Friday, May 28, 2021
Yesterday the Supreme Court issued a unanimous decision in San Antonio v. Hotels.com, L. P. Justice Alito’s opinion for the Court begins:
Civil litigation in the federal courts is often an expensive affair, and each party, win or lose, generally bears many of its own litigation expenses, including attorney’s fees that are subject to the so-called American Rule. Baker Botts L. L. P. v. ASARCO LLC, 576 U. S. 121, 126 (2015). But certain “costs” are treated differently. Federal Rule of Appellate Procedure 39 governs the taxation of appellate “costs,” and the question in this case is whether a district court has the discretion to deny or reduce those costs. We hold that it does not and therefore affirm the judgment below.
Although the Court concludes that “Rule 39 does not permit a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e) of that Rule,” it does let the appellate court delegate the cost-allocation question to the district court:
In all events, if a court of appeals thinks that a district court is better suited to allocate the appellate costs listed in Rule 39(e), the court of appeals may delegate that responsibility to the district court, as several Courts of Appeals have done in the past. See, e.g., Emmenegger v. Bull Moose Tube Co., 324 F. 3d 616, 626 (CA8 2003); Guse v. J. C. Penney Co., 570 F. 2d 679, 681–682 (CA7 1978). The parties agree that this pragmatic approach is permitted. See Tr. of Oral Arg. 15, 44. And nothing we say here should be read to cast doubt on it. See Rule 39(a) (imposing no direct limitations on the court’s ability to “orde[r] otherwise”); Rule 41(a) (the mandate includes “any direction about costs”).
And Justice Alito’s opinion also encourages litigants to make their arguments about cost allocation to the appellate court before it makes its cost-allocation decision. Although he recognizes that “the current Rules and the relevant statutes could specify more clearly the procedure that such a party should follow to bring their arguments to the court of appeals,” he writes:
Rule 27 sets forth a generally applicable procedure for seeking relief in a court of appeals, and a simple motion “for an order” under Rule 27 should suffice to seek an order under Rule 39(a). Compare Fed. Rule App. Proc. 39(a) (“The following rules apply unless . . . the court orders otherwise”) with Rule 27(a) (“An application for an order . . . is made by motion unless these rules prescribe another form”). The OTCs also identify instances where parties have raised their arguments through other procedural vehicles, including merits briefing, see Rule 28, objections to a bill of costs, see Rule 39(d)(2), and petitions for rehearing, see Rule 40. Brief for Respondents 42, nn. 9–11. We do not foreclose litigants from raising their arguments in any manner consistent with the relevant federal and local Rules.
And finally, Justice Alito flags but does not resolve an issue raised by the Solicitor General about the relationship between FRAP 39 and 28 U.S.C. § 1920. Here’s footnote 4:
As the United States points out, see Brief for United States as Amicus Curiae 19, n. 4, we have interpreted Rule 54(d) to provide for taxing only the costs already made taxable by statute, namely, 28 U. S. C. §1920. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 441–442 (1987). Supersedeas bond premiums, despite being referenced in Appellate Rule 39(e)(3), are not listed as taxable costs in §1920. San Antonio has not raised any argument that Rule 39 is inconsistent with §1920 in this respect. We accordingly do not consider this issue.
Thursday, May 20, 2021
Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Procedural Evolution in Multidistrict Litigation. Allan reviews Abbe Gluck & Beth Burch’s recent article, MDL Revolution, 96 N.Y.U. L. Rev. 1 (2021).
Wednesday, May 19, 2021
SCOTUS Cert Grant on Subject Matter Jurisdiction over Applications to Confirm or Vacate Arbitration Awards
This week the Supreme Court granted certiorari in Badgerow v. Walters, which involves whether federal courts have subject-matter jurisdiction over applications to confirm or vacate arbitration awards. Here’s the question presented (with the usual wind-up):
This case presents a clear and intractable conflict regarding an important jurisdictional question under the Federal Arbitration Act (FAA), 9 U.S.C. 1-16.
