Friday, January 17, 2020
Today the Supreme Court granted certiorari in two cases on personal jurisdiction: Ford Motor Co. v. Montana Eighth Judicial District Court (19-368), and Ford Motor Co. v. Bandemer (19-369). Both present the following question:
The Due Process Clause permits a state court to exercise specific personal jurisdiction over a nonresident defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted).
The question presented is:
Whether the “arise out of or relate to” requirement is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
Tuesday, January 14, 2020
SCOTUS Decision in Ritzen Group: Appealability and Motions for Relief from Automatic Stays in Bankruptcy
The precise issue the Court today decides: Does a creditor’s motion for relief from the automatic stay initiate a distinct proceeding terminating in a final, appealable order when the bankruptcy court rules dispositively on the motion? In agreement with the courts below, our answer is “yes.” We hold that the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.
The opinion concludes:
Because the appropriate “proceeding” in this case is the adjudication of the motion for relief from the automatic stay, the Bankruptcy Court’s order conclusively denying that motion is “final.” The court’s order ended the stay-relief adjudication and left nothing more for the Bankruptcy Court to do in that proceeding. The Court of Appeals therefore correctly ranked the order as final and immediately appealable, and correctly affirmed the District Court’s dismissal of Ritzen’s appeal as untimely.
In a footnote, Justice Ginsburg observes:
We do not decide whether finality would attach to an order denying stay relief if the bankruptcy court enters it “without prejudice” because further developments might change the stay calculus. Nothing in the record before us suggests that this is such an order.
Thursday, December 19, 2019
Fourth Circuit revives challenge to 2020 Census, reverses district court finding that claims under the Enumeration Clause are unripe
Today the Fourth Circuit issued its decision in NAACP v. Bureau of the Census. The district court had dismissed the plaintiffs’ claims under the Administrative Procedure Act (APA) and the Enumeration Clause. Judge Keenan’s opinion, joined by Chief Judge Gregory and Judge Richardson, reverses the district court’s dismissal of the Enumeration Clause claims.
From the introductory section:
This appeal addresses a challenge to the “methods and means” that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George’s County, Maryland; Prince George’s County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent “hard-to-count” communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. * * *
Upon our review, we hold that the plaintiffs’ APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court’s judgment dismissing those claims.
Nevertheless, mindful of the Supreme Court’s recent guidance affirming judicial review of “both constitutional and statutory challenges to census-related decision-making,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019), we conclude that the district court erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants’ alternative arguments for affirming the district court’s judgment. We therefore reverse the district court’s dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.
Chief Judge Gregory also authors a concurring opinion.
Friday, December 13, 2019
Yesterday the Fifth Circuit issued a per curiam opinion in In re: Chinese-Manufactured Drywall Products Liability Litigation. This appeal was brought by certain plaintiffs who had filed their claims after an initial class-wide settlement agreement. This lead to a subsequent agreement (the “New Claims Settlement Agreement”), which had “conferred to the District Court exclusive jurisdiction for the purpose of administering, supervising, construing and enforcing the Agreement.”
The Fifth Circuit panel (Judges Higginbotham, Stewart, and Engelhardt) dismissed the appeal for lack of jurisdiction, finding that these plaintiffs had waived their right to appeal: “In light of the explicit waiver in the New Class Settlement Agreement and the two additional and express waivers incorporated therein, we find that Appellants clearly and unequivocally waived their right to appeal.”
Tuesday, December 10, 2019
The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U. S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.
Although the majority criticizes a “general ‘discovery rule’” as a “bad wine of recent vintage,” it leaves open the possibility that “an equitable, fraud-specific discovery rule” can apply in particular cases:
This Court has noted the existence of decisions applying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, 559 U. S. 633, 644 (2010); Gabelli v. SEC, 568 U. S. 442, 450 (2013) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 10–11); Lozano v. Montoya Alvarez, 572 U. S. 1, 10–11 (2014); Credit Suisse Securities (USA) LLC v. Simmonds, 566 U. S. 221, 226–227 (2012); Young v. United States, 535 U. S. 43, 49–50 (2002). Rotkiske failed to preserve this issue before the Third Circuit, 890 F. 3d, at 428, and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing.
Justice Sotomayor authors a brief concurring opinion, emphasizing that a fraud-specific discovery rule is a “historical exception” that the Supreme Court has “long recognized and applied.”
Justice Ginsburg dissents. Although she states at the outset that “[g]enerally, I agree with the Court, the ‘discovery rule’ does not apply to the one-year statute of limitations contained in the Fair Debt Collection Practices Act (FDCPA),” she writes: “I do not agree that Rotkiske failed to preserve a fraud-based discovery rule argument in the Court of Appeals. . . . Nor do I agree that Rotkiske forfeited the issue by not raising it in his petition for certiorari.” Considering the merits of his statute of limitations argument, Justice Ginsburg explains:
Rotkiske’s FDCPA complaint, in my view, falls comfortably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intentionally serving process in a manner designed to prevent Rotkiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s untimely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
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.