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Friday, February 10, 2006

Schiavo and Rooker-Feldman

My ever-blawgtastic colleague Michael posts details about the UM Law Review's upcoming Symposium on the Schiavo case, a topic near and dear to lots of people's hearts, especially down here in Florida. I, unfortunately, will miss the Symposium in favor of one of my co-clerks' weddings, so, hop into the time machine kids -- back to last March we go...

What's always fascinated me, the Federal Courts geek, about Schiavo is Judge Birch's special concurrence in the denial of rehearing en banc in the Eleventh Circuit. In his opinion, Judge Birch makes two important (and, to my mind, unique) points:

  1. The district court and Eleventh Circuit panel were wrong to assume the constitutionality of Public Law 109-3 [the statute conferring jurisdiction upon the federal courts in Schiavo] because, after Steel Co., it's no longer appropriate to assume hypothetical jurisdiction, even if that means reaching a constitutional question that might otherwise be avoidable.
  2. Reaching the constitutional question, Public Law 109-3 was unconstitutional because it prescribed a rule of decision, in contravention of the celebrated, if amorphous, rule of United States v. Klein.

Suffice it to say, I think Judge Birch may have been 2-2 on the merits, but batted only .500 on the rationale.

Let me explain the easy part first. Taken at face value, Steel Co. does seem to do away with hypothetical jurisdiction in fairly broad strokes. That is, it simply isn't true, after Steel Co., that federal courts can reach the (easier) merits of a case by assuming that Article III is satisfied (whether as to jurisdiction, standing, etc.), except perhaps when it's entirely obvious that it is... So, assuming that a statute conferring jurisdiction upon the federal courts is constitutional, particularly where there is some doubt thereto, seems to be irreconcilable with the spirit of Steel Co., constitutional avoidance canons notwithstanding. Otherwise, Steel Co. wouldn't mean anything, for it stands to reason that hypothetical jurisdiction includes hypothetically constitutional jurisdictional statutes.

To be fair, this seems a bit absurd, but the absurdity is, I think, a necessary result of Steel Co. So blame Justice Scalia, not Judge Birch.

The second point is, of course, the harder one. What Klein actually holds is, and always has been, a matter of some debate. But what I've always taken to be Judge Birch's central point -- that Congress can't prescribe too many procedures for courts' review of particular cases -- doesn't seem to even remotely implicate Klein's ratio decidendi. It's not as if Congress instructed the federal courts on what to do substantively with a particular class of cases; it only provided procedural instructions, which it does all the time (see, e.g., AEDPA, PLRA, etc.). That is, if Judge Birch is right, then a whole lot of statutes are unconstitutional for the same reason...

But just because there's no Klein problem doesn't mean that there's no constitutional problem. Which brings me to the real motivation for my post (as the title suggests): What about Rooker-Feldman?

We often make fun of the big R-F, which, for the uninitiated, is the fairly simple notion that lower federal courts lack jurisdiction to entertain lawsuits that are, in effect, appeals of final state court judgments. [The doctrine gets its name from the two cases from which it derives, shockingly named Rooker and Feldman, decided by the Supreme Court 60 years apart. Last Term, though, the Court narrowed the doctrine somewhat in the Saudi Basic case, handed down the same day as Judge Birch's Schiavo special concurrence.]

So what does all of this have to do with Schiavo? Well, Rooker-Feldman has long since been explained as arising out of the "negative implication" of 28 U.S.C. [sec.] 1257, the statute that gives the Supreme Court appellate jurisdiction from certain final decisions of state courts. The theory, such as it is, is that by expressly providing appellate jurisdiction from the states in the Supreme Court, Congress precluded it from the lower courts. Because Rooker-Feldman is a "statutory rule," then, Congress can certainly legislate around it, as, in Public Law 109-3, it did.

But as we learn in Federal Courts, there is an entire class of cases that can be brought in federal court, but that, when brought in state court, are not subject to Supreme Court review -- diversity cases. That is, if Rooker-Feldman only follows from the "negative implication" of Section 1257, then it wouldn't apply where a diversity action in federal court was brought effectively as an appeal of a state court decision, because that's not a class of cases where Congress _has_ provided the Supreme Court with appellate jurisdiction from the states, exclusive or otherwise. To my knowledge, though, no court has ever even remotely suggested this distinction... [for full disclosure, I've only done cursory research on the question.]

