June 14, 2007
Bowles v. Russell
Today the Supreme Court affirmed the Sixth Circuit in Bowles v. Russell. After Bowles was denied habeas relief, he failed to file a notice of appeal within the 30-day window. He then moved to reopen the period to file his appeal under Federal Rule of Civil Procedure 4(a)(6). That rule, which implements 28 U.S.C. s2107, allows a district court, under certain circumstances, to "reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered." The district court granted his motion, but extended the appeal period for 17 days instead of 14. Bowles noticed his appeal 16 days later--consistent with the judge's order but more than 14 days after "the date when [the court's] order to reopen is entered.
The Court held that the notice was untimely, the time period was jurisdictional, and that no equitable exception applied:
Like the initial 30-day period for filing a notice of appeal, the limit on how long a district court may reopen that period is set forth in a statute, 28 U. S. C. §2107(c). Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in §2107(c), that limitation is more than a simple claim-processing rule.” As we have long held, when an “appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.” Curry, supra, at 113. Bowles’ failure to file his notice of appeal in accordance with the statute therefore deprived the Court of Appeals of jurisdiction. And because Bowles’ error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance with the statute’s time limitations. ***
Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate.
3 Justices joined Justice Souter's dissenting opinion, which begins:
The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial
system to treat people this way, and there is not even a technical justification for condoning this bait and switch. I respectfully dissent.
In a recent case, Judge Garaufis declined to abstain under the Burford abstention doctrine, concluding that deciding the federal suit would not "disrupt New York's effort to establish a coherent eminent-domain policy." Goldstein v. Pataki, 2007 WL 1654009 (E.D.N.Y., June 6, 2007). The case thoroughly reviews the Burford doctrine's origins and history and is a good resource for folks who want a primer or refresher. --RR
June 12, 2007
Dodson on Erickson
Last week we reported on Erickson v. Pardus, the Court's first pleading decision since Bell Atlantic v. Twombly. Below, Prof. Scott Dodson offers his thoughts on Erickson. Dodson's original thoughts on Bell Atlantic can be found here. --RR
When the Supreme Court issued Bell Atlantic v. Twombly on May 21, there was much discussion about what the case means and how important it is. I was one of the first to blog about it here (along with several others, including Randy Picker, Mike Dorf, Einer Elhauge, and Marty Lederman) and my initial reaction was that the Court changed the pleading landscape in important ways by repudiating the “no set of facts” language of Conley v. Gibson and instituting a “notice-plus” standard under Rule 8.
The debate was just beginning when the Supreme Court issued another pleading opinion on June 4, Erickson v. Pardus, a per curiam summary decision. Now, a new wave of commentary is trying to reconcile the two cases (see here and here and here), and some have suggested that Erickson could be viewed as a “DGCA” (or “Don’t Get Carried Away”) opinion designed to caution against an over-expansive reading of Bell Atlantic.
That may or may not be, and I agree with Amy Howe that the timing of Erickson is suspicious. But, I adhere to my initial view and believe that Bell Atlantic still means exactly what it did the day it was decided: mere notice pleading is no more. And Erickson confirms, rather than questions, that reading.
There have been good summaries of Bell Atlantic in the posts listed above, and I will not repeat them in detail. Suffice it to say that Bell Atlantic interred the familiar language from Conley “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” In its place, Bell Atlantic requires that the complaint provide both notice of the claim and the “grounds” upon which it rests. In the antitrust context of Bell Atlantic, that meant providing some showing to allow the complaint, read as a whole, to set forth a “plausible” claim for relief.
As I blogged in my initial post, Bell Atlantic sets a “notice-plus” pleading standard. Mere notice is no longer sufficient. In fact, in footnote 10, the Court implied that the complaint provided the requisite notice. Where the complaint faltered was on the additional requirement of “grounds,” which require, in the words of Bell Atlantic, “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Justice Stevens, in dissent, picked up on the significance of Bell Atlantic, contrasting its new standard with pure notice pleading.
Thus, I do not see how some can read Bell Atlantic as “not turn[ing] away from notice pleading” or “merely elaborate[ing] on the question what it means for a complaint to give ‘notice,’” or as “quite insignificant.”
Nor do I see how Erickson changes anything. There, a prisoner asserted a § 1983 claim under the Eighth Amendment and alleged (1) that he had hepatitis C, (2) that he was on a one-year treatment program for it, (3) that shortly after the program began the prison officials started withholding the treatment, and (4) that his life was in danger as a result. As Mike O’Shea noted, those allegations are sufficient under any Rule 8 standard. Coupled with the fact that the plaintiff was proceeding pro se, the Court’s reversal of a dismissal for failure to state a claim was a no-brainer. Erickson just doesn’t say much about complaints that approximate mere notice pleading the way the complaint in Bell Atlantic did.
