Friday, October 30, 2020
Yesterday the First Circuit issued its decision in Rhode Island v. Shell Oil Products Co., which addresses the scope of appellate jurisdiction over district court remand orders—the same issue for which the Supreme Court granted certiorari (in a Fourth Circuit case) earlier this month.
Judge Thompson’s opinion begins:
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.
Wednesday, October 28, 2020
Today on the Courts Law section of JOTWELL is Fred Smith’s essay, Assessing the Rise of the Governmental Plaintiff. Fred reviews Seth Davis’s recent article, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).
Monday, October 26, 2020
The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?
I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.
Wednesday, October 21, 2020
Cengiz v. Bin Salman was filed yesterday in U.S. District Court for the District of Columbia. The suit is based on the killing of journalist Jamal Khashoggi in 2018. The plaintiffs invoke, among other things, the Alien Tort Statute and the Torture Victim Protection Act.
Spencer Hsu and Kareem Fahim have this story in the Washington Post.
Here’s the full complaint:
Monday, October 19, 2020
Today’s Supreme Court order list contained some high-profile grants of certiorari that include some interesting federal courts issues.
Wolf v. Innovation Law Lab involves a challenge to the Trump administration’s “Remain in Mexico” policy, which had been enjoined by lower federal courts. One of the four questions presented is “[w]hether the district court’s universal preliminary injunction is impermissibly overbroad.”
Trump v. Sierra Club involves the Trump administration’s diversion of Department of Defense (DoD) funds to build portions of a wall along the U.S.-Mexico border. The first question presented is whether the plaintiffs “have a cognizable cause of action to obtain review of the Acting Secretary’s compliance with Section 8005’s proviso in transferring funds internally between DoD appropriations accounts.”
Here's where you can check out the cert-stage briefing and follow the merits briefs as they come in:
Supreme Court website:
Friday, October 16, 2020
Today the Supreme Court set oral argument in Trump v. New York for Monday, November 30. Here are the questions presented, which include a question on the lower court's authority to grant relief under Article III:
Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “a statement showing the whole number of persons in each State * * * as ascertained under the * * * decennial census of the population.” 2 U.S.C. 2a(a). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:
(1) Whether the relief entered satisfies the requirements of Article III of the Constitution.
(2) Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.
Thursday, October 15, 2020
Yesterday, Judge Polster partially granted the plaintiffs’ motion for sanctions against the Allergan and Teva defendants in the In re: National Prescription Opiate Litigation MDL. The issue was “whether the Plaintiffs are entitled to some relief, given that they only recently received a critical document (‘the Cegidim Report’), even though the Court ordered the Report must be produced and even though Plaintiffs asked Allergan and Teva for it numerous times during discovery in the last 18 months.”
Judge Polster explained:
[I]f the Cegidim Report supported, rather than contradicted, assertions Teva and Allergan made in their summary judgment briefing, it seems awfully likely the defendants would have worked more diligently to find it. And that is the level of diligence that was required, regardless.
Here is the full order:
Monday, October 12, 2020
Anti-Racist Hiring Practices
– October 16, 2020 3pm ET - 4pm ET –
Register here: https://bit.ly/307SZ6M
(H/T: Allyson Gold)
Friday, October 9, 2020
Now on the Courts Law section of JOTWELL is Robin Effron’s essay, #Getyour$$now!: A New Plan for Class Action Notice and Administration. Robin reviews Amanda Rose’s article, Classaction.gov, U. Chi. L. Rev. (forthcoming 2020).
Tuesday, October 6, 2020
The Supreme Court hears oral argument tomorrow in the much-anticipated Ford cases—the latest in the Court’s recent run of decisions on personal jurisdiction. Oral argument in the two consolidated cases was originally scheduled for last spring, but it was postponed until this week due to the COVID-19 pandemic.