As this Court has repeatedly confirmed, the FAA does not itself confer federal-question jurisdiction; federal courts must have an independent jurisdictional basis to entertain matters under the Act. In Vaden v. Discover Bank, 556 U.S. 49 (2009), this Court held that a federal court, in reviewing a petition to compel arbitration under Section 4 of the Act, may “look through” the petition to decide whether the parties’ underlying dispute gives rise to federal-question jurisdiction. In so holding, the Court focused on the particular language of Section 4, which is not repeated elsewhere in the Act.
After Vaden, the circuits have squarely divided over whether the same “look-through” approach also applies to motions to confirm or vacate an arbitration award under Sections 9 and 10. In Quezada v. Bechtel OG & C Constr. Servs., Inc., 946 F.3d 837 (5th Cir. 2020), the Fifth Circuit acknowledged the 3-2 “circuit split,” and a divided panel held that the “look-through” approach applies under Sections 9 and 10. In the proceedings below, the Fifth Circuit declared itself “bound” by that earlier decision, and applied the “look-through” approach to establish jurisdiction. That holding was outcome-determinative, and this case is a perfect vehicle for resolving the widespread disagreement over this important threshold question.
The question presented is:
Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.
Monday, May 17, 2021
Today the Supreme Court issued a 7-1 decision in BP P.L.C. v. Mayor and City Council of Baltimore (covered earlier here). Justice Gorsuch writes the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Kavanaugh, and Barrett. Justice Sotomayor dissents, and Justice Alito did not participate.
At issue in the case is 28 U.S.C. § 1447(d), which forbids appellate review of a district court’s remand order “except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” Justice Gorsuch’s opinion begins:
This case began when Baltimore’s mayor and city council sued various energy companies for promoting fossil fuels while allegedly concealing their environmental impacts. But the merits of that claim have nothing to do with this appeal. The only question before us is one of civil procedure: Does 28 U. S. C. §1447(d) permit a court of appeals to review any issue in a district court order remanding a case to state court where the defendant premised removal in part on the federal officer removal statute, §1442, or the civil rights removal statute, §1443?
The answer to that question is: Yes. Justice Gorsuch’s opinion emphasizes in particular the use of the word “order” in § 1447(d): “[W]hen a district court’s removal order rejects all of the defendants’ grounds for removal, §1447(d) authorizes a court of appeals to review each and every one of them. After all, the statute allows courts of appeals to examine the whole of a district court’s ‘order,’ not just some of its parts or pieces.”
The majority does not, however, consider the merits of the defendants’ arguments in favor of removal:
The Fourth Circuit erred in holding that it was powerless to consider all of the defendants’ grounds for removal under §1447(d). In light of that error, the defendants ask us to consider some of those additional grounds ourselves. That task, however, does not implicate the circuit split that we took this case to resolve and we believe the wiser course is to leave these matters for the Fourth Circuit to resolve in the first instance.
Justice Sotomayor dissents. Her opinion concludes:
Section 1447(d) places “broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court.” Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995). After today’s decision, defendants can sidestep these restrictions by making near-frivolous arguments for removal under §1442 or §1443. Congress, of course, can amend §1447(d) to make even clearer that appellate review of a district court remand order extends to only §1442 or §1443. Because I believe §1447 already bears that meaning, I respectfully dissent.
Today the Supreme Court issued a 6-3 decision in Edwards v. Vannoy (covered earlier here). Justice Kavanaugh’s majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett, begins:
Last Term in Ramos v. Louisiana, 590 U. S. ___ (2020), this Court held that a state jury must be unanimous to convict a criminal defendant of a serious offense. Ramos repudiated this Court’s 1972 decision in Apodaca v. Oregon, 406 U. S. 404, which had allowed non-unanimous juries in state criminal trials. The question in this case is whether the new rule of criminal procedure announced in Ramos applies retroactively to overturn final convictions on federal collateral review. Under this Court’s retroactivity precedents, the answer is no.
