Monday, June 17, 2019
SCOTUS Decision in Virginia House of Delegates v. Bethune-Hill: Virginia House Lacks Standing to Appeal Ruling Striking Down 2011 Legislative Districts
Today the Supreme Court issued a 5-4 decision in Virginia House of Delegates v. Bethune-Hill. Justice Ginsburg authors the majority opinion, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Court rules that the Virginia House of Delegates lacks standing to appeal a three-judge district court’s decision that Virginia’s 2011 legislative districts had been racially gerrymandered in violation of the Equal Protection Clause.
The majority first rejects the argument that the State of Virginia had designated its House of Delegates to litigate on its behalf. It then finds that the House of Delegates lacks “standing in its own right,” because it had suffered no “legally and judicially cognizable” injury. Justice Ginsburg writes: “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”
Justice Alito authors a dissenting opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh.
Monday, June 10, 2019
There are some interesting grants of certiorari on today’s Supreme Court order list:
Atlantic Richfield Co. v. Christian (17-1498) presents three questions on the relationship between the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and state common-law claims, including “whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.”
Comcast Corp. v. National Association of African American-Owned Media (18-1171) presents the question: “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?” (There was a second question presented involving pleading standards under Twombly and Iqbal, but the Court granted cert only as to question #1.)
Intel Corp. Investment Policy Committee v. Sulyma (18-1116) presents the question: “Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, 29 U.S.C. 1113(2), which runs from ‘the earliest date on which the plaintiff had actual knowledge of the breach or violation,’ bars suit where all of the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.”
McKinney v. Arizona (18-1109) presents the question: “Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.” The second question presented is: “Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.”
Monasky v. Taglieri (18-935) presents two questions relating to the Hague Convention on the Civil Aspects of International Child Abduction. The first is: “Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.” The second question involves “whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.”
Monday, June 3, 2019
SCOTUS Decision in Fort Bend County v. Davis: Title VII’s Charge-Filing Requirement Is Not Jurisdictional
As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f)(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.
Although the charge-filing precondition is not jurisdictional, Justice Ginsburg writes that it is “‘mandatory’ in the sense that a court must enforce the rule if a party properly raises it.” [Op. at 7 (citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam))]. She notes, however, that “[t]he Court has reserved whether mandatory claim-processing rules may ever be subject to equitable exceptions.” [n.5 (citing Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, n. 3 (2017))].
Justice Ginsburg concludes: “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”
Tuesday, May 28, 2019
Today the Supreme Court handed down a 5-4 decision in Home Depot U. S. A., Inc. v. Jackson. Justice Thomas authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. It begins:
The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove.
Justice Alito authored a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.
Today the Supreme Court granted certiorari in Hernandez v. Mesa, limited to the following question: Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)?
This is the case’s second trip to SCOTUS; earlier coverage of the 2017 decision is here.
Tuesday, May 21, 2019
The main issue in yesterday’s Supreme Court decision in Mission Product Holdings, Inc. v. Tempnology, LLC involved the provision of the bankruptcy code regarding a debtor’s rejection of an executory contract. But there was an interesting exchange regarding mootness.
From Justice Kagan’s majority opinion:
Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172.
Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot.
Monday, May 20, 2019
Today the Supreme Court granted certiorari in Ritzen Group, Inc. v. Jackson Masonry, LLC, which involves the federal district courts’ appellate jurisdiction over certain bankruptcy court orders The question presented is: “Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).”
Thursday, May 16, 2019
Marin Levy has published Visiting Judges, 107 Cal. L. Rev. 67 (2019). Here’s the abstract:
Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting by designation”—how it came to be, how it functions today, and what it reveals about the judiciary more broadly.
This Article offers an overdue account of visiting judges. It begins by providing an origin story, showing how the current practice stems from two radically different traditions. The first saw judges as fixed geographically, and allowed for visitors only as a stopgap measure when individual judges fell ill or courts fell into arrears with their cases. The second assumed greater fluidity within the courts, requiring Supreme Court Justices to ride circuit—to visit different regions and act as trial and appellate judges—for the first half of the Court’s history. These two traditions together provide the critical context for modern-day visiting.
The Article then presents a thick descriptive analysis of contemporary practice. Relying on both qualitative and quantitative data, it brings to light the numerous differences in how the courts of appeals use outside judges today. While some courts regularly rely on visitors for workload relief, others bring in visiting judges to instruct them on the inner workings of the circuit, and another eschews having visitors altogether in part because the practice was once thought to be used for political ends.
These findings raise vital questions about inter- and intra-circuit consistency, the dissemination of culture and institutional knowledge within the courts, and the substitutability of federal judges. The Article concludes by taking up these questions, reflecting on the implications of visiting judges for the federal courts as a whole.
Thursday, May 9, 2019
Fifty years ago, Charles Alan Wright and Arthur Miller first published the Federal Practice & Procedure treatise. Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary.
The first episode, which is now posted, features Arthur Miller discussing the initial development of the treatise.