The two cases involve a similar fact pattern. The plaintiffs were injured in accidents involving Ford vehicles, and they sued Ford in the state where they lived and where the accidents occurred. Ford is actively involved in marketing its automobiles in those states (as it is throughout the United States), including the specific kinds of automobiles involved in these accidents. Ford, however, has argued against specific jurisdiction because the vehicles involved in these accidents were initially sold to customers in other states. The vehicle involved in the Minnesota accident was initially sold to a customer in North Dakota. The vehicle involved in the Montana accident was initially sold to a customer in Washington State. Accordingly, Ford contends that its contacts with Minnesota and Montana were not the “cause” of the accidents that occurred there. The plaintiffs, on the other hand, argue that “[s]pecific jurisdiction over a defendant is permissible where a plaintiff has been injured in the forum by a product that the defendant has systematically marketed, sold, and serviced in the forum.”
Numerous law professors have filed amicus briefs supporting personal jurisdiction in Ford (here, here, here, here, and here) and weighed in with blog posts (e.g., here and here). There is also a remarkable amicus brief filed by 39 states and the District of Columbia arguing in support of jurisdiction—a brief joined by many states whose administrations would hardly be considered friends of the plaintiffs’ bar.
Although the Supreme Court has decided lots of cases about when a defendant’s contacts are constitutionally sufficient for specific jurisdiction, it has yet to provide meaningful guidance on what sort of forum-controversy “affiliation” is required to justify specific jurisdiction. I’ve argued elsewhere that the appropriate affiliation touchstone is rationality—that is, whether there is a rational basis for the forum state to adjudicate the availability of judicial remedies in that particular case. But the Supreme Court need not go that far to uphold specific jurisdiction in Ford. The test proposed by the plaintiffs is a sensible one that vindicates the well-established notion that a defendant is subject to personal jurisdiction when it seeks to serve the market for its product in the forum state and its product causes injury there.
There’s a lot more to be said, but with this quick post I want to highlight an additional concern about Ford’s causation argument—one that could sweep beyond the precise facts of these cases and into more traditional “stream of commerce” cases where the product is purchased initially by a customer in the forum state. The plurality and concurring opinions in the Supreme Court’s McIntyre decision indicate that a single product entering the forum state is not a sufficient contact for establishing personal jurisdiction—even if that single product is the one that gives rise to the litigation. Yet Ford’s proposed causal requirement suggests that the only relevant contact is the single vehicle or piece of machinery that was involved in the accident. If that’s right, then every case might turn into McIntyre. Regardless of whether the flow of the defendant’s products into the forum state is a stream, an eddy, or a rushing river, the only contact that would count is the single drop that caused the plaintiff’s injuries. And a single drop is never enough. That would be a radical, unfortunate departure from established doctrine—and it’s another reason why the Court should uphold personal jurisdiction in the Ford cases.
Larry Solum has posted Two Suggestions re Ford Motor Company v. Montana Eighth Judicial District Court (Personal Jurisdiction Case to Be Argued Tomorrow) on the Legal Theory Blog.
Monday, October 5, 2020
The Supreme Court begins oral argument by telephone conference this morning. If you want to listen in, here’s some information from the Supreme Court’s press release:
The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The oral arguments are scheduled to begin at 10 a.m. On days when more than one case will be heard, there will be a three minute pause before the second case begins.
The Court will provide a live audio feed of the arguments to ABC News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. * * *
The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.
Today’s arguments include Carney v. Adams, which presents some interesting standing and severability issues.
Friday, October 2, 2020
The question presented involves the permissible scope of an appellate court’s review of a district court’s order remanding a case to state court. From the cert. petition:
Section 1447(d) of Title 28 of the United States Code generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * * removed pursuant to” the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443, “shall be reviewable by appeal or otherwise.” Some courts of appeals have interpreted Section 1447(d) to permit appellate review of any issue encompassed in a district court’s remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civil-rights ground for removal. The question presented is as follows:
Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.