Friday, March 23, 2018

Lammon on Cumulative Finality

Bryan Lammon has posted on SSRN a draft of his article, Cumulative Finality, which will be published in the Georgia Law Review. Here’s the abstract:

A proper notice of appeal is a necessary first step in most federal appeals. But federal litigants sometimes file their notice of appeal early, before district court proceedings have ended. When those proceedings finally end and no new notice is filed, the law of cumulative finality determines what effect-if any-the premature notice has. Sometimes the notice is effective and the appeal proceeds as normal. Sometimes it's not, and litigants lose their right to appeal.

At least, that's how the law of cumulative finality looks from a distance. Up close, the courts of appeals are hopelessly divided on matters of cumulative finality. They disagree what law governs cumulative finality issues-whether they're governed solely by Rule of Appellate Procedure 4(a)(2) or also by a common-law cumulative finality doctrine that preceded the rule-and under what conditions a premature notice of appeal is saved. Three distinct approaches to cumulative finality have emerged, resulting in a deep circuit split. To make matters worse, decisions within several of the circuits have applied different approaches, resulting in intra-circuit divides.

This Article offers a fix. Neither the text of the Rules of Appellate Procedure nor their history provide a clear cumulative finality rule. But looking to the practicalities of the issue suggests allowing a subsequent judgment to save any prematurely filed notice of appeal. Doing so imposes few costs while preserving litigants' right to appeal.

The current cumulative finality mess illuminates a larger issue with the appellate jurisdiction literature and its attendant reform efforts. The literature has long maligned the unnecessary complexity and uncertainty of the entire federal appellate jurisdiction regime and advocated reform. But most of that literature focuses on only one part of that regime-appeals before a final judgment. Equally important are issues with determining when district court proceedings have ended and parties thus have a right to appeal. Cumulative finality is only one piece in this other aspect of appellate jurisdiction. There are more. Successful reform might require establishing a new, clearer point at which parties have a right to appeal. So this other aspect of appellate jurisdiction needs similar attention if reform is to succeed.



March 23, 2018 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, March 22, 2018

Another March Madness Elimination: Stipulated Dismissal in Salt River

We covered earlier the Supreme Court’s cert grant in the Salt River case, which presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.” This week, the parties entered into a Stipulation of Dismissal pursuant to Sup. Ct. R. 46, taking the case off the Court’s docket.

Disappointed appellate-jurisdiction junkies may perhaps find solace in the jurisdictional portion of yesterday’s Ayestas decision.




March 22, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 21, 2018

SCOTUS Decision in Ayestas v. Davis

Today the Supreme Court issued a unanimous decision in Ayestas v. Davis, which involves a capital habeas petitioner seeking funding for investigative services, as authorized by 18 U.S.C. § 3599. Justice Alito’s opinion concludes that the courts below applied the wrong legal standard in denying Ayestas’s motion for funding and remands for further proceedings to apply the correct legal standard.

First, however, the Court confronts the question of whether appellate courts—including the Supreme Court—have jurisdiction to review a district court’s denial of such a request for funding. Here’s how Justice Alito tees up the issue:

When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U. S. C. §§1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court. And when the Fifth Circuit affirmed, petitioner sought review in this Court under §1254, which gives us jurisdiction to review “[c]ases” in the courts of appeals. As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial capacity. But we have recognized that not all decisions made by a federal court are “judicial” in nature; some decisions are properly understood to be “administrative,” and in that case they are “not subject to our review.” Hohn v. United States, 524 U. S. 236, 245 (1998).

The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U. S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9–10 (June 2017). Administering this operation requires many “decisions” in the ordinary sense of the term—decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett, 728 F. 3d 1033, 1037 (CA9 2013). It would be absurd to suggest that every “final decision” on any such matter is appealable under §1291 or reviewable in this Court under §1254. See Hohn, supra; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3903, pp. 134–135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders—i.e., decisions or orders made in a judicial capacity—to which the relevant jurisdictional provisions apply.

The Court concludes that the district court’s funding decision “does not remotely resemble the sort of administrative decisions noted above.” It is therefore subject to appellate review under the usual jurisdictional provisions.

Justice Sotomayor authors a concurring opinion, joined by Justice Ginsburg, arguing that—under the proper legal standard—“there should be little doubt that Ayestas has satisfied §3599(f)” and is entitled to funding.






