April 14, 2011
Providing a Venue: DDC Opinion Raises Specter of No Proper Venue for Plaintiffs Seeking Declarations of Citizenship Based on Circuit Split
Circuit splits are always troubling because they can lead to inequitable results in different jurisdictions. For instance, in a recent post, I noted that there is a circuit split over whether to apply the first- or last-served rule for removal, which means that defendants in jurisdiction A might be able to remove a case from state court to federal court while defendants in jurisdiction B would be stuck in state court. But at least these latter defendants could have their case heard in some court. The recent opinion of the United States District Court for the District of Columbia in Roman-Saldago v. Holder, 730 F.Supp.2d 126 (D.D.C. 2010), however, raises the specter of a different circuit split leaving some cases in which plaintiffs cannot have their cases heard in any court. If this is correct, the Supreme Court should step in immediately and resolve the split.
In Roman-Saldago, an immigration detainer was placed on the record of inmate Lamberto Roman-Saldago, subjecting him to likely deportation to Mexico upon the completion of his sentence. Roman-Saldago is serving his sentence at the Beaumont Federal Correctional Institution in Beaumont, Texas, and he resided in Highland Park, Illinois, before being incarcerated. Roman-Saldago brought an action pursuant to 8 U.S.C. Section 1503(a) against Attorney General Eric Holder seeking a declaratory judgment that he is a citizen or a national of the United States.
The defendant thereafter moved to dismiss under Federal Rule of Civil Procedure 12(b)(3) based upon improper venue. The United States District Court for the District of Columbia agreed that it was an improper venue. The court acknowledged that it would be a proper venue under 28 U.S.C. Section 1391(b)(2) because the Attorney General resides in D.C., but it found that this general venue provision was trumped by the special venue provision in 8 U.S.C. Section 1503(a), which requires that an action brought pursuant to it be brought "in the district court of the United States for the district in which [the plaintiff] resides or claims a residence."
Because it was not a proper venue, the court had to decide under 28 U.S.C. Section 1406(a) whether to dismiss the action "or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought." And, according to the court, "[g]enerally, the interest of justice requires transferring such cases to the appropriate judicial district rather than dismissing them." This, however, was not one of those cases. Why?
Well, the court noted that the D.C. Circuit
has held that for purposes of venue, "a prisoner has his residence at his place of confinement."...Thus, under the law of this Circuit, the proper venue for this action is the Eastern District of Texas, the district in which the plaintiff is confined....According to the Fifth Circuit, however, a prisoner retains his pre-incarceration residence regardless of his place of incarceration....Thus, under the law of the Fifth Circuit, the proper venue for this action would be the Northern District of Illinois, where the plaintiff claims to have resided prior to his incarceration. Accordingly, if the court were to transfer this case to the Eastern District of Texas, that court would have no choice but to dismiss the case for improper venue or transfer the case to the Northern District of Illinois....
The Northern District of Illinois will eventually be the forum for this case because the Seventh Circuit, which includes the Northern District of Illinois, concurs with the Fifth Circuit rule regarding the residence of inmates....Thus, a court in that Circuit would presumably conclude that the plaintiff continues to reside in the Northern District of Illinois and did not become a Texas resident for venue purposes by virtue of his incarceration there....Unfortunately, however, it appears that this court cannot simply transfer this case to the Northern District of Illinois because, even though that court would apparently consider itself a proper venue,...this court is bound by Circuit precedent to conclude that the Northern District of Illinois is an improper venue and therefore not an eligible transferee district.
Therefore, the court found that the interest of justice required it to dismiss the action so that the plaintiff could re-file his action in the United States District Court for the Northern District of Illinois. Undoubtedly, this caused an inconvenience for the plaintiff, but it is an inconvenience suffered by plaintiffs in numerous cases who have their actions dismissed under 28 U.S.C. Section 1406(a).
