Civil Procedure & Federal Courts Blog

SCOTUS Decision in Shoop v. Twyford: The All Writs Act, Habeas Corpus & Appellate Jurisdiction

Today the Supreme Court issued a 5-4 decision in Shoop v. Twyford. Chief Justice Roberts authors the majority opinion, joined by Justices Thomas, Alito, Kavanaugh, and Barrett. The case involves Twyford’s request to be transported to a hospital for medical testing that he argued could support his claim for habeas relief. The district court granted Twyford’s request under the All Writs Act.

The Supreme Court reverses the transportation order, noting the many obstacles that AEDPA imposes on individuals seeking to present new evidence in support of a habeas petition. Chief Justice Roberts writes that a court must consider AEDPA’s limits “even when the All Writs Act is the asserted vehicle for gathering new evidence,” because “a petitioner cannot use that Act to circumvent statutory requirements or otherwise binding procedural rules.” The district court should not have granted Twyford’s request for transportation because he “sheds no light on how he might persuade a court to consider the results of his testing, given the limitations AEDPA imposes on presenting new evidence.”

The four dissenting justices do not address the substance of Twyford’s transportation request. Rather, the core disagreement is over appellate jurisdiction. In a lengthy footnote, Chief Justice Roberts concludes that appellate jurisdiction is proper under the collateral order doctrine, citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949): “Transportation orders issued under the All Writs Act (1) conclusively require transportation; (2) resolve an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claims, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144–145 (1993); and (3) are entirely unreviewable by the time the case has gone to final judgment.”

Justice Breyer’s dissenting opinion, joined by Justices Sotomayor and Kagan, argues that the collateral order doctrine does not apply, reasoning that the transportation order was “analogous to a discovery order” and that there was “no reason why such an order ordinarily should be of greater importance than a discovery order of some other kind.” Justice Gorsuch writes in his dissenting opinion: “I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen.”

 

 

 

 

 

SCOTUS Decision in Viking River Cruises: The California PAGA meets the FAA

Last week the Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana, another case on the Federal Arbitration Act (FAA). Justice Alito authored the majority opinion, which was joined in full by Justices Breyer, Sotomayor, Kagan, and Gorsuch (and in parts by Chief Justice Roberts and Justices Kavanaugh and Barrett). The question presented by the case is whether the FAA preempts a rule of California state law—from the California Supreme Court’s 2014 decision in Iskanian v. CLS Transportation—that invalidates contractual waivers of the right to assert representative claims under California’s Labor Code Private Attorneys General Act of 2004 (PAGA). The answer is—it’s complicated.

The Court notes an important distinction under the PAGA between “individual” claims, “which are premised on Labor Code violations actually sustained by the plaintiff,” and “non-individual claims,” which “aris[e] out of events involving other employees.” Here’s Justice Alito’s conclusion, from Part IV of the opinion:

We hold that the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate. This holding compels reversal in this case. The agreement between Viking and Moriana purported to waive “representative” PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any “portion” of the waiver that remains valid must still be “enforced in arbitration.” Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana’s individual PAGA claim. The lower courts refused to do so based on the rule that PAGA actions cannot be divided into individual and non-individual claims. Under our holding, that rule is preempted, so Viking is entitled to compel arbitration of Moriana’s individual claim.

The remaining question is what the lower courts should have done with Moriana’s non-individual claims. Under our holding in this case, those claims may not be dismissed simply because they are “representative.” Iskanian’s rule remains valid to that extent. But as we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. See Cal. Lab. Code Ann. §§ 2699(a), (c). When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit. * * * As a result, Moriana lacks statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims.

Justice Sotomayor authored a concurring opinion emphasizing that California courts—and ultimately the California legislature—“will have the last word” regarding whether someone in Moriana’s situation does lack statutory standing to pursue non-individual PAGA claims.

Justice Barrett authored an opinion concurring in part, joined by Justice Kavanaugh and in part by Chief Justice Roberts, arguing that “[t]he discussion in Parts II and IV of the Court’s opinion is unnecessary to the result, and much of it addresses disputed state-law questions as well as arguments not pressed or passed upon in this case.”  

Justice Thomas dissented, writing: “I continue to adhere to the view that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., does not apply to proceedings in state courts.”