March 21, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 20, 2018

Supreme Court decision in Cyan: SLUSA & state court jurisdiction over 1933 Securities Act class actions

Today the Supreme Court issued a unanimous decision in Cyan, Inc. v. Beaver County Employees Retirement Fund. In an opinion authored by Justice Kagan, the Court addresses the effect of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) on class actions that allege violations of only the Securities Act of 1933 (which governs the original issuance of securities). The defendants argued that SLUSA deprives state courts of jurisdiction over such class actions. The Solicitor General proposed what Justice Kagan called a “halfway-house position,” whereby state courts have jurisdiction but defendants may remove such class actions to federal court.

The Court unanimously rejects both arguments. First, the Court holds that state courts retain jurisdiction over class actions that allege only 1933 Act violations: “SLUSA’s text, read most straightforwardly, leaves in place state courts’ jurisdiction over 1933 Act claims, including when brought in class actions.” Second, the Court holds that when such class actions are filed in state court, they may not be removed to federal court. SLUSA did not exempt such class actions from the general bar on removal currently codified at 15 U.S.C. § 77v(a).




March 20, 2018 in Class Actions, Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Saturday, March 17, 2018

Procedural Moves in Stormy Daniels’ Lawsuit Against Donald Trump

There has been a lot of coverage of Donald Trump’s relationship with Stephanie Clifford (known by her stage name Stormy Daniels), and the $130,000 payment she received in connection with a nondisclosure agreement during the heat of the 2016 presidential campaign.

Earlier this month, Clifford filed a lawsuit against Trump and Essential Consultants, LLC, in California state court (Los Angeles County). Essential Consultants, which was a party to the nondisclosure agreement, is apparently a Delaware LLC, and Trump attorney Michael Cohen is its sole member. Clifford’s complaint seeks a declaration that the “Hush Agreement” is unenforceable.

Download State Court Complaint

Yesterday, Essential Consultants removed the case to federal court. The notice alleges that, for purposes of diversity jurisdiction, Clifford is a Texas citizen and Trump and Essential Consultants are New York citizens. It also alleges that “the value of the object of the litigation” exceeds $75,000. The federal case has been docketed as Clifford v. Trump, No. 2:18-cv-02217 (C.D. Cal.)

Download Notice of Removal

Donald Trump filed a separate document joining in Essential Consultants’ notice of removal. This appears to be his effort to comply with 28 U.S.C. § 1446(b)(2)(A), which provides: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

Download Trump Joinder in Notice of Removal

You can find more coverage of the removal to federal court here: 




March 17, 2018 in Current Affairs, Federal Courts, In the News, Subject Matter Jurisdiction | Permalink | Comments (1)

Wednesday, March 7, 2018

Ninth Circuit Denies Federal Government's Mandamus Petition in Climate Change Suit

Today the Ninth Circuit issued its decision in In re United States of America (earlier coverage of the case here). As the opinion describes the litigation: “Twenty-one young plaintiffs brought suit against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.”

The district court had denied the defendants’ motion to dismiss the case for lack of jurisdiction and failure to state a claim, prompting the defendants to seek a writ of mandamus from the Ninth Circuit. Chief Judge Sidney Thomas authors a unanimous opinion denying the government’s petition without prejudice. The opinion is joined by Judges Marsha Berzon and Michelle Friedland. Judge Alex Kozinski was on the panel when oral argument occurred, but he was replaced by Judge Friedland following his retirement.

Judge Thomas’s opinion is structured around the Bauman factors—which have long guided the Ninth Circuit when it comes to mandamus petitions. They are:

(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court’s order is clearly erroneous as a matter of law; (4) whether the district court’s order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court’s order raises new and important problems or issues of first impression.

Here are the opinion’s concluding paragraphs:

We are mindful that some of the plaintiffs’ claims as currently pleaded are quite broad, and some of the remedies the plaintiffs seek may not be available as redress. However, the district court needs to consider those issues further in the first instance. Claims and remedies often are vastly narrowed as litigation proceeds; we have no reason to assume this case will be any different. Nor would the defendants be precluded from reasserting a challenge to standing, particularly as to redressability, once the record is more fully developed, or from seeking mandamus in the future, if circumstances justify it. And the defendants retain the option of asking the district court to certify orders for interlocutory appeal of later rulings, pursuant to 28 U.S.C. § 1292(b).