But what if the facts were slightly different? In a footnote in its opinion,
The court note[d] that it [wa]s purely providential that there [wa]s any forum with venue over this case, making this disagreement between the Circuits a particularly problematic one. If, for example, the plaintiff had been a resident of the District of Columbia before being incarcerated in Texas, then there would be no forum in which he could bring his suit, because courts in this Circuit would view him as a Texas resident while the courts in the Fifth Circuit would view him as a resident of the District of Columbia.
Does anyone else find this footnote disturbing? What would happen in such a case? I picture something similar to what plays out in Tom McCarthy's "The Visitor," a film (partially) about an immigrant getting chewed up in the gears of the Kafka-esque immigration machinery. And, even if the scenario mentioned in the footnote doesn't arise with much frequency, it seems to be one that demands immediate attention from the Supreme Court if it is even a possibility.
April 13, 2011
Announcing a New Jotwell Section: Courts Law
Jotwell, the Journal of Things We Like (Lots), is intended to provide a space where legal scholars can go to identify and celebrate the latest work of their colleagues. The goal is to help Jotwell’s readers locate interesting developments both inside and outside of their particular areas of interest and to encourage positive reviews and discussion of legal scholarship.
The first contribution for the Courts Law section is Evidence Meets Civil Procedure by Howard Wasserman (Florida International). Howard's essay discusses the recent article by Michael Pardo (Alabama), Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C. L. Rev. 1451 (2010). Watch for contributions in the coming months from the roster of Courts Law editors, after the jump:
- Sergio J. Campos
- Brooke D. Coleman
- Lee Epstein
- Lonny Hoffman
- Suzette M. Malveaux
- James E. Pfander
- Suzanna Sherry
- Suja A. Thomas
- Jay Tidmarsh
- Steve Vladeck
- Kevin C. Walsh
Battle of the Bulge: DNJ Applies Rule 4(k)(1)(B)'s "Bulge Rule" to Avoid Ping Pong Litigation
Under Federal Rule of Civil Procedure 4(k)(1)(B) Federal Rule of Civil Procedure 4(k)(1)(B), the so-called "bulge rule,"
Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant...
who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued....
After looking for a while for a good case to explain this "bulge rule" to students, I finally came across Tatar v. Levi, 2010 WL 3740610 (D.N.J. 2010), in which the United States District Court for the District of New Jersey applied Rule 4(k)(1)(B) in part because it found that "this case is not a ping pong ball to be batted back and forth between the Eastern District of Pennsylvania and the District of New Jersey."
In Levi, Serdar Tatar, a pretrial detaineee confined at the Philadelphia Detention Center (FDC Philadelphia) on criminal charges in the District of New Jersey, brought an action against the Federal Bureau of Prisons (BOP) in the United States District Court for the Eastern District of Pennsylvania. Judge Jan E. DuBois thereafter transferred the action to the United States District Court for the District of New Jersey. Tatar then
filed an Amended Complaint against the BOP and eight BOP officials at FDC Philadelphia...Serdar Tatar's allegations in the Amended Complaint may be summarized as follows: (a) defendants were aware that co-defendant Dritan Duka had threatened Serdar Tatar with physical harm on February 11, 2008; (b) defendants thereafter failed to take reasonable action to protect Serdar Tatar from Duka; (c) on March 10, 2008, Dritan Duka physically attacked and injured Serdar Tatar; (d) defendants deliberately failed to provide Serdar Tatar with nutritionally adequate meals since May 7, 2007, in order to purposefully weaken him; (e) corrections officer Hadalgo strip searched Serdar Tatar on October 10, 2008, and December 20, 2008, in a manner that humiliated Tatar and offended his religious beliefs; (f) Hadalgo tried to prevent Serdar Tatar from submitting an administrative remedy regarding the strip searches; and (g) Serdar Tatar exhausted administrative remedies before the BOP.
