Wednesday, February 28, 2018

Interesting bits on pleading standards during SCOTUS oral argument in Lozman v. Riviera Beach

In Lozman v. Riviera Beach, the Supreme Court granted certiorari on the following question: “Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?” There were several moments during yesterday’s oral argument where the Justices and petitioner’s counsel Pam Karlan addressed Twombly, Iqbal, and pleading standards.

The most significant exchanges are on pp.9-16 of the transcript. Here’s one example featuring Justice Alito:

JUSTICE ALITO: Well, let's take this particular case then. Suppose -- obviously, there is no love lost between your client and the City of Riviera Beach, but, so suppose he comes back to another meeting and he is disruptive and he's arrested. Will he not be able to file a suit for retaliation and get to the jury on that?

KARLAN: It might be very difficult for him to get to a jury if the level of disruption is such that, under the way this Court has treated plausible pleading in Twombly and Iqbal, it's not plausible to believe that it was the animus that caused the arrest.

JUSTICE ALITO: Do you really think a suit like that could be dismissed under Twombly?

Chief Justice Roberts and Justice Kennedy pursued similar lines of questioning.

(H/T: Saul Zipkin)




February 28, 2018 in Federal Rules of Civil Procedure, Supreme Court Cases, Twombly/Iqbal | 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

SCOTUS Cert Grant on Arbitration: New Prime v. Oliveira

Today the Supreme Court granted certiorari in New Prime Inc. v. Oliveira (No. 17-340). Here are the questions presented:

Section 1 of the Federal Arbitration Act (“FAA”) provides that the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Respondent is an independent contractor whose agreement with interstate trucking company New Prime, Inc. (“Prime”) includes a mandatory arbitration provision requiring Respondent to arbitrate all workplace disputes with Prime on an individual basis. Respondent does not challenge the validity of the arbitration agreement he signed or the delegation clause contained therein, which mandates that all disputes regarding arbitrability be decided by an arbitrator. Nonetheless, Respondent filed a putative class action in court and opposed arbitration on the basis of the Section 1 exemption.

The questions presented are:

    1. Whether a dispute over applicability of the FAA’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause.

    2. Whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.



February 26, 2018 in Class Actions, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

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)

Saturday, February 24, 2018

SCOTUS GVRs Oklahoma case on personal jurisdiction

At the top of this week’s Supreme Court order list was a GVR in Murco Wall Products, Inc., v. Galier (No. 17-733):

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Court of Civil Appeals of Oklahoma, First Division for further consideration in light of Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U. S. ____ (2017).

The question presented in the defendant’s cert petition was:

Whether the “totality of contacts” standard applied by the Oklahoma Court of Civil Appeals comports with the Due Process Clause of the Fourteenth Amendment and this Court’s precedents.




February 24, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, February 23, 2018

Wasserman on Schwartz on Qualified Immunity

Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Empirical Truth About Qualified Immunity. Howard reviews Joanna Schwartz’s recent article, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).



February 23, 2018 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, February 21, 2018

Federal Bar Association's April Community Outreach Project

The Federal Bar Association has issued a press release announcing a project for National Community Outreach Project month in April.  The project involves members of the FBA visiting middle school and high school classrooms to teach students about the federal justice system, giving students an opportunity to learn how the legal system works and encouraging students to learn more about various careers in the legal profession. 

Here is the press release: 

Federal Bar Association Makes Impact with National Community Outreach Project –APRIL IS NCOP MONTH

Federal Bar Association Reaches Out to Communities Across the United States

Arlington, VA – The Federal Bar Association announces its third annual National Community Outreach Project, reaching out to youth and other communities coast to coast to open the federal judicial system for the public to see.  In these times when communities, especially youth, have lost confidence in our judicial system, the FBA’s NCOP seeks to instill confidence in the judicial system in middle and high-school students and other communities by bringing them into the courthouses, meeting with lawyers, observing court proceedings, and talking directly to federal judges. 

In recent years, Federal Bar Association chapters participated from coast to coast, spreading the word throughout the country and involving the federal judiciary in districts throughout the nation. This program has made a lasting effect on the communities they serve.

The Federal Bar Association’s mission statement includes a commitment to the communities in which their members serve. With events like tours of the federal courts, viewing federal court proceedings, tours of federal agencies and providing citizens with free legal advice, the Federal Bar Association has reached out in a variety of creative ways to fulfill this commitment.  

Funded by the Foundation of the Federal Bar Association, the NCOP is back this year, even bigger than last year, undoubtedly with an even bigger impact. Through the NCOP, the FBA is making every April the “National Community Outreach” month. The National Community Outreach Project of 2018 will kick off in April. For more information, please visit:

Chapter and sections in multiple districts across the country have agreed to participate in the third annual National Community Outreach Project.

