Civil Procedure & Federal Courts Blog

Signing Off

Does it seem to anyone else that the summer has gone by faster than usual? It seems like my last class of spring was just a few weeks ago and that my first class for fall is just around the corner.

In any case, the month of July is over, and so is my stint guest blogging here.  As my last post, I figured I'd provide some thoughts about the experience.

Before I started the gig, I had heard other professors express reservations about pre-tenured folks blogging, in large part because it takes time away from writing. That is true, but I have to say that the time commitment has not been onerous. I still managed to complete a major full-length article this summer, essays in Virginia Law Review's In Brief and Northwestern's Colloquy, and several Encyclopedia entries.  And, there are several important positives from the experience: (1) It enabled me to get some thoughts our early and hear responses to them that then helped me refine points I made in my essays; (2) It gave me the opportunity to reach out to other scholars in my field whom I did not know; and (3) It was just plain fun--a great forum in which to speak my mind on issues about which I care deeply.

Bottom line is that I have thoroughly enjoyed the experience, and I think I am better off for it. Thanks so much to Jeremy and Rory for letting me step in and post some thoughts.

--Scott Dodson

Restyled Rules: Pros and Cons

On December 1, 2007, unless Congress intervenes, the “restyled” Federal Rules of Civil Procedure will take effect. The restyling was not intended to alter any meanings; it was intended only to make the Rules clean, clear, and consistent.

Professor Michael Dorf has this interesting article on FindLaw about the new rules, in which he expresses support for the changes as a teacher but acknowledges that they may actually create some confusion for practitioners. He notes the risks of interpretive difficulties (do you look to the new or old or both when trying to discern meaning?) and of supersession uncertainty (will the restyled rules trump all preexisting, conflicting statutes?).

Taking a somewhat different view of the same problems, Professor Edward Hartnett recently published an article entitled “Against (Mere) Restyling,” in which he argues that the restyling creates more problems than solutions. He illustrates the problems with a few key examples, including Rule 65.

I expect we will hear more opinions about the rules as December approaches, but are there any thoughts—from academic, practicing, or pedagogical viewpoints—now?

****Update:  You can find all of our Restyling posts summarized here.

HAT TIP: Thanks to Howard Wasserman for forwarding me the Dorf article and the idea for this post.

--Scott Dodson

Class Action Settlements: Silence and Objectors

I just read two very interesting articles on the problems of class action settlements, each taking a look from a different angle. They make some great points on the role of objectors in class action settlements, and so I wanted to highlight some of their arguments and conclusions.

In federal court, class action settlements require court approval and may be approved only if fair and reasonable. That is because of the dangerous incentive for collusion between a defendant anxious to reduce settlement and a class counsel more interested in fees than class recovery. The court, however, can police only so much. Thus, unnamed class members have an opportunity to object or voice concerns about any prospective settlement; these are called "objectors." Objectors can be important indicators of unfairness or unreasonableness. However, the vast majority of unnamed class members never formally objects. Often, that silence is taken as acquiescence or even support for the argument that the settlement is fair and reasonable.

Christopher Leslie, Professor of Law at Chicago-Kent College of Law, recently published “The Significance of Silence: Collective Action Problems and Class Action Settlements” in Florida Law Review (2007), in which he argues that courts misinterpret the significance of objector silence. He argues that silence is a poor proxy for acceptance because silence may result from ignorance about the settlement terms, insufficient time to voice objections, or even a rational cost-benefit analysis from those who nevertheless have legitimate objections.

Professor Leslie then proposes a two-pronged solution. He first suggests that courts should fashion ways to improve communication among class members and between the court and the class, such as by using the Internet more effectively. For example, courts could require class counsel to create a website for the class action devoted to providing a forum for class member access to documents and forums for discussion and concerns. In addition, courts themselves should accept electronic objections from unnamed class members. He argues that these potential solutions could reduce the cost and ignorance of certain class members to facilitate legitimate objections to settlement. Second, Professor Leslie suggests that courts should view objections more seriously, not only for their own merit but also as “red flags” demanding greater scrutiny of the fairness and reasonableness of the settlement in other ways.

