Tuesday, June 29, 2010
SCOTUS cert. grant in Henderson v. Shinseki: Once more into the jurisdictional-vs.-nonjurisdictional breach
The Supreme Court has been struggling in recent years to distinguish "jurisdictional" requirements from "nonjurisdictional" ones, in a line of cases that includes Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), Bowles v. Russell, 551 U.S. 205 (2007), John R. Sand & Gravel Co. v. United States, 552 U. S. 130 (2008), and Reed Elsevier v. Muchnick, 130 S. Ct. 1237 (2010). As covered here, the topic came up again in last week’s decision in Morrison v. Australia National Bank. The Court looks to tackle the issue once more in a case for which it granted certiorari yesterday: Henderson v. Shinseki (No. 09-1036). The question presented is:
Section 7266(a) of Title 38, U.S.C., establishes a 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran's claim for disability benefits. Before the decision below, the Federal Circuit in two en banc decisions held that Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling under this Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). In the divided en banc decision below, however, the Federal Circuit held that this Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), superseded Irwin and rendered Section 7266(a) jurisdictional and not subject to equitable tolling.
The question presented is whether the time limit in Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine.
The lower court decision is at 589 F.3d 1201, and the Supreme Court docket is here.
Monday, June 28, 2010
Prof. Scott Dodson (William & Mary) has published Justice Souter and the Civil Rules in the Washington University Law Review Commentaries. From the text:
Justice Souter appears to have shied away from writing opinions that addressed the civil rules for most of his tenure on the Court. The first opinion he wrote—either for the Court or for himself—that directly addressed a federal civil rule was Ortiz v. Fibreboard Corp., issued almost a decade after he joined the Court. Over the next eight years, he authored only one other opinion on the civil rules, dissenting in Mayle v. Felix. After mid-2007, however, Justice Souter showed considerably more willingness to write on the civil rules. In the span of a little over two years, he authored the blockbuster pleadings case, Bell Atlantic Corp. v. Twombly; a passionate dissent in Bowles v. Russell; and a dissent in Twombly’s equally important progeny, Ashcroft v. Iqbal.
A survey of these five opinions by Justice Souter reveals that he is not uniformly historicist, textualist, formalist, instrumentalist, pragmaticist, or minimalist when it comes to the civil rules. It does, however, manifest a commitment to construing the civil rules in a way that would treat litigants fairly in court.
Friday, June 25, 2010
The Washington State Supreme Court decided yesterday to maintain the pleading standard that has long applied in Washington state courts, rebuffing a request to adopt the federal pleading standard that the U.S. Supreme Court embraced in Twombly and Iqbal. The decision is McCurry v. Chevy Chase Bank (No. 81896-7). Here’s an excerpt (footnote and some citations omitted):
Chevy Chase urges this court to reconsider the standard for dismissing a motion under CR 12(b)(6) in light of changes in the United States Supreme Court case law regarding Fed. R. Civ. P. 12(b)(6). Under CR 12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible that facts could be established to support the allegations in the complaint. See Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“On a [CR] 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff’s allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim.”); see also Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
However the United States Supreme Court has recently revised its dismissal standard under Fed. R. Civ. P. 12(b)(6), permitting dismissal unless the claim is plausibly based upon the factual allegations in the complaint – a more difficult standard to satisfy. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Chevy Chase encourages this court to similarly construe CR 12(b)(6). We decline.
The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts. The Twombly Court concluded: federal trial courts are incapable of adequately preventing discovery abuses, weak claims cannot be effectively weeded out early in the discovery process, and this makes discovery expensive and encourages defendants to settle “largely groundless” claims. See 550 U.S. at 557-58, 559. Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. For example, do current discovery expenses justify plaintiffs’ loss of access to that discovery and general access to the courts, particularly in cases where evidence is almost exclusively in the possession of defendants? Could runaway discovery expenses be addressed by better means – perhaps involving more court oversight of the discovery process or a change in the discovery rules?
Although three Justices dissented, they agreed with the majority about the pleading standard. From the dissenting opinion: “My discussion of CR 12(b)(6) should not be confused with the Fed. R. Civ. Pr. 12(b)(6) standard articulated by the United States Supreme Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). I do not suggest we modify our rule to align with the federal “plausible” standard in our decision today.”
(Hat Tip: Brooke Coleman)
Thursday, June 24, 2010
Today the Supreme Court issued a unanimous decision in Morrison v. National Bank of Australia Ltd., covered earlier here and here. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito. The opinion begins: "We decide whether §10(b) of the Securities Exchange Act of 1934 provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges."
It concludes: "Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. This case involves no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States. Petitioners have therefore failed to state a claim on which relief can be granted."
Part II of the opinion rejects the Second Circuit's view that the extraterritoriality question goes to the federal court's subject matter jurisdiction, concluding instead that "to ask what conduct §10(b) reaches is to ask what conduct §10(b) prohibits, which is a merits question."
Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justice Stevens filed an opinion concurring in the judgment, which was joined by Justice Ginsburg. Justice Sotomayor took no part.
Emery Lee & Thomas Willging of the Federal Judicial Center have posted on SSRN three reports that may be of interest:
(1) Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules. From the Executive Summary:
This report provides a brief comparison of the results of three surveys on the current operation of the Federal Rules of Civil Procedure (“Rules”). These surveys asked attorneys in the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA Section”), and the National Employment Lawyers Association (“NELA”) to respond to a series of statements regarding the Rules. The Federal Judicial Center (“FJC”) did not administer the ACTL survey, but it did administer the ABA Section and NELA surveys. Respondents in the ACTL survey had many more years of practice, on average, than respondents in the other surveys.
(2) Litigation Costs in Civil Cases: Multivariate Analysis. From the Executive Summary:
This report presents the results of multivariate analysis of factors associated with litigation costs reported in a national, case-based survey of attorneys of record in federal civil cases terminated in the fourth quarter of 2008. Separate models were estimated for plaintiff and defendant attorney respondents. Both models explain a large proportion of the variation in litigation costs.
(3) In Their Words: Attorney Views About Costs and Procedures in Federal Civil Litigation. From the Executive Summary:
The Advisory Committee on Civil Rules (“Committee”) of the Judicial Conference of the United States asked the Federal Judicial Center to study the costs of federal civil litigation. In the spring of 2009, the Center conducted a survey of a random sample of attorneys who had represented the plaintiff or defendant in a set of federal cases that had been terminated in the last quarter of 2008. The Center presented the results of that survey to the Committee in October 2009.
The Center also performed a multivariate analysis of the case-based survey results, identifying the variables that explain variations in attorney estimates of the costs of civil litigation in their cases. To supplement the multivariate analysis, District Judge John Koeltl, chair of the Planning Committee for the May 2010 Litigation Review Conference at Duke Law School, and the Center agreed that it would be useful for the Center to interview a number of the attorneys who responded to the case-based survey. The purpose is to present attorneys’ general experiences and thoughts about the factors found to be associated with the costs of litigation. Interviews help explain and illuminate the quantitative findings presented in the other two reports. This report documents those interviews, organizing them where possible to track the results of the multivariate analyses of the Center’s case-based survey....
Wednesday, June 23, 2010
The lawsuit was originally certified as a class action with 74 class members who alleged violations of the Credit Repair Organizations Act. So many class members opted out of the class, however, that only 20 class members remained by the time of settlement.
The district court chose not to decertify the class, partially because each claimant, whose damages were only around $600 would create docket-clogging negative expected value individual actions.
The Ninth Circuit upheld this result, holding that although numerosity typically requires at least 40 class members, small classes are a permissible rarity, especially in a situation where class litigation had advanced to the settlement stage.
Tuesday, June 22, 2010
We blogged earlier about Supreme Court nominee Elena Kagan’s civil procedure paper trail.
As for her views on one of today’s most controversial issues in civil procedure — federal pleading standards — a recent New York Times article starts with an interesting story about Kagan’s service in the Clinton administration. Kagan’s first Oval Office presentation involved the 1995 Private Securities Litigation Reform Act (PSLRA), and Kagan expressed particular concern about the Act’s heightened pleading standards. From the article, Bill Clinton Speaks Out on Kagan:
“Against the wishes of his economic team and top Congressional Democrats, Mr. Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Ms. Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims. . . . Mr. Clinton accepted her judgment and issued a surprise veto — one of two occasions when he was overridden by Congress.”
Perhaps a Justice Kagan will be similarly concerned about the direction of federal pleading standards after Twombly and Iqbal?
Monday, June 21, 2010
The Supreme Court has issued its decision in Rent-A-Center, West Inc. v. Jackson, No. 09-497.
Holding: An arbitrator, not a court, is empowered to decide whether an arbitration agreement as a whole, signed as a condition of employment and including a clause providing that questions of interpretation, applicability, enforceability, or formation of the agreement would be questions for the arbitrator to resolve, is unconscionable under state law.
More coverage is available at SCOTUSblog.
Friday, June 18, 2010
Howard Bashman at How Appealing reports on this week’s Third Circuit decision in Ehrheart v. Verizon Wireless. In a 2-1 decision, the court held that the class settlement agreement was enforceable notwithstanding the passage of a federal statute that retroactively eliminated the plaintiffs’ claims. As the majority explained:
“The parties do not dispute on appeal (nor did they before the District Court) that the Clarification Act eliminated the Appellants’ cause of action or that the Act retroactively encompasses the Appellants’ claims. The question on appeal, therefore, is not whether the Clarification Act, enacted earlier, would have eliminated Appellants’ underlying claims, but rather whether the Act moots the settlement agreement the parties executed while that legislation was pending in Congress. We conclude that it does not.”
