May 26, 2011
Fifth Circuit Quorum Conundrum Revisited: Proposed Rule Amendment on Grants of En Banc Review
We covered earlier the strange turn of events in Comer v. Murphy Oil USA, a class action lawsuit against several chemical and energy companies alleging that their operations “caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina.” Here's how things unfolded:
(1) District court dismisses the case on political question grounds.
(2) Fifth Circuit panel reverses [585 F.3d 855 (2009)] and remands for further proceedings.
(3) En Banc Fifth Circuit grants rehearing, which automatically vacated the panel opinion. Due to several recusals, only nine of the sixteen judges voted.
(4) An additional Fifth Circuit judge is recused, leaving only eight judges—one less than a quorum—to hear the case en banc.
(5) A majority of the quorum-less en banc Fifth Circuit reinstates the district court’s order dismissing the case. It does not reinstate the validly issued Fifth Circuit panel decision that had reversed the dismissal. It reasoned:
This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3. Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.
The Fifth Circuit has now proposed an amendment that would prevent this situation from arising in the future. New Fifth Circuit Rule 41.3 would read:
41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. § 46(c).
(Hat Tip: How Appealing)
May 25, 2011
Injunctions? Merits? Hangover?
For those of you anxiously awaiting the opening of the movie Hangover 2, there is some civ pro-oriented entertainment to keep us occupied in the meantime. In the movie, Ed Helms' character wakes up in Bangkok with a face tattoo that mirrors Mike Tyson's (who also appears in this film). The artist who designed Tyson's face tattoo sued Warner Brothers for copyright infringement. Although the federal judge refused to grant an injunction which would bar the opening of the movie, he has stated that litigation on the merits can indeed go forward.
May 24, 2011
Decision of Interest: Fifth Circuit on Mandamus Review of District Court's Refusal to Remand
Last week the U.S. Court of Appeals for the Fifth Circuit issued a decision in In Re Crystal Power Co., Ltd. (No. 11-40115). In March the same panel had issued a writ of mandamus instructing the district court to remand the case to state court (2011 WL 944371). The more recent decision (2011 WL 1833874) withdraws that order and denies the mandamus petition. With some very robust footnotes omitted, Judge Patrick Higginbotham writes:
We are now persuaded that the petition does not meet the stringent demands of the All Writs Act for extraordinary relief. Supreme Court precedent does not ordinarily allow mandamus review of district court decisions that, while not immediately appealable, can be reviewed at some juncture. The Court has instructed that our review of an erroneous refusal to remand must await appeal from a final judgment, even when this forces the parties to submit to proceedings before a tribunal that lacks competent jurisdiction over their dispute. To the same end, the Court has advised that the ordinary costs of trial and appeal are not a sufficient burden to warrant mandamus relief.
Three questions remain. First, whether a zone of review under the All Writs Act remains for cases where post-judgment review of an interlocutory order is an illusion—where the promise of review at some later time is not meaningful. Second, whether mandamus may remain available when delay would cause greater hardship than the normal cost of trying a case to judgment. Third, whether the precedent of this circuit can be defended on these grounds.
Since Crystal Power has not proffered any reason why post-judgment review would be ineffective or why the cost of delay would be atypical, we can leave these questions to another day.
In footnote 5, Judge Higginbotham notes that Supreme Court decisions on the propriety of mandamus relief in this situation "cast a heavy shadow on certain case law of this circuit. See, e.g., In re Hot-Hed, Inc., 477 F.3d 320, 322 (5th Cir. 2007) (granting mandamus where district court’s denial of remand was based on clearly erroneous assertion of federal question jurisdiction); In re Dutile, 935 F.2d 61, 63–64 (5th Cir. 1991) (granting mandamus where district court denied remand on an explicitly non-removable claim). Adding to the confusion, other circuits have held that when a district court denies a motion to dismiss for lack of subject-matter jurisdiction, rather than a motion to remand, mandamus relief may be available. See, e.g., Bell v. Sellevold, 713 F.2d 1396, 1402–05 (8th Cir. 1983); First Jersey Sec., Inc. v. Bergen, 605 F.2d 690, 700–02 (3d Cir. 1979); United States v. Boe, 543 F.2d 151, 157–61 (C.C.P.A. 1976); BancOhio Corp. v. Fox, 516 F.2d 29, 32–33 (6th Cir. 1975); Erie Bank v. U.S. Dist. Ct. for the Dist. of Colo., 362 F.2d 539, 540–41 (10th Cir. 1966)."
