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 13, 2021
Last week the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Circuitronix, LLC v. Shenzen Kinwong Electronic Co., which addresses (among other things) FRCP 6(a)(3)’s provision for extending a filing deadline when “the clerk’s office is inaccessible . . . on the last day for filing.”
In that case, the district court’s chief judge “had designated July 5 as a holiday such that ‘the Court will be closed.’” The Eleventh Circuit rejected the argument that “the clerk’s office remained accessible on July 5 because Kinwong could have filed its motion electronically.” Noting that “Rule 6 refers to the clerk’s physical office,” it held that “[t]he clerk’s office is inaccessible when its building is officially closed or otherwise unavailable, even if the parties are still able to submit filings electronically.”
H/T: C.E. Petit
Friday, April 9, 2021
This week’s Supreme Court decision in Google LLC v. Oracle America, Inc. is mostly about copyright law. But there was a very interesting procedural question in the case regarding what standard of review the Court should use in connection with the jury’s verdict in favor of Google on its fair use defense. The answer is: it’s complicated. Justice Breyer’s majority opinion does say that “the ultimate ‘fair use’ question” is subject to de novo review. But he also states that “subsidiary factual questions” must be reviewed deferentially—and that deference ends up playing a very important role in the Court’s decision.
In this post I want to make two quick points about how the Court handles the standard of review issue. First, as I’ve argued in a recent article, I don’t think that Rule 50 of the Federal Rules of Civil Procedure, which provides that a court may displace a jury’s verdict only when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” allows a court to declare that a certain issue (like fair use) is categorically subject to de novo review. But second, Justice Breyer’s deference to the jury on implicitly-found “subsidiary” facts leads to an analysis of fair use that—at the end of the day—isn’t so different from the sort of deferential review Rule 50 would require.
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.
Thursday, March 25, 2021
Today the Supreme Court issued its decision in Ford Motor Co. v. Montana Eighth Judicial District Court (which is consolidated with a case from Minnesota, Ford Motor Co. v. Bandemer). The Court unanimously upholds personal jurisdiction over Ford in both cases. Justice Kagan writes the majority opinion, joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh. Justice Alito writes a separate concurring opinion, and Justice Gorsuch writes a separate concurring opinion that is joined by Justice Thomas. (Justice Barrett did not participate.)
More coverage to come, but here’s a very quick recap. Justice Kagan’s majority opinion begins:
In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products-liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit. (emphasis added)
Justice Kagan explains that these cases are proper exercises of specific jurisdiction, and she provides a helpful summary of what specific jurisdiction requires:
The plaintiff’s claims, we have often stated, “must arise out of or relate to the defendant’s contacts” with the forum. Bristol-Myers, 582 U. S., at ___ (slip op., at 5) (quoting Daimler, 571 U. S., at 127; alterations omitted); see, e.g., Burger King, 471 U. S., at 472; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414 (1984); International Shoe, 326 U. S., at 319. Or put just a bit differently, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Bristol-Myers, 582 U. S., at ___−___, ___ (slip op., at 5−6, 7) (quoting Goodyear, 564 U. S., at 919).
In applying this test, Justice Kagan rejects the “causation-only approach” put forward by Ford, which would have “locat[ed] specific jurisdiction in the State where Ford sold the car in question, or else the States where Ford designed and manufactured the vehicle.” She notes that in the World-Wide Volkswagen case, “this Court has stated that specific jurisdiction attaches in cases identical to the ones here—when a company like Ford serves a market for a product in the forum State and the product malfunctions there.”
In the final part of the opinion (II-C), Justice Kagan distinguishes the Supreme Court’s recent decisions rejecting personal jurisdiction in Bristol-Myers and Walden. As she explains: “We found jurisdiction improper in Bristol-Myers because the forum State, and the defendant’s activities there, lacked any connection to the plaintiffs’ claims.” And Walden “had no occasion to address the necessary connection between a defendant’s in-state activity and the plaintiff’s claims” because the defendant had no contacts with the forum state to begin with.
On to the concurring opinions...
Justice Alito agrees that the result in Ford “is settled by our case law” but he expresses a “quibble” with what he calls the “new gloss that the Court puts on our case law.” He writes that the majority “recognizes a new category of cases in which personal jurisdiction is permitted: those in which the claims do not ‘arise out of ‘ (i.e., are not caused by) the defendant’s contacts but nevertheless sufficiently ‘relate to’ those contacts in some undefined way, ante, at 8–9.” He also states that “for the reasons outlined in Justice Gorsuch’s thoughtful opinion, there are grounds for questioning the standard that the Court adopted in International Shoe Co. v. Washington, 326 U. S. 310 (1945)” and that “there are also reasons to wonder whether the case law we have developed since that time is well suited for the way in which business is now conducted.”