Taking a different vantage point, Professor Edward Brunet, Henry J. Casey Professor of Law at Lewis & Clark Law School, published "Class Action Objectors: Extortionist Free Riders or Fairness Guarantors" in the University of Chicago Legal Forum (2003), in which he argues that enhancing the ability of third parties to voice objections can improve fairness and efficiency. While advocating for more expansion of participation by objectors, Professor Brunet also recognizes that some objectors interested in holding the settlement hostage for a bigger-than-fare share of a limited pie hinder fairness and efficiency. Thus, he argues that an expansion of objector participation should include some screening mechanism to minimize the possibility that objectors will diminish fairness and efficiency. Interestingly, he points out that objectors need not always be class members; they can be public interest groups or state entities intervening on behalf of non-individualized interests. These third parties may provide a more efficient and fair check on class action settlements. Professor Brunet also encourages courts to consider appointing guardian ad litems or judicial adjuncts to represent unnamed class members in a class settlement or otherwise monitor class settlement fairness. 

I enjoyed both articles and think they are meaningful contributions to thoughtful debate surrounding class action settlements and the problems they create. They strike me as particularly important after CAFA, which has already caused a substantial increase in diversity class actions heard in federal court under Rule 23.

--Scott Dodson

Transfer for Improper Venue does not Affect Statute of Limitations

On Friday, the Third Circuit decided Lafferty v. St. Riel and held that when a case is transferred for improper venue under 28 U.S.C. § 1406(a), the date of filing of the case in the original court—not the date of transfer—is the date of filing for statute of limitations purposes. The court reasoned that a transfer (as opposed to a dismissal) for improper venue does not make the complaint disappear. Instead, a transfer (as opposed to a dismissal) keeps the complaint intact and simply moves the existing lawsuit. Thus, although the statute of limitations of the transferee court generally applies, the filing date is that filed in the transferor court.

The decision puts the Third Circuit in some conflict with Eighth Circuit (which applies the statute of limitations of the transferor court) and in direct conflict with the Fourth, Seventh, and Eleventh Circuits (which all apply the transferee court's statute of limitations but use the date of transfer as the filing date for compliance with that statute of limitations).

Interestingly, the claims at issue were based on state law and therefore were subject to state statutes of limitations, and the transfer was out-of-state. This raises questions of venue, Erie, and conflict of laws. Yummy! I do note that the court expressly acknowledged that because the two states' statutes of limitations were identical, it did not reach any issues that might arise if the statutes of limitations applied by the two courts were different.

--Scott Dodson

UPDATE: I have corrected the date the opinion was filed.

UPDATE #2: In reporting on the case, I took the Third Circuit’s word when it characterized the Fourth, Seventh, Eighth, and Eleventh Circuits as reaching different results. Fortunately, there are those who actually read the underlying cases. Hat tip to Kevin Clermont, who concludes that Lafferty misread those Circuits’ precedents and that the rule is fairly straightforward and uniform: The § 1406(a) transferee court applies transferee law, except that the transferee’s SOL will be tolled by the initial filing if within both the transferor’s and transferee’s limitations period. Thanks, Kevin!

Is the Statute of Limitations in the Tucker Act Jurisdictional?

Sticking with problems of determining what is jurisdictional and what is not, the Supreme Court will consider a variant in the fall when it hears arguments in John R. Sand & Gravel Co. v. U.S., 06-1164 (cert. granted May 29, 2007). In that case, John R. Sand leased land in Michigan that included a landfill. During the lease, the landfill was placed on the National Priorities List, and the EPA ordered remedial action. As part of the remedial action, the EPA erected fences and other barriers that interfered with John R. Sand’s business use of the land, both inside and outside the contaminated areas. John R. Sand filed suit against the EPA in the Court of Federal Claims under the Tucker Act, alleging a Fifth Amendment takings without just compensation.

The Government moved for judgment on the pleadings, contending that John R. Sand’s suit was time-barred by 28 U.S.C. § 2501, which states: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” The Government argued that John R. Sand’s claim accrued in 1992 when the EPA first physically occupied the property, and that John R. Sand’s complaint was filed in 2002, outside of the six-year limitations period.

The court denied the motion in part, reasoning that the Government had not borne its burden of establishing an accrual date more than six years prior to the filing of the complaint. After a bench trial on the merits, the court found that John R. Sand’s claims were timely but that John R. Sand had not proven an unconstitutional takings.