Thursday, June 17, 2010
Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.
The abstract states:
Readers may be interested in some of the contributions to the recently published special issue of the University of Toronto Law Journal, which includes:
David Dyzenhaus, Adam Tomkins
The Role Of The Courts In The Political Constitution
Judicial Restraint In The Pursuit Of Justice
Deference, Defiance, And Doctrine: Defining The Limits Of Judicial Review
The Very Idea of a Judge
Judicial Review at The Margins: Law, Power, and Prerogative
Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law
Structural Judicial Review and the Objection From Democracy
Abstracts and links available at Concurring Opinions.
Wednesday, June 16, 2010
Professors Charles D. Kelso (University of the Pacific McGeorge School of Law) and R. Randall Kelso (South Texas College of Law) have posted "Judicial Decision-Making and Judicial Review: The State of the Debate, Circa 2009" on SSRN. It will be published in the West Virginia Law Review.
The abstract states:
Tuesday, June 15, 2010
The article documents the difficulties that private parties and various levels of government authorities have faced in coordinating control and cleanup efforts. From the article:
Closer to shore, the efforts to keep the oil away from land have not fared much better, despite a response effort involving thousands of boats, tens of thousands of workers and millions of feet of containment boom.
From the beginning, the effort has been bedeviled by a lack of preparation, organization, urgency and clear lines of authority among federal, state and local officials, as well as BP. As a result, officials and experts say, the damage to the coastline and wildlife has been worse than it might have been if the response had been faster and orchestrated more effectively.
“The present system is not working,” Senator Bill Nelson of Florida said Thursday at a hearing in Washington devoted to assessing the spill and the response. Oil had just entered Florida waters, Senator Nelson said, adding that no one was notified at either the state or local level, a failure of communication that echoed Mr. Bonano’s story and countless others along the Gulf Coast.
“The information is not flowing,” Senator Nelson said. “The decisions are not timely. The resources are not produced. And as a result, you have a big mess, with no command and control.” (emphasis added)
This should not be news. Similar complaints were leveled in the aftermath of Hurricane Katrina. Erin Ryan (William & Mary) gives a thorough outline of these problems and various responses in her article Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 518-36 (2007).
Are these problems of cooperative/shared/interactive federalism intractable? Or can we learn and improve from the Katrina and BP experiences before the next disaster, particularly before incidences that might have a lower profile but cause equal devastation to local residents and paralysis among state, local, and federal officials.
With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Daniel A. Farber, Justice Stevens, habeas jurisdiction, and the war on terror, 43 UC Davis L. Rev. 945 (2010)
Daniel E. Ho & student Erica L. Ross, Did liberal justices invent the standing doctrine? An empirical study of the evolution of standing, 1921-2006, 62 Stan. L. Rev. 591 (2010)
Frank J. Mastro, Preemption is not dead: the continued vitality of preemption under the Federal Railroad Safety Act following the 2007 amendment to 49 U.S.C. Section 20106, 37 Transp. L.J. 1 (2010)
Alexander A. Reinert, Measuring the success of Bivens litigation and its consequences for the individual liability model, 62 Stan. L. Rev. 809 (2010)
Muhammad Umair Khan, Note, Tortured pleadings: the historical development and recent fall of the liberal pleadings standard, 3 Alb. Gov't L. Rev. 460 (2010)
Rakesh N. Kilaru, Comment, The new Rule 12(b)(6): Twombly, Iqbal, and the paradox of pleading, 62 Stan. L. Rev. 905 (2010)
Monday, June 14, 2010
Astrue v. Ratliff, No. 08-1322. An attorneys' fee award under the Equal Access to Justice Act, 28 U.S.C. §2412(d), is payable to the prevailing litigant rather than the litigant's attorney. Therefore, a fee award under the act may be used to offset the prevailing litigant's pre-existing debt to the federal government.
Holland v. Florida, No. 09-5327. The one-year limitations period for filing a petition for federal habeas corpus relief, set forth in 28 U.S.C. §2244(d), is subject to equitable tolling; a per se rule that would deny equitable tolling even when a petition was filed late due to the gross negligence of the petitioner's attorney is rejected.
Additional coverage is available at SCOTUSblog.
Thursday, June 10, 2010
Hello, Blog Readers.
The AALS Mid-Year Meeting begins tomorrow. As announced last week, we here at the Civil Procedure and Federal Courts Profs Blog invite you to join us for happy hour on Friday, June 11 at 7:00 P.M. at Ardesia (52nd St. between 10th and 11th Avenues).
short walk from the Sheraton Hotel where the conference is being held,
Ardesia is a lovely wine bar offering many interesting selections by
the glass. For those of your who don't like wine, draft and bottled
beer are also served. The kitchen puts out a number of tasty items,
We hope to see many of you there!