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.”
Friday, November 22, 2019
SCOTUS cert grant in FNU Tanzin v. Tanvir: can individual federal employees be sued for money damages under the Religious Freedom Restoration Act?
Today the Supreme Court granted certiorari in FNU Tanzin v. Tanvir, which presents the following question: “Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., permits suits seeking money damages against individual federal employees.”
Wednesday, November 20, 2019
Last month Judge Lorna Schofield (U.S. District Court for the Southern District of New York) issued an interesting decision that is one of the first to apply the 2018 amendment to Rule 23 regarding objectors to class action settlements. The new language in Rule 23(e)(5)(B) provides:
“Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with: (i) forgoing or withdrawing an objection, or (ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.”
The recent decision comes in the case of In re Foreign Exchange Benchmark Rates Antitrust Litigation. Two objectors had appealed Judge Schofield’s approval of the class settlement in that case, but the objectors reached an agreement with class counsel to dismiss the appeal in exchange for a $300,000 payment to the objectors’ counsel and a $5,000 incentive award payment to one of the objectors.
Judge Schofield refused to approve the payment, quoting this language from the Advisory Committee Note to the 2018 amendment:
“But some objectors may be seeking only personal gain, and using objections to obtain benefits for themselves rather than assisting in the settlement-review process. At least in some instances, it seems that objectors -- or their counsel -- have sought to obtain consideration for withdrawing their objections or dismissing appeals from judgments approving class settlements. And class counsel sometimes may feel that avoiding the delay produced by an appeal justifies providing payment or other consideration to these objectors. Although the payment may advance class interests in a particular case, allowing payment perpetuates a system that can encourage objections advanced for improper purposes.”
She reasoned: “The Agreement here seems to fit that description; the Agreement does little more than benefit Objector’s counsel and ‘perpetuate a system that can encourage objections advanced for improper purposes.’”
Here is the full opinion:
It’s also available on Westlaw at 2019 WL 5256957.
Here’s coverage of Judge Schofield’s decision from Bloomberg’s Perry Cooper.
PS: Because Judge Schofield refused to approve the payment, the Second Circuit appeal went forward. Just a few weeks after oral argument, the Second Circuit issued an opinion affirming Judge Schofield’s approval of the settlement. Here is the Second Circuit’s opinion:
The Second Circuit opinion is available on Westlaw at 2019 WL 5681336.
Monday, November 11, 2019
D.C. federal court dismisses New York defendants from Trump's tax return lawsuit for lack of personal jurisdiction
This past summer, Donald Trump filed a lawsuit against New York Attorney General Letitia James, Commissioner of the New York State Department of Taxation and Finance Michael Schmidt, and the House Ways and Means Committee seeking to block the disclosure of his New York state tax returns. The suit was filed in U.S. District Court for the District of Columbia.
Today Judge Carl Nichols dismissed the two New York defendants for lack of personal jurisdiction. His ruling is based on D.C.’s long-arm statute, although he alludes to potential constitutional concerns in a footnote. Here is the opinion:
Friday, November 8, 2019
Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.
Here is today’s order:
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).
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 13, 2019
Today, the Second Circuit issued its decision in Citizens for Responsibility and Ethics in Washington v. Trump, a lawsuit against President Trump alleging violations of the Emoluments Clauses of the U.S. Constitution. Judge Leval’s majority opinion begins:
Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant Opportunities Center United (“ROC”), a non‐partisan, member‐based organization of restaurants and restaurant workers—appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.) dismissing their complaint against Defendant Donald J. Trump, the President of the United States, for lack of subject matter jurisdiction. The complaint seeks declaratory and injunctive relief for the President’s alleged violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution. The President moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court granted the motion, concluding that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and their suit is barred by the political question doctrine. For the reasons below, we vacate the judgment and remand for further proceedings.
Judge Walker authored a dissenting opinion.
Thursday, September 12, 2019
The Supreme Court’s order stays the district court’s preliminary injunction against the Trump administration’s recent restrictions on asylum eligibility. The order states:
The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.
Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. She concludes:
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
Friday, August 16, 2019
Ninth Circuit partially stays nationwide injunction against Trump administration's asylum restrictions
Today the Ninth Circuit issued a 2-1 decision in East Bay Sanctuary Covenant v. Barr. The court partially grants and partially denies the government’s motion to stay a nationwide injunction issued by the district court against the Trump administration’s recent restrictions on asylum eligibility.
Because the government had not made a “strong showing” that it was “likely to succeed on the merits,” the court denies the motion for a stay “insofar as the injunction applies within the Ninth Circuit.”
However, the court grants the motion for a stay “insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands.” On that point, the court states: “While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”
The judges on the motions panel are Judge Wallace Tashima, Judge Milan Smith, and Judge Mark Bennett. Judge Tashima dissents in part—he would have denied the motion to stay in its entirety.
Thursday, August 8, 2019
Today the U.S. Court of Appeals for the Ninth Circuit issued a unanimous decision in Patel v. Facebook. The panel opinion by Judge Ikuta begins:
Plaintiffs’ complaint alleges that Facebook subjected them to facial-recognition technology without complying with an Illinois statute intended to safeguard their privacy. Because a violation of the Illinois statute injures an individual’s concrete right to privacy, we reject Facebook’s claim that the plaintiffs have failed to allege a concrete injury-in-fact for purposes of Article III standing. Additionally, we conclude that the district court did not abuse its discretion in certifying the class.