John R. Sand appealed to the Federal Circuit. The Government opposed on the merits but did not challenge the trial court’s finding that the claims were timely. Indeed, at oral argument before the Federal Circuit, the Government agreed with John R. Sand that the takings claim accrued in 1998 and was not time-barred. However, an amicus, the Metamora Group, raised the jurisdictional challenge and argued that the claims were time-barred because they accrued by 1994, at least eight years before the complaint was filed.

A divided panel of the Federal Circuit (Schall and Lourie, JJ.) agreed with the amicus and held that the statute of limitations restricts the subject-matter jurisdiction of the Court of Federal Claims and ordered the suit dismissed. John R. Sand & Gravel Co v. U.S., 457 F.3d 1345 (Fed. Cir. Aug. 9, 2007). The court held that the statute of limitations in the Tucker Act, a limitation on the waiver of sovereign immunity, creates a jurisdictional prerequisite that cannot be waived by the parties. Judge Newman dissented, reasoning that the statute of limitations in the Tucker Act should be treated as a waivable affirmative defense like other statutes of limitations.

The question presented is whether the statute of limitations in the Tucker Act, 28 U.S.C. § 2501, limits the subject-matter jurisdiction of the Court of Federal Claims. It will be interesting to see how the Court answers this question, particularly in light of Bowles v. Russell. The Petitioner’s brief on the merits is due August 3, 2007.

Below are relevant links:

Petition for Certiorari

Brief in Opposition

Reply Brief

Official Docket Sheet

Jeffrey K. Haynes, Beier Howlett, P.C., counsel of record for Petitioner

Gregory C. Sisk, Orestes A. Brownson Professor of Law at the University of St. Thomas School of Law, co-counsel for Petitioner

--Scott Dodson

A Sleeper Case--Bowles v. Russell

A few days ago, I promised to post on Bowles v. Russell, which Rory previously addressed here. I am expressing my thoughts in more detail in an essay titled “Jurisdictionality and Bowles v. Russell” that will be published in a few weeks in Northwestern University Law Review Colloquy. But I wanted to get a few things off my chest now and hear any responses.

The facts and procedural history of the case are straightforward. Bowles, a habeas corpus petitioner, was denied relief in federal district court. He did not appeal within the 30 day period prescribed by 28 U.S.C. § 2107, but he did timely move to reopen the period, as allowed by § 2107(c). In its order, the district court gave Bowles 17 days to file his notice of appeal. Bowles filed on the 16th day. But § 2107(c) limits any extension to 14 days. Thus, Bowles’s notice of appeal was timely under the district court’s order but untimely under § 2107(c). The Sixth Circuit dismissed the appeal for lack of jurisdiction.

The Supreme Court, in a 5-4 decision written by Justice Thomas, affirmed. In a nutshell, Justice Thomas held the limitation to be jurisdictional for two reasons: (1) a consistent line of precedent stretching back over 100 years treated it as jurisdictional; and (2) the limitation is codified in a statute rather than a court rule.

There are several things wrong with Bowles (though the ultimate affirmance may not be one of them). First, the precedent is not as clear as Justice Thomas makes out. All of the cases he cites interpreting § 2107 used the doublet “mandatory and jurisdictional” to describe the time limitation. But, in each case, the issue was only whether a failure to comply with the limitation, properly invoked, could be excused. In other words, the same result in each case could have been reached by characterizing the limit as “mandatory but nonjurisdictional. (More on what “mandatory” means below.) The moniker of “jurisdictional” in each of the cases (and in Bowles as well) is, at best, dictum and, at worst, a careless misuse of the term.

Second, Justice Thomas’s second point relies on flawed logic. He is correct to recognize a jurisdictionally significant distinction between statutes and court rules adopted under the Rules Enabling Act. A court rule that purports to limit the jurisdiction of the federal courts is constitutionally problematic because Congress is the Branch given that power. But that court rules cannot themselves limit jurisdiction does not mean that statutes must. Congress has the power to limit federal jurisdiction by statute, and certainly could have done so in § 2107, but the mere fact that the limit is expressed in a statute does not mean that it is jurisdictional.

Third, Bowles is in tension with recent prior precedent attempting to develop a methodical approach to resolving questions of characterizing limits as jurisdictional or not. Those recent cases had uniformly trended towards finding limits nonjurisdictional. Bowles goes the other way and, in the process, “call[s] into question” (Justice Thomas’s words) that approach.

