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Tuesday, November 17, 2015

Does Fisher I Establish Jurisdiction For Fisher II?

Fisher v. University of Texas, raises an important question about the constitutionality of affirmative action in university admissions, but it also poses a jurisdictional riddle. When Fisher came to the Supreme Court a few years ago, there was fairly extensive debate, including at oral argument, as to whether the Court had jurisdiction to hear the case. But in ruling in favor of the plaintiff and remanding the case, the justices said not a word about jurisdiction. Last year, I wrote a post asking whether Fisher I should be understood as a precedent on jurisdiction. Now the case is back at the Court, and UT is again pressing jurisdictional arguments. Will these renewed arguments have any sway, and should they?

1. Let’s assume—consistent with the attention that the issue received at oral argument in Fisher I—that UT’s jurisdictional objections are at least non-frivolous. If so, what explains Fisher I’s silence on that point?

The most likely explanation is that the Fisher I majority silently found jurisdiction but chose not to say so. That choice could of course be criticized. For instance, the Court’s practice of giving reasons is thought to be an important source of its legitimacy and a constraint on its willfulness. Yet avoiding comment on the jurisdictional issue might have aided in the formation of what became Fisher I. And one might think that each justice is subject to an absolute obligation to confirm the existence of jurisdiction, but not to explain why it exists or to create precedent on that point. On that view, the Court is free to sidestep distracting disagreements as to reasoning and avoid the creation of iffy precedent that it might later come to regret.

The only other possibilities that come to mind are that the Court: (i) didn’t think it was important to confirm its own jurisdiction, (ii) relied on hypothetical jurisdiction, and (iii) found jurisdiction due to an equally divided court (with Kagan recused there are 8 justices in Fisher). But none of these possibilities seems likely. The first possibility would require a fairly strong form of judicial cynicism, given that the justices so often emphasize the need to have jurisdiction. The second possibility would require restoring the practice of hypothetical jurisdiction (which the Court rejected in Steel Co.) and then expanding that doctrine to apply even where the plaintiff wins a kind of interim victory. And the third possibility would seem to run afoul of the Court’s recent practice (see American Electric) of noting equally divided jurisdictional votes.

2. Assuming that a majority silently found jurisdiction in Fisher I, could some of the justices have silently believed there wasn’t jurisdiction?

Perhaps one or more justices swallowed their jurisdictional doubts for the sake of compromise. According to Joan Biskupic’s reporting, Justice Sotomayor penned a powerful dissenting opinion in Fisher I that persuaded the majority to cut back on the scope of its ultimate ruling. Sotomayor then pulled her dissent and joined the majority opinion. And Ginsburg’s published solo dissent didn’t mention jurisdiction either. If Sotomayor’s original dissent did emphasize jurisdictional concerns, perhaps those concerns were dropped from the published opinions in Fisher I for the sake of forming the compromise merits ruling. Something similar appears to have happened several years ago in NAMUDNO, where a supermajority opinion emerged out of an apparent compromise over the constitutionality of the Voting Rights Act.

One might think that a justice who doubted the presence of jurisdiction in Fisher I would feel obliged to say so. But justices sometimes accept the majority’s jurisdictional rulings for the purposes of the case at hand. Likewise, perhaps there were jurisdictional dissenters in Fisher I who silently chose to accept that they were bound by the majority’s jurisdictional finding, even though they disagreed with it. This rationale might permit the jurisdictional dissenters to join the majority in good faith.

3. So, what should the Court do with the jurisdictional issue in Fisher II?

One straightforward possibility is that the justices should adhere to the rule against sub silentio rulings and so afford Fisher I no binding force on jurisdiction. The Court has adopted that approach before, including when the law of the case doctrine (discussed in more detail below) arguably applied. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 165 (1981) (Stevens, J., dissenting) (arguing that the Court had wrongly followed the no sub silentio rule, rather than the law of the case doctrine, on a jurisdictional issue). However, the Court sometimes ascribes force to silent jurisdictional rulings when the issue was raised. Justice Ginsburg has been a leading proponent of that approach, and Justices Breyer and Sotomayor have both joined opinions taking that position. Further, it’s hard to imagine a stronger case for finding a sub silentio jurisdictional ruling than Fisher I, where the justices'  questions at oral argument showed that they were aware of the jurisdictional issues.

Another possibility is that the Court should view its sub silentio jurisdictional ruling as binding for this case only, perhaps under the law of the case doctrine. But why should stare decisis and the law of the case doctrine take opposite positions on sub silentio rulings? One answer is that the plaintiffs in Fisher have reasonably relied on the Court’s sub silentio ruling in continuing to pursue the case. Another answer would focus on the special obscurity of sub silentio rulings. Because the Court didn’t explain itself in Fisher I, we can’t know for sure if its rationale for finding jurisdiction should apply to any other fact pattern, besides the one in that case. So perhaps we can confidently say only that the sub silentio ruling applies only in Fisher itself—at least barring a material change in our understanding of that case’s facts. Adhering to Fisher I's sub silentio result in Fisher II would therefore promote all the values that normally underlie the law of the case doctrine, including consistency and predictability.