True, Erickson does say that “specific facts are not necessary,” but that was the case in Bell Atlantic, too, as pages 23-24 and note 14 of the slip opinion make clear. “Specific facts” means the particularized pleading reserved for Rule 9 claims. What Rule 8 requires after both Erickson and Bell Atlantic are not specific facts but sufficient facts such that the complaint as a whole makes a “showing” of entitlement to relief.
In short, if Erickson is a warning not to get so carried away as to read Bell Atlantic as authorizing dismissals of complaints like the one in Erickson, then Erickson is not much of a warning at all.
The importance of Erickson, in my view, is that it reaffirms Bell Atlantic’s notice-plus standard. Erickson cites Bell Atlantic for the proposition that the complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Erickson reaffirms that the “no set of facts” language is no longer to be cited and that, instead, the notice-plus-grounds standard of Bell Atlantic controls.
Of course, only time will tell what the two cases actually mean, but we at least can be confident that it will take, in Justice Souter’s words, “sprawling, costly, and hugely time-consuming” litigation to find out.
UPDATE: Professor Dodson has just published more extensive views on Bell Atlantic and Erickson in an essay entitled "Pleading Standards after Bell Atlantic v. Twombly," 93 Va. L. Rev. In Brief 121 (July 9, 2007).
June 11, 2007
More on Watson
Today the Supreme Court unanimously reversed and remanded (as expected), holding that Philip Morris improperly removed under the Federal Officer Removal Act, 28 U.S.C. s1442(a)(1).
Plaintiffs sued Philip Morris in Arkansas state court, alleging that Philip Morris manipulated cigarette testing in violation of Arkansas business laws. How did a state-law suit against a cigarette manufacturer end up before the Supreme Court pursuant to the Federal Officer Removal Act? Philip Morris tested cigarettes like the rest of cigarette manufacturers--pursuant to a testing method developed by the FTC, known as the Cambridge Filter method. Plaintiffs alleged that Philip Morris manipulated this test so that the cigarettes could register low on the Cambridge test, be labeled as light, but then deliver a higher level of tar and nicotine. Philip Morris removed under the Act, arguing that it was "acting under" a federal officer or agency primarily because it was using the FTC-designed testing method and was subject to intense regulation by the FTC.
The issue was one of statutory construction. Under the Act, a defendant can remove if the defendant is the United States, a federal agency, a federal officer, or any person acting under a federal officer or agency. The issue here was the meaning of the words "acting under." The Act obviously contemplates some private persons within its scope. Writing for the Court, Justice Breyer clarifies what "triggering relationship" is needed to authorize a private person to remove under the acting-under language.
The Court started with the Act's history and purpose, tracing its variations from the War of 1812 to the present. The Act's basic purposes are to protect the Federal Government from undue interference with its operations, to avoid state-court bias against enforcement of unpopular federal laws, and to give federal officers a federal forum in which to litigate immunity defenses. The Court provided several examples for when these purposes are served by allowing private individuals to use the Act. For example, in one case, a group of prohibition agents hired a private driver. That driver was prosecuted in state court for acts taken during a distillery raid. The Court noted that allowing a private person to remove furthers these basic purposes "when a private person acts as an assistant to federal officials in helping that official enforce federal law."
Consistent with the purpose and history, the Court determined that a private person acts under a federal officer or agency only when he engages in an "effort to assist, or help carry out, the federal tasks. Mere compliance with law does not constitute assistance or help. Thus,
A highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm's compliance (or noncompliance) with federal laws, rules, or regulations does not by itself fall within the scope of the statutory phrase "acting under" a federal official. And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries.
The Court then rejected two of Philip Morris's arguments. First, Philip Morris analogized this case to the cases involving government contractors that have been allowed to remove when there is a close monitoring and supervisory relationship between the contractor and the government. The Court rejected this argument via the compliance-versus-assistance distinction, noting that the contractors were helping the government perform a function and produce an item that it needs, rather than just complying with detailed regulations. And second, based on a lack of record evidence, the Court rejected Philip Morris's argument that the FTC had "delegated" testing responsibilities.
This reversal was as unsurprising as the Eighth Circuit's unanimous ruling below was surprising. What's important? The case is important because it clarifies the "triggering relationship" needed before a private person can remove under the "acting under" language. A link to the full decision is here. --RR
9-0 reversal in Watson v. Philip Morris
The Supreme Court ruled unanimously on Monday that a lawsuit against a private company cannot be shifted to federal court from state court merely because the company was acting under federal agency regulations. The ruling came in Watson v. Philip Morris (05-1284).
The promised follow-up appears here.