Fourth, Bowles fails to provide much-needed guidance. Sure, it establishes that the time for filing an appeal as set forth in § 2107 is jurisdictional. But Justice Thomas dismisses the more nuanced guidance provided by recent precedent in other areas as “dicta,” and he fails to ground a jurisdictional characterization inquiry on considerations of what “jurisdiction” really is.  In other words, he does not explain what lower courts should do when they confront a statutory limit that lacks an historical pedigree. What should lower courts now do about, for example, the thirty-day time limit to file a notice of removal as required by 28 U.S.C. § 1446(b)?  The consensus among lower courts prior to Bowles is that that statutory time limit is non-jurisdictional. It is difficult to understand from Bowles whether (and why) the lower courts still have § 1446 right. In short, Bowles may create certainty for the narrow case before it, but it creates confusion for a host of other cases. (Shameless plug: for more on what would be a principled framework for resolving statutory characterizations of jurisdictionality in the removal statute, see my Article “In Search of Removal Jurisdiction.)

Fifth, Bowles fails to consider the viable middle course that I alluded to above: characterizing the statutory time limit as mandatory but nonjurisdictional (or at least as mandatory without deciding whether it is also jurisdictional). A mandatory rule means that if the party for whose benefit it exists timely invokes it, the court has no discretion to excuse compliance. Thus, equitable exceptions (including the “unique circumstances” doctrine) are not available.  However, the right to invoke a mandatory rule may be waived or forfeited by that party, and the court need not ensure compliance sua sponte. Here, because Russell’s appellate brief to the Sixth Circuit invoked the untimeliness of Bowles’s notice of appeal, characterizing the rule as mandatory would preclude applicability of the “unique circumstances” doctrine and result in the same outcome. Justice Thomas did not need to go so far as to hold also that the time limit was jurisdictional.

I think Bowles v. Russell is a sleeper case. Although it seems relatively straightforward on the surface, it undermines prior precedent and lacks principled reasoning, and therefore I believe Bowles will cause confusion among the lower courts and litigants whenever a statutory limitation issue arises…which is likely to be rather often.

UPDATE: My Essay on Bowles published by Northwestern University Law Review's Colloquy is here.

--Scott Dodson

How to Teach Joinder and Supplemental Jurisdiction

First, let me thank Jeremy and Rory for giving me the opportunity to guest blog on Civil Procedure Prof Blog this month. The blogging industry is really changing the way the academy shares ideas, and I am delighted to be a part of it.

It's been a crazy couple of months for civil procedure mavens as the Supreme Court kept issuing important civil procedure decisions. I previously posted some thoughts on Bell Atlantic, Erickson, and Powerex (respectively, here, here, and here), and I would be remiss if I didn't add one on Bowles, which I will do next week. But the term is now over, and, as a breather, I wanted to start with a pedagogical thought raised at the AALS's New Law Teachers Conference last weekend.

A problem that I encountered last year was how to teach supplemental jurisdiction and joinder. Civil procedure is a year long course at my school, and I taught jurisdiction first semester and rules second semester. I found supplemental jurisdiction difficult to teach without explaining some of the joinder rules. And, when joinder rolled around second semester, I had to spend a significant amount of class time reviewing supplemental jurisdiction (and deciding how to answer the repeated question from students, "€œWill jurisdiction material from first semester be covered on the second semester final exam?"€).

Well, at the conference, someone suggested teaching them together, at the end of the course. That struck me as a decent idea. I also wonder if joinder could stay where it naturally belongs and supplemental jurisdiction could just move to be taught as part of joinder. That might not work for those who teach rules first. It also might work better for a semester-long course than for a year-long course.

What do others think?

--Scott Dodson

Scott Dodson Joins Us as A Guest Blogger

I am pleased to announce that Scott Dodson of the University of Arkansas joins the Civil Procedure Prof Blog today as a Guest Blogger for the month of July.  Scott is an accomplished scholar, and regular readers of the Blog will remember the interview on his most recent article, "In Search of Removal Jurisdiction," Northwestern University Law Review (forthcoming 2008), and his fine contributions (here and here) on the Bell Atlantic decision from the SCOTUS last month.  We couldn't be more pleased to have him on board.--Counseller