conduct" when talking about attempts to restrict reproductive choice and an action seeking to enjoin that restriction. The answer depends on whose perspective we adopt. From the plaintiff's standpoint, it is the state seeking to require it to do something (dispose of fetal remains) in a way that injures its business and deprives its female patients of their Fourteenth Amendment rights. From the defendant's standpoint, each involves different forms of government conduct and the enforcement of different legal rules that must be scrutinized and analyzed separately in determining constitutional validity. We can do the same with Stern's same-sex marriage hypothetical. From the defendant's standpoint, these are distinct legal enactments and enforcement of distinct rules that must be scrutinized and analyzed separately in determining constitutional validity. From the plaintiff's standpoint, the state is prohibiting her from doing something (marry a same-sex partner) in a way that deprives her of her Fourteenth Amendment rights.

My inclination is that we look from the government's perspective and that this does not implicate the existing injunction. The government acts through grants of authority to enforce legal rules. And enforcement of a different legal rule from a different source is a different action, even if the rules are identical, even if they injure the same people in the same way, and even if they share the same constitutional defects. HHS enforcing a regulation is a different official action than HHS enforcing a statute. There also is the possibility that the government would argue that a statute should get greater deference or leeway than an administrative regulation. I would reject the argument in this context--if it imposes an undue burden, it does not matter who in the state enacted the ruel--but it is something Texas could argue. And that makes the statute different than the reg and thus not a violation of the injunction.

The difference is largely procedural--how, in an ongoing litigation (the parties are under preliminary injunction but no final judgment has been entered), to challenge the constitutional validity of the new law. If enforcing the statute represents the same governmental conduct as enforcing the reg, the plaintiff can proceed via a motion to enforce the injunction, perhaps along with a motion for contempt. If this is different government conduct, the plaintiffs must proceed via a motion to "extend" the injunction, likely in conjunction with an amended complaint adding a new constitutional claim against enforcement of the new legislation.

So I believe the answer is straightforward. But it presents a different issue for how we determine the scope of an injunction in constitutional cases--looking not only to the parties,  but also the legal rule challenged.

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, June 08, 2017

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, June 05, 2017

SCOTUS Symposium: More on standing, intervenors, and Laroe Estates

I covered Town of Chester v. Laroe Estates for SCOTUSBlog and my recap is here. Since that forum is intended to be descriptive, this is my normative take.

The Court leaves in place what Andrew-Aaron Bruhl (who filed an amicus brief in the case) calls the one good plaintiff rule--so long as one plaintiff has standing, other plaintiffs (including intervenor-plaintiffs) can go along for the ride. Town of Chester limits that to plaintiffs and intervenors who assert identical claims for identical relief. The problem (as Aaron argued in an email and I agree) is that all relief is plaintiff-specific--a remedy for A is different than a remedy for B, even if they both want the same thing. So either the Court's own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.

With respect to damages in this case, the Court distinguished two remedies: The first is Laroe asking for damages directly from the Town for the value of its property interest, which would require standing. The second is Laroe joining Sherman to ask for a single fund of money from the Town, after which Laroe and Sherman would fight over their portions of that fund (which would not). The latter theory is that Laroe and Sherman seek the same thing from Chester--$ 6 million, the value of the regulatory taking of property in which they both have an interest; thus, only one need have standing to get the entire pool from the Town. Who between Laroe and Sherman owns how much of that $ 6 million is between them.

The "one good plaintiff" rule arises most often in actions challenging the constitutionality of a law and seeking injunctive relief; courts do a standing inquiry for one plaintiff, then stop. But the plaintiff-specificity of the remedy remains, which is why Aaron argues everyone must have standing. Enjoining enforcement of a law so A can engage in some conduct (attend an integrated school, hold a rally, get married, not buy health insurance) is a different remedy from enjoining enforcement of a law so B can engage in the "same" conduct himself. This decision does nothing to end that practice. Courts generally understand this type of injunction as the equivalent of a single pie for each party to put to its own use, rather than a single order requiring something from the defendant to each plaintiff. (I am interested in this point (and in Aaron's article) because it ties into questions about the scope of judgments, the permissibility of universal/nationwide injunctions, and the process of constitutional litigation).