Justice Gorsuch’s concurring opinion (joined by Justice Thomas) also takes issue with the majority’s recognition that specific jurisdiction is appropriate when a lawsuit “relates to” the defendant’s activities in the forum. In the second part of the opinion, however, he challenges “the old International Shoe dichotomy” between specific and general jurisdiction, noting “it’s hard not to ask how we got here and where we might be headed.” Justice Gorsuch posits that “the right question” is “what the Constitution as originally understood requires, not what nine judges consider ‘fair’ and ‘just.’” And after surveying pre-International Shoe practice, Justice Gorsuch indicates that the current approach to personal jurisdiction gives corporations “special jurisdictional protections in the name of the Constitution.” In particular:
Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can be found. Burnham, 495 U. S., at 610–611.
Ultimately, Justice Gorsuch agrees that personal jurisdiction is proper in the Ford cases: “The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. . . . The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start.”
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 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.”
Monday, February 8, 2021
Last week the U.S. Court of Appeals for the Eleventh Circuit issued an important decision on class actions, Cherry v. Dometic Corp. Judge William Pryor’s unanimous opinion for the panel rejects the view that “administrative feasibility” is a requirement for class certification under Rule 23.
The court does recognize that administrative feasibility is “relevant” for Rule 23(b)(3) class actions—because of the “manageability criterion of Rule 23(b)(3)(D).” But even so, “the district court must balance its manageability finding against other considerations.” Therefore, “administrative difficulties—whether in class-member identification or otherwise—do not alone doom a motion for certification.”
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.
Monday, January 25, 2021
Today the Supreme Court decided Henry Schein, Inc. v. Archer & White Sales, Inc. (See our earlier coverage here). The case was argued in December, and the per curiam ruling dismisses the writ of certiorari as improvidently granted.
Today’s DIG (dismissed as improvidently granted) leaves in place a Fifth Circuit decision on whether arbitration contracts delegate questions of arbitrability to the arbitrator.
Monday, January 11, 2021
Today’s lengthy Supreme Court order list includes a denial of certiorari in IQVIA Inc. v. Mussat. The Seventh Circuit’s decision below (covered earlier here) had concluded that “the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute.”
The question presented in the cert petition was “[w]hether a district court with jurisdiction coextensive with a state court in the district can exercise personal jurisdiction over absent class members’ claims as part of a putative class action when the court concededly could not exercise personal jurisdiction over the absent class members’ claims if they had been brought in individual suits.”
Wednesday, December 30, 2020
The Supreme Court of Pennsylvania has issued an interesting decision on personal jurisdiction: Hammons v. Ethicon, Inc., 240 A.3d 537 (2020). The majority opinion by Justice Baer begins:
This case presents a challenge to the exercise of specific personal jurisdiction in Pennsylvania over New Jersey corporate defendants in a case filed by an Indiana resident regarding injuries allegedly caused by a pelvic mesh medical device implanted in Indiana. While the device was assembled by the defendants out of state, the mesh component of the device was manufactured by a separate entity in Pennsylvania. After reviewing recent decisions from the United States Supreme Court revising its personal jurisdiction jurisprudence, we conclude that the imposition of personal jurisdiction in this case meets the relevant constitutional and statutory requirements.
The opinion contains a nice discussion of the scope of specific jurisdiction in the wake of the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (BMS), which concludes:
We conclude that the Court in BMS did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state. Accordingly, absent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs. Instead, we look more broadly to determine whether the case as a whole establishes ties between the defendant’s actions in the forum state and the litigation.
A concurring opinion by Justice Donohue addresses “the propriety of considering evidence adduced for the first time at trial in support of the trial court’s ruling on preliminary objections that specific jurisdiction was established.”
Chief Justice Saylor dissents.
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.)
Thursday, December 10, 2020
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek “appropriate relief.” The question here is whether “appropriate relief” includes claims for money damages against Government officials in their individual capacities. We hold that it does.
First, the Court finds that government officials can be sued in their personal capacities. Justice Thomas explains: “A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against ‘a government,’ as defined under RFRA. §2000bb–1(c).”
Second, the Court approves of claims for monetary damages against such officials: “A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.” In a footnote, however, Justice Thomas raises the possibility of qualified immunity:
Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law,” Tr. of Oral Arg. 42; see District of Columbia v. Wesby, 583 U. S. ___, ___–___ (2018) (slip op., at 13–15).