Wednesday, July 17, 2019

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Posted by Howard Wasserman on July 17, 2019 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, July 04, 2019

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Posted by Howard Wasserman on July 4, 2019 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, July 03, 2019

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Posted by Howard Wasserman on July 3, 2019 at 08:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Posted by Howard Wasserman on July 3, 2019 at 07:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, June 29, 2019

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Posted by Howard Wasserman on June 29, 2019 at 09:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, June 27, 2019

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Posted by Howard Wasserman on June 27, 2019 at 01:05 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wednesday, June 26, 2019

Balls, strikes, and ground-rule doubles

In his opinion concurring in the judgment in Kisor v. Wilkie and arguing for overruling Auer deference, Justice Kavanaugh gave us this:

Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules. So too here.

I know analogies are only analogies and never exact. But they should be close enough to be helpful and this one is not. The problem is that the role of the Cubs and the role of an administrative agency, such as the VA, are not the same in one critical respect--an agency is charged with enforcing the regulations that it enacts, the Cubs are not.

An agency is charged with enforcing a statute, including making regulations to assist with that enforcement. Auer deference thus makes sense for the same reason that Chevron deference makes sense--give the enforcing agency some room to carry out its enforcement obligations, so long as its interpretations are reasonable. The Cubs' responsibility is to enact ground rules unique to their park--e.g., a ball that sticks in the outfield-wall ivy is a dead ball, the batter awarded second base, and runners awarded two bases--but not to enforce those ground rules, a power that rests with the umpires in the first instance.

It seems to me that this makes a difference, rendering the analogy pointless. There may be good reasons not to defer to an agency's interpretation of the regs it is charged with enforcing. One of those reasons is not that we do not defer to a different "agency's" interpretation of the regs it enacts but is not charged with enforcing.

Posted by Howard Wasserman on June 26, 2019 at 06:06 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (7)

Friday, June 14, 2019

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

Posted by Howard Wasserman on June 14, 2019 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Monday, June 03, 2019

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Posted by Howard Wasserman on June 3, 2019 at 01:27 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Saturday, May 25, 2019

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Posted by Howard Wasserman on May 25, 2019 at 03:18 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, May 23, 2019

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

Posted by Howard Wasserman on May 23, 2019 at 09:15 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

Wednesday, May 15, 2019

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

Posted by Howard Wasserman on May 15, 2019 at 06:45 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Tuesday, May 14, 2019

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

This presents two fun what-ifs. First, Fortas was 58 when he resigned and lived another 13 years. How different might the jurisprudence of the 1970s have been had he remained on the Court with Douglas (replaced by Stevens in 1975), Brennan, and Marshall  as a starting point. And maybe Fortas retires prior to 1980 and gives Jimmy Carter the appointment he never had. Second, how might Nixon's Court appointments have differed? If Fortas does not resign, Blackmun remains on the Eighth Circuit in 1971 when Black and Harlan retire within days of one another. Does Nixon nominate Blackmun for one of those spots, since he appears to have been Nixon's "next" nominee, or had his time passed? Does Powell or Rehnquist, who were commissioned simultaneously, get the other? And if Powell, how does Rehnquist get on the Court and, more importantly, still become Chief?

Update: SCOTUSBlog has an interview with author Michael Bobelian about his new book Battle for the Marble Palace, which examines Fortas' failed nomination as Chief, marking it as the starting point for the "modern" Supreme Court and "modern" appointments process.

Posted by Howard Wasserman on May 14, 2019 at 04:50 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, May 13, 2019

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

Posted by Howard Wasserman on May 13, 2019 at 12:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Posted by Howard Wasserman on May 13, 2019 at 11:34 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Predicting SCOTUS on universal injunctions (Updated)

Noah Feldman predicts that SCOTUS will reject the Trump Administration's calls to reign-in universal injunctions, basically arguing that taking the power to issue non-particularized injunctions from lower courts makes more work for SCOTUS. Josh Blackman responds in a Twitter thread.

I agree with Josh that Noah makes his category error here:

If the justices were to hold that the lower courts lack the power to issue nationwide injunctions, then there would be only one way for the courts to block a law nationwide: The Supreme Court would have to issue the injunction itself. After all, it’s the only court with a truly national jurisdiction.

That wouldn’t give the justices any extra power, because they can already issue nationwide injunctions. But it would give the justices more work.

* * *

The upshot is that, if they prohibit nationwide injunctions by the lower courts, the justices will be agreeing to place themselves more in the spotlight, without the plausible deniability that allows them to leave injunctions in place.

SCOTUS does not have any greater power to issue a universal/non-particularized injunction than a district court. The limit on non-particularized injunctions comes from Article III's case-or-controversy requirement, which limits SCOTUS as much as it limits lower courts. If a lower court issues a particularized injunction and SCOTUS affirms, that does not create a universal injunction--it creates an Article-III-final particularized injunction, one that the executive no longer can avoid. As Josh notes, it also creates binding precedent that lower courts must follow to resolve other cases involving other parties and will use as the legal basis for later, also-particularized injunctions. But the SCOTUS decision in Case # 1 does not alone get us there.

Feldman envisions SCOTUS using the lower courts to avoid taking responsibility for universal injunctions--allowing some to remain in effect while overturning those they do not like. If lower courts cannot issue universal injunctions, SCOTUS would be forced to issue them. But this proceeds from several false premises, First, that a SCOTUS-affirmed injunction can have broader judgment (as opposed to precedential) effect than a lower-court injunction. Second, that if SCOTUS "really did not like" a particularized/non-universal injunction it would not overturn it just as quickly when asked to do so by the government.

Update: One additional point I neglected earlier: Noah begins by minimizing this as a legal-academic debate that had no practical resonance before Vice President Pence raised it in a Fed Soc speech last week. But that is not accurate. The scope issue was raised in U.S. v. Texas (DAPA) and was briefed, at the Court's request in Trump v. Hawaii, triggering a question from Gorsuch (his "cosmic injunction" line) and a concurrence from Thomas arguing that injunctions should remain particularized to the parties. He is write that legal scholars are playing a role here--but the government has been engaged on the subject at least as long.