A United States Marshal subsequently served the amended complaint on the eight BOP officials at FDC Philadelphia, which is 3.1 miles from the United States District Court for the District of New Jersey. Several of these officials thereafter moved, inter alia, to dismiss or transfer the amended complaint based upon lack of personal jurisdiction because "from the time Plaintiff was incarcerated at FDC Philadelphia until the present time, they have resided in Philadelphia and worked at FDC Philadelphia, and they do not own real property or otherwise have a business interest in the State of New Jersey."
The court disagreed, finding that
In this case, these defendants are federal employees who work at FDC Philadelphia, a federal facility designated to house pretrial detainees for the District of New Jersey....FDC Philadelphia, located at 700 Arch Street, Philadelphia, Pennsylvania, is 3.1 miles away from this Court. It is foreseeable that District of New Jersey detainees might bring civil rights cases regarding conditions of confinement at FDC Philadelphia in the District of New Jersey, the court that ordered their pretrial detention. Moreover, it is foreseeable that the BOP, a national agency, might transfer defendants from FDC Philadelphia to one of the BOP facilities in New Jersey....Under these circumstances, this Court finds that defendants have minimum contacts with the State of New Jersey and the 100-mile bulge area surrounding the Camden vicinage, such that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"....
In addition, this Court has personal jurisdiction over defendants...pursuant to Rule 4(k)(1)(A) and (k)(1)(B). This Court has personal jurisdiction over these defendants under Rule 4(k)(1)(A) because they have minimum contacts with the State of New Jersey, as set forth above. This Court has personal jurisdiction over these defendants under Rule 4(k)(1)(B), since they were served within 100 miles of Camden, New Jersey, they have minimum contacts within that 100-mile bulge area, and they are necessary parties under Rule 19. Because this Court has personal jurisdiction over defendants, consistent with due process of law and Rule 4(k)(1), this Court will deny defendants' motion to dismiss or transfer the action back to the Eastern District of Pennsylvania for lack of personal jurisdiction.
Or, as the court put it in the introduction to its opinion, it denied the motion to dismiss or transfer because because "this case is not a ping pong ball to be batted back and forth between the Eastern District of Pennsylvania and the District of New Jersey..."
April 12, 2011
Oman on Litigation as Vindication of Honor
Professor Nathan Oman (William & Mary) has posted on SSRN a draft of his article The Honor of Private Law. Here’s the abstract:
While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: The vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. The justification of civil recourse must answer three questions. First, under what circumstances – if any – is one justified in acting or retaliating against a wrongdoer? Second, under what circumstances does the state have reasons for providing a mechanism for such action? Finally, how are the answers to these questions related to the current structure of our private law? This Article offers the vindication of wronged honor as an answer to these three questions. First, I establish the historical connection between honor and litigation by looking at the quintessential honor practice, dueling. Then I argue that the vindication of honor is normatively attractive. I do this by divorcing the idea of honor from unsavory associations with violence and aristocracy, showing how it can be made congruent with certain core modern concerns. In particular, when insulted parties act against wrongdoers, they reestablish the position of respect and equality that the insult upset. I then show how having the state provide plaintiffs with a means of vindicating their honor avoids making the political community complicit in the humiliation of its citizens and provides those citizens with a means of exercising their agency in ways that provide a foundation for self-respect. Finally, I show those areas of private law where honor operates most powerfully as a justification for providing recourse through the courts while acknowledging that it operates less powerfully as a reason in other areas.
(Hat Tip: Concurring Opinions)
April 11, 2011
Sherry on Erie as the Worst Decision of All Time
We covered earlier the symposium at Pepperdine on the most maligned decisions in Supreme Court history. Professor Suzanna Sherry (Vanderbilt) has posted on SSRN a draft of her contribution to that symposium, entitled Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time. Here's the abstract:
This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the usual suspects.
