Friday, February 14, 2020
Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York, an LBJ appointee, retired this week at the age of 98. (His decisions come up a lot in Complex Litigation class.)
Wednesday, February 12, 2020
Jonathan Nash and Michael Collins have posted on SSRN a draft of their article, The Certificate of Division and the Early Supreme Court. Here’s the abstract:
The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.
As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.
Friday, February 7, 2020
Today a D.C. Circuit panel (Judges Henderson, Tatel & Griffith) issued its decision in Blumenthal v. Trump. The per curiam opinion begins:
In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution’s Foreign Emoluments Clause (Clause). The district court’s denial of the President’s motion to dismiss begins with a legal truism: “When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a ‘Case’ or ‘Controversy’ under Article III of the United States Constitution, rather than a political dispute between the elected branches of government.” Blumenthal v. Trump, 335 F. Supp. 3d 45, 49–50 (D.D.C. 2018). Although undoubtedly accurate, the district court’s observation fails to tell the rest of the story, which story we set forth infra. Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.
Friday, January 31, 2020
This week the Supreme Court ruled on a stay application in Department of Homeland Security v. New York. By a 5-4 vote, the Court granted the Trump administration’s motion to stay a preliminary injunction issued by Judge Daniels of the Southern District of New York. The district court had blocked Trump’s “public charge” rule, which changed the criteria for determining whether a noncitizen applying for admission into the United States or a change in status is ineligible because she is likely to become a public charge. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the stay.
Justice Gorsuch authored a four-page opinion, joined by Justice Thomas, concurring in the grant of the stay. The opinion criticizes the issuance of so-called “nationwide” or “universal” injunctions. He concludes: “I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”
Wednesday, January 22, 2020
Last week the Ninth Circuit issued a decision in Juliana v. United States, covered earlier here and here. Judge Hurwitz authored the majority opinion, joined by Judge Murguia, finding that the plaintiffs lacked Article III standing to pursue their claims against the federal government. The opinion begins:
In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.
The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.
District Court Judge Josephine Staton, sitting by designation, wrote a dissenting opinion. It begins:
In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.
My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.
Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent.
Tuesday, January 21, 2020
Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, Attention Supplicants. Roger reviews Ryan Copus’s article, Statistical Precedent: Allocating Judicial Attention, which is forthcoming in the Vanderbilt Law Review.
Tuesday, January 14, 2020
SCOTUS Decision in Ritzen Group: Appealability and Motions for Relief from Automatic Stays in Bankruptcy
The precise issue the Court today decides: Does a creditor’s motion for relief from the automatic stay initiate a distinct proceeding terminating in a final, appealable order when the bankruptcy court rules dispositively on the motion? In agreement with the courts below, our answer is “yes.” We hold that the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.
The opinion concludes:
Because the appropriate “proceeding” in this case is the adjudication of the motion for relief from the automatic stay, the Bankruptcy Court’s order conclusively denying that motion is “final.” The court’s order ended the stay-relief adjudication and left nothing more for the Bankruptcy Court to do in that proceeding. The Court of Appeals therefore correctly ranked the order as final and immediately appealable, and correctly affirmed the District Court’s dismissal of Ritzen’s appeal as untimely.
In a footnote, Justice Ginsburg observes:
We do not decide whether finality would attach to an order denying stay relief if the bankruptcy court enters it “without prejudice” because further developments might change the stay calculus. Nothing in the record before us suggests that this is such an order.
Friday, December 20, 2019
Thursday, December 19, 2019
Fourth Circuit revives challenge to 2020 Census, reverses district court finding that claims under the Enumeration Clause are unripe
Today the Fourth Circuit issued its decision in NAACP v. Bureau of the Census. The district court had dismissed the plaintiffs’ claims under the Administrative Procedure Act (APA) and the Enumeration Clause. Judge Keenan’s opinion, joined by Chief Judge Gregory and Judge Richardson, reverses the district court’s dismissal of the Enumeration Clause claims.
From the introductory section:
This appeal addresses a challenge to the “methods and means” that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George’s County, Maryland; Prince George’s County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent “hard-to-count” communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. * * *
Upon our review, we hold that the plaintiffs’ APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court’s judgment dismissing those claims.
Nevertheless, mindful of the Supreme Court’s recent guidance affirming judicial review of “both constitutional and statutory challenges to census-related decision-making,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019), we conclude that the district court erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants’ alternative arguments for affirming the district court’s judgment. We therefore reverse the district court’s dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.