Posted by Howard Wasserman on May 13, 2019 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Thursday, May 09, 2019

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

Posted by Howard Wasserman on May 9, 2019 at 01:13 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Tuesday, May 07, 2019

It is the empathy, stupid

Yesterday, I attended the 7th Circuit Bar Association Conference and the Judicial Conference of the 7th Circuit (a combined event that appears unique). I moderated a discussion on jurisdictionality (with Scott Dodson of Hastings and Jessica Berch of Arizona State) and watched an excellent panel on judicial independence and the rule of law. I also attended the dinner, which was keynoted by a conversation among Justice Kennedy, Justice Kavanaugh, 7th Circuit Chief Judge Diane Wood, and Northern District of Illinois Judge Gary Feinerman (who clerked for Kennedy the same term as Kavanaugh).

At one point in the discussion, Kavanaugh discussed the importance for judges to listen and to put themselves in someone else's shoes. They must hear and understand the positions of parties, attorneys, or fellow judges, in order to understand where they are coming from and the position they are urging. This is part of essential-but-vanishing "civility" in public discourse.

Wait, though. There is an English word for adopting another's perspective so you can understand their position (although Kavanaugh did not use it)--empathy. When President Obama suggested that empathy was an essential quality for judges, he was lambasted as urging lawlessness and the remark used as a basis for opposing his judicial nominees. Yet here was the darling of the Republican judiciary insisting that this is a necessary quality for him, as a judge, and for public debate more broadly.

Makes you wonder if the opposition to Obama's use of the term was not grounded in principle.

Posted by Howard Wasserman on May 7, 2019 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink | Comments (8)

Tuesday, April 30, 2019

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Posted by Howard Wasserman on April 30, 2019 at 07:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, April 23, 2019

JOTWELL: Coleman on public comments on the code of judicial conduct

The new Courts Law essay comes from Brooke Coleman (Seattle), commenting on the proposed changes to the federal judicial code of conduct and the advocacy work by the Law Clerks for Workplace Accountability.

Posted by Howard Wasserman on April 23, 2019 at 10:59 AM in Article Spotlight, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 22, 2019

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

Posted by Howard Wasserman on April 22, 2019 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (13)

Thursday, April 18, 2019

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

Posted by Howard Wasserman on April 18, 2019 at 12:00 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Tuesday, April 16, 2019

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Posted by Howard Wasserman on April 16, 2019 at 05:44 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, April 13, 2019

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

Posted by Howard Wasserman on April 13, 2019 at 12:54 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, March 30, 2019

Constantineau returns again

Earlier this month, I highlighted an exchange in the American Legion argument in which Justice Kavanaugh seemed to adopt the idea that SCOTUS can avoid deciding federal constitutional issues in deference to a state supreme court applying the state constitution to the problem. Justice Gorusch made the same move in last week's argument in Rucho v. Common Cause (the North Carolina partisan gerrymander) in an exchange with the attorney for the League of Women Voters:

But -- but you also have the state supreme court option, as -- as Justice Kennedy -- Kavanaugh pointed out. And we often overlook that possibility in -- in our -- in our federal system.

Fortunately, and unlike  in American Legion, counsel here was ready with the right answer: "Other options don't relieve this Court of its duty to vindicate constitutional rights."

Theme warning.

Posted by Howard Wasserman on March 30, 2019 at 04:36 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, March 13, 2019

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Posted by Howard Wasserman on March 13, 2019 at 06:09 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, March 08, 2019

Even more on Judge Sutton

This seemed too long for a comment to Gerard's post, so I will lay it out separately.

The rights-violation prong in a qualified-immunity case is not treated as dicta. In Camreta v. Greene, the Court held that it would hear "winner's appeals" from officers in cases in which the lower court held that the right was violated but granted immunity because the right was not clearly established. In justifying the decision, the Court stated the "constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions. They are rulings that have a significant future effect on the conduct of public officials" The Court quoted a Scalia dissent from denial of cert in a similar case in which he argued that winner's appeals were proper because "[t]hat constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases."

So I wonder if the same could be said about the state constitutional decision in the cases Sutton has in mind. Both are grounded in concerns for clarifying the law. Both also have concerns and effects on appealability. Camreta ensures that unfavorable merits determinations are not rendered unappealable by the favorable judgment on the separate prong of the analysis. Sutton's proposal would better position state courts to immunize decisions from SCOTUS review under the independent-and-adequate doctrine.

One further, unrelated Sutton point: Justice Kavanaugh name-dropped Judge Sutton in argument in American Legion v. American Humanist Association, asking respondent whether the Court should avoid deciding the Establishment Clause issues here because the Maryland courts could handle this under the Maryland Constitution. Counsel missed the question, prompting  Justice Sotomayor to jump in three pages later to bail her out. Kavanaugh seemed to use Sutton's book to bolster Justice Rehnquist's Chief Justice Burger's dissent in Wisconsin v. Constantineau, in which he argued that a federal court should abstain under Pullman when the state courts have not addressed the issue under the state constitution.

And since we are on the subject, I will highlight Jim Pfander's JOTWELL review of Sutton's book from January.

Posted by Howard Wasserman on March 8, 2019 at 07:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Tuesday, February 26, 2019

Mandatory-but-non-jurisdictional FRCP 23(f)

SCOTUS on Tuesday decided Nutraceutical Corp. v. Lambert, holding that FRCP 23(f)'s 14-day time period for seeking permission for interlocutory appeal of a class-certification order is a mandatory claim-processing rule not subject to equitable tolling. My SCOTUSBlog analysis is here. The Court was unanimous, per Justice Sotomayor.

It appears that the Court is approaching something like clear lines, at least in how to approach questions if not the answer with respect to any particular rule. Anything appearing in an REA-established rule must be a non-jurisdictional claim-processing rule. That leads to the second question of whether that claim-processing rule, while non-jurisdictional, possesses similar characteristics, such as non-tolling, based on the text, structure, and history of that rule.

On the other hand, under Scott Dodson's approach (which the Court expressly considered but declined to adopt in Hamer) this would have been jurisdictional, as it marked the line between courts. Of course, Dodson then would have required the Court to consider tolling, because rules can be jurisdictional but still subject to equitable exception.

Posted by Howard Wasserman on February 26, 2019 at 03:12 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, February 19, 2019

Thomas calls for reconsideration of NYT v. Sullivan

In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.