I begin, in Part I, by setting out the three criteria that I believe must be satisfied for a decision to qualify as the worst of all time. I also explain briefly why each of the usual suspects fails to meet one or more of those criteria. The heart of the essay is Part II, examining in detail how Erie satisfies each of the three criteria. I close with some concluding thoughts on the surprising relationship between Erie’s flaws and those of the other suspects.
Complete Disconnect: Does It Make Sense To Apply A Due Process-Based Personal Jurisdiction Test to Aliens?
I recently read a couple of interesting opinions, and a juxtaposition of the two raises a thought-provoking question, one addressed by Austen L. Parrish in his excellent article, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, 41 Wake Forest L. Rev. 1 (2006). The first of these was Doe v. United States, 95 Fed.Cl. 546 (Fed.Cl. 2010), in which the United States Court of Federal Claims concluded that an Iraqi plaintiff did not have standing to raise, inter alia, a Fifth Amendment takings claim based upon occupation of his home by the U.S. military because he did not have substantial connections to the United States. The second of these was GSS Group Ltd. v. National Port Authority, 2011 WL 1195775 (D.D.C. 2011), in which the United States District Court for the District of Columbia concluded that it could not exercise personal jurisdiction over a Liberian defendant because it lacked sufficient minimum contacts with the United States. So, can these two opinions be reconciled?
The reason for the court's conclusion in Doe was United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which the Supreme Court found that the Fourth Amendment did not apply to the search of the Mexican residence of a Mexican defendant by DEA agents. In rejecting the defendant's citation to a series of cases in which it had held that aliens enjoy certain constitutional rights, the Court distinguished these cases, holding that they "establish[ed] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country." Because the Iraqi plaintiff in Doe, like the Mexican defendant in Verdugo-Urquidez, lacked substantial connections to the United States, he lacked standing to raise a Fifth Amendment takings claim.
Meanwhile, in GSS, the GSS Group, Ltd. filed a petition for the confirmation of arbitration awards against the National Port Authority (NPA), a Liberian public corporation, in the United States District Court for the District of Columbia. In response, the NPA, inter alia, moved for dismissal, claiming that the court could not "constitutionally exercise personal jurisdiction over the NPA because the NPA does not have the requisite 'minimum contacts' with the United States." The court agreed, finding that GSS had "not demonstrated, [n]or even attempted to demonstrate, that the [NPA] has any contacts with the United States," meaning that the court could not exercise personal jurisdiction over it.
In reaching this conclusion, the court found that the NPA was independent from its sovereign, meaning that "the rule that a foreign government has no due process rights [wa]s not applicable to the NPA." Moreover, the court rejected GSS' argument that "that the NPA nevertheless lacks due process rights because 'there is no [constitutional] distinction to be drawn...between agencies controlled by a foreign state and agencies managed independently of the foreign state.'" According to the court,
Although this argument seems counterintuitive, GSS purports to find support for it in dicta in TMR Energy Ltd. v. State Property Fund of the Ukraine. While ruling in that case that a foreign instrumentality that functions as an agent of its sovereign has, like the sovereign itself, no due process rights, the court of appeals noted that "[i]t is far from obvious that even an independent [instrumentality] would be entitled to the protection of the [F]ifth [A]mendment." TMR Energy Ltd. v. State Property Fund of the Ukraine, 411 F.3d at 302 n.*. The court accompanied that statement with citations to cases in which the Supreme Court or the court of appeals had held that aliens without connections to the United States could not claim the benefit of constitutional protections. Id. (citing United States v. Verdugo-Urquidez, 494 U.S. 259 U.S. 259, 271 (1990); Jiffy v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004)).