This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion); see also Linkletter v. Walker, 381 U. S. 618, 639–640, and n. 20 (1965). Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure. But the Court has not applied any of those new rules retroactively on federal collateral review. See, e.g., Whorton v. Bockting, 549 U. S. 406, 421 (2007) (Confrontation Clause rule recognized in Crawford v. Washington, 541 U. S. 36 (2004), does not apply retroactively). And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review. See, e.g., DeStefano v. Woods, 392 U. S. 631, 635 (1968) (per curiam) (jury-trial rule recognized in Duncan v. Louisiana, 391 U. S. 145 (1968), does not apply retroactively).
Later in the opinion, Justice Kavanaugh overrules Teague v. Lane’s principle that “watershed” rules of criminal procedure may apply retroactively on habeas review:
If landmark and historic criminal procedure decisions—including Mapp, Miranda, Duncan, Crawford, Batson, and now Ramos—do not apply retroactively on federal collateral review, how can any additional new rules of criminal procedure apply retroactively on federal collateral review? At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts. In Teague itself, the Court recognized that the purported exception was unlikely to apply in practice, because it was “unlikely” that such watershed “components of basic due process have yet to emerge.” 489 U. S., at 313 (plurality opinion). The Court has often repeated that “it is unlikely that any of these watershed rules has yet to emerge.” Tyler, 533 U. S., at 667, n. 7 (alteration and internal quotation marks omitted); see also, e.g., Whorton, 549 U. S., at 417; Summerlin, 542 U. S., at 352. And for decades, the Court has rejected watershed status for new procedural rule after new procedural rule, amply demonstrating that the purported exception has become an empty promise. Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time— probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. ___, ___ (2019) (slip op., at 11) (internal quotation marks omitted).
Justice Thomas writes a concurring opinion joined by Justice Gorsuch. And Justice Gorsuch writes a concurring opinion joined by Justice Thomas.
Justice Kagan writes a dissenting opinion, joined by Justices Breyer and Sotomayor. The dissenters take particular aim at the majority’s overruling of Teague. From Justice Kagan’s introduction:
So everything rests on the majority’s last move—the overturning of Teague’s watershed exception. If there can never be any watershed rules—as the majority here asserts out of the blue—then, yes, jury unanimity cannot be one. The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle. In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the “special justification” our law demands. Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (2014). The majority in that way compounds its initial error: Not content to misapply Teague’s watershed provision here, see ante, at 10–14, the majority forecloses any future application, see ante, at 14–15. It prevents any procedural rule ever—no matter how integral to adjudicative fairness—from benefiting a defendant on habeas review. Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.
Monday, May 3, 2021
Interesting Fifth Circuit Decision on Personal Jurisdiction: Douglass v. Nippon Yusen Kabushiki Kaisha
On Friday, a panel of the U.S. Court of Appeals for the Fifth Circuit issued a very interesting per curiam decision in Douglass v. Nippon Yusen Kabushiki Kaisha. The case involves personal jurisdiction in federal court under FRCP 4(k)(2), which presents a different constitutional inquiry than most personal jurisdiction cases because it implicates the Due Process Clause of the Fifth Amendment rather than the Fourteenth Amendment.
The panel rejects jurisdiction, finding itself constrained by an earlier Fifth Circuit decision. But notwithstanding that case law, the Douglass panel finds the arguments in favor of jurisdiction “persuasive,” and Judge Elrod’s concurring opinion (joined by Judge Willett) calls for the en banc Fifth Circuit “to correct our course.” (In the interest of full disclosure, I joined an amicus brief with fellow civil procedure professors Helen Hershkoff, Arthur Miller, Alan Morrison, and John Sexton supporting the plaintiffs-appellants in this case.)