September 19, 2009
Federal Judge Resigns Due to Low Salary
The problem of low salary for federal judges has been widely discussed. This week, the severity of the problem was highlighted by the announcement by United States District Judge Stephen Larson of the U.S. District Court for the Central District of California that he would resign on November 2. In his statement, Judge Larson explained that Congress's failure to increase judicial salaries had made it impossible for him to support his family. Judge Larson stated:
"The costs associated with raising our family are increasing significantly, while our salary remains stagnant and, in terms of purchasing power, is actually declining. The short of it is that I know I must place my family's interest, particularly the future of my children, ahead of my own fervent desire to remain a federal judge."
"He's a young, active judge. . . . [W]e're now having the problem of retaining active judges who are expected to give many more years of service."
September 18, 2009
The Alien Tort Claims Act in the National Law Journal & 11th Circuit (plus more Iqbal)
For readers interested in claims brought under 28 U.S.C. 1350 [a.k.a. the Alien Tort Claims Act (ATCA) or Alien Tort Statute (ATS)], this week's National Law Journal contains a column Alien Tort Claims Act cases keep coming.
Also, a recent decision from the 11th Circuit applies Ashcroft v. Iqbal (as well as Bell Atlantic Corp. v. Twombly) to ATCA claims. See Sinaltrainal v. Coca Cola Co., No. 06-15851, 2009 WL 2431463, 2009 U.S. App. Lexis 17764. With respect to the plaintiffs' allegations that paramilitary forces in Colombia had acted under color of law, the court wrote (citations to cases other than Iqbal and Twombly omitted):
The plaintiffs' conclusory allegation that the paramilitary security forces acted under color of law is not entitled to be assumed true and is insufficient to allege state-sponsored action. See Iqbal, 129 S.Ct. at 1951. Colombia's mere registration and toleration of private security forces does not transform those forces' acts into state acts. Allegations the Colombian government tolerated and permitted the paramilitary forces to exist are insufficient to plead the paramilitary forces were state actors. The plaintiffs make the naked allegation the paramilitaries were in a symbiotic relationship with the Colombian government and thus were state actors. Nevertheless, in testing the sufficiency of the plaintiff's allegations, we do not credit such conclusory allegations as true. See Iqbal, 129 S.Ct. at 1951. We demand allegations of a symbiotic relationship that involves the torture or killing alleged in the complaint to satisfy the requirement of state action. There is no suggestion the Colombian government was involved in, much less aware of, the murder and torture alleged in the complaints. The plaintiffs' “formulaic recitation,” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965, that the paramilitary forces were in a symbiotic relationship and were assisted by the Colombian government, absent any factual allegations to support this legal conclusion, is insufficient to state an allegation of state action that is plausible on its face. See Iqbal, 129 S.Ct. at 1950.
On the allegations that one defendant's chief of security, Aponte, had conspired with local police officials, the court wrote (citations other than Iqbal and Twombly omitted):
Here, the Garcia plaintiffs' attenuated chain of conspiracy fails to nudge their claims across the line from conceivable to plausible. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. First, while the plaintiffs allege “Aponte's plan necessarily required the cooperation and complicity of the arresting police officers,” we are not required to admit as true this unwarranted deduction of fact. Second, the plaintiffs' allegations of conspiracy are “based on information and belief,” and fail to provide any factual content that allows us “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Specifically, these plaintiffs allege “[t]he basis for the conspiracy was either that Aponte arranged to provide payment to the officers for their participation, or that the officers had a shared purpose with Aponte to unlawfully arrest and detain Plaintiffs because they were union officials and had been branded by Panamco officials as leftist guerillas.” The premise for the conspiracy is alleged to be either payment of money or a shared ideology. The vague and conclusory nature of these allegations is insufficient to state a claim for relief, and “will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
Furthermore, the complaint fails to allege when or with whom Aponte entered into a conspiracy to arrest, detain, and harm the plaintiffs. The scope of the conspiracy and its participants are undefined. There are no allegations the treatment the plaintiffs received at the hands of the local police and in prison was within the scope of the conspiracy. Additionally, assuming Aponte even conspired with the local police to arrest the plaintiffs, this action alone is insufficient to form the basis of an ATS claim, and there is no allegation the subsequent six-month imprisonment and mistreatment was part of the conspiracy. The Garcia plaintiffs, thus, fail to state a plausible claim for relief against the Panamco Defendants for a violation of the law of nations.
September 17, 2009
Shortage of Jurors in Canada
Courts in New Brunswick, Canada are finding it difficult to seat juries. Recently a justice of the Court of Queen’s Bench asked that 2000 jury summonses be sent for a trial that would ordinarily only require 350. Officials blame the economy and the low fee paid to jurors, who receive $20 (about $18.50 U.S.) for ½ day or $40 (about $37 U.S.) for any day of service that exceeds 4 hours. This is lower than some Canadian provinces pay jurors, and so officials worry that New Brunswickers may feel under-compensated for their services. Consequently, New Brunswick would like to raise juror fees as soon as the province can afford higher fees.
For more about this story, see here.
Iqbal and the birthers
A federal district judge in Georgia has dismissed a suit brought by one of the now imfamous "birthers" on grounds of abstention and implausibility. The plaintiff, a member of the armed services, sought a temporary restraining order to prevent deployment to Iraq because President Obama is "not constitutionally eligible" to act as commander in chief.
