Civil Procedure & Federal Courts Blog

2012 Annual Report on Federal Courts Released

The Administrative Office of the United States Courts has just released its 2012 Annual Report of the Director.  This report contains detailed statistics for all federal courts for the fiscal year ending September 30, 2012.

As reported earlier here, civil case filings fell 4% to 278,442, with cases involving diversity jurisdiction falling 15% from the previous year.

--PM

Sherry on Why Courts Can't Fix Erie

Suzanna Sherry (Vanderbilt) has posted A Pox on Both Your Houses: Why the Courts Can't Fix the Erie Doctrine to SSRN.

As Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie doctrine and between it and the Federal Rules of Civil Procedure. The Court’s latest Erie decision, Shady Grove, was yet another attempt to separate substance from procedure and navigate the strait between the Rules of Decision Act and the Rules Enabling Act. It was a disaster, in large part because of the internal incoherence of the Erie doctrine itself and its profound incompatibility with the guiding principles of the Federal Rules of Civil Procedure. Shady Grove thus brings to the forefront the need for a normative choice between federal procedural uniformity and transsubstantivity on the one hand, and state authority on the other. I suggest that instead of filtering that normative choice through the convoluted and self-contradictory Erie doctrine, judges should confront it directly as they do in other contexts (including most prominently preemption doctrine). This suggestion in turn has implications far beyond the narrow Shady Grove issue.

 

RJE

SCOTUS Decision in Clapper v. Amnesty International: Article III Standing

Today the Supreme Court decided Clapper v. Amnesty International (No. 11-1025), covered earlier here. By a 5-to-4 vote, it found that the plaintiffs lacked Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act.

Justice Alito wrote the majority opinion (joined by Roberts, Scalia, Kennedy, and Thomas) and Justice Breyer wrote the dissent (joined by Ginsburg, Sotomayor, and Kagan).

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SCOTUS Opinion in Gunn v. Minton

Today the Supreme Court issued a unanimous opinion in Gunn v. Minton, covered earlier here and here. The case revisits the recurring problem of when a federal law ingredient in a state law cause of action is sufficient for federal question jurisdiction (cases "arising under" federal law). It's a pretty quick turnaround--oral argument was on January 16.

Chief Justice Roberts authors the opinion, which endorses and applies the test developed eight years ago in Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308 (2005). Here’s one colorful passage on Grable [Slip Op. 6], which the Chief distills into a four-part test:

[E]ven where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies.  Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006).  In outlining the contours of this slim category, we do not paint on a blank canvas.  Unfortunately, the canvas looks like one that Jackson Pollock got to first. See 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure §3562, pp. 175–176 (3d ed. 2008) (reviewing general confusion on question).

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”?  Grable, 545 U. S., at 314.  That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.  Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.  Id., at 313–314.

Applying Grable, the Court ultimately concludes that federal jurisdiction did not extend to Minton’s state law malpractice action, even though issues of federal patent law were “necessary” and “actually disputed” for purposes of requirements 1 and 2. As to the third requirement, Chief Justice Roberts writes [Slip Op. 8]:

[T]he federal issue in this case is not substantial in the relevant sense…. As our past cases show, … it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

The full discussion of the third requirement [Slip Op. 8-12] is worth a read, with some interesting discussion of the possible effect (or lack thereof) of state court malpractice actions on federal patent law and issue preclusion. As to the fourth requirement, the Chief Justice writes:

It follows from the foregoing that Grable’s fourth requirement is also not met. That requirement is concerned with the appropriate “balance of federal and state judicial responsibilities.” Ibid. We have already explained the absence of a substantial federal issue within the meaning of Grable. The States, on the other hand, have “a special responsibility for maintaining standards among members of the licensed professions.” Ohralik v.  Ohio State Bar Assn., 436 U. S. 447, 460 (1978).  Their “interest . . . in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts.”  Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975) (internal quotation marks omitted).

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SCOTUS Decision on Article III & Mootness: Chafin v. Chafin

Yesterday the Supreme Court issued a unanimous decision in Chafin v. Chafin (No. 11-1347), which addresses Article III mootness in the context of the Hague Convention on the Civil Aspects of International Child Abduction.

Chief Justice Roberts wrote the opinion, and Justice Ginsburg authored a concurring opinion that was joined by Justices Scalia and Breyer.