In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.

Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.

Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (9)

Friday, February 15, 2019

Cert before judgment

SCOTUS granted cert before judgment under § 1254(1) in Dept. of Commerce v. New York, the challenge to the inclusion of a citizenship question on the census format. The Court added it to the April sitting. This is the first time it has done this with a stand-alone case since Dames & Moore in 1982. Other high-profile examples were Youngstown Steel and Nixon.

Presumably the Court sees the case as uniquely time-sensitive because DOC must complete the census form by the end of spring/beginning of summer.

Posted by Howard Wasserman on February 15, 2019 at 02:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Wednesday, February 13, 2019

Right result, mess of an analysis

Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.

At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.

But this should have been a pretty easy case and I am not sure why the court took such a complicated route.

• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.

• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.

As I said, the right result. But a convoluted way to get there.

Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, February 07, 2019

More personal jurisdiction on the internet

A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.

An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.

The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.

[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.

So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.

Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, January 22, 2019

The legal fiction of "clearly established"

Orin Kerr flags this Third Circuit decision holding that a Fourth Amendment right was not clearly established where a binding circuit decision was handed down two days before the events at issue. That was too short a time for the government to read and understand the case, develop new policies to reflect that case, and communicate those policies to the officer. Kerr ponders some interesting questions arising from the case about determining how long it takes for a right to become clearly established and what the government and/or the officer must do to learn the law.

It seems to me this exposes two problems in qualified-immunity law. One is the essentially fictitious nature of tying qualified immunity to factually similar case law--law-enforcement officers do not read or follow case law and they do not perform their daily functions thinking about how the instant situation compares or contrasts with a situation in other cases. Talking about "the law of which the officer would be aware" in terms of case law does not reflect how law enforcement operates.

Second is how the Third Circuit's focus on policymakers establishing policy to reflect the new decision and communicating that policy to the officers. This appears to collapse into municipal-liability analysis (in a case involving a municipality, as opposed to the federal or state governments, such as this one)--government policy and government training of officers is necessary to clearly establish, both hallmarks of municipal liability. So does this suggest that a right is clearly established only if a municipality would be liable for having policies contrary to law or for failing to train on those policies?

Posted by Howard Wasserman on January 22, 2019 at 11:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Monday, January 21, 2019

SCOTUS does Civ Pro, confusedly

I just listened to last week's argument in Home Depot v. Jackson, which showed how confused the Justices get about Civ Pro. The issue is whether a third-party claim brought under CAFA can be removed by the third-party defendant. In the case, Citibank brought a debt-collection against against Jackson in state court; Jackson filed a counterclaim and impleaded Home Depot on an unfair trade practices class action. Home Depot wanted to remove the third-party claim under CAFA, which allows for removal of class actions with an amount-in-controversy over $ 5m on minimal diversity. The Court has held that a counterclaim defendant (otherwise known as the original plaintiff) cannot remove; the question is whether that is true of a third-party defendant.

Some thoughts:

• There was a lot of confusion about the distinction among counterclaims, cross claims, and third-party claims, even among the advocates. That confusion affected the question of whether Home Depot is a "defendant" or a "third-party defendant" and whether there is a difference between those two things. Does "any defendant" in § 1453(b) include third-party defendants as well as original defendants? Or, to put it in dueling metaphors, is a third-party defendant a black rabbit compared with all other defendant/rabbits? Or is a defendant a rabbit and a third-party defendant a weasel.

• Jackson's lawyer made what I think should be the key point, although I am not sure the Justices saw it this way (Justice Breyer hinted at the point in his own unknowing way). If Home Depot can remove here, then any third-party defendant can remove if he is diverse from the defendant/third-party plaintiff. (He gave an example of a generic tort action against a corporation, with the corporation then impleading its diverse insurer, which then removes). I do not see a relevant difference between CAFA removal of a class action and § 1441 removal of that, or any other, individual action. I did not hear Home Depot's counsel or any Justice suggest one. So if a third-party defendant is a defendant, then all third-party claims must be removable, not only those removable under CAFA.

• I kept thinking that it also would allow removal of a federal claim brought as a third-party complaint. There was some discussion about that being limited by the Well Pleaded Complaint rule, which applies to § 1331 but not § 1332. But I always have understood the WPC as implicitly applying to § 1332, as well, by placing the focus on the identities of the parties and claims named in the WPC--we determine diversity by looking at the parties named and the amount sought in the complaint. The point being that unless Congress says otherwise (as in America Invents), the "civil action" removable under § 1441 is the one established in the complaint and removal cannot be based on additional claims filed by different parties against anyone.

• Justice Alito came across as disrespectful of advocates who urge positions he disagrees with and law reviews. Consider this exchange

JUSTICE ALITO: . . . somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA. And there's a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so thatwe can keep these things in state court. Is that not correct?

PAUL BLAND:  . . .There was a law review article by an advocate. It's not really a law review article and a peer-reviewed article. I think it's more like a blog. But, anyhow, a guy writes an article saying -

* * *

JUSTICE ALITO: Since when are law review articles peer reviewed?

MR. BLAND: You know, that's a good point.

JUSTICE ALITO: Who are they reviewed by?

(Laughter.)

MR. BLAND:

You're totally right. I-- I'm so sorry. I -- I should never have said that, you're right.

JUSTICE ALITO: They should be -- maybe they should be peer reviewed.

MR. BLAND: Law review articles are student reviewed, they're not peer reviewed. I -- I -- I withdraw. That was --

JUSTICE BREYER: I'm fine on law review articles.

The law review stuff is a funny exchange. But the underlying premise is that Jackson's argument to keep the case in state court is somehow illegitimate because it originated on the pages of law reviews. This is troubling for a couple of reasons. Justice Alito does not express similar concerns with the creative, scholar-driven theories urged (and continuing to be urged) against the Affordable Care Act. If you believe Chief Justice Roberts, the problem with legal scholarship is that it is not sufficiently helpful to lawyers and courts. Now, an idea urged in court is somehow questionable because it was presented in scholarship as a way to convince lawyers and courts on an issue. This is not the first time that Justice Alito has cast aspersions on advocates urging positions towards a legal goal--he similarly questions death-penalty abolitionists for their advocacy.