Because petitioners have not satisfied the Bauman factors, we deny the petition without prejudice. Absent any discovery order, the mandamus petition is premature insofar as it is premised on a fear of burdensome discovery. The issues pertaining to the merits of this case can be resolved by the district court, in a future appeal, or, if extraordinary circumstances later present themselves, by mandamus relief. For these reasons, we decline to exercise our discretion to grant mandamus relief at this stage of the litigation.




March 7, 2018 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, February 27, 2018

SCOTUS Decision in Patchak v. Zinke: Gun Lake Act Does Not Violate Article III

Today the Supreme Court issued its decision in Patchak v. Zinke, covered earlier here. By a 6-3 vote—and with no majority opinion—the Court rules that the Gun Lake Act does not violate Article III. Justice Thomas writes the plurality opinion, joined by Justices Breyer, Alito, and Kagan. Justice Ginsburg writes a concurring opinion, joined by Justice Sotomayor. And Chief Justice Roberts writes a dissenting opinion, joined by Justices Kennedy and Gorsuch. Justice Breyer and Justice Sotomayor also write separate concurring opinions. There’s a lot to digest, but here’s a quick breakdown...

The Gun Lake Act involved claims regarding land known as the Bradley property, which was the subject of a lawsuit by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians. The Act provided in § 2(b):

NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

Justice Thomas’s plurality opinion finds no Article III violation because:

Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. See 28 U. S. C. §1331. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III.

Justice Ginsburg’s concurring opinion reads the Gun Lake Act as concerning solely sovereign immunity:

What Congress grants, it may retract. That is undoubtedly true of the Legislature’s authority to forgo or retain the Government’s sovereign immunity from suit. The Court need venture no further to decide this case.

Chief Justices Roberts’ dissenting opinion begins:

Two Terms ago, this Court unanimously agreed that Congress could not pass a law directing that, in the hypothetical pending case of Smith v. Jones, “Smith wins.” Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 17 (2016) (slip op., at 13, n. 17). Today, the plurality refuses to enforce even that limited principle in the face of a very real statute that dictates the disposition of a single pending case. Contrary to the plurality, I would not cede unqualified authority to the Legislature to decide the outcome of such a case. Article III of the Constitution vests that responsibility in the Judiciary alone.

(Full disclosure, I joined an amicus brief on behalf of federal courts scholars in support of the petitioner in this case).



February 27, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, February 26, 2018

Some Interesting Decisions from the U.S. Courts of Appeals

A couple of decisions from the federal circuits in recent weeks:

In Hagy v. Demers & Adams, the Sixth Circuit addressed Article III standing and the Supreme Court’s 2016 decision in Spokeo. Judge Sutton’s opinion dismisses a case brought under the Fair Debt Collection Practices Act (FDCPA) “[b]ecause the complaint failed to identify a cognizable injury traceable to [the defendant] and because Congress cannot override this baseline requirement of Article III of the U.S. Constitution by labeling the violation of any requirement of a statute a cognizable injury.” (H/T: Howard Bashman)

In Simpson v. Trump University, the Ninth Circuit affirmed the district court’s approval of a class action settlement involving seminars offered by Trump University. Here’s the introduction from Judge Nguyen’s opinion:

Trump University, now defunct, was a for-profit entity that purported to teach Donald J. Trump's “secrets of success” in the real estate industry. During the 2016 presidential election, Trump University and Trump were defendants in three lawsuits alleging fraud and violations of various state and federal laws: two class actions in the Southern District of California, and a suit by the New York Attorney General in state court. Each suit alleged that Trump University used false advertising to lure prospective students to free investor workshops at which they were sold expensive three-day educational seminars. At these seminars, instead of receiving the promised training, attendees were aggressively encouraged to invest tens of thousands of dollars more in a so-called mentorship program that included resources, real estate guidance, and a host of other benefits, none of which ever materialized.

In the California cases, the district court certified two classes of over eight thousand disappointed “students,” and scheduled the cases for trial in late November 2016. On November 8, 2016, Trump was elected President of the United States. Within weeks, the parties reached a global settlement on terms highly favorable to class members. Plaintiffs would receive between 80 to 90 percent of what they paid for Trump University programs, totaling $21 million. The defendants agreed to pay an additional $4 million in the case brought by the Attorney General of New York.

