Civil Procedure & Federal Courts Blog

Civil Procedure and Federal Courts At the Movies

With the Oscars coming up, it's a great time to check out the Bora Laskin Law Library's fantastic list of movies related to our favorite topics:  civil procedure and federal courts. You might also find some good law flicks in the book "Reel Justice: The Courtroom Goes to the Movies" by Paul Bergman and Michael Asimow.

[Hat Tip: Julie Cromer Young and Scott Dodson]

~clf

More Congressional Activity on Iqbal

While the Senate was wrestling with health care reform last week, the House turned once again to whether and how to legislatively overrule Iqbal. (For coverage of previous hearings in the House and Senate, see here, here, here, and here.)    

On December 16, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing on H.R. 4115, the "Open Access to the Courts Act of 2009." The Judiciary Committee's website is here, and a video webcast is available here.

Below is the witnesses list and links to their testimony:

Hon. Jerrold Nadler
U.S. House Representatives
8th District, NY

Eric Schnapper
Professor of Law
University of Washington School of Law

Gregory G. Katsas
Director of Financial Regulation Studies
Former Assistant Attorney General, Civil Division
U.S. Department of Justice 

Jonathan L. Rubin
Patton Boggs, LLP
Washington, DC

Joshua P. Davis
Professor Center for Law and Ethics
University of San Francisco School of Law

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The UK's New Supreme Court

This past October, Britain's new Supreme Court kicked off its first term.  In the past, the UK's highest court was a group of "law lords" who were actually part of Parliament.  However, beginning on October 1, 2009, under the Constitutional Reform Act of 2005, the court was removed from Parliament and a new, independent Supreme Court was created.

The British Supreme Court does not have the same power of judicial review that the United States Supreme Court has--it may not strike down statutes as being unconstitutional--but separating the new Supreme Court from Parliament will provide additional independence and the new court has the power to declare that laws are incompatible with human rights norms, thus sending laws back to Parliament for refinement.

For some additional commentary on the new British Supreme Court, see this National Law Journal OpEd.

~clf

Justice Sotomayor, Civil Procedure, and the "Tradition" of Unanimous Debut Opinions

Yesterday brought the Supreme Court's first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

"The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."

The issue of when interlocutory district court orders can be immediately appealed is one that's particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas's concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court's result, Justice Thomas writes that Justice Sotomayor's opinion "needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit." He concludes:

"I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit -- effectively, predictably, and in a way we should have done long ago -- the doctrine that, with a sweep of the Court's pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea."

Some have argued that Justice Thomas's opinion contravenes the Supreme Court's "tradition" that a new Justice's first opinion be a unanimous one. (See Eric Muller's post at The Faculty Lounge: Clarence Thomas "Welcomes" Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as "testy" and "a swipe at his new colleague." On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor's opinion ("I concur in the judgment and in Part II-C of the Court's opinion"). What do folks think?

At the end of the day, maybe it doesn't really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court's most junior Justice. Could there be a "Curse of the Nonunanimous Debut Opinion"?

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(Cross-posted at Concurring Opinions)

PENNumbra Twombly/Iqbal debate continues

Today features Professor Burbank's opening statement, adding to the Hermann/Beck opening statement posted last week.

http://www.pennumbra.com/debates/debate.php?did=24

RJE

Senators opine on Iqbal & Twombly in the Wall Street Journal

Under the heading Restoring Justice or Hurting National Security?, yesterday's Wall Street Journal published two Senators' letters to the editor about the Notice Pleading Restoration Act of 2009. The Act is designed to legislatively overrule the Supreme Court's decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

The letters by Senator Arlen Specter (who sponsored and supports the bill) and Senator Jeff Sessions (who opposes the bill) are available here.

For coverage of last week's Senate Judiciary Committee's hearing on Senator Specter's bill, see here, here, and here.

(Hat Tip: Suja Thomas)

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Commentary on The Federal Courts Jurisdiction and Venue Clarification Act of 2009 (H.R. 4113, now in Congress)

Now pending before Congress is H.R. 4113, a.k.a. The Federal Courts Jurisdiction and Venue Clarification Act. The Act could certainly use a workup by the House Acronym Committee (maybe I have soccer on the brain after Friday's World Cup draw, but “FC JAVCA” sounds like it could be a mid-tier European football club). All kidding aside, the Act makes a number of commendable improvements, many of which were recommended by a recent project of the American Law Institute (ALI).

For more information on the bill, see the Library of Congress's website here. The full text of the bill is available here (.xml format) or here (.pdf format). Earlier coverage of the bill is here. Among other things, the Act would amend Title 28 with respect to removal and remand procedure, venue, and actions involving permanent resident aliens and foreign corporations and insurers. This post summarizes (and flags some potential concerns with) the Act's provisions dealing with the amount in controversy required for diversity jurisdiction. Under current law, the amount in controversy must exceed $75,000.