Posted by Howard Wasserman on January 21, 2019 at 01:26 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, January 10, 2019

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, January 01, 2019

2018 Year-End Report

Chief Justice Roberts issued his 2018 Year-End Report. This year focused on the results of the investigation Federal Judiciary Workplace Conduct Working Group into the working conditions for law clerks and other judiciary employees and what is happening to implement those proposals with the Judicial Conference. As is his wont, the Chief began with a historical anecdote--the influence that law clerk Henry Friendly had on Justice Brandeis' dissent in Olmstead--and a paean to the work of law clerks and the symbiotic relationship between judges and clerks ("relationship is one of close association, candid intellectual exchange, and confidentiality"), on the centennial of Congress allocating funds for "legally trained assistants" for federal judges.

The report also briefly thanked court employees for keeping the courts operating in the face of another years of natural disasters--flooding in Florida and North Carolina, a typhoon in the Northern Marianas Islands, an earthquake in Alaska, and California fires.

The report closes with workload statistics for the year. Filings in the courts of appeals dropped two percent, while civil filings in district courts rose six percent. District courts saw a 17 percent increase in diversity cases with a 23 percent increase in personal-injury cases--the report does not say, but it would be interesting to see how much of the increase is tied to mass-tort cases going to federal court under CAFA's minimal-diversity requirement.

Posted by Howard Wasserman on January 1, 2019 at 12:43 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 31, 2018

Judge in ACA case still needs to retake Fed Courts

District Judge O'Connor on Sunday paved the way for an appeal of his decision declaring all of ACA constitutionally invalid, issuing a Final Judgment on Count I in accordance with FRCP 54(b) and a separate Order of a Stay and Partial Final Judgment pending appeal. The latter document gives reasons for certifying partial final judgment and for granting the stay. As to the latter, the court goes to great lengths to explain why the intervenor-defendant states are unlikely to succeed on the merits on appeal, reiterating its standing, merits, and severability analyses from the original order, but concluding that the equities favor a stay.

As has been the case all along, Judge O'Connor continues to make jurisdictional errors.

Standing

Jonathan Adler has a good takedown of the expanded standing analysis, in which Judge O'Connor continues to find injury from the existence of a law absent any risk that the law could be enforced against the plaintiffs. The court relies on the correct principle that a person need not violate a law to have standing, but ignores that those cases required the plaintiff to show at least a genuine threat that the law would be enforced against him and that some penalty would result. He insists that no case requires an assessment of whether the plaintiff is injured by "disregarding" the law. It is true that courts do not put it in those terms, but that is implicit in the requirement of a threat of enforcement, which is triggered by someone disregarding the law.

O'Connor relies on Steffel v. Thompson, in which standing derived from Steffel's stated intention to resume handbilling and the express threat of the police to arrest him for trespassing (as they had his friend) if he did so. He also relies on Clements v. Fashing, in which the plaintiffs (challenging a state law that deemed candidacy for one office as resignation of an existing office) did not announce their candidacy for office, because that announcement would be deemed a resignation. That is, the plaintiffs in both cases would be subject to some mechanism for enforcing the law and it was that enforcement mechanism that caused the injury. In no case did the court find injury based on a statutory obligation that provided for no means of enforcement and no consequences.

O'Connor also tried to get cute, noting that "Chief Justice Marshall never asked whether William Marbury would be injured if he ignored the law and began serving as a justice of the peace without an official commission from James Madison." But that is because Marshall recognized that had Marbury done so, court personnel would have ignored him, not given him a courtroom in which to work, not carried out his orders, and perhaps asked the the Marshals physically remove him from the premises. All of which reflects the enforcement of the challenged law.

Two additional thoughts on standing. First, in a prior post, Adler analogizes the mandate-with-no-penalty to 4 U.S.C. § 8, which provides that "no disrespect should be shown to the flag of the United States of America" and enumerates what civilians and civilian groups cannot do with the flag. Obviously, the law is unenforceable under Texas v. Johnson. But we never get there, because the U.S. Code provides no mechanism for enforcement and imposes no penalties for failing to follow those rules. No court would accord standing to a plaintiff who argues "I want to use the flag as a covering for a ceiling (prohibited by § 4(f)), but I am refraining from doing so because I do not want to break the law," because the plaintiff would suffer no enforcement and sanction for using the flag to cover the ceiling.

Second, standing was established in part because the ban, even if not enforced to keep these plaintiffs out of the United States, sent a message of religious exclusion and made them feel less than full members of the community because of their religion. Some critics of those decisions derided this as "snowflake standing"--the plaintiffs feel bad and are hurt in their delicate snowflake sensibilities. But that does not sound much different than what the plaintiffs are arguing here-they will feel bad (their delicate sensibilities undone) if they have to act contrary to what the written law, otherwise unenforceable, requires them to do.

Appellate Review

The point of these orders was to pave the way for immediate review of the declaratory judgment. All parties had asked for certification of interlocutory review under § 1292(b), but Judge O'Connor instead certified a final judgment on one-but-less-than-all claims. But on the Con Law listserv, Marty Lederman identified a problem--it is not clear that the court finally resolved even one claim. The plaintiffs asked for a declaration that the mandate is invalid and a permanent injunction prohibiting implementation or enforcement of ACA; the court granted the former, but never addressed or reached a conclusion as to the latter remedy. A judgment, even on one claim, may not be final if remedial issues remain on that count.

Another commenter on the listserv suggested two possible outs. One would be to deem the certification of finality as the denial of the injunction. A second would be to treat the improper Rule 54(b) certification as a § 1292(b) certification and proceed that way. Otherwise, the court would have to dismiss the appeal for lack of jurisdiction and send the case back to the district court to enter the injunction (thereby creating appellate jurisdiction under § 1292(a)(1)) or to certify under § 1292(b).

One question is why Judge O'Connor proceeded this way, since the parties all requested a § 1292(b) certification and not a 54(b) certification. One thought is that he did not want to certify that there could be "substantial ground for difference of opinion" as to constitutional validity or severability. O'Connor has gone to great rhetorical lengths in all of his opinions and orders to make this seem like an obvious, not-at-all-close case with one obvious result, in which defendants can prevail only by demanding that courts acts in an invalid, unlawful, illegitimate, impermissible activist way. Section 1292(b) would require Judge O'Connor to declare that it might be possible for a court, acting in a legitimate way, to reach a different conclusion. That he does not want to certify.

