Monday, September 20, 2021
Today on the Courts Law section of JOTWELL is my essay, Standing for Something More: Respect and Article III. I review a recent article by Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263 (2021).
Wednesday, September 8, 2021
The Supreme Court has removed Servotronics, Inc. v. Rolls-Royce PLC, from its oral argument calendar. As covered earlier here, the case would have addressed “[w]hether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals.”
Thursday, September 2, 2021
Late last night, the Supreme Court issued its order in Whole Women’s Health v. Jackson, denying by a 5-4 vote the application for injunctive relief or, in the alternative, to vacate the Fifth Circuit’s stay of the district court proceedings.
The ruling is supported by one long, unsigned paragraph, followed by four dissenting opinions: one by Chief Justice Roberts (joined by Justices Breyer and Kagan); one by Justice Breyer (joined by Justices Sotomayor and Kagan); one by Justice Sotomayor (joined by Justices Breyer and Kagan); and one by Justice Kagan (joined by Justices Breyer and Sotomayor).
Thursday, August 26, 2021
Yesterday U.S. District Judge Linda Parker of the Eastern District of Michigan issued a 110-page opinion in King v. Whitmer, imposing sanctions against the plaintiffs and their attorneys in a case brought by supporters of Donald Trump in the wake of the 2020 election. Here is the full opinion:
And here are some excerpts from Judge Parker’s introduction:
This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here. ***
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.***
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.3 As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.
Wednesday, August 4, 2021
Yesterday, the full Ninth Circuit voted to vacate the April panel decision in Olean Wholesale Grocery v. Bumble Bee Foods and to hear the case en banc.
One of the important issues in the case is the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. The majority opinion, authored by Judge Bumatay, had held that “the mere presence of some noninjured class members does not defeat predominance, but we hold that the number of uninjured class members must be de minimis.” Judge Hurwitz dissented from this part of the opinion, arguing instead that “[t]he critical question is not what percentage of class members is injured, but rather whether the district court can economically ‘winnow out’ uninjured plaintiffs to ensure they cannot recover for injuries they did not suffer.”
In June, the Supreme Court flagged this issue (without resolving it) in footnote 4 of Justice Kavanaugh’s majority opinion in TransUnion. “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.”
Monday, July 26, 2021
Here is the announcement:
The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2022 AALS Annual Meeting.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2021 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2021), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Leah Litman at the University of Michigan Law School (email@example.com). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2021. Nominations will be reviewed by a prize committee comprised of Professors Curt Bradley (University of Chicago), Maggie Gardner (Cornell), Leah Litman (Michigan), Joanna Schwartz (UCLA), and Diego Zambrano (Stanford), with the result announced at the Federal Courts section program at the 2022 AALS Annual Meeting.
Sixth Circuit Decision on Appellate Jurisdiction and Manufactured Finality (Guest Post by Andrew Pollis)
Andrew Pollis presents the following guest post on a very interesting Sixth Circuit decision:
* * *
Last week, in Rowland v. Southern Health Partners, Inc., the Sixth Circuit issued a split decision on the vexing question of manufactured finality in civil actions—that is, a party’s dismissal of unadjudicated claims as a means of securing appellate jurisdiction over the district court’s resolution of an adjudicated claim. The majority rejected the maneuver, explaining its rationale in the opening paragraph of the decision:
Can a litigant circumvent the requirements of Rule 54(b) by the expedient of voluntarily dismissing her surviving claims in order to seek immediate appellate review of an adverse judgment on her resolved claims, with the intention of reinstating the dismissed claims should she obtain a favorable outcome on appeal? Eight years ago, we answered this question no, because such a dismissal does not create a final order under 28 U.S.C. § 1291. Page Plus of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658, 658 (6th Cir. 2013). The answer is still no.
The majority reiterated the court’s previous holding in Page Plus that there are only two circumstances that permit the appeal to go forward in the face of manufactured finality: (1) when “a voluntary dismissal comes at a cost,” such as when “a party assumes the risk that the statute of limitations, any applicable preclusion rules or any other defenses might bar recovery on the claim”; and (2) when “a claim voluntarily dismissed without prejudice must be re-filed in a separate action,” which removes the “risk that the same case will produce multiple appeals raising different issues.” The majority also noted that its holding was consistent with the holdings of other appellate courts to address the issue, save the Second Circuit.
Judge Karen Moore, in dissent, took issue primarily with the majority’s characterization that the plaintiff had in fact assumed no risks in agreeing to dismiss her unresolved claims:
Unlike in Page Plus, here nothing in the district court’s order states or even hints that the parties agreed that Defendants would not assert any time-based affirmative defenses against the voluntarily dismissed state-law claims. In fact, Defendants have explicitly stated that they believe that any re-filing of the voluntarily dismissed claims would be time-barred.