This appeal involves a lone objector, Sherri Simpson, who seeks to opt out of the class and bring her claims in a separate lawsuit, which would derail the settlement. Simpson does not dispute that she received, at the class certification stage, a court-approved notice of her right to exclude herself from the class and chose not to do so by the deadline. She argues, however, that the class notice promised her a second opportunity to opt out at the settlement stage, or alternatively, that due process requires this second chance. Neither argument is correct. We affirm.

(H/T: Adam Zimmerman) (Full disclosure: I joined an amicus brief on behalf of civil procedure professors in support of the objector in this case.)



February 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, January 17, 2018

A Couple of Interesting SCOTUS Oral Arguments

Yesterday the Supreme Court heard oral argument in two cases:

  • Dalmazzi v. United States (transcript here) involves a challenge to judges serving simultaneously on military Courts of Criminal Appeals and the Court of Military Commission Review. It raises some interesting jurisdictional issues, including whether Article III permits Supreme Court jurisdiction over the Court of Appeals for the Armed Forces. Here’s Amy Howe’s analysis of the Dalmazzi argument for SCOTUSblog.

  • Hall v. Hall (transcript here) involves the appealability of judgments in cases consolidated under FRCP 42. Here’s Howard Wasserman’s analysis of the Hall argument for SCOTUSblog.






January 17, 2018 in Federal Courts, Federal Rules of Civil Procedure, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Sunday, December 24, 2017

Big week in the federal courts

Three interesting decisions during the last few days:

  • On Thursday, the U.S. District Court for the Southern District of New York granted President Trump’s motion to dismiss in CREW v. Trump, a case alleging that Trump’s business interests violate the Domestic and Foreign Emoluments Clauses of the United States Constitution. Judge George B. Daniels grants Trump’s Rule 12(b)(1) motion to dismiss, finding that the plaintiffs lack Article III standing. The court also finds that the case presents a non-justiciable political question and that the plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication. The courts states, however, that it “does not reach the issue of whether Plaintiffs’ allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6)” or “whether the payments at issue would constitute an emolument prohibited by either Clause.”

Download CREW v Trump (SDNY Dec 21 2017)

  • On Friday, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Hawaii v. Trump, affirming the district court’s order enjoining portions of President Trump’s Proclamation 9645 (also known as Travel Ban 3.0). The per curiam opinion—by Judges Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez—concludes that the Proclamation exceeds the President’s statutory authority under the Immigration and Nationality Act.The court does not address whether the Proclamation also violates the Establishment Clause. The court does, however, limit the scope of the district court’s preliminary injunction to “foreign nationals who have a bona fide relationship with a person or entity in the United States.” 

Download Hawaii v Trump (9th Cir Dec 22 2017)

  • And on Saturday, the U.S. District Court for the District of Columbia issued an order in ACLUF v. Mattis, denying the Defense Department’s motion to dismiss a petition for a writ of habeas corpus filed on behalf of an American citizen being detained by U.S. forces in Iraq. Judge Tanya S. Chutkan concludes that the American Civil Liberties Union Foundation (ACLUF) has standing under Article III as the detainee’s “next friend.” The court also orders the Defense Department to allow ACLUF “immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf,” and “to refrain from transferring the detainee until the ACLUF informs the court of the detainee’s wishes.”

Download ACLU v Mattis (DDC Dec 23 2017)





December 24, 2017 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, December 12, 2017

Ninth Circuit Oral Argument in the Juliana Case: Climate Change, Standing, Mandamus & More

Yesterday the U.S. Court of Appeals for the Ninth Circuit heard oral argument in United States v. United States District Court for the District of Oregon. The Ninth Circuit is considering the federal government’s petition for a writ of mandamus challenging the district court’s order in Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). The district court had denied the government’s motion to dismiss a lawsuit that the court summarized as follows:

Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide (“CO2”) produced by burning fossil fuels was destabilizing the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” First. Am. Compl. ¶ 1. Despite that knowledge, plaintiffs assert defendants, “[b]y their exercise of sovereign authority over our country’s atmosphere and fossil fuel resources, ... permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels, ... deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history[.]” Id. ¶ 5. Although many different entities contribute to greenhouse gas emissions, plaintiffs aver defendants bear “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change. Id. ¶ 7. Plaintiffs argue defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.