First, the Act would index the amount-in-controversy threshold to automatically adjust for inflation. [Act, § 103.] Beginning in 2011, the $75,000 threshold would be adjusted every five years according to the percentage change in the Consumer Price Index. If you’re worried about the amount in controversy becoming $83,516.44, have no fear; the amount will be rounded to the nearest multiple of $5,000.

Second, the Act has a number of provisions dealing with a plaintiff's ability to preclude diversity jurisdiction by declaring that it will neither seek nor accept a judgment in excess of the amount in controversy threshold. [Act, § 104.] Making such a declaration in state court will prevent removal to federal court "as long as the plaintiff abides by the declaration and the declaration is binding under the laws and practice of the State." If the plaintiff fails to abide by this declaration, the case can be removed within 30 days after the defendant receives "an amended pleading, motion, order or other paper from which it may first be ascertained" that the plaintiff seeks or is willing to accept a judgment in excess of the threshold for diversity jurisdiction. The Act also provides that a removed case may be remanded to state court if the plaintiff makes a similar declaration in federal court within 30 days of removal. In that situation, "the district court shall remand the action to State court unless equitable circumstances warrant retaining the case."

One possible concern with these provisions is that they do not allow "re-removal" if the plaintiff who makes the declaration in federal court then reneges on the declaration after getting back to state court. The new language that would allow removal after a plaintiff reneges applies only "[i]f the plaintiff has filed such a declaration in state court but thereafter fails to abide by that declaration." (emphasis added)

Third, the Act codifies the general rule that "the sum demanded in good faith in the initial pleading [the state court complaint] shall be deemed to be the amount in controversy." [Act, § 105(b), to be codified at 28 U.S.C. § 1446(b)(4).] It then provides that the notice of removal may assert the amount in controversy required for diversity jurisdiction where either (a) nonmonetary relief is sought, or (b) "State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded." The defendant must then establish to the federal court by the preponderance of the evidence that the amount-in-controversy threshold is met.

One concern with this provision is that it does not authorize the notice of removal to assert the amount in controversy if state practice does permit demand for a specific sum but the initial pleading just fails to make one. Arguably the notice of removal should be able to assert the amount in controversy in that situation as well. 

I'm hoping to blog on other provisions in the Act in the near future. In the meantime, feel free to use the comments to share your own thoughts.

--A

(Cross-posted on Concurring Opinions)

Coverage of Yesterday’s Senate Judiciary Committee Hearing on Iqbal

As blogged earlier here, the Senate Judiciary Committee held a hearing yesterday entitled, "Has the Supreme Court Limited Americans' Access to Courts?" The archived webcast is available here.

The witnesses (including links to their testimony) were:

John Payton
President and Director-Counsel
NAACP Legal Defense Fund
Washington, D.C.

Gregory G. Garre
Partner
Latham & Watkins, LLP
Washington, D.C.

Stephen B. Burbank
David Berger Professor for the Administration of Justice
University of Pennsylvania Law School
Philadelphia, Pennsylvania

Written statements of the Senators can be found here.

For coverage, see Blog of the Legal Times, Constitutional Law Prof Blog (Prof. Steven Schwinn), and PrawfsBlawg (Prof. Howard Wasserman).

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Right Now: Senate Judiciary Committee Hearing on Iqbal

As blogged earlier here, the Senate Judiciary Committee is holding a hearing today entitled: "Has the Supreme Court Limited Americans' Access to Courts?" Click here for a link to a live webcast.

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Civil Case regarding China Milk Scandal reaches China Court

A Chinese court is hearing the first civil case seeking damages for injuries suffered in connection with the China milk scandal.  The case, brought by a parent whose child became ill after consuming baby formula which contained the industrial chemical melamine, is seeking $8000 from a dairy group and a supermarket. The government has already ordered the payment of $161 million to the hundreds of thousands of families whose children became ill or died as a result of consuming the tainted milk. However, some of the families argue that this compensation is inadequate.  The Chinese court rejected an effort by the families to sue together as a group, and so far, six cases have been accepted by the courts.  

In addition to the civil litigation surrounding the tainted milk scandal, two people were executed in China last week for their alleged participation, and nineteen other people are in police custody in connection with the case. 

~clf

Amendment to Class Action Fairness Act (CAFA) takes effect today

The original version of the 2005 Class Action Fairness Act (CAFA) authorized immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." 28 U.S.C. § 1453(c)(1). Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite -- it imposed a 7-day waiting period and set no outer deadline. A circuit split ensued over how to interpret this problematic language. Compare Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), with Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 (9th Cir. 2006).