The court of appeals' passing comment is well taken. It is not clear why foreign defendants, other than foreign sovereigns, should be able to avoid the jurisdiction of United States courts by invoking the Due Process Clause when it is established in other contexts that nonresident aliens without connections to the United States typically do not have rights under the United States Constitution. Accord TMR Energy Ltd. v. State Property Fund of the Ukraine, 411 F.3d at 302 n.* ("[A]lthough courts often assume the minimum contacts test applies in suits against foreign 'persons,' that assumption appears never to have been challenged."); see also Austen L. Parrish, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, 41 Wake Forest L. Rev. 1, 7 (2006) ("[T]he assumption that the same due process considerations apply equally to nonresident, alien defendants as to domestic defendants in the personal jurisdiction context is doctrinally inconsistent with broader notions of American constitutionalism."). Nevertheless, while the notion that the minimum contacts test must be satisfied before a court can exercise personal jurisdiction over a foreign nonresident defendant may coexist uneasily alongside other elements of constitutional theory, the notion is enshrined in law, including, as noted, Supreme Court precedent. This Court therefore is in no position to reject it.
But should the court have rejected it? That's the premise of Parrish's article, cited at the start of this post and in the court's opinion. In the article, Parrish notes that before the passage of the Fourteenth Amendment,
jurisdictional limits were a matter of common law, derived from international legal principles. Under international law, territorial jurisdiction "arose among a band of independent sovereigns, limited in what they could do, but more importantly limiting themselves in what they would do in order to avoid stepping on the others' toes." In the United States, jurisdiction was based on territoriality: a theory derived from Dutch scholars holding that "each sovereign had jurisdiction, exclusive of all other sovereigns, to bind persons and things present within its territorial boundaries." Jurisdiction was not a matter of constitutional law. To the extent the Constitution was relevant to jurisdictional precepts, only the Full Faith and Credit Clause was important, and the Supreme Court drew on international law to interpret it. The Full Faith and Credit Clause required states to recognize, without reexamination, sister-state judgments so long as the judgment remained faithful to international jurisdictional rules. These jurisdictional principles of international law were adopted in numerous early cases.
Indeed, even after the Amendment's passage, the Court's opinion in Pennoyer v. Neff, 95 U.S. 714 (1877), "was still faithful to the then existing international law," but by "rel[ying] on the Fourteenth Amendment's Due Process Clause...[,] it exalted the "theory of territorial sovereignty" to the status of constitutional doctrine." But, when it later decided International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Court went "all-in" with the Fourteenth Amendment and kicked the strict territoriality-based approach to jurisdiction to the curb.
So, even though aliens usually cannot assert Constitutional rights if they lack substantial connections with the United States, they can claim that the exercise of personal jurisdiction over them would violate Due Process if (1) they lack minimum contacts with the U.S., or (2) more commonly, the exercise of personal jurisdiction over them would be unreasonable/unfair. So, does this make sense?
According to Parrish, the answer is "no," and he presents two proposals for alien personal jurisdiction, one which recalibrates the current Due Process test and one which abandons it altogether. With the first approach,
the change would come in how courts apply the fair play and substantial justice factors. Convenience and the defendant's burden should play little to no role in the jurisdictional analysis when the defendant is foreign, while state interests must play a greater role. Courts should refrain from making jurisdictional decisions based on the closeness of the foreigner to the forum state, or the availability of modern communications, or other superficial considerations such as the availability of discount plane tickets. Instead, the fair play and substantial justice factors, set forth in Asahi, should determine whether jurisdiction would be reasonable as that term is understood under international principles. Under this approach, courts would take much more to heart Asahi's cautions that international cases raise unique concerns. Special care would be given to ensure that jurisdiction is not exercised when the case implicates foreign relations. The immediate effect would be that courts would exercise jurisdiction in fewer instances, even when minimum contacts are met.
To the extent a foreign defendant's burden or inconvenience is accounted for, it should weigh against asserting jurisdiction when the case is likely to involve significant substantive or procedural differences unique to U.S. litigation. Generally, however, convenience concerns should be addressed solely at the sub-constitutional level utilizing venue and forum non conveniens.
Of course, under this approach, there still wouldn't be personal jurisdiction over defendants like the NPA which lack minimum contacts with the United States, and Parrish himself acknowledges that "this approach would not solve the deep-rooted problems present in the U.S. jurisdictional rules, but would be a first, small step in the right direction."
