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?
Monday, April 5, 2021
Today the Supreme Court issued its decision in Google LLC v. Oracle America, Inc. By a 6-2 vote, it holds that Google’s copying of a portion of a computer program owned by Oracle constituted “fair use” for purposes of federal copyright law. The opinion is focused mostly on substantive copyright law, but—as covered earlier here and here—the posture of the case prompted some interesting procedural questions. The jury had ruled in favor of Google on its fair use defense, and the Supreme Court asked the parties to file supplemental letter briefs addressing “the appropriate standard of review” regarding fair use, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
Monday, March 29, 2021
Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
Tuesday, March 23, 2021
The final version of my article, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1, is now posted. It tackles the question of what standard of review appellate courts should use for findings made by civil juries. There’s a fair amount of confusion on this issue, because some appellate courts have conflated it with the framework for choosing the standard of appellate review for rulings by lower court judges. (The confusion is not helped by the extent to which the often elusive distinction between “law” and “fact” plays a role.)
This is also an issue that the Supreme Court is considering right now in Google LLC v. Oracle America, Inc., a $9 billion lawsuit about Google’s use of Java programming code to develop its Android operating system. SCOTUS issued a specific order asking the parties to brief the appropriate standard of review for the jury’s verdict in favor of Google on its fair use defense. The Google case was argued at the beginning of this Term but is still awaiting a decision—here are some of my thoughts on the case from back in October after the oral argument: SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts.
I enjoyed working on this piece, and I hope folks find it helpful. Special thanks to the great editors at the Wisconsin Law Review, who did a fantastic and timely job getting the article finalized—maybe even in time for SCOTUS to read it! Here’s the full abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
Monday, March 22, 2021
Whether 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, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.
Monday, March 15, 2021
Emory Law School’s Center on Federalism and Intersystemic Governance is hosting a conference on federal diversity jurisdiction this Friday, March 19 (11:20am – 5:40pm Eastern Time).
Here’s the link to register: https://emorylaw.wufoo.com/forms/conference-on-federal-diversity-jurisdiction/
(H/T: Jonathan Nash)
Tuesday, March 9, 2021
Ann Woolhandler and Julia Mahoney have posted on SSRN a draft of their article, Federal Courts and Takings Litigation. Here’s the abstract:
Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court.
While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.
Monday, March 8, 2021
Today the Supreme Court issued an 8-1 decision in Uzuegbunam v. Preczewski, which addresses whether claims for nominal damages can satisfy Article III’s redressibility requirement. They can.
Here are some highlights from Part III of Justice Thomas’s majority opinion:
Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right. . . .
This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action, Planck v. Anderson, 5 T. R. 37, 41, 101 Eng. Rep. 21, 23 (K. B. 1792) (“if no [actual] damage be sustained, the creditor has no cause of action” for some claims); and meet all other relevant requirements. We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right.
Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” Webb, 29 F. Cas., at 509, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.
Chief Justice Roberts dissents, arguing that Article III is not satisfied because “an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to.” Even under the majority’s view, however, Roberts contends that “[w]here a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.” And he further asserts that such a defendant might invoke FRCP 68 and thereby “render the plaintiff liable for any subsequent costs if he receives only nominal damages.”
Justice Kavanaugh joins the majority opinion, but he writes a one-paragraph concurring opinion endorsing the view—which was also urged by the Solicitor General in this case—that a defendant “should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
Thursday, February 25, 2021
There’s a lot of interesting stuff in Justice Thomas’s opinion for the Court, but the basic takeaway is that the judgment in an FTCA suit against the federal government can trigger the judgment bar—and thereby preclude claims against the responsible government employees—even when the result of the FTCA suit is a dismissal for lack of subject-matter jurisdiction. In this case, the plaintiff’s tort claims against the federal government “failed to survive a Rule 12(b)(6) motion to dismiss,” meaning that “the United States necessarily retained sovereign immunity, also depriving the court of subject-matter jurisdiction.” As Justice Thomas puts it: “where, as here, pleading a claim and pleading jurisdiction entirely overlap, a ruling that the court lacks subject-matter jurisdiction may simultaneously be a judgment on the merits that triggers the judgment bar.”
The Supreme Court leaves open one important issue—whether the judgment bar applies to the dismissal of claims raised in the same lawsuit. In footnote 4, Justice Thomas leaves this issue for the Sixth Circuit to address on remand, and Justice Sotomayor writes a concurring opinion “to emphasize that, while many lower courts have uncritically held that the FTCA’s judgment bar applies to claims brought in the same action, there are reasons to question that conclusion.”
Thursday, February 11, 2021
I wanted to share a link to my recent article, Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020), which is now in print and available on SSRN. The piece is an effort to make sense of a topic that has been an area of frequent interest for the Supreme Court: For any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion? (In recent years the Court has granted cert to choose the standard of appellate review for a wide array of issues, ranging from a child’s habitual residence under the Hague Convention, to a creditor’s insider status under federal bankruptcy law, to whether to enforce an EEOC subpoena, to whether to award attorney fees in a patent case.)
The article digs into the how and why of the Court’s framework for making this choice, and I ultimately argue that we should scrap the enterprise of assigning distinct standards of appellate review on an issue-by-issue basis. It’s not because the concerns that animate the Court’s approach are unimportant. Rather, it’s because the purposes of appellate review—principally, error correction and law clarification—are better served by a uniform template for review that informs the substantive merits of every appellate decision. As I put it in the abstract:
The error-correction role of appellate courts would be optimized by a unified inquiry into whether the appellate court’s likelihood of reaching the correct decision is higher than the trial court’s. This new standard would consider both general institutional advantages (such as the trial court’s superior ability to assess witness credibility) and case-specific indicia of correctness (such as the appellate court’s level of confidence or particular strengths or weaknesses in the trial court’s analysis). This inquiry can be joined with the Supreme Court’s long-standing view that appellate courts may always correct legal errors de novo, regardless of the broader standard of review that applies to a particular issue. That power to correct legal errors, combined with the ability to identify conditions that increase or decrease the likelihood that a court’s decision on a particular issue is correct, would enhance the law-clarification function of appellate decisions.