May 23, 2011
SCOTUS Decision in General Dynamics v. United States
Today the Supreme Court issued its decision in General Dynamics Corp. v. United States (No. 09-1298), which addresses “what remedy is proper when, to protect state secrets, a court dismisses a Government contractor’s prima facie valid affirmative defense to the Government’s allegations of contractual breach.” [Slip Op. 1] In this case, the contractors’ defense was “that the Government’s failure to share its ‘superior knowledge’ about how to design and manufacture stealth aircraft excused their default.” [Slip Op. 2]
Writing for a unanimous Court, Justice Scalia notes that “in the present context the state-secrets issue raises something quite different from a mere evidentiary point. . . . What we are called upon to exercise is not our power to determine the procedural rules of evidence, but our common-law authority to fashion contractual remedies in Government-contracting disputes.” [Slip Op. 6-7] He explains:
Where liability depends upon the validity of a plausible superior-knowledge defense, and when full litigation of that defense would inevitably lead to the disclosure of state secrets, neither party can obtain judicial relief.
Judicial refusal to enforce promises contrary to public policy (here, the Government’s alleged promise to provide superior knowledge, which we could not determine was breached without penetrating several layers of state secrets) is not unknown to the common law, and the traditional course is to leave the parties where they stood when they knocked on the courthouse door. [Slip Op. 7-9]
[T]he state-secrets evidentiary privilege is not to be lightly invoked. Courts should be even more hesitant to declare a Government contract unenforceable because of state secrets. It is the option of last resort, available in a very narrow set of circumstances. Our decision today clarifies the consequences of its use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment. [Slip Op. 13-14]
Bone on Adjudicative Representation
Robert Bone (University of Texas) has posted The Puzzling Idea of Adjudicative Representation: Lessons for Aggregate Litigation and Class Actions to SSRN.
Adequacy of representation is a central concept in the law of case aggregation. Yet proceduralists today, some seventy years after the germinal case of Hansberry v. Lee, still lack a clear understanding of what representation means in adjudication and why a nonparty can be bound on a representation theory. The result is normative confusion and doctrinal muddle. This Article, which is a contribution to a George Washington University Law School conference on the ALI’s Principles of the Law of Aggregate Litigation, analyzes representation as a justification for case aggregation. Part I describes the puzzle of adjudicative representation. It shows that representation has no distinctive role to play in precluding absentees when outcome quality is the only goal and as a result it is possible within an outcome-based theory to justify a body of preclusion doctrine that extends well beyond current limits. Representation does have a special role to play when process-based participation is added to the mix, but the body of nonparty preclusion law it supports is so limited that even the class action has trouble fitting in. The result is a serious mismatch between justification and doctrine: outcome-based justifications go too far and process-based justifications do not go far enough. Part II then critically examines three approaches to restoring the fit between doctrine and justification, all of which in one way or another defend some version of “class action exceptionalism,” the position that the class action is uniquely suited to be a nonparty preclusion device. Part II shows why none of these three approaches work and why class action exceptionalism is flawed. Part III approaches the puzzle of adjudicative representation in a different way. It takes the mismatch between justification and doctrine as reason to rethink justification and in particular to critically examine the conventional account of the process-based day-in-court right. Part III reconstructs that right to make it a better version of what the Supreme Court actually means it to be. The result is a process-based day-in-court right that rejects class action exceptionalism and is flexible enough to accommodate some forms of case aggregation and broader nonparty preclusion. Part IV briefly sketches the implications of Part III’s analysis for how to approach the issue of the proper scope of collateral attack on class settlements.