Tuesday, May 7, 2019
Today on the Courts Law section of JOTWELL is Lou Mulligan’s essay, Is Personal Jurisdiction Constitutionally Self-Enacting? Lou reviews Ben Spencer’s recent article, The Territorial Reach of Federal Courts, which is forthcoming in the Florida Law Review.
Tuesday, April 30, 2019
Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.
The petition for certiorari presents the following questions:
1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.
2. Whether the Government forfeited its timeliness defense.
As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.
As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.
Stay tuned, everyone!
Tuesday, April 23, 2019
Coleman on Law Clerks for Workplace Accountability’s Public Comment on Proposed Changes to the Judicial Conduct Code & Rules
Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Accountability Requires Tenacity. Brooke reviews Law Clerks for Workplace Accountability, Public Comment on The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.
Friday, April 19, 2019
Josh Douglas & Mike Solimine have published Precedent, Three-Judge District Courts, and the Law of Democracy, 107 Geo. L.J. 413 (2019). Here’s the abstract:
As recent partisan gerrymandering cases have shown, three-judge district courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky procedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge district court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court?
This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy. On the first question, we find that summary decisions of the U.S. Supreme Court are entitled to zero or very little precedential value, and therefore that the Justices need not feel obliged to hear these cases in full if they want the issue to percolate in the lower courts first. Yet there should be a presumption in favor of the Court providing legal guidance on the issue, meaning that most of the time it should set the case for oral argument and provide a full written opinion. On the second question, we conclude that circuit precedent is not formally binding on three-judge district courts, although of course in many cases it will be highly persuasive.
Procedural questions stemming from three-judge district courts impact their substantive rulings, which mostly involve redistricting and campaign finance. Resolving these two questions on the procedures involving three-judge district courts will help to ensure that these special courts operate as Congress intended, ultimately improving our electoral system.
Tuesday, March 26, 2019
Now on the Courts Law section of JOTWELL is my essay, When American Pipe Met Erie. I review a recent article by Steve Burbank and Tobias Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).
Wednesday, March 20, 2019
Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.
Today’s per curiam opinion remands the case for the lower courts to consider the standing question:
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”
Tuesday, March 19, 2019
The Federal Bar Association has announced its 4th Annual National Community Outreach Project for April 2019. This year's project focuses on educating youth about the judicial system by letting them see first hand how courthouses operate. Here's the FBA press release:
Arlington, VA – The Federal Bar Association announces its fourth annual National Community Outreach Project, reaching out to youth and other communities coast to coast to open the federal judicial system for the public to see. In these times when communities, especially youth, have lost confidence in our judicial system, the FBA’s NCOP seeks to instill confidence in the judicial system in middle and high-school students and other communities by bringing them into the courthouses, meeting with lawyers, observing court proceedings, and talking directly to federal judges.
In recent years, Federal Bar Association chapters across the United States participated, spreading the word throughout the country and involving the federal judiciary in districts throughout the nation. This program has made a lasting effect on the communities they serve.
The Federal Bar Association’s mission statement includes a commitment to the communities in which their members serve. With events like tours of the federal courts, viewing federal court proceedings, tours of federal agencies and providing citizens with free legal advice, the Federal Bar Association has reached out in a variety of creative ways to fulfill this commitment.
Sponsored by the Foundation of the Federal Bar Association, the NCOP is back this year, even bigger than last year, undoubtedly with an even bigger impact. Through the NCOP, the FBA is making every April the “National Community Outreach” month. The National Community Outreach Project of 2019 will kick off in April. For more information, please visit: www.fedbar.org/NCOP
More than 25 chapters and sections in multiple districts across the country have agreed to participate in the fourth annual National Community Outreach Project.
Main Website: www.fedbar.org
NCOP Link: www.fedbar.org/NCOP
Tuesday, March 12, 2019
Friday, March 8, 2019
On Friday, April 5, 2019, the University of Colorado Law School’s Byron R. White Center for the Study of American Constitutional Law will host its 2019 Rothgerber Constitutional Law Conference, “National Injunctions: What Does the Future Hold?” The conference is free and open to the public. Register here by March 29.
From the announcement:
This year's conference will feature an exciting panel of diverse scholars and lawyers with remarks by Dean S. James Anaya, University of Colorado Law School; Phil Weiser, Colorado Attorney General; and Professor Suzette Malveaux, University of Colorado Law School.
Sessions will examine the past, present, and future of national injunctions and the remedy’s impact on immigration, civil rights, separation of powers, and more. Topics include court authority and policy considerations, lessons learned from various models, and other conceptions of national injunctions.
Wednesday, February 27, 2019
SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling
Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.
In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:
“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]
Howard Wasserman has a more detailed recap at SCOTUSblog.
Monday, February 25, 2019
Today the Supreme Court decided Yovino v. Rizo, issuing a per curiam opinion that begins:
A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date. In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?
The answer is no. The opinion concludes:
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.