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Tuesday, October 06, 2009

Res Judicata in Salazar

There’s an interesting issue in Salazar that has gotten less play in the media, but may get more tomorrow.  It’s one of res judicata.  And it goes to show that no matter what area of law you go into, the face of my Civil Procedure teacher will never leave me.  (I guess I mean the face of “your” Civil Procedure teacher never leaving “you.”)  Anyway, more after the jump for those that can’t get enough.

The res judicata issue is this.  After the district court struck down the cross initially, while the case was on appeal, Congress intervened by passing the land-transfer statute, which aimed to trade the cross (and some land) to a private party for some other land.  The 9th Circuit then affirmed, holding that the plaintiffs indeed had standing and that the cross was unconstitutional.  The 9th Circuit issued an injunction, and left for the district court all the issues relating to the land-transfer statute.  But the government never appealed the 9th Circuit’s decision. 

The case then went back to the district court which enjoined the land exchange.  The 9th Circuit again affirmed, and the Supreme Court granted certiorari.

So the issue is this.  Why isn’t the 9th Circuit’s original decision res judicata?  One of the issues in the cert grant here is standing.  But that was decided in the prior litigation and was not appealed.  Thus, shouldn’t the government be barred from collaterally attacking the underlying injunction?  Note that this would go not only to the standing issue, but also to the constitutionality of the cross (which was also decided in the previous litigation).  The government cannot dispute the injunction, the plaintiffs claim.  The only issue properly on this appeal, they say, is whether the land-transfer statute fixes the problem.

But assuming a res judicata problem, it seems that the plaintiffs may have waived it.  Supreme Court Rule 15 says that the plaintiffs should have brought it up in their brief opposing certiorari, which they did not do.  Did the plaintiffs waive the winning argument?  Agh. I haven’t yet, as a law professor, had my old nightmare about my Civil Procedure class.  I hope those days are behind me.  But maybe not.

Posted by Chris Lund on October 6, 2009 at 05:58 PM | Permalink


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It is not a question of res judicata, which generally applies to determinate the preclusive effect of a decision in ANOTHER CASE, but law of the case. But it is settled that law of the case (or res judicata if you insist) does not apply based on failure to seek cert in the context of an interlocutory appeal.

Posted by: Abadaba | Oct 7, 2009 11:33:04 AM

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