But that might lead to a separate supposition -- what if Rooker-Feldman were, at least at its core, actually protecting a constitutional federalism interest, and so has an existence separate and distinct from the negative implication of [sec.] 1257? That might simultaneously explain two things: (1) Why no one's ever made the above distinction vis-a-vis diversity cases in state court; and (2) why Judge Birch was right, after all... For if Rooker-Feldman is, at least at its core, a constitutional rule, then it's axiomatic that Congress can't legislate around it, and that Public Law 109-3 is therefore unconstitutional.

Either way, it's a fascinating case, through and through, and a Symposium not to be missed (except, apparently, by me). Doh!

Posted by Steve Vladeck on February 10, 2006 at 04:51 AM in Constitutional thoughts, Steve Vladeck | Permalink


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If memory serves, the federal statute giving a fed ct jurisdiction over Shiavo instructed the court to disregard the state court findings. That's certainly over-turning, to that extent, a state court decision. Part of decisions are the power of the judgments to have claim or issue preclusive effect. Congress eliminating said effect is overturning a judgment to an extent in a particular case -- otherwise, the law would obviously require the fed ct to give preclusive effect to this and any other state court judgment, in accord with the res judiciata-collateral estoppel rules of that state's law. So the Shiavo statute was unconst.

Posted by: Rodger Lodger | Feb 13, 2006 10:08:18 AM

Garrick -- I take your second point, even if the Supreme Court has never said as much...

But let me respond to the first -- if its source is the "original jurisdiction" language in 1331 and 1332, why should we care a whit about 1257? That is to say, if 1331 and 1332 are, in themselves, enough to account for the doctrine, why have courts always looked to 1257 _first_? (And what about the statute in Schiavo, which doesn't expressly speak to either original _or_ appellate jurisdiction?)

I'm not saying there's conclusive proof of anything here -- just that it's not necessarily obvious why the argument for Rooker-Feldman is equally strong in both classes of cases...

Posted by: Steve Vladeck | Feb 10, 2006 5:13:48 PM


One of the problems I see with your argument is that Rooker-Feldman is based on a second negative implication. Namely, 28 U.S.C. s. 1332 says that the district courts "shall" have original jurisdiction over civil actions between diverse parties when the amount in controversy is $75,000 or greater. That is to say that district courts cannot exercise actual or de facto appellate jurisdiction. With respect to s. 1257, I think the argument would be that if Congress wanted to grant federal courts appellate jurisdiction it knew how to say so. The fact that Congress didn't implies that district courts' jurisdiction is strictly original.

Second, I think it is well-settled that the doctrine is statutory and not constitutionally required. Congress can, therefore, legislate around it. Federal habeas, for example, is recognized as an exception to Rooker-Feldman.

Posted by: Garrick Sevilla | Feb 10, 2006 4:57:57 PM

Sam -- Let me try to recast my argument (having slept on it) in a way that I think better makes clear the theory:

One of two things is true w/r/t Rooker-Feldman: Either it does apply in diversity cases, or it doesn't.

If it does, my question is what its source is, since it's far harder, for the reasons the post explains, to trace it to the "negative implication" of 1257 in cases where 1257 doesn't _itself_ give the Supreme Court appellate jurisdiction. (That is, if the idea is that Congress has made clear who gets to hear appeals from state courts, that's just not true for state-court diversity suits.)

And if the source isn't "the negative implication" of 1257, what is it? To be clear, I think it's a _stretch_ to say that it's some structural federalism principle, but I'm hard-pressed to come up with anything better...

All of this, of course, may be just to prove that Rooker-Feldman doesn't/shouldn't apply to diversity cases, because if it did, it would implicitly recognize a principle of constitutional law that doesn't make too much sense (and that Hamilton explicitly repudiated in No. 82).

But even that, I think, would be an interesting new take on the sport that is R-F...

Posted by: Steve Vladeck | Feb 10, 2006 12:59:47 PM

I have to say, as someone who has a lot of complicated feelings about the case, I'm not persuaded. The Supreme Court, certainly, has never applied Rooker-Feldman to bar a federal-court proceeding in a diversity case, and Exxon Mobil makes pretty clear, I think, that the Court is not disposed to expand Rooker-Feldman beyond the narrow boundaries set by the Rooker and Feldman cases themselves. Even aside from what the Court has said, why would we want to say there's a constitutional principle against taking appeals from state to lower federal courts? And why would we want to go further and say there's a constitutionl principle against federal-court lawsuits that effectively call into question state-court judgments? Rooker-Feldman already goes too far, I think most people agree, by jurisdictionalizing res judicata; why would anyone want to go further by constitutionalizing that rule?

Posted by: Sam Bagenstos | Feb 10, 2006 11:30:17 AM

An otherwise great post ruined by Latin.

Posted by: Bobbie | Feb 10, 2006 3:21:00 AM

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