January 20, 2012
January 2012 Issue of The Third Branch is Available
This issue, available here, contains the 2011 Year-End Report on the Federal Judiciary. In introducing the report, Chief Justice Roberts writes, “Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address that issue . . .” He briefly describes the Code of Conduct, financial disclosure obligations, gift regulations, and recusal, concluding “I have complete confidence in the capability of my colleagues to determine when recusal is warranted.”
“Workload of the Courts” shows an increase in district court filings (by 2%), but a decrease in filings in Bankruptcy Court, the Courts of Appeals (although civil appeals remained “fairly stable”), and the Supreme Court.
Further detail about district court filings in civil cases:
Civil filings in the U.S. district courts grew 2 percent to 289,252 cases. Fueling this growth was a 2 percent increase in federal question cases (i.e., actions under the Constitution, laws, or treaties of the United States in which the United States is not a party in the case), which resulted mainly from cases addressing civil rights, consumer credit, and intellectual property rights.
Cases filed with the United States as a party climbed 9 percent. Those with the United States as plaintiff increased in response to a surge in defaulted student loan cases. Cases with the United States as defendant rose largely because of growth in Social Security cases.
January 18, 2012
SCOTUS Decision in Mims v. Arrow Financial
Today the Supreme Court issued a unanimous decision in Mims v. Arrow Financial Services LLC (covered earlier here), which considers whether federal-question jurisdiction exists under 28 U. S. C. §1331 for claims brought against telemarketers under the Telephone Consumer Protection Act of 1991 (TCPA). The provision of the TCPA that created a private cause of action refers to actions that would be brought in state court. See 47 U. S. C. §227(b)(3) (“A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State . . . an action based on a violation of this subsection . . . .”).
In an opinion by Justice Ginsburg, the Supreme Court holds that federal-question jurisdiction is proper under §1331. From the opinion [Slip Op. at 2]:
The question presented is whether Congress’ provision for private actions to enforce the TCPA renders state courts the exclusive arbiters of such actions. We have long recognized that “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916). Beyond doubt, the TCPA is a federal law that both creates the claim Mims has brought and supplies the substantive rules that will govern the case. We find no convincing reason to read into the TCPA’s permissive grant of jurisdiction to state courts any barrier to the U. S. district courts’ exercise of the general federal-question jurisdiction they have possessed since 1875.
In particular, Justice Ginsburg notes [Slip Op. at 11]: “Title 47 U. S. C. §227(b)(3) does not state that a private plaintiff may bring an action under the TCPA ‘only’ in state court, or ‘exclusively’ in state court.”
Ninth Circuit Holds Issue Preclusion Bars Plaintiff’s Discrimination Suit After Administrative Proceedings
Justia reports the decision here.
January 17, 2012
Registration for SEALS Annual Meeting Begins February 1
For those who despair of the AALS ever holding a conference at a destination resort, mark your calendars to register for the 2012 SEALS (Southeastern Association of Law Schools) annual meeting at the Ritz-Carlton in Amelia Island, Florida as soon as registration opens on February 1, 2012. Hotel rooms at the conference rate typically sell out fast for the wildly popular SEALS conference. This year, SEALS is requiring you to register for the conference first before you will be allowed to reserve a hotel room.
The SEALS annual meeting will be held July 29 through August 4, 2012. The program is available here. Among many other offerings, Professor Ted Eisenberg will once again hold a three-day Empirical Studies Workshop (which requires separate advance registration). Another session that looks interesting is “Federal Courts and Passive-Aggressive Virtues,” which will examine “the idea of courts engaging in arguably passive-aggressive behavior.” There is also a discussion group on “Pedagogical Choices and Challenges in Civil Procedure.”
On Rehearing, Eleventh Circuit Still Denies Attorney’s Fees after Defendant Tenders Full Amount Claimed in FLSA Case
Back in July (here) I reported an Eleventh Circuit opinion refusing a plaintiff in an FLSA action attorneys’ fees when the defendant (after the filing of the FLSA complaint) simply tendered the full amount of unpaid overtime claimed (plus statutory liquidated damages) and moved to dismiss. Upon the plaintiff’s petition for rehearing, the Eleventh Circuit withdrew its former opinion, but replaced it with one that is functionally identical. Dionne v. Floormasters Enterprises, Inc., No. 09–15405 (11th Cir. Jan. 13, 2012).
The Eleventh Circuit has again upheld the district court’s denial of fees because “[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney's fees and costs.”
Despite its heavy reliance on the argument that there was no “judgment awarded to the plaintiff,” as seemingly required by the FLSA for a fees award, the court then added in an odd footnote: “[Our ruling] should not be construed as authorizing the denial of attorney's fees, requested by an employee, solely because an employer tendered the full amount of back pay owing to an employee, prior to the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the claim.”
Symposium at Southwestern Law School: Transnational Litigation and Civil Procedure (Los Angeles, Feb. 3, 2012)
On Friday, February 3, 2012, Southwestern Law School in Los Angeles, California and the Southwestern Journal of International Law is hosting a symposium titled Our Courts and the World: Transnational Litigation and Civil Procedure. The symposium is co-sponsored by the American Society of International Law, the Junior International Law Scholars Association (JILSA), the Los Angeles County Bar Association - International Law Section, and the State Bar of California - International Law Section.
This one-day symposium will bring together leading scholars from Canada and the United States to discuss the procedural issues that arise in transnational civil litigation cases. It will also assess how receptive courts are to transnational litigation and explore issues related to transnational class actions. The proceedings and papers from this symposium will be published in the Southwestern Journal of International Law.
WHEN: Friday, February 3, 2012, 9:00 a.m. – 5:15 p.m.
WHERE: Southwestern Law School, Los Angeles, California
Panelists include (in alphabetical order):
- Samuel P. Baumgartner, Professor of Law, University of Akron School of Law
- Vaughan Black, Professor of Law, Dalhousie University Schulich School of Law
- Gary B. Born, Partner, WilmerHale, Lecturer on Law, Harvard Law School
- Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
- Montré D. Carodine, Associate Professor of Law, University of Alabama School of Law
- Donald Earl Childress III, Associate Professor of Law, Pepperdine University School of Law
- Paul R. Dubinsky, Associate Professor of Law, Wayne State University Law School
- Allan Ides, Christopher N. May Professor of Law, Loyola Law School, Los Angeles
- Thomas Orin Main, Professor of Law, University of the Pacific, McGeorge School of Law
- Erin O’Hara O’Connor, Professor of Law and Director of Graduate Studies, Law & Economics PhD Program, Vanderbilt Law School
- Cassandra Burke Robertson, Associate Professor, Case Western Reserve University School of Law
- Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
- Linda Sandstrom Simard, Professor of Law, Suffolk University Law School
- Adam N. Steinman, Professor of Law and Michael J. Zimmer Fellow, Seton Hall University School of Law
- Janet Walker, Professor of Law, Osgoode Hall Law School
- Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law
- William E. Thomson, Partners, Gibson, Dunn & Crutcher LLP
- James H. Broderick, Jr., Partner, Squire, Sanders & Dempsey LLP
- Marcus S. Quintanilla, Counsel, O’Melveny & Myers LLP
- Ray D. Weston Jr., Vice President and General Counsel, Taco Bell Corp.
- Austen Parrish, Professor of Law and Vice Dean, Southwestern Law School
- Christopher A. Whytock, Acting Professor of Law and Political Science, University of California, Irvine