Posted by Howard Wasserman on December 31, 2018 at 04:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, December 29, 2018

A tale of two appeals

The Ninth Circuit accepted the district court's § 1292(b) certification in the climate-change litigation, paving the way for review of the denial of motions to dismiss for failure to state a claim, lack of standing, and other bases. This after a series of failed attempts by the government to get the Ninth Circuit or SCOTUS to grant mandamus, stay the case, or provide other relief. Dissenting, Judge Friedland suggested that the district court did not genuinely believe the requirements of § 1292(b) were met and did not "so state," especially as to whether immediate review would "materially advance the ultimate termination of the litigation," and the the district court was strong-armed by the government's repeated attempts to bypass normal litigation procedures.

The thing that has bothered me all along is I do not see how the first prong of § 1292(b) is satisfied--that the interlocutory "order involves a controlling question of law," which should be limited to purely legal questions such as the meaning of a law, not to questions of application of known law to fact. The court found that plaintiffs have standing and that the plaintiffs stated a claim, accepting as sufficiently pleaded a creative application of the state-created danger theory of substantive due process. Standing is not purely legal--the requirements of standing are well-known, the issue here is whether they were satisfied. Perhaps the allowance of  the state-created danger theory would qualify. But then what about the non-legal issues? dDoes everything else (such as standing) go with it on pendent appellate jurisdiction? Is the standing question "inextricably intertwined" with the constitutional question over which the court of appeals has jurisdiction?

Meanwhile, all sides are urging the district court in the ACA litigation to certify its decision under § 1292(b). This reads as a more appropriate case for interloctuory review, as the court decided an obvious question of law as to the constitutional validity of the individual mandate and the severability of the rest of the statute. And then does the standing decision (which should be the appropriate basis for getting rid of this case) similarly go along for the ride on pendent jurisdiction?

Posted by Howard Wasserman on December 29, 2018 at 08:34 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, December 28, 2018

Tenth Circuit offers an interesting mix of Younger, Rooker, and jurisdictionality

An area of seeming confusion for courts is the collision between Younger abstention and lack of jurisdiction under Rooker-Feldman. The doctrines are similar, as they both limit the power of federal courts to interfere with state adjudicative proceedings. In theory, the line is sharp--RF prohibits actions that formally or functionally ask the federal court to review the state decision, while Younger prohibits federal courts from halting ongoing state proceedings. In practice, they seem to run into one another, especially when courts use Younger as the basis for dismissing challenges to non-final state orders.

This Tenth Circuit case offers a different side of the collision.The federal plaintiff, the defending party in a state attorney-disciplinary proceeding, argued in federal court that the state bar lacked jurisdiction to discipline him, since he is not barred in that state (he maintains an office in the state, but practices only in federal court and federal immigration proceedings there). The district court abstained under Younger. But by the time the federal case reached the Tenth Circuit, the Colorado Supreme Court had suspended the plaintiff, ending the disciplinary proceeding. So the Tenth Circuit reversed the Younger dismissal, because the end of the state proceedings means the first prong of the Younger analysis (ongoing proceeding) is not satisfied, so the plaintiff can bring an action for a D/J action that the state tribunal lacked jurisdiction over him (because he is not barred in Colorado). The Tenth Circuit explained:

Consider our options. On the one hand, "if we were to reverse the dismissal," Plaintiff could (obviously enough) renew his already-filed claim before the district court. Id . On the other hand, "if we were to affirm the dismissal," Plaintiff could immediately refile in any event "because the dismissal was without prejudice." Id . "In these circumstances, we vacate dismissal . . . and remand these claims to the district court so that it can reconsider them without the need to abstain now that the state proceedings have ended." Id

This seems wrong on several levels.

First, the point of Younger is to eliminate federal interference with state proceedings; that interference remains after the state proceeding ends, if the federal action seeks to undermine or undo the results of that state proceeding. This is the point of Wooley v. Maynard (the "Live Free or Die" license plate case). Maynard had been convicted of traffic offenses three times for covering the motto on his plate; all three proceedings were over. The Court held the federal suit not Younger-barred only because he did not challenge or affect the results or consequences of those prior convictions and sentences; he sought only to prevent future enforcement of the law against him. The implication is that had Maynard sought to undo the past convictions, Younger would have barred the action. This federal action seeks to do what Maynard did not--invalidate the result of the state proceeding; that seems  inconsistent with "Our Federalism."

Second, even if Younger does not bar the federal action, Rooker-Feldman should. The plaintiff challenges the order of a state court suspending him from the practice of law and a federal judgment in his favor would declare that order as erroneous. In fact, attorney discipline is one of the most common situations for RF. And there is no "state court lacked jurisdiction" exception to RF.* The Tenth Circuit may have wanted to punt that issue to the district court. But this action should not go forward.

[*] In any event, I would argue that the plaintiff's argument as to the state proceeding is not that the state courts lacked jurisdiction, but that state law (attorney regs) does not apply to him because he is not barred in Colorado. That is a merits challenge to the reach of state law, not a jurisdictional challenge to the power of the court.

Posted by Howard Wasserman on December 28, 2018 at 01:30 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Tuesday, December 18, 2018

Standing in the ACA case

Good analysis from Nicholas Bagley (Michigan) about the standing problems for the two individual plaintiffs in the ACA litigation. A few additional thoughts.

• This illustrates how enforcement is the trigger for constitutional litigation, not the existence of a constitutionally defective law. An invalid legal obligation that will not be enforced cannot be the subject of litigation. An invalid legal obligation that will be enforced through a tax penalty of $ 0 is, functionally, a legal obligation that cannot be enforced. It still would be better if we discussed this as a question of merits and not jurisdictional thresholds. If these plaintiffs are not injured because the law cannot be enforced against them in any way, then their substantive constitutional rights are not being violated.

• The plaintiffs' argument that they are injured because they believe following the law is the right thing to do (even when that law is not enforceable) is the flip side of requiring government officials to act lawfully  or refrain from acting unlawfully (e.g., reservists in Congress, non-natural born citizens serving as President). Neither is a basis for standing.