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Walsh on Crowe: Building the Federal Judiciary

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh (Richmond) entitled Building the Federal Judiciary. It reviews a recent book by Justin Crowe (Williams College, Political Science), Building the Judiciary: Law, Courts, and the Politics of Institutional Development, Princeton University Press. Kevin’s review begins:

Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

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Federal Court Management Statistics for Fiscal Year 2012 Released

From Third Branch News:

Federal court statistical profiles are available for the nation’s 12 courts of appeal and 94 district courts for fiscal year 2012, the 12-month period ending September 30, 2012.

Federal Court Management Statistics also provides national totals for the appellate and district courts, allowing the statistical totals of each individual court to be compared to a national average.

The tables present data based on the number of authorized judgeships, and provide rankings among the appellate and district courts.

Note that the Caseload Management Statistics do not include the Federal Judicial Caseload Statistics or the Judicial Business of the U.S. Courts report for FY 2012.  Those figures have not yet been released.

--PM

Lederman: More on Article III Standing in the SCOTUS Same-Sex Marriage Cases

Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).

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Devins & Prakash: "Reverse Advisory Opinions"

Professors Neal Devins (William & Mary) and Saikrishna Prakash (Virginia) have posted on SSRN a draft of their Essay, Reverse Advisory Opinions, which will appear in the University of Chicago Law Review. Here’s the abstract:

Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to request legal opinions. The Supreme Court’s practice of calling for the views of the solicitor general is as unjustified as it has been long-lived. The lack of justification is crucial, for current practice suggests no limits. Courts might request the advice of law professors or the National Rifle Association; they might even poll former solicitors general of the United States about what the law is. We believe this power to request legal advice is alien to Article III’s adversarial system and is instead a feature of civil law systems and congressional committees, where the inquisitors have much more latitude. The only time the federal courts may request legal advice from nonparties is when a party refuses to address a legal question deemed relevant by the court and the court asks a nonparty to provide an adversarial argument.

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Lederman on Article III Standing in the SCOTUS Same-Sex Marriage Cases

Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).

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The Latest on Federal Question Jurisdiction: From Merrell Dow to Grable to... Gunn v. Minton?

The Supreme Court heard oral argument today in Gunn v. Minton—the latest in the Court’s long-running struggle to define when a federal law ingredient in a state law cause of action is sufficient for federal question jurisdiction (cases "arising under" federal law). 

Here’s the oral argument transcript, which includes this comment from Justice Scalia [p.16 of the transcript]:

"Well, I like -- I like bright-line rules. In fact -- you know, I thought Holmes had it right. It doesn't arise under unless the cause of action is a Federal cause of action."

Justice Thomas is on record as being receptive to the so-called Holmes approach (in his Grable concurrence, 545 U.S. at 320-21). He is not alone, apparently.

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Green on Erie

Prof. Michael Steven Green (William & Mary) is celebrating Erie’s 75th anniversary year with daily “Erieblogging.” His kick-off is here, and you can follow the rest at Prawfsblawg. The most recent installment (as of this post) is Day 10.

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Vladeck on Pendent Appellate Jurisdiction and the Collateral Order Doctrine

Prof. Steve Vladeck (American University) has posted on SSRN a draft of his essay, Pendent Appellate Bootstrapping, which will be published in the Green Bag. He also has a Prawfsblawg post on the topic. Here’s the abstract:

Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."

Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, this short essay demonstrates that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.

The practical effect of these beclouded expansions is only now becoming visible. Thus, in two recent high-profile Bivens cases, both the D.C. and Seventh Circuits (the latter sitting en banc) reversed a trial court’s recognition of a Bivens claim on interlocutory appeal of the denial of qualified immunity, even though neither court of appeals disturbed the district court’s underlying determination of non-immunity. And whatever might be said about the continuing viability of Bivens claims, lower courts have begun to piggyback other legal questions going to the merits onto interlocutory immunity appeals, as well.

As this essay concludes, in addition to flying in the face of longstanding precedent, the more troubling analytical implication of this trend is to both formally and functionally vitiate the longstanding distinction between litigation immunities and defenses to liability. To the extent that officer defendants might now be able to press most potential legal defenses on interlocutory appeal of a denial of a motion to dismiss even where they are not entitled to official immunity, such defenses will necessarily become functional immunities from suit in any case in which they are validly invoked — and will make it that much harder (and more expensive) for plaintiffs to recover even in cases in which they are not. If the Justices truly intended such a result, even if only in officer suits, one could at least have expected them to say more about it than the cryptic discussions that have sufficed to date. Had they done so, they might have realized that such a result is incredibly difficult to defend as a matter of law, policy, precedent, or prudence.