Lower-court practice supplies some guidance on how the law of the case doctrine should intersect with sub silentio jurisdictional findings. In general, lower courts tend to agree that implicit but actual determinations on jurisdiction trigger the law of the case doctrine. For instance, a 2011 decision asserted a rule that seems applicable to Fisher I:

Where the question of jurisdiction was actually raised and argued before the prior panel and the panel subsequently exercised jurisdiction without explanation in its opinion, it is clear enough that “the necessary assumption is that the prior panel found subject matter jurisdiction present,” and the ruling constitutes law of the case. USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 283 (5th Cir. 2011).

In the past, some courts have cited the special importance of subject matter jurisdiction to qualify the law of the case doctrine, and some sentiment along those lines is still visible in the cases. E.g., Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003). Still, courts have increasingly held that implicit-but-actual decisions as to subject matter jurisdiction create law of the case. E.g., Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011); LaShawn A. v. Barry, 87 F.3d 1389, 1394 (D.C. Cir. 1996) (en banc); Oneida Indian Nation of New York v. State of N.Y., 860 F.2d 1145, 1151 (2d Cir. 1988). Even if the law of the case doctrine applies, of course, it might be overcome based on, for instance, clear error.

You can imagine variations on the above. For instance, perhaps only the specific justices who joined the Fisher I majority should feel bound, based on a kind of personal stare decisis; on that view, Fisher I's sub silentio holding wouldn’t have bound new justices, if any had been appointed and confirmed after Fisher I. Or perhaps the justices should internally view the sub silentio decision as binding, since they themselves presumably remember their conclusions on that point, but shouldn’t assert that view in the published version of Fisher II. Instead, they might simply use the opportunity of Fisher II to explain their prior opinions on the issue, whether concurring or dissenting.

4. A final question: if a majority of the justices seem to have silently found jurisdiction in Fisher I, then why is the University of Texas expending a significant amount of energy arguing the point in Fisher II?

The most obvious answer is that UT might hope to persuade some of the justices who had previously if tentatively found jurisdiction. That strategy is likely to succeed only if key justices end up adhering to the rule against sub silentio holdings.

But there’s another salient possibility: Forcing the Court to explain why there is jurisdiction might discourage it from issuing a sweeping ruling against UT on the merits. Indeed, this strategy may already have worked. Sotomayor’s unpublished dissent in Fisher I may have objected in part on jurisdictional grounds. The justices in the majority presumably thought that Sotomayor was wrong, but they might still have worried that her dissent would persuade some readers that the Court was playing fast and loose with its own power. In other words, a debate on jurisdiction might have undermined the legitimacy of the Court's overall ruling, particularly if the justices in the majority didn't entirely agree among themselves on the basis for jurisdiction. So the challenge of responding to UT's jurisdictional arguments might have been part—just part—of the reason why the original Fisher I majority agreed to a compromise on the merits. UT may hope to recreate this dynamic in Fisher II.

Of course, justices who complain about a lack of jurisdiction in Fisher II could be criticized as hypocritical, given their failure to note any such concerns in Fisher I. But as already discussed, this problem is surmountable. For instance, the jurisdictional dissenters might say that, in Fisher I, they silently bowed to the unexpressed views of a silent majority. And Justice Ginsburg might add that her Fisher I dissent rested on a kind of hypothetical jurisdiction. Now, in Fisher II, the dissenters can flesh out their preexisting concerns, thereby all but compelling the majority to address the matter.

In preparing the above, I’m especially grateful to I. Glenn Cohen and to Andrew Crespo for sharing insightful comments in connection with my post last year.

Posted by Richard M. Re on November 17, 2015 at 08:25 AM | Permalink


I don't think a reasonable argument can be made that the Court should decide an issue of great national importance in a non-class action where the plaintiff has expressly waived all claims for injunctive relief, where all monetary claims are likely barred by SI, where she likely waived a nominal damages claim (which arguably can't support standing anyway standing alone) and where one Justice is recused. Even if there are flimsy responses to all this, and restitution doesn't get around SI, they are not persuasive. This would be judicial aggression of the worst kind.

FWIW, I don't think the law of the case can trump subject matter jurisdiction.

Posted by: Eric Segall | Nov 18, 2015 2:26:17 PM

A few remarks to tee up the merits of the standing question, for your consideration:

Fisher alleges two types of injury: (i) denial of an opportunity to attend the summer program at UT; and (ii) denial of the opportunity to be “considered on an equal basis with African American and Hispanic applicants”--i.e., a General Contractors injury.

UT says that the relief she has sought won't remedy either alleged injury. Notably, Fisher is not seeking any declaratory or injunctive relief, and she does not represent a class.

As to the first form of alleged injury (denial of admission to the summer program), UT claims that Fisher has not sought--indeed, has waived--damages based on that injury. Fisher says otherwise. That's a factual dispute about the pleadings below. I have no idea who's right. Obviously, if Fisher is correct that she has preserved a claim for consequential damages based on denial of admission, then that would support her standing.