• I have not seen any good argument that the 20+ States have standing. But the court skirted that question through the "one good plaintiff" rule--because someone had standing, the case could proceed without having to consider anyone else's standing. Update: In a companion piece, Bagley doubts that the 20 states have standing, which should mean the court cannot enjoin the Administration from enforcing the law as to him; in Bagley's words, the judge has "tied his own hands."

• Standing and jurisdiction have always been dicey in the ACA litigation; this case represents the latest and weakest effort. I wonder if the Fifth Circuit (or SCOTUS if it gets that far) will use that as the basis to get rid of this case, without having to touch the bizarre merits.

• Bagley describes standing doctrine as "near and dear to the hearts of the conservative legal establishment," so that even conservative judges on the Fifth Circuit (and Roberts and Kavanaugh on SCOTUS) will be unlikely to allow this sort of case to go forward. But the doctrine developed when the conservative legal establishment was trying to stop environmentalists from preserving the Nile crocodile, lawyers from challenging unwarranted surveillance of their foreign clients, and atheists from challenging states' creative ways to give government funds to parochial schools. This is the ideological drift of standing--the doctrine may not be so near and dear when it prevents "two guys from Texas" from taking down the nation's health-care system.

Posted by Howard Wasserman on December 18, 2018 at 04:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Saturday, December 15, 2018

A quick word on the remedy in the ACA case (Updated)

Sam Bray (as always) beat me to exploring the remedy issues in the district court's declaration on the constitutional invalidity of all of DACA. The court declared ACA invalid in its entirety, but declined to issue an injunction and provided only a declaratory judgment. Here is the wind-up to the post, with which I entirely concur.

In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. *

I also want to flag this language from Marty Lederman's post: "[C]ontrary to almost every media account you've read in the past few hours (come on, New York Times!) Judge O'Connor did not "strike down" the "entire Affordable Care Act" (something he lacks the power to do, in any event) . . ." A federal court cannot erase or eliminate or remove a statute, so it would be wonderful if that term could be removed from the lexicon.

Update: The other procedural/remedial issue is what happens next. The court granted what it called partial summary judgment on one claim (or one issue in one claim) and entered a declaratory judgment, but no injunction (although that is what the first count of the complaint requested). But it is not clear what is appealable here and how. There is no injunction, so § 1292(a) is not in play. Section 2201 says a "declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such," but the view among limited cases is that this assumes the decision is otherwise-final in the sense of disassociating the district court from the case and leaving it nothing to do but execute the judgment. With other claims remaining in the case, this D/J is not final. An appeal would seem to require certification under § 1292(b) or Rule 54(b).

Then there is a question of who can appeal. The United States agrees with the plaintiff states' basic constitutional argument about the zeroed-out penalty and that some provisions are not severable, so it is unlikely to appeal that; it disagrees with severability as to the rest of ACA, so it may appeal that. But what about the core constitutional issues? States were allowed to intervene to defend the parts of the law that DOJ would not, but under Hollingsworth an intervenor that would not be subject to the force of the order would not have standing to appeal. The House likely will intervene come January 3 and would have standing under Windsor, but that would be too late to appeal for § 1292(b), which requires appeal within ten days of certification. Maybe DOJ will appeal the declaration as a whole, then limit its legal arguments, with the states again intervening in the Fifth Circuit to pick up the slack.

Posted by Howard Wasserman on December 15, 2018 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Deepening split on SLAPP laws in federal court

Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN.

If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent cases are the three rejecting application.

I was surprised SCOTUS denied cert in the Tenth Circuit case, which had the benefit of using such egregiously incorrect analysis that it begged for correction, even if the Court agreed on the conclusion as to application. Maybe the Court will see the new case as a better vehicle, although because it involves reporting by a major-media outlet, it is less the paradigm SLAPP suit. Regardless, SCOTUS must weigh-in on this at some point.

Update: I have not hit this point in many posts on the subject, but in response to a few email queries: I believe the non-application side has the better argument. Rules 12 and 56 provide mechanisms and standards for weeding-out insufficiently pleaded or supported claims; they "answer the questions in dispute," leaving no room for state law to operate. And both rules are valid because arguably procedural and not abridging, enlarging, or modifying substantive rights. The issue is close and therefore makes a good exam or class hypothetical (I have used it for both).

Posted by Howard Wasserman on December 15, 2018 at 11:43 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Friday, December 14, 2018

9th Circuit taps the brakes (slightly) on universality

The ever-harrowed Ninth Circuit tapped the brakes slightly on district courts issuing universal injunctions. In affirming on the merits an injunction barring enforcement of religious opt-out rules from the contraception mandate in an action brought by five states, the court held that the district court abused its discretion in having the injunction extend beyond the plaintiffs.

The court hit a few important notes. It emphasized that universality is generally disfavored and especially disfavored absent class certification. It highlighted the problems with universal injunctions, including the loss of percolation of issues, the effects on non-plaintiffs, and the risks of forum shopping. And it applied the "complete relief" principle to conclude that a particularized injunction gives states complete relief from the economic harms the opt-out rule would impose on them. That other states may suffer similar harms did not affect the plaintiff states.

The court made clear that universal injunctions are not prohibited, but must be limited to cases in which broad relief is necessary. And it said the issue (as with an earlier case rejecting universality as to sanctuary cities) was a failure to develop the record as to other states, suggesting that building a better record may justify universality. 

But the court grappled with the scope question, a step back from recent hints from that court that universal injunctions were becoming the default, at least in certain cases.

Posted by Howard Wasserman on December 14, 2018 at 07:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Tuesday, December 04, 2018

The limits of civil litigation for exposing truth

The past week has brought to light the story of Jeffrey Epstein, a billionaire hedge-fund manager and alleged sexual predator and child rapist. Epstein pleaded guilty to two state felony counts and served 13 months in unusually forgiving conditions, with a federal investigation and prosecution stopped in its tracks by a broad non-prosecution agreement.*

[*] Full disclosure; The former US Attorney at the center of the controversy, now Secretary of Labor Alex Acosta, was my dean from 2009-17.