Saturday, July 27, 2019
Last night the Supreme Court issued an order in Trump v. Sierra Club, staying an injunction issued by the U.S. District Court for the Northern District of California that blocked the Trump Administration from funding the construction of a border wall by declaring a national emergency under Section 8005 of the Department of Defense Appropriations Act. The full text is here:
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment.
Justices Ginsburg, Sotomayor, and Kagan would have denied the stay.
Justice Breyer dissented in part from the majority’s order, authoring an opinion that concludes:
I can therefore find no justification for granting the stay in full, as the majority does. I would grant the Government’s application to stay the injunction only to the extent that the injunction prevents the Government from finalizing the contracts or taking other preparatory administrative action, but leave it in place insofar as it precludes the Government from disbursing those funds or beginning construction. I accordingly would grant the stay in part and deny it in part.
Thursday, July 25, 2019
Interesting Ninth Circuit Decision on the Enforceability of Forum-Selection Clauses After Atlantic Marine
Yesterday the Ninth Circuit issued a unanimous decision in Gemini Technologies, Inc. v. Smith & Wesson Corp., which discusses the relationship between the Supreme Court’s 2013 decision in Atlantic Marine, state law on forum-selection clauses, and the Supreme Court’s 1972 decision in Bremen.
Judge Fletcher’s opinion notes that under Bremen “a contractual forum-selection clause is ‘unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought,’ ” and that Atlantic Marine “does not support” the conclusion that “Bremen’s public policy factor is no longer good law.” “Unsurprisingly then, our sister circuits have consistently held that Bremen continues to provide the law for determining the validity and enforceability of a forum-selection clause.” [Op. at 7]
The panel then rules that Idaho law “clearly states a strong public policy” against enforcement of the forum-selection clause. [Op. at 10] And it clarifies that “satisfaction of Bremen’s public policy factor continues to suffice to render a forum-selection clause unenforceable.” [Op. at 11] Judge Fletcher writes:
Bremen held that “[a] contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” 407 U.S. at 15 (emphasis added). We have found nothing in Atlantic Marine that compels a different rule.
It concludes: “We hold that the forum-selection clause at issue here contravenes the strong public policy announced by Idaho Code § 29-110(1) and is therefore unenforceable.” [Op. at 12]
Monday, July 22, 2019
Banister v. Davis presents the question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC presents the question: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
Guerrero-Lasprilla v. Barr and Ovalles v. Barr (consolidated) involve motions to reopen removal proceedings before the Board of Immigration Appeals. Here is the question presented (as phrased in the Guerrero-Lasprilla petition) is:
The deadline to file a statutory motion to reopen under 8 U.S.C. § 1229a(c)(7) is subject to equitable tolling; all the courts of appeals are in agreement. But they are in conflict as to whether they have jurisdiction to review an agency’s denial of a request for equitable tolling made by someone subject to the “criminal alien bar” pursuant to 8 U.S.C. § 1252(a)(2)(C).
The Fifth and Fourth Circuit say review of equitable tolling is a “question of fact” precluded from review under 8 U.S.C. § 1252(a)(2)(C). In contrast, the Ninth Circuit says equitable tolling is a “mixed question,” i.e., “a question of law,” which falls under the jurisdictional savings clause under 8 U.S.C. § 1252(a)(2)(D).
Therefore, the question presented is: Is a request for equitable tolling, as it applies to statutory motions to reopen, judicially reviewable as a “question of law?”
Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc. presents the question: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
Opati v. Sudan presents the question: Whether, consistent with this Court’s decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
Rodriguez v. Federal Deposit Insurance Corp. presents the question: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.
Thole v. U.S. Bank, N.A. presents two questions relating to ERISA claims, but the Court itself added a third question: Whether petitioners have demonstrated Article III standing.
Thursday, July 18, 2019
The Fifth Circuit issued an interesting decision earlier this month. A Texas federal court had enjoined the Department of Labor from enforcing its proposed Fair Labor Standards Act overtime rule. Several months later, a plaintiff in New Jersey sued her employer in a New Jersey federal court, relying on the proposed overtime rule. The Texas federal court then held the New Jersey plaintiff and her counsel in contempt, reasoning that they were bound by the injunction against the Department of Labor.
In a unanimous decision, the Fifth Circuit has now reversed the Texas district court’s contempt order. The whole opinion is worth a read, but here’s a summary from the opinion’s introductory section:
We conclude that the Texas federal court did not have the authority under Rule 65(d) of the Federal Rules of Civil Procedure to hold Alvarez and her attorneys in contempt, because Alvarez and her attorneys did not act in privity with, and she was not adequately represented by, the DOL in the injunction case; hence, the Texas federal court lacked personal jurisdiction over Alvarez and her attorneys. Accordingly, we reverse the judgment of the District Court, including the award of attorneys’ fees against Alvarez and her lawyers, and we render judgment in their favor.
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.”
Thursday, June 6, 2019
Today the en banc Ninth Circuit issued its decision in In Re Hyundai and Kia Fuel Economy Litigation (covered earlier here). Judge Nguyen authors the majority opinion, and Judge Ikuta authors a dissenting opinion.
Contrary to the earlier panel ruling, the en banc Ninth Circuit affirms the district court with respect to both class certification and approval of the settlement.
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.”
Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:
Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.