Parrish's more radical approach would
decouple the personal jurisdiction analysis from the Constitution altogether. This does not mean that as a nation we should turn back to Pennoyer's overly formalistic rules. Instead, what courts must do is appreciate the concept of reciprocity between sovereigns and understand the comparative standards for exercising jurisdiction in foreign legal systems. Like in the pre-Pennoyer days, notions of comity and the sovereign rights of foreign states, or other legislatively created restrictions, would limit jurisdiction.
As a matter of policy, the decoupling of personal jurisdiction from due process would be sensible. Several commentators have explained the policy benefits of deconstitutionalizing personal jurisdiction law, and there is no reason to rehash them here. At the very least, "we should pause before concluding that our government is constitutionally disabled from asserting jurisdiction over foreigners under circumstances in which other countries consider it entirely appropriate." Moreover, it would allow the United States to approach jurisdictional rules pragmatically, "unencumbered by the theoretical musings that dominate the American jurisdictional landscape." The only limits imposed would be those broad ones of international law to respect foreign state interests: interests that many cases will not implicate.
Because the jurisdictional limits sovereignty imposes are meager, in a deconstitutionalized personal jurisdiction world, legislative choices, in the form of a treaty, would be necessary to sensibly regulate jurisdiction. Personal jurisdiction cannot be a "free-for-all, unregulated phenomenon," and this Article does not suggest otherwise. The deconstitutionalizing of jurisdiction would, therefore, presumably refresh the need to reach agreement on a multilateral judgments treaty.
So, is this latter approach something that courts might adopt or something that courts like the United States District Court for the District of Columbia might mention in passing but feel like they are in no position to adopt? Well, according to Parrish,
Untethering personal jurisdiction analysis from the Due Process Clause, when the case involves alien defendants, is not as radical as might be first thought. Those scholars who have urged the Supreme Court to stop speaking of personal jurisdiction in constitutional terms face a significant hurdle: well over a hundred years of consistent precedent--since Pennoyer in 1877--holding that jurisdictional principles are constitutionally derived. But comparatively, no long-held precedent exists when the case involves nonresident aliens. The Supreme Court has only decided four personal jurisdiction cases involving foreign defendants. In none of these cases was the issue directly addressed or even litigated. And the cases the Court has decided could easily be limited to their unique facts.
Moreover, Parrish reads the tea leaves and concludes that such a change in approach could be in the cards when and if the Supreme Court resolves this issue. He notes that
in Burnham, the Court demonstrated its willingness to veer from precedent to arrive at what it believed to be a doctrinally and historically consistent result. Justice Scalia argued that history, antedating the Fourteenth Amendment, sanctioned transient jurisdiction, that International Shoe adhered to "traditional notions" of jurisdiction, and that nothing is more traditional that transient or "tag" jurisdiction. International sovereignty principles have a similarly impressive historical lineage and are certainly traditional in the truest of senses. Second, in both International Shoe and Shaffer v. Heitner, the Court was willing to reexamine jurisdictional precepts and craft new, previously unapplied jurisdictional rules. As Justice Brennan once explained, "[the court was] willing in Shaffer to examine anew the appropriateness of the quasi-in-rem rule--until that time dutifully accepted by American courts for at least a century" And of course, long practice does not necessarily make good law. Lastly, the Court itself seems to be well aware of the shortcomings of its own jurisprudence, which bode well for change.
I agree with Professor Parrish and would add that I find the juxtaposition of two other things to be odd. As noted, courts have difficulty finding personal jurisdiction over aliens. But once there is such jurisdiction, 28 U.S.C. Section 1391(d) provides that "[a]n alien may be sued in any district." Now, obviously, personal jurisdiction and venue are two separate concepts, but it seems strange to me that courts treat these concepts so differently. And, I think that Professor Parrish's proposal closes the gap between the two.