The story has exploded now for two reasons. First is the Miami Herald's multi-part in-depth reporting on the case. Second is ongoing civil litigation--one case  by Epstein's victims in federal court claiming the federal settlement violated the Crime Victims Rights Act (which gives crime victims certain notice and other rights) and one case in state court by attorney Bradley Edwards. The latter began as a suit by Epstein against Edwards and his former partner, claiming the latter committed fraud, racketeering, and other crimes in investigating Epstein; Edwards filed a counterclaim for malicious prosecution, which remained alive after Epstein dropped his lawsuit. Trial on the counterclaim was scheduled to begin today, with Edwards expected to call at least seven of Epstein's victims to testify. But the case settled as the jury was being selected, with Epstein paying an undisclosed sum, conceding that he attempted to damage Edwards' professional reputation, and apologizing.

This illustrates the limits of civil litigation for exposing misconduct and revealing truth. The victim stories were tangential to this case, which was really about Epstein's conduct in filing the original lawsuit and Edwards' professional reputation. A settlement offer that resolves that central dispute is irresistible, even if it denies the victims the opportunity to tell their stories (the opportunity they claim they were denied by the actions of the U.S. Attorney's office). One perhaps might criticize Edwards for accepting the settlement rather than giving the victims the chance to testify, since that is what he was promoting as the point of the suit. (Following the settlement, he held a press conference outside the courthouse standing in front of the boxes of evidence he said he planned to present). But I doubt there was any way to avoid that. The judge would have pushed Edwards to accept a settlement that included the defending party admitting wrongdoing (as to Edwards, not as to the women) and apologizing. And had Edwards refused to settle, Epstein might have confessed judgment, rendering a trial on liability, and the women's testimony, unnecessary.

The next step is the federal action by the victims themselves. News reports indicate the plaintiffs hope the court will revoke the federal plea deal and allow the government to prosecute Epstein.

Posted by Howard Wasserman on December 4, 2018 at 09:01 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Backing off universality, at least for sanctuary cities

Judge Ramos Southern District of New York enjoined DOJ's sanctuary-city policies in an action brought by New York, Connecticut, New Jersey, Rhode Island, Washington, Virginia, Massachusetts, and New York City.  (H/T: Ilya Somin, who analyzes the substance of the decision).

Ramos declined to make the injunction universal, although not per se rejecting universality. He emphasized that no sanctuary-city injunctions have remained universal through appellate review and that recent decisions have stayed any non-particular application. The court did extend the injunction to each state's municipal subdivisions, concluding that subdivisions suffer the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions." This is the converse of the  Ninth Circuit extending an injunction from party San Francisco to non-party California, because some grant funds sent to California were then distributed to San Francisco. Here, I presume, the state would have to cover any budgetary shortfall caused by the municipality's loss of DOJ funds. Either direction is consistent with the complete-relief requirement. But the court did not accept or apply the broader argument that some states and cities have urged (and that one AG presented during Q&A) that because DOJ has a limited pool of money and the size of the grants varies with the number of applicants, the injunction must be universal so that funds are not disproportionately allocated to non-sanctuary jurisdictions in a way that leaves nothing for sanctuary jurisdictions by the end of litigation.

In any event, this court's approach is a far cry from that of the Ninth Circuit in the DACA litigation, where the court seemed to approach universality as the default.

Posted by Howard Wasserman on December 4, 2018 at 06:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, December 03, 2018

Guest Post: Come On, Justices Gorsuch and Kavanaugh! Doctrinal (and Intemperate) Error in the Timbs v. Indiana Oral Argument

The following post is from Rory Little (UC-Hastings and SCOTUSBlog).

It’s bad enough when a Supreme Court Justice expresses sarcastic impatience with an advocate; even experienced advocates are on edge when they appear in the nation’s highest court. Perhaps even worse when the advocate is a sovereign state’s Solicitor General.  But it really is inexcusable when the sarcasm is based on doctrinal error and thus wrong.  Here’s why that happened in last week’s oral argument in Timbs v. Indiana.

Background on the Timbs case and the Doctrine of Incorporation

The State of Indiana sought to forfeit Tyson Timbs’ $42,000 Land Rover after Timbs use it to transport small amounts of heroin to drug deals.  The Indiana Supreme Court declined to consider whether this violated the Eighth Amendment’s “no Excessive Fines” clause, because the U.S. Supreme Court has never definitively said that that clause is “incorporated” against the states (via the Fourteenth Amendment’s “no state shall” deny Due Process clause).  Whether or not Timbs should lose his vehicle, the Question presented in Timbs may seem easy: the doctrine of incorporation, developed only in the 20th Century, is well-accepted. Most recently the Court ruled in 2010 in McDonald that the Second Amendment’s “right … to keep and bear arms” is incorporated and thereby governs state as well is federal actions.  Although it is surprising to many, the Bill of Rights was originally intended to apply only against the federal government, and for our first 100 years or more it was said to have no application to state actions.  However, after a century of litigation, all rights that are found to be “deeply rooted in this Nation’s history and tradition,” “so as to be ranked as fundamental,” are now said (McDonald) to be “incorporated” against state action as part of due process.  This includes most – but see below, not all – of the Bill of Rights provisions.

The “deeply rooted in this Nation’s history and traditions” test might be well-satisfied by the Eighth Amendment’s command that “excessive fines” shall not be “imposed” -- although the common practice in the early days of our Union of forfeiting entire ships used to run contraband might give an Originalist pause regarding whether a rule against the forfeiture of vessels of crime is in fact so “deeply rooted.”  (As Chief Justice Roberts noted at the Timbs argument “I certainly understand the argument that … with respect to forfeiting instrumentalities of the crime, … [i]t’s always proportionate since it’s the way the crime is accomplished.”)

But one thing is doctrinally clear: not all the rights specified in the Bill of Rights have been incorporated against the States.  For some rights, like the “no Excessive Fines” clause, this might merely be an accident of history.  (One can find a good discussion of “why hasn’t the excessive fines clause already been incorporated?” in the November 26 episode of “First Mondays” with Professors Beth Colgan and Dan Epps”)

The Fifth Amendment’s Grand Jury right has, and for good reason, not been incorporated

But for one Bill of Rights provision in particular – the Fifth Amendment’s right to be charged by a Grand Jury for any “capital or otherwise infamous crime” – the decision to not incorporate is long-standing and quite considered.  Every student and professor of Constitutional Criminal Procedure understands this intentional anomaly.  Yet, as recounted below, it appears to be a “blank spot” in the doctrinal understanding of the Court’s two newest Justices, Gorsuch and Kavanaugh.