Ironically, Justice Gorsuch's testy exchange with respondent's counsel (this was the second argument on Gorsuch's first day on the bench) surrounded discussion of this point. Asked by Gorsuch to identify when an intervenor seeks different equitable relief from the plaintiff, counsel tried to explain that it depends on the scope of the injunction, implicitly invoking one-good-plaintiff cases; Gorsuch became increasingly frustrated by counsel's refusal to answer his non-"trick" question. But Gorsuch did not seem to recognize the real problem--that an injunction should never be so broad that a person can benefit from it as a judgment without having standing.*

[*] For purposes of this point, I bracket my Fletcherian insistence that standing is merits. [Update: On this tangent, Aaron responds with a great point: "One good plaintiff" exists because standing is not merits. Courts never would have developed a doctrine that says "so long as one plaintiff has a successful claim on the merits, we will grant relief to other plaintiffs even though they don't have successful claims on the merits." But because it is a jurisdictional threshold, courts have been ironically lenient on it (as long as someone can pass the heightened threshold).

Posted by Howard Wasserman on June 5, 2017 at 02:23 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Levy on Grove on judicial independence

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).

Posted by Howard Wasserman on June 5, 2017 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, June 04, 2017

SCOTUS OT16 Symposium: The Code and the Law

My last post promised a few quibbles with the Court's opinion in BNSF. Here's one: the Court misdescribes the statute's text.

The opinion quotes the statute as follows:

To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on [45 U.S.C.] § 56, which provides in relevant part:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” 

These particular words were never enacted by Congress. Instead, on April 5, 1910, a different statute was adopted, with text later published at 36 Stat. 291:

Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.

Congress amended the last sentence in 1948, ending the sentence at the comma and moving the rest into 28 U.S.C. § 1445. But the other edits in § 56—replacing "Act" with "chapter," and "circuit court" with "district court"—weren't made by Congress. When the old circuit courts were abolished in 1911, Congress didn't change all the old statutes mentioning them; it just told everyone to read those unchanged statutes "to refer to * * * the district courts" instead. And it never replaced "Act" with "chapter" at all.

So who wrote the words in the opinion? The answer is the staff at the Office of Law Revision Counsel, an office in the House of Representatives. They edit the real statutes that go through bicameralism-and-presentment (most of which are published in the Statutes at Large) and then compile them into titles of the United States Code. Congress occasionally reenacts those edited compilations as the real law. But often the Code isn't really law; as Will Baude recently put it, it's just "a helpful edited collection that tries to reflect what the Statutes at Large actually add up to." That's why the Code's unenacted titles are only "prima facie" evidence of the text, while the Statutes at Large are "legal evidence" of what you'd find in the original enrolled bills deposited in the National Archives.

Usually these distinctions don't matter much. Who cares whether a statute actually says "district courts," so long as we're legally required to read the text as if it did? But sometimes the difference does matter—such as when the compilers leave a statutory provision out of the U.S. Code for four decades, or when Congress writes a new law but forgets to change the enacted title it overrides.

And sometimes, as Tobias Dorsey explains in a great article, courts misunderstand what a statute does simply because they're looking at a final edited version, not the bills enacted over time. So when BNSF's reply brief based an argument on "[t]he statute's reference to jurisdiction 'under this chapter,'" its conclusion wasn't necessarily wrong—but its premise should have rested on words written by Congress, not by a staff office making chapter divisions on its own.

Two last points. First, courts can help remind the parties (and themselves) that the Code is not the law. Right now, the Supreme Court's Rule 34.5 requires parties to cite to the U.S. Code, even for unenacted titles. Rules like this could instead distinguish enacted titles from unenacted ones—separating the real law from what Dorsey correctly calls the "Cliffs Notes" version.

Second, remembering that the Code isn't the law reminds us of something useful about legal interpretation: that it's about law, and not just about texts. When we talk about "the text of the statute," we're often talking about the text as amended—that is, as generated by a particular process, involving a variety of different legal judgments. Some of those judgments are easy, as when Congress spells out what it's amending and how. But some are quite difficult, as when there are discrepancies in an enrolled bill, or when a particular provision may or may not fall within the scope of an unclear repeal. Similarly, when we talk about "the text of the Constitution," we aren't talking about a single organic text, but a patchwork of more than a score of separate enactments, adopted over hundreds of years. That's entirely correct as a legal matter, because Article V made those subsequent enactments "valid to all Intents and Purposes, as Part of this Constitution." But you need to use legal reasoning to get there, not just textual interpretation. (This is especially true for the Fourteenth Amendment, whose validity may involve reference to the de facto government doctrine or the laws of war.) "What's the text?" isn't only a textual-integrity question, of the kind we might refer to philologists or historians; often the question we're really asking is "what's the law?" But to answer that question, we really ought to get the words right in the first place.

