Friday, March 29, 2013
This week the U.S. Court of Military Commission Review denied petitions for writs of mandamus filed by the ACLU (order here) and a group of several media outlets (order here) in connection with the military commission trials at Guantanamo Bay, Cuba. The petitions were filed under the All Writs Act [28 U.S.C. § 1651(a)], and challenged a protective order issued by the Military Commission Judge. Among other things, the protective order authorizes automatic closure of proceedings and sealing of records whenever classified information is disclosed, even if the information is publicly known, and prohibits personal testimony by the defendants about their experiences while in U.S. custody.
The Court’s order does not address the merits of the petitioners’ arguments, or whether the All Writs Act is properly invoked in this context. Rather, it concludes that the case “is not ripe for our review.” From the order regarding the media petitioners:
This controversy is not ripe for our review. The judge has issued a protective order in accordance with Military Commission Act (MCA) Sec. 949p-3, 10 U.S.C. §949p-3. Petitioners have not alleged a single instance where the Military Commission Judge has improperly applied Amended Protective Order #1 to deny Petitioners access to information, sufficient to warrant the sort of extraordinary relief petitioners seek. See MCA Sec. 949d(c). See generally Clapper v. Amnesty International, 133 S. Ct. 1138 (2013); Cheney v. United States, 542 U.S. 367 (2004); Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) (discussing classified information and Freedom of Information Act).
We emphasize the limited scope of our holding. We are not ruling on the merits of the parties claim that there is writ jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a).
Judge Silliman authored a concurring opinion urging the Court to address whether it has jurisdiction under the All Writs Act and arguing that 28 U.S.C. § 2241(e)(2) “explicitly stripped our Court of such jurisdiction.”
Steve Vladeck (American University) has more coverage at Lawfare.
Wednesday, March 27, 2013
As covered earlier (e.g., here, here, and here), Windsor presents some interesting issues relating to jurisdiction and Article III standing, to which the Court devoted the first half (almost an hour's worth) of the oral argument .
Today the Supreme Court decided Comcast Corp. v. Behrend (No. 11-864), a case challenging a Third Circuit decision affirming certification of an antitrust class action. For our earlier coverage, see here and here. By a 5-to-4 vote, the Court concluded that the class action did not satisfy Rule 23(b)(3). Justice Scalia writes the majority opinion. Here’s an excerpt [Slip Op. 6-7]:
Respondents’ class action was improperly certified under Rule 23(b)(3). By refusing to entertain arguments against respondents’ damages model that bore on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination, the Court of Appeals ran afoul of our precedents requiring precisely that inquiry. And it is clear that, under the proper standard for evaluating certification, respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class.
The dissenting opinion is co-authored by Justices Ginsburg and Breyer, and joined by Sotomayor and Kagan. Among other things, the dissenters argue that case should have been DIG’ed—that the writ of certiorari should have been dismissed as improvidently granted. [See Dissenting Op. 1-2] They note that the Supreme Court had reformulated the question presented when granting certiorari, but that “our reformulated question was inapt” given Comcast’s failure to preserve certain issues.Turning to Rule 23, the dissenting opinion states:
While the Court’s decision to review the merits of the District Court’s certification order is both unwise and unfair to respondents, the opinion breaks no new ground on the standard for certifying a class action under Federal Rule of Civil Procedure 23(b)(3). In particular, the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable “‘on a class-wide basis.’” See ante, at 2–3 (acknowledging Court’s dependence on the absence of contest on the matter in this case); Tr. of Oral Arg. 41. To gain class-action certification under Rule 23(b)(3), the named plaintiff must demonstrate, and the District Court must find, “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” This predominance requirement is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation,” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997), but it scarcely demands commonality as to all questions. See 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, p. 121 (3d ed. 2005) (hereinafter Wright, Miller, & Kane). In particular, when adjudication of questions of liability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate. See Advisory Committee’s 1966 Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 141 (“[A] fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class.”); 7AA Wright, Miller, & Kane §1781, at 235–237. Recognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.
Tuesday, March 26, 2013
Monday, March 25, 2013
The Administrative Office of the U.S. Courts has posted the agenda book for the upcoming meeting of the Advisory Committee on Civil Rules (April 11-12). Action items include:
- Report of Duke Conference Subcommittee: Proposal to Recommend Publication, Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37
- Revisions of Rule 37(e) as approved for publication
(Hat Tip: Emery Lee)
Sunday, March 24, 2013
In an opinion released March 21, 2013, the Kentucky Supreme Court has "permanently disbarred" plaintiffs' mass tort lawyer Stan Chesley from practicing law in the Commonwealth of Kentucky. Chesley may face reciprocal disbarment from his home state of Ohio, where he is married to a federal judge.
The Kentucky Supreme Court held that Chesley was guilty of eight ethical violations relating to the collection of an "unreasonable" fee in connection with the fen-phen litigation.
Hat tip: ABA Weekly Journal.-PM