But perhaps the most interesting feature of Judge Moore’s dissent is her discussion of the inconsistent rulings courts have issued in these types of cases. She noted that litigants’ efforts to manufacture finality have “troubled courts of appeals for over forty years” and that “[n]early every circuit has weighed in on this question with inter- and intra-circuit splits causing confusion and frustration for both courts and litigants.” And she lamented the “disturbing lack of predictability in circuits that allow or do not allow litigants to employ Rule 41(a) dismissals without prejudice to gain appellate review; intra-circuit splits and unclear exceptions exist both in circuits with a bright-line rule disfavoring such appeals and in circuits that routinely allow them.” She admonished litigants that the “disagreement and confusion sown by the circuits” require parties to be “very wary of using Rule 41(a) as a mechanism for obtaining immediate appellate review. . . . Nothing is certain, even in a circuit that purports to allow parties to utilize Rule 41(a)(2) voluntary dismissals to secure appellate review.” Judge Moore also suggested that the Supreme Court “may eventually “intervene and decisively bar litigants from using Rule 41(a) voluntary dismissals without prejudice as an option to pursue appellate review,” given its holding in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), that “evinces a strong respect for rulemaking as the proper avenue for determining when a decision is final for purposes of [28 U.S.C. § 1291] or when a decision is otherwise appealable.”
Thursday, July 22, 2021
Yesterday the U.S. Court of Appeals for the Seventh Circuit issued its decision in City of Fishers, Indiana v. DIRECTV. Judge Scudder’s opinion for a unanimous panel begins:
In the lawsuit underlying this appeal, a group of Indiana cities seeks a declaration that Netflix and other video streaming platforms owe them past and future franchise fees under an Indiana statute. The cities filed the action in state court, but the defendant streaming platforms removed the case to federal court. Relying on the doctrine of comity abstention, the district court declined to exercise federal jurisdiction and remanded the case. At this early stage, the only question before us is whether the district court properly abstained under the teachings of Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010), and like cases. We conclude that it did and therefore affirm.
Friday, June 25, 2021
Today the Supreme Court issued its decision in TransUnion LLC v. Ramirez (covered earlier here). It’s 5-4, with Justice Kavanaugh writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Barrett. Justice Thomas writes one dissent, which is joined by Justices Breyer, Sotomayor, and Kagan. And Justice Kagan writes another dissent, which is joined by Justices Breyer and Sotomayor.
The case is a class action bringing claims under the federal Fair Credit Reporting Act (FCRA), and the key issue in the case is Article III standing. The majority finds that Article III was satisfied for some class members and claims, but was not satisfied for others. From the majority’s introduction:
In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.
In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the class members other than the named plaintiff Sergio Ramirez have not demonstrated that the alleged formatting errors caused them any concrete harm. Therefore, except for Ramirez, the class members do not have standing as to those two claims.
This was not the result that we urged in this legal scholars amicus brief, which was joined by myself, Tommy Bennett, Erwin Chemerinsky, Heather Elliott, Steve Vladeck, and Howard Wasserman. We had argued in favor of Article III standing for the entire class as to all of the claims they proved at trial. One point that we made, however, found some purchase in Justice Thomas’s dissenting opinion—that rejecting Article III standing in federal court would not necessarily stop these same federal claims from being pursued by these same plaintiffs in state court. Here’s footnote 9 from the Thomas dissent:
Today’s decision might actually be a pyrrhic victory for TransUnion. The Court does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts—which “are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law,” ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989)—as the sole forum for such cases, with defendants unable to seek removal to federal court. See also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims, 105 Minn. L. Rev. 1211 (2021). By declaring that federal courts lack jurisdiction, the Court has thus ensured that state courts will exercise exclusive jurisdiction over these sorts of class actions.
As to Article III standing generally, Justice Thomas’s final paragraph is notable:
Ultimately, the majority seems to pose to the reader a single rhetorical question: Who could possibly think that a person is harmed when he requests and is sent an incomplete credit report, or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist, or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, legion: Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court.
In addition to Article III standing, TransUnion presented a question regarding whether the class action satisfied Rule 23(a)’s typicality requirement. The Court did not address that question, however: “In light of our conclusion about Article III standing, we need not decide whether Ramirez’s claims were typical of the claims of the class under Rule 23. On remand, the Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion about standing.”
Wednesday, June 23, 2021
Today on the Courts Law section of JOTWELL is Howard Wasserman’s essay, The Paths to Comprehensive Entity Liability in Constitutional Litigation. Howard reviews two recent articles by Katherine Mims Crocker, Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, 73 Fla. L. Rev. (forthcoming 2021), and Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. (forthcoming 2022).