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Federal civil case filings decline 4% in 2012; diversity case filings decline 15%

Chief Justice John Roberts has issued the 2012 Year-End Report on the Federal Judiciary.  The underlying data relied upon has not yet been publicly released.

The Chief Justice reports 278,442 civil case filings in the district courts in FY 2012.  This is a 4% decrease from 2011 (in which there were 289,252 civil case filings).

Perhaps more strikingly, "[c]ases involving diversity of citizenship . . . declined 15 percent, mainly because of a drop in multidistrict litigation filings."  Given that there were 101,366 diversity filings in 2011, this means that there were approximately 86,161 diversity filings in FY 2012.  (The Year-End report does not provide the exact figure.)

--PM

Dodson on Dismissal Rates in Federal Civil Cases

Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.

Abstract:

In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.

This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.

The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.

--PM

Pfander on Why Judges Leave (Reviewing Burbank, Plager & Ablavsky)

Now available on the Courts Law section of JOTWELL is an essay by Prof. Jim Pfander (Northwestern) entitled Why Judges Leave the Bench. It reviews Stephen Burbank, S. Jay Plager, and Greg Ablavsky's recent article, Leaving the Bench. Jim's essay begins:

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.

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This Week's SCOTUS Oral Arguments: Mootness, Class Actions, And FRCP 54(d) (Oh My!)

The Supreme Court heard oral argument in several interesting cases this week. Below are some links…

Already LLC v. Nike Inc., No. 11-982 (Article III & mootness)

• Oral argument transcript
• PatentlyO (Megan La Belle)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Lyle Denniston)

Amgen Inc. v. Connecticut Retirement Plans, No. 11-1085 (class actions)

• Oral argument transcript
• Jurist (Julia Zebley)
• N.Y. Times (Adam Liptak)
• Point of Law (Ted Frank)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Steven Kaufhold)

Comcast v. Behrend, No. 11-864 (class actions)

• Oral argument transcript
• Jurist (Julia Zebley)
• N.Y. Times (Adam Liptak)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Sergio Campos)
• Wall Street Journal (Brent Kendall)
  

Marx v. General Revenue Corp., No. 11-1175 (Rule 54(d))

• Oral argument transcript
• Consumer Financial Services Blog (Don Maurice)

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AO Statistics Show Bankruptcy Filings Down in FY 2012

The Third Branch News reports, "Bankruptcy cases filed in federal courts for fiscal year 2012, the 12-month period ending September 30, 2012, totaled 1,261,140, down 14 percent from the 1,467,221 bankruptcy cases filed in FY 2011, according to statistics released today by the Administrative Office of the U.S. Courts."  In addition, "[f]or the 12-month period ending September 30, 2012, business bankruptcy filings—those where the debtor is a corporation or partnership, or the debt is predominantly related to the operation of a business—totaled 42,008, down 16 percent from the 49,895 business filings reported in the 12-month period ending September 30, 2011."  Filings decreased for every bankruptcy chapter (7, 11, 12, and 13). 

The link above contains further links to detailed statistics.

PM

Robertson on the Right to Appeal

Cassandra Burke Robertson has posted The Right to Appeal on SSRN.

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position. 

In this article, I argue that a right to appeal protects both private litigants and the justice system as a whole. First, doctrinal consistency necessitates the explicit recognition of a constitutional right to appeal — a right that the Supreme Court’s criminal and punitive-damages doctrines have already implicitly recognized. Second, the modern procedural system has developed in a way that relies on appellate remedies as part of fundamental due process. Traditional procedural safeguards — such as the jury trial and the executive clemency process — may once have sufficiently protected due process rights. In the modern era, however, these procedures have diminished at the same time that reliance on appeals has grown; as a result, if appellate remedies are removed from the procedural framework, the system as a whole cannot provide adequate due-process protection. Finally, recognizing constitutional protection for appellate rights would also express a normative view, promoting the values of institutional legitimacy, respect for individual dignity, predictability, and accuracy. Appellate procedure has earned a place in our contemporary understanding of due process; it is time to recognize its role as a fundamental element of fair judicial practice.

 RJE

Vladeck on Collins & Nash on Federal Crimes in State Courts

Now available on the Courts Law section of JOTWELL is an essay by Prof. Stephen Vladeck (American University) entitled Federal Crimes, State Courts, and Palmore. It reviews Michael G. Collins & Jonathan Remy Nash’s recent article, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011). Steve’s review begins:

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning.

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