Chief Judge Gregory also authors a concurring opinion.
Friday, December 13, 2019
Yesterday the Fifth Circuit issued a per curiam opinion in In re: Chinese-Manufactured Drywall Products Liability Litigation. This appeal was brought by certain plaintiffs who had filed their claims after an initial class-wide settlement agreement. This lead to a subsequent agreement (the “New Claims Settlement Agreement”), which had “conferred to the District Court exclusive jurisdiction for the purpose of administering, supervising, construing and enforcing the Agreement.”
The Fifth Circuit panel (Judges Higginbotham, Stewart, and Engelhardt) dismissed the appeal for lack of jurisdiction, finding that these plaintiffs had waived their right to appeal: “In light of the explicit waiver in the New Class Settlement Agreement and the two additional and express waivers incorporated therein, we find that Appellants clearly and unequivocally waived their right to appeal.”
Wednesday, December 11, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Due Process and National Injunctions. Jim reviews Mila Sohoni’s recent article, The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
Tuesday, December 3, 2019
Mootness played a major role in yesterday’s Supreme Court oral argument in New York State Rifle & Pistol Association Inc. v. City of New York.
Here’s the oral argument transcript.
Wednesday, November 27, 2019
Today on the Courts Law section of JOTWELL is Ryan Azad’s essay, Decision-Making in the Dark. Ryan reviews Merritt McAlister’s recent article, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, which is forthcoming in the Michigan Law Review.
Thursday, November 14, 2019
Wednesday, October 23, 2019
Today the U.S. Court of Appeals for the Second Circuit heard oral argument in Trump v. Vance, which involves Donald Trump’s attempt to enjoin a New York subpoena seeking documents—including Trump’s financial and tax records—from his accounting firm.
Here’s a link to the audio of today’s argument.
And here is the district court’s opinion below (reported at 395 F. Supp. 3d 283).
Monday, October 7, 2019
Today the U.S. Court of Appeals for the Second Circuit issued a unanimous decision in In re del Valle Ruiz. The case involves discovery applications under 28 U.S.C. § 1782, which provides: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
Judge Hall’s opinion, joined by Judges Parker and Droney, begins:
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after a government‐forced sale. Petitioners, a group of Mexican nationals and two investment and asset‐management firms, initiated or sought to intervene in various foreign proceedings contesting the legality of the acquisition.
Petitioners then filed in the Southern District of New York two applications under 28 U.S.C. § 1782 seeking discovery from Santander and its New York‐based affiliate, Santander Investment Securities Inc. (“SIS”), concerning the financial status of BPE. The district court (Ramos, J.) denied the applications for the most part, concluding that it lacked personal jurisdiction over Santander. The court granted discovery against SIS and in doing so rejected Santander’s argument that § 1782 does not allow for extraterritorial discovery. These consolidated appeals follow.
We are first asked to delineate the contours of § 1782’s requirement that a person or entity “resides or is found” within the district in which discovery is sought. We hold that this language extends § 1782’s reach to the limits of personal jurisdiction consistent with due process. We nonetheless conclude that Santander’s contacts with the Southern District of New York were insufficient to subject it to the district court’s personal jurisdiction.
We are next tasked with deciding whether § 1782 may be used to reach documents located outside of the United States. We hold that there is no per se bar to the extraterritorial application of § 1782, and the district court may exercise its discretion as to whether to allow such discovery. We conclude that the district court acted well within its discretion here in allowing discovery from SIS.
Friday, October 4, 2019
The Friday Before First Monday: SCOTUS Cert Grant in Louisiana Abortion Case Presents Questions About Standing
Today the Supreme Court granted petitions for certiorari arising from a challenge to Louisiana’s abortion regulations. The cases are June Medical Services LLC v. Gee (18-1323), and Gee v. June Medical Services, LLC (18-1460).
The first petition asks whether the Louisiana law is unconstitutional, especially in light of the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The second petition is about standing, presenting the following questions:
1. Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?
2. Are objections to prudential standing waivable (per the Fourth, Fifth, Seventh, Ninth, Tenth, and Federal Circuits) or non-waivable (per the D.C., Second, and Sixth Circuits)?
Friday, September 27, 2019
Mila Sohoni has posted on SSRN a draft of her article, The Lost History of the 'Universal' Injunction, which is forthcoming in the Harvard Law Review. Here’s the abstract:
The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide cases “in … equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced by the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it also allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired, and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial re-definition of Article III — should halt.