About the Federal Bar Association:

The Association consists of more than 20,000 federal lawyers, including 1,500 federal judges, who work together to promote the sound administration of justice, quality, and independence of the judiciary. Through its multifaceted programs, the FBA advocates on federal issues that impact the practice of federal lawyers and the courts; provides opportunities for scholarship and education to the profession; delivers opportunities for judges and attorneys to professionally and socially interact; and promotes high standards of professional competence and ethical conduct.  The mission of the federal bar association includes serving not just the interests of federal judiciary and the federal practitioner, but also the interests of the community that they serve. 

About the Foundation of the Federal Bar Association:

The Foundation of the Federal Bar Association, chartered by Congress in 1954, provides funding to support community service or outreach projects that involve Federal Bar Association chapter participation. The Foundation provides support for the conduct of research, programs, education relating to the federal courts and federal jurisprudence, the structure and operation of the courts, the independence of the judiciary, federal jurisprudence, and the relevance of the rule of law to society. 


February 21, 2018 | Permalink | Comments (0)

International Human Rights Clinical Fellowship at Yale Law School

From the announcement for Yale Law School's Robert M. Cover - Allard K. Lowenstein International Human Rights Clinical Fellowship:

The Cover-Lowenstein Fellowship is a two-year position designed for lawyers with international human rights or other relevant experience who are interested in preparing for a career in human rights practice or human rights teaching. The Fellow will help supervise the Allard K. Lowenstein International Human Rights Clinic and coordinate activities of the Orville H. Schell, Jr. Center for International Human Rights.

Download Cover Lowenstein Fellow Announcement

The deadline to apply is March 9, 2018.



February 21, 2018 | Permalink | Comments (0)

Tuesday, February 20, 2018

Nash on National Personal Jurisdiction

Jonathan Remy Nash (Emory) has posted National Personal Jurisdiction to SSRN.

Personal jurisdiction has always constrained plaintiffs’ access to courts; recent Supreme Court decisions impose even more severe limits, especially in suits against nonresident foreign corporations. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. The Court’s Fourteenth Amendment jurisprudence relies on the state as the relevant forum, and the Federal Rules of Civil Procedure in the typical case direct a federal court to apply the same test as would a court of the state in which it sits. 

This Article takes on the challenge of exploring the possibility of expanding the use of national personal jurisdiction, and thus revitalizing plaintiffs’ access to courts. In so doing, it undertakes three distinct tasks. First, it argues first that there is no Fifth Amendment Due Process barrier to national personal jurisdiction. Second, it considers the viability of national personal jurisdiction as to various categories of claims, brought in federal court and state court. It argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, the Article considers what steps Congress is free to utilize in order to implement national personal jurisdiction. While two steps are obvious—Congress can enact statutory authority and can convey authority on a delegate—the Article focuses on a more controversial path to national personal jurisdiction: the common law. It argues that, while federal courts may enjoy interstitial common-law powers in this area, they likely do not have broad powers to generate new instances of national personal jurisdiction.

February 20, 2018 | Permalink | Comments (0)

Friday, February 9, 2018

Levy on Epps & Ortman on a SCOTUS Lottery Docket

Now on the Courts Law section of JOTWELL is Marin Levy’s essay, Redesigning the Cert Process. Marin reviews a forthcoming article by Dan Epps and Will Ortman, The Lottery Docket, 116 Mich. L. Rev. (forthcoming 2018).



February 9, 2018 in Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 5, 2018

Conference: "A Court Transformed: The Ninth Circuit, the 1978 Judgeship Act, and the Carter Judges" (Pasadena, Cal. – Feb. 17)

The announcement for the conference begins:

Judges, legal historians and members of the bar are expected to gather in Pasadena, California, later this month to recall the 40th anniversary of enactment of the Omnibus Judgeship Act of 1978. The law authorized 10 new judgeships for the United States Court of Appeals for the Ninth Circuit, nearly doubling the size of the Ninth Circuit bench. All of the new judgeships were first filled by President Jimmy Carter, giving the nation’s 39th president a lasting legacy on the court.

Entitled “A Court Transformed: The Ninth Circuit, the 1978 Judgeship Act, and the Carter Judges,” the special program will be held February 17, 2018, from 9 a.m. to 4:30 p.m., in Courtroom 3 of the Richard H. Chambers Court of Appeals Building, 125 S. Grand Ave., Pasadena. Admission is free. Attendees should RSVP by February 9, 2018, via email to Professor Arthur D. Hellman, [email protected].

More details here.




February 5, 2018 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)