The judge seemed to take particular joy in quoting some of the more fanciful allegations in the complaint: "In further support of her claim, Plaintiff relies upon 'the general opinion in the rest of the world' that 'Barack Hussein Obama has, in essence, slipped through the guardrails to become President.'"
Further coverage is available at the Huffington Post.
Mulligan on Boumediene's second holding
In this essay, I take up the Court's less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story's position that the Constitution requires vesting of jurisdiction in the lower federal courts to hear executive-detention habeas corpus cases sub silentio. In considering alternatives to this bold conclusion, I deploy newly uncovered opinions from Supreme Court justices to consider whether justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address these issues directly, and, finally, whether the need for an independent finder of fact is well grounded in constitutional doctrine. I conclude with the prediction that Boumediene’s rejection of the Madisonian Compromise in the factfinding holding, not its scope of the habeas writ decision, will come to be Boumediene's longest lived legacy for federal-courts law.
September 16, 2009
D.C. Circuit to close oral argument on Guantanamo detainee to the public
As the Blog of the Legal Times reports, judges Ginsburg, Henderson, and Edwards ruled that oral argument in the case of Belkacem Bensayah, an alleged enemy combatant arrested in Bosnia and held at Guantanamo Bay, will be closed to the public. The ruling came at the request of the government so that the panel could hear and discuss classified materials during oral argument.
Note an interesting (and perhaps troubling) aspect of the ruling in the very last sentence of the news report: a lawyer for another detainee will also be barred from watching oral argument from the gallery.
State Damage Cap Reduces $15 Million Verdict to $619,000
Michigan's cap on medical malpractice awards numbed the pain of a $15 million verdict for one oral surgeon. The whopping jury verdict fizzled down to $619,000 due to Michigan's cap, which limits pain and suffering at $410,800. For the plaintiff's lawyer, the cap was a tough pill to swallow. "It makes jury verdicts useless," said Robert Gittleman.
September 15, 2009
Famous for being famous, and for generating precedent on pendent appellate jurisdiction: Paris Hilton in the Ninth Circuit
Her bid for the presidency may have failed, but Paris Hilton has found a way short of the appointments power to have an impact on the federal judiciary.
Ms. Hilton sued Hallmark Cards over a Hallmark birthday card that featured the plaintiff and her "that's hot" catch-phrase. Although the district court dismissed Hilton's trademark infringement claim, it denied the rest of Hallmark's motion to dismiss and denied Hallmark's motion to strike under California's anti-SLAPP statute. Hallmark appealed to the Ninth Circuit, leading to this recent decision in Hilton v. Hallmark Cards, No. 08-55443, 2009 WL 2710225, 2009 U.S. App. LEXIS 19571.
Readers interested in the appealability of interlocutory orders should certainly take a look at Part II of the opinion. Although the district court's anti-SLAPP order was appealable under the collateral order doctrine, appellate review of other rulings -- the refusal to dismiss Hilton's Lanham Act and misappropriation of publicity claims -- hinged on whether those rulings were "inextricably intertwined" with the immediately appealable anti-SLAPP order. They weren't, according to the panel.
In any event, the opinion's amusingly pithy descriptions of the plaintiff and some of her cultural accomplishments are worth a read. Part I begins:
Paris Hilton is a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is "famous for being famous." She is also famous for starring in "The Simple Life," a socalled reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work. In an episode called "Sonic Burger Shenanigans," Hilton is employed as a waitress in a "fast food joint." As in most episodes, Hilton says, "that's hot," whenever she finds something interesting or amusing.
September 14, 2009
Taussig on Class Actions in Israel
Eran Taussig has posted the paper Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Standard in Class Action Proceedings.
This paper suggests that using the concept of "good faith", as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called "sweetheart settlements", in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the American class action mechanism. In making this argument, the paper also considers both the larger legal and socio-political contexts - specifically the role that litigation plays in the American and Israeli societies.
Constitutional Challenge to Military Commission Trials
In a brief order, the D.C. Circuit Court asked the Obama administration to respond by noon tomorrow (Tuesday) in a case raising a constitutional challenge to the 2006 law providing authority for military commission trials. SCOTUS Blog summarizes Ramzi Bin Al-Shibh’s claim as follows: "Filed in the form of a petition for a 'writ of mandamus and writ of prohibition,' the document contended that the new system of terrorism trials has been unconstitutional since Congress set it up in 2006. Congress had no authority to create the commission system, and the act, as written, unconstitutionally treats aliens charged with terrorism crimes differently from the way U.S. citizens would be, it asserted."
SCOTUS Blog provides more details here: http://www.scotusblog.com/wp/sweeping-attack-on-terrorism-trials/#more-10710.
And, here is the complaint: http://www.scotusblog.com/wp/wp-content/uploads/2009/09/Bin-Al-Shibh-filing-9-9-09.pdf.
September 13, 2009
Hot off the Presses: Recently Published Articles of Interest
With a hat tip to last week's Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Attorneys' fees in class actions
The Initial Public Offering Litigation pending before Judge Scheindlin in the S.D.N.Y. has produced plenty of controversy over the past several years. The latest installment is a fight over the calculation of attorneys' fees. The grounds are familiar: are the plaintiffs' attorneys entitled to the sum, or have agency problems and poor incentives led the attorneys to demand too high of a sum?
The New York Law Journal reports here.