I touch on other issues as well, including the expenditure of appellate court energy, appellate review of constitutional issues and so-called “legislative facts,” the possibility of asymmetric appellate review, and what even constitutes a “legal error” anyway? This was a fun piece to write (notwithstanding the math in it), and I had a great experience working with the editors in Bloomington during a very unusual time. Thanks again!
Thursday, February 4, 2021
Yesterday, the Supreme Court granted certiorari in PennEast Pipeline Co. v. New Jersey. The petition raises the question of whether the Natural Gas Act delegates to FERC certificate holders the power to assert the federal government’s eminent domain powers over state-owned land. But the Court added a second question in granting cert: “Did the Court of Appeals properly exercise jurisdiction over this case?”
Yesterday the Supreme Court issued a unanimous decision in Federal Republic of Germany v. Philipp, which addresses the Foreign Sovereign Immunities Act’s expropriation exception. Chief Justice Roberts’ opinion begins:
The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States courts. The statute, however, sets forth several specific exceptions. One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U. S. C. §1605(a)(3). The question presented is whether a country’s alleged taking of property from its own nationals falls within this exception.
The answer is no, because of the “domestic takings rule,” which “assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law.” Roberts concludes: “We hold that the phrase ‘rights in property taken in violation of international law,’ as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.”
The Court punted, however, on a couple of other interesting issues in the case. First, it did not consider Germany’s argument that federal courts were “obligated to abstain from deciding the case on international comity grounds.” Second, the Court did not address the plaintiffs’ argument that the individuals whose property was taken “were not German nationals at the time of the transaction,” directing the lower courts “to consider this argument, including whether it was adequately preserved below.”
Tuesday, January 26, 2021
Yesterday’s Supreme Court order list included orders in two cases, Trump v. CREW and Trump v. District of Columbia, in which the plaintiffs have alleged that Donald Trump’s business activities while serving as President violated the Emoluments Clauses. In both cases, the Supreme Court granted Trump’s cert petition, vacated the judgment, and remanded with instructions to dismiss the case as moot—citing United States v. Munsingwear, Inc., 340 U. S. 36 (1950). Although the Court provided no further explanation, it appears that these claims were moot because Trump is no longer President. (The cases sought only declaratory and injunctive relief.)
Unfortunately, the Munsingwear mootness vacatur wipes out a thoughtful Fourth Circuit en banc majority opinion rejecting Trump’s petition for a writ of mandamus. One particularly intriguing question—which was one of the questions presented in Trump’s cert petition—is whether the court of appeals may use mandamus to require the district court to certify an order for an interlocutory appeal under 28 U.S.C. § 1292(b). If folks are interested, I discuss that issue—and other questions of appellate jurisdiction that have arisen in the Trump Emoluments litigation—in a recent article that was part of the Akron Law Review’s recent symposium on federal appellate procedure.
Friday, December 18, 2020
Today the Supreme Court issued a decision in Trump v. New York, a case involving the Trump administration’s policy to exclude aliens without lawful status from the 2020 census count. In a per curiam opinion, the majority finds the case to be non-justiciable on standing and ripeness grounds, vacating the district court’s judgment against Trump. It concludes:
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
Justice Breyer authors a dissenting opinion, joined by Justices Sotomayor and Kagan. From the dissent (citations omitted):
Waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress, as the Court seems to prefer, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that the [plaintiffs’] requested relief . . . .will redress the alleged injury,” I would find that we can reach plaintiffs’ challenge now, and affirm the lower court’s holding.
Wednesday, December 16, 2020
Today the Supreme Court granted certiorari in TransUnion LLC v. Ramirez, which presents the question: “Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”
(The cert petition presented a second question relating to punitive damages, but the grant is limited to Question 1.)
Friday, December 11, 2020
Today on the Courts Law section of JOTWELL is Maureen Carroll’s essay, Judges Behaving Badly… Then Slinking Away. Maureen reviews Veronica Root Martinez’s recent essay, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 953 (2020).
Thursday, December 10, 2020
This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” Ibid.
The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not.
The Court’s analysis looks closely at the summary judgment record, including Adams’ answers to interrogatories and deposition testimony, noting that “[t]his is a highly fact-specific case.” It ultimately concludes that “the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.” He therefore “failed to show that ‘personal,’ ‘concrete,’ and ‘imminent’ injury upon which our standing precedents insist.”
Justice Sotomayor authors a concurring opinion. Although she agrees that Adams lacked standing, she observes that the constitutional challenge to Delaware’s system “will likely be raised again.” Accordingly, she briefly identifies “two important considerations” relevant to such a challenge, including the difficulty in determining whether Delaware’s major party and bare majority requirements are severable from one another. On severability, Justice Sotomayor suggests that federal courts may be “well advised to consider certifying such a question to the State’s highest court.”
Tuesday, December 1, 2020
Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing the Supreme Court Out of the Shadows. Steve reviews the eleventh edition of Supreme Court Practice, authored by the late Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb (but known to many by the names of the treatise’s original authors, Robert L. Stern and Eugene Gressman).
Friday, October 30, 2020
Yesterday the First Circuit issued its decision in Rhode Island v. Shell Oil Products Co., which addresses the scope of appellate jurisdiction over district court remand orders—the same issue for which the Supreme Court granted certiorari (in a Fourth Circuit case) earlier this month.
Judge Thompson’s opinion begins:
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.