217 F. Supp. 3d at 1233.

Here is a link to the audio and video of yesterday’s argument.

Here’s coverage from NBC Bay Area and The Mercury News.




December 12, 2017 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, December 8, 2017

Two Interesting SCOTUS Cert Grants

Today the U.S. Supreme Court granted certiorari in several cases, including these two:

United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”

China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Sanchez-Gomez and China Agritech.




December 8, 2017 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, December 1, 2017

SCOTUS Cert Grant on Appellate Jurisdiction: Salt River Project v. SolarCity

Today the U.S. Supreme Court granted certiorari in Salt River Project Agricultural Improvement & Power District v. SolarCity Corp. It presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.




December 1, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, November 8, 2017

SCOTUS Decision in Hamer v. Neighborhood Housing Services: A Question of Time

Today the Supreme Court issued its decision in Hamer v. Neighborhood Housing Services, the first merits decision of the new Term. The Court unanimously holds that FRAP 4(a)(5)(C)’s limit on extensions of time to file a notice of appeal is not jurisdictional. (Rule 4(a)(5)(C) provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”)

Justice Ginsburg’s opinion begins:

This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell, 551 U. S. 205, 210–213 (2007), this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Ibid.; Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Because the Court of Appeals held jurisdictional a time limit specified in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016), we vacate that court’s judgment dismissing the appeal.

The Court left open, however, several issues for the lower court to address on remand, including:

(1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see id., at 23–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see id., at 29–43.





November 8, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (1)

Friday, September 29, 2017

Walsh on Pfander and Birk (and Woolhandler) on Adversity and Article III

Now on the Courts Law section of JOTWELL is Kevin Walsh’s essay, Adversity and Non-Contentiousness. Kevin reviews two recent pieces by Jim Pfander and Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067 (2017), and Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346 (2015), as well as Ann Woolhandler’s response to their arguments in Adverse Interests and Article III, 111 Nw. U. L. Rev. 1025 (2017).







September 29, 2017 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Wednesday, September 27, 2017

Bill to Expand Diversity of Citizenship Introduced in House

Representative Steve King (R-IA) introduced H.R. 3487, a bill to expand diversity jurisdiction by defining diversity as minimal diversity:

Section 1332 of title 28, United States Code, is amended by adding at the end the following:

“(f) For the purposes of this section, diversity of citizenship exists if at least one party adverse to any other party to the civil action does not share the same citizenship with that adverse party.”.

The bill has been referred to the House Judiciary Committee.  We reported last year on a hearing held before the House Judiciary Committee that explored the adoption of minimal diversity.

Hat tip: Valerie Nannery



September 27, 2017 in Current Affairs, Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS Decision in Microsoft v. Baker: Appellate Jurisdiction & Class Actions

Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”

Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:

We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.

A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”

Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.






June 12, 2017 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, June 6, 2017

SCOTUS Opinion on Standing & Intervention: Town of Chester v. Laroe Estates

Yesterday the Supreme Court issued a unanimous decision in Town of Chester v. Laroe Estates, Inc., covered earlier here and here. Justice Alito’s opinion for the Court decides the case on very narrow grounds—here’s how it begins:

Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief.




June 6, 2017 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 2, 2017

SCOTUS Decision on the Foreign Sovereign Immunities Act

Yesterday the Supreme Court issued a unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., covered earlier here. The case involves the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), which provides that foreign states are not immune from jurisdiction in U.S. courts when, among other things, “rights in property taken in violation of international law are in issue.”

Justice Breyer’s opinion concludes that it is not sufficient to “make a ‘nonfrivolous’ argument that the case falls within the scope of the exception.”

Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.

Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493–494 (1983).

Part III of the opinion contrasts the FSIA with 28 U.S.C. § 1331, finding that Bell v. Hood’s approach to the existence of a federal question does not apply to the FSIA’s expropriation exception.

Justice Gorsuch took no part in the consideration or decision of the case.

Download Venezuela v. Helmerich & Payne





May 2, 2017 in Federal Courts, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, April 17, 2017

Today’s SCOTUS Oral Arguments

Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:




April 17, 2017 in Class Actions, Federal Courts, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)