Effective today, Congress has fixed the problem -- unambiguously establishing a 10-day deadline for CAFA appeals. See Public Law 111-16, § 6(2) (“effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days’”).

For further discussion of this legislation and the interpretive puzzle that led to it, see my post on Concurring Opinions.

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Senate Judiciary Committee Hearing on Iqbal

Next week's activities on Capitol Hill include a hearing before the full Senate Judiciary Committee entitled "Has the Supreme Court Limited Americans' Access to Courts?" It's scheduled for Wednesday, December 2 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

More information is available here (including a link for a webcast). Here's the witness list:

John Payton
President and Director-Counsel
NAACP Legal Defense Fund
Washington, D.C.

Gregory G. Garre
Partner
Latham & Watkins, LLP
Washington, D.C.

Stephen B. Burbank
David Berger Professor for the Administration of Justice
University of Pennsylvania Law School
Philadelphia, Pennsylvania

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Michelman on standing to sue over government surveillance

Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc to SSRN.
Abstract:     
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

RJE

Congressional Hearing on Ashcroft v. Iqbal (UPDATE)

Here's a quick update on our earlier post about the congressional hearing, "Access to Justice Denied - Ashcroft v. Iqbal." The Judiciary Committee's website reflects a new location and now includes a list of witnesses, which includes:

Arthur R. Miller
University Professor
New York University School of Law
New York, NY

Gregory Katsas
Former Assistant Attorney General, Civil Division
U.S. Department of Justice
Washington, DC

John Vail
Senior Litigation Counsel and Vice President
Center for Constitutional Litigation
Washington, DC

Debo P. Adegbile
Associate Director of Litigation
NAACP Legal Defense and Educational Fund
New York, NY

The time and place is Tuesday 10/27 @ 2:30 P.M. in 2141 Rayburn House Office Building.

More information is available here. The current listing of the subcommittee's legislative calendar also contains a link for a video webcast.

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E-Marriage -- using jurisdictional creativity to achieve marriage equality across state lines

Adam Candeub and Mae Kuykendall have launched a novel project at Michigan State University, College of Law.  E-marriage would allow couples to combine the law of one jurisdiction with the physical location of another.  In other words, a same sex couple in California could marry in the location of their choice by using a remote "e" officiant from a state that allows same sex marriage, such as Massachusetts.

Procedure and fed courts professors will recognize many familiar issues including choice of law, internet jurisdiction issues, full faith and credit issues, and the increasingly blurry boundaries of physical territoriality.

The E-Marriage Project has a home on the MSU website.  The proposal is available as a paper on SSRN, and is further described in an MSU press release.

RJE

Congressional Hearing on Ashcroft v. Iqbal

Tomorrow's activities on Capitol Hill include a hearing entitled "Access to Justice Denied - Ashcroft v. Iqbal" before the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties (Tuesday 10/27 @ 2:30 P.M. in 2237 Rayburn House Office Building).

More information is available here. The current listing of the subcommittee's legislative calendar also contains a link for a video webcast.

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California provides free representation in certain civil cases

California has a new program to fund public interest lawyers to provide free representation to all indigent civil litigants involved in certain types of cases, such as home foreclosures, domestic violence cases, cases alleging predatory lending practices and others.  The pilot program, which lasts through 2017, will be paid for by a $10 increase in court fees.  

The program is designed to address inequities that might result when litigants represent themselves in cases involving important family law and social justice issues.  With this program, California appears to provide free representation in the broadest array of cases of any state so far.  The program has been praised for making legal services available to indigent people facing serious legal problems, but it has been criticized as diverting funds from other important social justice programs, such as improved law enforcement and day care programs.

The Los Angeles Times provides more coverage about this program here.

~clf

Swine Flu Vaccine Litigation

Last week saw the beginning of the delivery of vaccines for the H1N1 or "swine flu" virus.  Perhaps the only thing more predictable than the worry that we will not have enough of the vaccine are the lawsuits that have already been filed.

In New York state court, a group of health care workers has filed a lawsuit alleging that mandatory vaccination of all health care workers violates their civil rights.  The judge granted a temporary restraining order and has scheduled a further hearing for next week.

Another lawsuit filed in the D.C. Circuit challenges the licensing of the vaccines, alleging that the vaccines are untested and unsafe.

These cases, along with any lawsuits alleging actual injury from receiving the injections, are sure to raise issues of interest to civil procedure and federal courts scholars, from possible consolidation of a mass tort, to potential application of the 1986 National Childhood Vaccine Act (42 U.S.C. 300aa 1-34), and preemption issues.

Stay tuned for further developments in this field.

RJE