Thursday, June 17, 2021
Today the Supreme Court issued its decision in Nestlé USA, Inc. v. Doe (covered earlier here). The plaintiffs brought claims under the Alien Tort Statute (ATS) against two American companies—Nestlé USA and Cargill—that “purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa.” The plaintiffs “are six individuals from Mali who allege that they were trafficked into Ivory Coast as child slaves to produce cocoa” and that the defendants’ arrangements with those cocoa farms aided and abetted child slavery.
The Supreme Court concludes that the plaintiffs “improperly seek extraterritorial application of the ATS.” It’s quite a fractured opinion, however:
THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and an opinion with respect to Part III, in which GORSUCH and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined as to Part I, and in which KAVANAUGH, J., joined as to Part II. SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion.
A majority of the Court joins Part II of Justice Thomas’s opinion, which recognizes based on the Court’s earlier case law that courts “cannot give ‘extraterritorial reach’ to any cause of action judicially created under the ATS.” Therefore, ATS plaintiffs “must establish that ‘conduct relevant to the statute’s focus occurred in the United States.’” The plaintiffs here did not satisfy this requirement:
Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast. The Ninth Circuit nonetheless let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.” App. 314. But allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.
As we made clear in Kiobel, a plaintiff does not plead facts sufficient to support domestic application of the ATS simply by alleging “mere corporate presence” of a defendant. 569 U. S., at 125. Pleading general corporate activity is no better. Because making “operational decisions” is an activity common to most corporations, generic allegations of this sort do not draw a sufficient connection between the cause of action respondents seek—aiding and abetting forced labor overseas—and domestic conduct.
Beyond this holding, here’s a quick headcount on where the justices come out on other issues relating to the ATS:
Justices Thomas, Gorsuch, and Kavanaugh argue that the federal judiciary lacks the authority even to recognize a cause of action for the kind of claim asserted here. Justices Breyer, Sotomayor, and Kagan argue against this position.
Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh all agree that domestic corporations are not categorically immune from suit under the ATS.
Justice Alito indicates some sympathy with the Thomas/Gorsuch/Kavanaugh view about the judiciary’s authority to recognize new ATS claims (“To be sure, Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS”), but he states that “this issue was not raised by petitioners’ counsel, and I would not reach it here.” Justice Alito also disagrees with the Court deciding the case on extraterritoriality grounds, stating instead that he would “reject petitioners’ argument on the question of corporate immunity, vacate the judgment below, and remand these cases for further proceedings.”
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.)
Wednesday, April 21, 2021
Readers may be particularly interested in the amendment to Appellate Rule 3 and its accompanying forms. Among other things, the amendment provides: “The notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.”
Unless Congress intervenes, these amendments will take effect on December 1, 2021.
You can find the full transmittal package, including redlines and advisory committee notes, here.
Thursday, April 15, 2021
In an interesting decision, the U.S. Court of Appeals for the D.C. Circuit has certified four questions to the D.C. Court of Appeals. The case is Akhmetshin v. Browder, which involves a defamation claim against a citizen of the United Kingdom. Personal jurisdiction in D.C. federal court depends on the District of Columbia’s long-arm statute, which the panel’s original opinion summarized as follows:
Section 13-423(a)(4) authorizes the “exercise [of] personal jurisdiction over a person” who has “caus[ed] tortious injury in the District of Columbia by an act or omission outside the District of Columbia.” Any such party over whom personal jurisdiction is sought must have satisfied one of three “plus factors” within the District. See Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). These factors are “ regularly do[ing] or solicit[ing] business,  engag[ing] in any other persistent course of conduct, or  deriv[ing] substantial revenue from goods used or consumed, or services rendered.” D.C. CODE § 13-423(a)(4). However, “entr[ies] into the District ... by nonresidents for the purpose of contacting federal governmental agencies [or instrumentalities]” do not factor into the jurisdictional calculus. Env't Rsch. Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 813 (D.C. 1976) (en banc) (explaining the “government contacts exception”).
Here are the certified questions:
1. May nonresident aliens who are citizens only of foreign countries invoke the government contacts exception?
2. If the first question is answered in the affirmative, must those nonresident aliens possess cognizable rights pursuant to the First Amendment generally, or any specific clause thereunder, in order to invoke the exception?
3. Does the government contacts exception extend to efforts to influence federal policy other than direct contacts with agents, members, or instrumentalities of the federal government?
4. If the third question is answered in the affirmative, what standard governs in determining whether activities not involving direct contacts with the federal government are covered under the exception?
Tuesday, April 6, 2021
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.” Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test. The question presented is:
May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?