Posted by Stephen Sachs on June 4, 2017 at 10:05 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

Wednesday, May 31, 2017

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

The personal jurisdiction analysis therefore was covered by International Shoe. And here was see the same divide (Ginsburg for the Court, Justice Sotomayor dissenting alone) over the scope of general jurisdiction as in Daimler v. Bauman; Part III of the majority and all of the dissent are an in-miniature rehash of Diamler.

The majority reiterates several things: 1) General jurisdiction is where the defendant's contacts are so "continuous and systematic" as to be "essentially at home"; The "paradigm" of the essential home is the entity's principal place of business and state of incorporation; 3) there may be "exceptional" cases in which general jurisdiction will be available outside those two states; 4) a company doing business in many states cannot be home in all of them and the analysis must consider its in-state contacts in light of its overall activities in other states; 5) Shoe was a specific, not general, jurisdiction case, so any discussion of general jurisdiction there is dicta. The Court added something new: It pointed to Perkins as exemplifying a company essentially at home other than its state of creation and P/P/B, hinting (according to Sotomayor's dissent) that this exhausts the exceptional cases and only a similar set of facts* will qualify.

[*]Unlikely, as Japan is unlikely to invade the Philippines.

Thus, 2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its PPB elsewhere and where it does similar amounts of business in other states.

The significance of this case in reaffirming the narrowness of general jurisdiction may not be clear until the Court decides Bristol-Myers. The narrowing of general jurisdiction has forced courts to find ways to expand when a contact "gives rise" or "relates to" a claim, thereby expanding specific jurisdiction.

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

1) The court affirmed the nationwide scope of the injunction and actually gave reasons: Plaintiffs are dispersed throughout the country; congressional desire for uniform immigration law; and an interesting Establishment Clause hook--because the EO violates the Establishment Clause, its enforcement as to anyone sends the identical  message that plaintiffs are outsiders and unwelcome in the community.

The first concern is satisfied by a true nationwide injunction, which is to say an ordinary injunction--protect named plaintiffs everywhere they are. It does not justify this injunction, which is universal--protecting everyone everywhere. The second argument proves too much. Congress wants all federal law to be uniform; that is the point of having federal law in some areas. There is nothing special about immigration law in that respect. That the law might go through periods of disuniformity while courts figure out the meaning and validity of some law is inherent in a tiered federal judiciary and unavoidable, given that SCOTUS does not have original jurisdiction in all constitutional challenges to federal law, meaning any challenge must work its way through multiple (possibly disuniform) courts before SCOTUS can offer a final, uniform conclusion. It does not justify a regional court acting as SCOTUS and having the nationally controlling (even if temporary) word on an issue.

The third argument is interesting and would seem to make the Establishment Clause special for injunction purposes. But that Clause also is special for standing purposes, so it offers an interesting way to tie the front-end standing concerns with back-end remedial concerns.

 2) If the President cannot be enjoined in an Ex Parte Young action such as this one, it really means he is immune from suit, should not be named as a defendant at all, and should have been dismissed from the action at the outset. But he wasn't and courts entertain these lawsuits with the President as a named defendant all the time.

The Fourth Circuit relied on Franklin v. Massachusetts, including Justice Scalia's concurrence. Scalia argued that it was enough to enjoin the Secretary to stop unlawful executive action, just as we enjoin the executive to stop unlawful legislative action. But the reason is that legislators enjoy absolute Speech-or-Debate immunity from all suits for all remedies. In fact, we have EPY at all because of sovereign immunity-- the sovereign (the United States) cannot be sued, so we sue the executive acting on behalf of the sovereign. The President purportedly is not immune, at least not from an injunction, so there should be no reason to look elsewhere. Or, if he is immune, say so and proceed accordingly.

The Fourth Circuit also cites Franklin for the proposition that this does not leave the President free to act unconstitutionally. The secretaries through whom he acts are enjoined. And "[e]ven though the President is not directly bound by the injunction, we assume it is substantially likely that the President . . . would abide by an authoritative interpretation" of the EO.

Why is that so in a departmentalist world? The key to functional departmentalism is the difference between an injunction/judgment and precedent--the President is bound by the former, not by the latter. But if the President cannot be enjoined, there is no way to compel him (beyond persuasion) to the judicial interpretation. I suppose the answer is that the President cannot enforce the EO himself, but only through his secretaries, aides, and federal employees--all of whom are enjoined. Still, it adds an unnecessary step that is inconsistent with EPY, unless the President enjoys an as-yet unrecognized immunity.

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)