 

 

Recent SCOTUS Decisions: Arbitration, Bivens, Class Actions, FRCP 60(b) & International Discovery

As we head down the home stretch for this Term’s Supreme Court decisions, here are some of the interesting decisions that came down earlier this month:

Egbert v. Boule: Justice Thomas’s majority opinion (joined by Roberts, Alito, Kavanaugh, and Barrett) holds that Bivens cannot be extended to allow a cause of action for the plaintiff’s Fourth Amendment excessive-force claim and First Amendment retaliation claim against a U.S. Border Patrol Agent. Justice Gorsuch authors a concurring opinion. And Justice Sotomayor authors an opinion (joined by Breyer and Kagan) partially concurring in the judgment and partially dissenting; they argue that a Bivens action should exist for the plaintiff’s Fourth Amendment claim, but they agree with the majority’s ultimate conclusion that the First Amendment retaliation claim may not proceed under Bivens.

Garland v. Gonzalez: Justice Alito’s majority opinion (joined by Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett) holds that 8 U.S.C. §1252(f)(1), a provision of the Immigration and Nationality Act (INA), deprives federal district courts of jurisdiction to consider the plaintiffs requests for classwide injunctive relief. Justice Sotomayor authors an opinion (joined in full by Kagan and in part by Breyer) partially concurring in the judgment and partially dissenting, arguing that the INA preserves the district courts’ authority to issue classwide injunctions against the Executive Branch.

Kemp v. United States: Justice Thomas’s majority opinion (joined by Roberts, Breyer, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett) holds that a judge’s error of law qualifies as a “mistake” under Federal Rule of Civil Procedure 60(b)(1); thus a motion for relief from judgment based on such an error is subject to Rule 60(c)(1)’s one-year deadline for 60(b)(1) motions. Justice Sotomayor authors a concurring opinion emphasizing that Rule 60(b)(6)—which is not subject to the one-year deadline—may remain available “to reopen a judgment in extraordinary circumstances, including a change in controlling law.” Justice Gorsuch authors a solo dissent, arguing that the Court should have dismissed the writ of certiorari as improvidently granted.

Southwest Airlines Co. v. Saxon: Justice Thomas’s unanimous opinion holds that the Federal Arbitration Act (FAA) does not apply to a ramp supervisor for Southwest Airlines whose work “frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country,” because she fit within the FAA’s exemption for “workers engaged in foreign or interstate commerce.” Justice Barrett did not participate in the case.

ZF Automotive U.S., Inc. v. Luxshare, Ltd.: Justice Barrett’s unanimous opinion holds that 28 U.S.C. § 1782—which allows federal district courts to order discovery “for use in a proceeding in a foreign or international tribunal” does not apply to private arbitration proceedings; the statute covers only “governmental or intergovernmental adjudicative bodies.”

 

 

 

Call for Abstracts: Complex Litigation Ethics Conference (UC Hastings, San Francisco)

Here is the announcement:

The Center for Litigation and Courts and Huntington National Bank are excited to announce a call for abstracts for the upcoming Complex Litigation Ethics Conference to be held on the UC Hastings Law campus on Saturday, Oct. 22, 2022.

A substantial percentage of all cases filed in federal court are MDL cases, many of them involving proposed class actions. Meanwhile, district courts struggle with case management, settlement, and post-settlement administration of these complex cases. Yet scant scholarly attention has been paid to how courts adapt ethical rules and norms to complex litigation. This full-day conference will explore such issues as: 

1. Adapting Ethics to Complex Litigation in General;
2. Ethics in Funding Complex Litigation;
3. Diversity, Equity, and Inclusivity in Complex Litigation; and
4. Ethics in Communicating with Absent Class Members. 

Symposium papers will be published in a 2023 issue of the Hastings Law Journal. Confirmed speakers include federal judges, professors, and practicing attorneys, including Eric L. Cramer (Chair, Berger Montague PC), Maya Steinitz (Professor, University of Iowa) and W. Bradley Wendel (Professor, Cornell Law School). Additional speakers will be selected in part through this call for abstracts. For presenters not at for-profit legal practices, reasonable travel expenses and up to two nights’ lodging will be provided, in addition to meals. Presenters will be expected to circulate a polished draft paper by October 12. Final papers of around 8,000 words must be submitted to the Hastings Law Journal by December 31.

Abstracts of no more than 500 words should be submitted by email to Professor Joshua P. Davis at [email protected], with the subject heading “Abstract Submission – Complex Litigation Ethics Conference,” by June 30 (or contact Joshua P. Davis to discuss timing). Selections will be made in the first week of July and then on an ongoing basis. 

Any questions should be submitted to Professor Davis at the email above.