By way of quick summary, in 1884 in Hurtado v. California, the Supreme Court ruled in no uncertain terms that the Fifth Amendment’s grand jury provision need not bind the states.  The progressive 1879 Constitution of the young state of California had provided a new system, one viewed as more protective than the old grand jury system, permitting the charging of criminal defendants by a prosecutorial “information.”  California’s then-new Penal Code -- unlike secret, non-judicial, one-sided grand jury proceedings -- permitted the prosecution’s information to be immediately tested by a preliminary hearing, presided over by a judge, providing counsel for the defendant and allowing for cross-examination.  When Joseph Hurtado was charged with murder (and ultimately sentenced to death) based upon an information rather than grand jury indictment, the U.S. Supreme Court viewed it as a “question … of grave and serious import” whether the Fifth Amendment’s grand jury rule should be required, under the Fourteenth Amendment, to apply against the state.  In a thorough opinion (while certainly sounding different in some ways from today), the Court ruled that “progress [and] improvement” is not forbidden by the Fourteenth Amendment, and that California’s information system, with all its additional protections for a defendant, was at least as protective of “principles of liberty and justice” as the grand jury system.

Hurtado has well stood the test of time.  Critics of the federal grand jury system are many.  Meanwhile, over half the states allow criminal charging by information rather than grand jury; and two states (Pennsylvania and Connecticut) have abolished the use of criminal charging grand juries entirely.)  Thus the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause.

Intemperate Doctrinal Error at the Timbs oral argument

This brings us, finally, to Justices Gorsuch and Kavanaugh at the Timbs oral argument (transcript is here).  Justice Gorsuch lit into Indian’s Solicitor General Thomas Fisher (who I do not know) from the start.  He demanded agreement that “the Excessive Fines Clause is incorporated against the states.”  When Fisher resisted (unsurprisingly, since that is the Question Presented), Justice Gorsuch persisted:

 I mean, most of the incorporation cases took place in like the 1940s.” [– this is an erroneous account in itself as virtually all the criminal procedure incorporation case were products of the 1960s Warren Court –]  And here we are in 2018 still litigating incorporation of the Bill of Rights.  Really?  Come on, General.

The audio on this last statement (audio of the argument is here) is undeniably harsh: Justice Gorsuch’s tone is, frankly, unbecoming.

Fisher politely stood his ground, and Justice Kavanaugh took up Gorsuch’s point -- although he at least had the courtesy to pose his view as questions, a fortunate method since in fact he and Justice Gorsuch were wrong:        

Isn’t it too late in the day to argue that any of the Bill of Rights is not incorporated? … [A]ren’t all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?

As you now know, these rhetorical questions and accusations – “Come on, General” -- are flatly, doctrinally, incorrect.  Hurtado stands in their way, fully and after 134 years of careful consideration. 

Conclusion

Why does any other this matter, you may wonder?  Errors must happen all the time even in Supreme Court arguments, right?  Why single these four pages of transcript out?

Two reasons.  First, my perhaps old-fashioned view is that a little bit of humility is a good thing for at least new Supreme Court Justices, especially regarding areas of the law in which they may not have deep experience.  Neither Justice Gorsuch or Kavanaugh has any substantial background in criminal law, and at the D.C. Circuit at least Justice Kavanaugh’s criminal law exposure was not extensive.

Second, and far more important, one must point out doctrinal errors if one can before they leak into published Supreme Court opinions, not after.  It would be a grave error to say, sarcastically or otherwise, that all the rights in the Bill of Rights have been incorporated.  And it would be a far more serious error to suggest that a carefully considered procedure such as criminal information-followed-by-preliminary-hearing charging is somehow in danger of being wiped out by slapdash dicta in a Supreme Court case not even presenting the question.  It is for that reason, and with all respect for the understandably challenging task of being elevated to the Nation’s highest court, that the foregoing is published.

Posted by Howard Wasserman on December 3, 2018 at 11:12 AM in Constitutional thoughts, Criminal Law, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, November 28, 2018

A funny thing happened on the way to the court of appeals

Here is my SCOTUSBlog recap of Tuesday's argument in Nutraceutical Corp. v. Lambert, considering whether the 14-day period for seeking interlocutory review of a class certification order is subject to equitable tolling.

The most notable part of the argument was the humor--the transcript shows eight breaks for laughter, seven during petitioner's argument. Which makes sense, given stated concerns for Martian invasions. I await Jay Wexler's analysis of the case.

Posted by Howard Wasserman on November 28, 2018 at 11:17 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 20, 2018

Universal injunction in asylum-point-of-entry (corrected)

These are coming too quickly to process. The District Court for the Northern District of California issued a universal preliminary injunction (styled a TRO, but done adversarially and scheduled to last more than 14 days) prohibiting the government from enforcing new regulations denying asylum to any persons who present themselves at places other than lawful points of entry.

Unlike the Ninth Circuit in the DACA case, which Sam Bray analyzed, the court did not explain its scope ruling, other than by pointing to three things: facial unconstitutionality; the cert grant in the second travel ban case that allowed the preliminary injunction to stand as to people "similarly situated" to the plaintiffs (before the whole thing became moot); and the relevance of the APA. Sam discusses (with links) the third point and whether the APA really demands universality. The first point relies on Califano v. Yamasaki's "extent of the violation" language, ignoring that Califano involved a nationwide class (and thus a violation of the rights of the class), not the permissible scope of an injunction in an action brought by an individual. The second point continues to get far too much mileage out of loose language in a decision on a stay and granting cert. I have been accused of undervaluing that language, and perhaps I have. But courts are treating it as SCOTUS precedential imprimatur for universal injunctions, which is wait it cannot bear.

Sam argues that courts are close to making universal injunctions the default remedy in cases under APA, immigration cases, and cases with entity plaintiffs. This case supports that position.

Posted by Howard Wasserman on November 20, 2018 at 11:20 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)