But let's assume she's waived that claim for damages for denial of admission.

That leaves her "denial of equal treatment" injury. As to that, UT argues, and I'll assume, that she does not seek any consequential damages, e.g., for pain and suffering or psychic harm. She only seeks recovery of her $100 admissions fee. And the strongest argument for that, I think, is a restitution theory.

Larry Rosenthal suggests that she can't get restitution because the application fee was nonrefundable. But that can't be right, can it? For example, if UT had simply torn her application into pieces and tossed it in the trash, she'd be entitled to recover her $100 then, even though it was "nonrefundable," right?

So the question is whether she's entitled to restitution of the $100 because she was subjected to what we have to assume (for purposes of standing) was an unconstitutional process in which she was denied the right to be treated without regard to race. Her restitution claim, I suppose, would be something like this: "I paid my $100 to be considered in a legally-compliant process; and because it wasn't in compliance with the EPC, I didn't get what I paid for." UT's basic response is: "But Fisher knew that race would be considered when she paid the $100; so she got what she paid for."

Does the law of restitution provide a right to recovery of a fee if it turns out the thing you paid for -- which you knew you were getting -- did not comply with the law (assuming you also suffered an article III injury, which UT does not dispute here for purposes of General Contractors standing)? I don't know remotely enough about restitution law to opine on the answer. (Nor do I know the extent to which state restitution law governs this federal constitutional claim.) But here are a couple of analogies to test the question:

1. In his Spokeo amicus brief, Doug Laycock, also one of UT's lawyers, argues that a principal or beneficiary can recover restitution, even without proof of consequential damages, if an agent or fiduciary takes kickbacks, or acts with a conflict of interest, or uses the principal/beneficiary's assets for his own ends. Let's assume for present purposes that Doug is right about that. (I have no reason to think otherwise.)

But what if, at the time of creating the agency relationship, the fiduciary-to-be announced to the principal, in no uncertain terms, "Just so you know: I will use your money for my own ends, and I plan to take kickbacks. I have figured out a way to do so in a manner that won't result in any consequential harm to you; and I think it will be lawful, although I know you disagree." And with full knowledge of all that, the principal/beneficiary hands over the money, anyway, and takes the deal. Can the beneficiary thereafter sue for restitution of the fee, alleging that she was entitled to an agency relationship that was not tainted by the (known and announced) conflict of interest?

2. Second, let's take a canonical EPC case as to which everyone agrees on the merits: An African-American visitor to Montgomery in 1955 pays her 25 cents to ride the bus, knowing in advance that she will be relegated to the segregated section in the back. She then sues. She does not allege that she'll ever return to Montgomery; she does not seek injunctive or declaratory relief; and she does not seek consequential damages for dignitary harm or pain and suffering. She merely seeks to recover her quarter, on a restitution theory. Would restitution law allow recovery?

Again, I don't know enough about restitution law to hazard an answer to these hypos. But are these the right sorts of analogies and, if so, any thoughts on how they come out?

Posted by: Marty Lederman | Nov 18, 2015 7:12:47 AM

Many thanks, Marty and Larry.

I hope to do a post on the 'merits' of the standing issues before argument in the case. And I too would be curious to hear the views of others!

I think you're right, Larry, that the way UT argued jurisdiction in its Fisher I merits brief might have made some justices suspect that UT didn't take the issue seriously, or that the issue hadn't been thoroughly aired. The Chief Justice seemed to suggest that at oral argument, for instance. But it's important to remember that UT's brief in opposition to certiorari had spent about 15 pages on the jurisdictional issues, and UT's merits brief incorporated that discussion by reference. UT also pressed the point at argument, including in exchanges with the Chief, Scalia, and Sotomayor.

Posted by: Richard | Nov 17, 2015 12:53:06 PM

Perhaps another explanation for the Court's failure to confront standing in Fisher I is the University's failure to take the issue seriously. It essentially confined its standing argument to a rather equivocal footnote curiously positioned in the statement of the case. That made it much easier for Members of the Court eager to get to the merits to conclude that that standing was not an important issue. The Justice for whom I clerked once told me to confine to footnote only the material that you are content for the Court to ignore (he repeated this admonition publicly a number of times).

On the restitution issue, since Fisher's application fee was nonrefundable, it is entirely unclear to me why she is entitled to restitution if she would not have been admitted even absent the challenged policy. To my eye, the University's treatment of the claim for nominal damages based on "competitive injury" is far more unsatisfactory.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Nov 17, 2015 11:49:30 AM

P.S. That question is not only for Richard, but also other PB readers who might know something about restitution. Thanks in advance for any insights.

Posted by: Marty Lederman | Nov 17, 2015 9:38:12 AM

And what think you on the merits of the standing question, Richard--in particular, the "restitution for the $100 in application fees" question discussed at page 22 of the Texas brief?

Posted by: Marty Lederman | Nov 17, 2015 9:36:57 AM

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