Tuesday, July 23, 2019
Seth Davis has published The New Public Standing, 71 Stan. L. Rev. 1229 (2019). Here’s the abstract:
Today’s public litigants are not citizens or individual taxpayers who, suffering no injury of their own, seek instead to stand for the public. Instead, they are states that have suffered financial injuries. In recent years, states have brought many high-profile public law cases against the federal government based upon financial injuries. State standing to sue the federal government for financial injuries is the new public standing.
This Article’s goal is to offer a comprehensive account of the new public standing. It argues that we should not hope—or expect—that the federal courts will treat the new public standing with the disfavor they have shown to citizen and taxpayer standing. Nor, however, should we hope or expect that the federal courts will treat the new public standing as indistinguishable from private standing based upon financial injuries.
One aspect of this thesis is doctrinal and normative. Under the U.S. Supreme Court’s Article III jurisprudence, financial injuries are the paradigmatic example of an injury in fact that supports standing to sue, as contrasted with an ideological injury that does not suffice for standing. What makes the new public standing doctrinally difficult is that while some financial injuries to states mirror those to private parties, others do not. And what makes these cases normatively difficult is that the state attorneys general who sue based upon financial injuries to their states are ideological litigants. The new public standing thus requires us to rethink the terms of the debate about state standing to sue the federal government.
Another aspect of this thesis is descriptive and positive. To ground its normative analysis, this Article attempts to identify the ideological, institutional, and political factors that have contributed to the new public standing and that will shape its future prospects. Analysis of these factors leads to the conclusion that the Court will preserve the new public standing while tinkering with its remedial scope. The new public standing will prove more durable than citizen and taxpayer standing for the public, but will not substitute for the promise of an individual standing upon her conscience in federal court.
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 3, 2019
SCOTUS Decision in Fort Bend County v. Davis: Title VII’s Charge-Filing Requirement Is Not Jurisdictional
As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f)(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.
Although the charge-filing precondition is not jurisdictional, Justice Ginsburg writes that it is “‘mandatory’ in the sense that a court must enforce the rule if a party properly raises it.” [Op. at 7 (citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam))]. She notes, however, that “[t]he Court has reserved whether mandatory claim-processing rules may ever be subject to equitable exceptions.” [n.5 (citing Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, n. 3 (2017))].
Justice Ginsburg concludes: “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”
Tuesday, May 21, 2019
The main issue in yesterday’s Supreme Court decision in Mission Product Holdings, Inc. v. Tempnology, LLC involved the provision of the bankruptcy code regarding a debtor’s rejection of an executory contract. But there was an interesting exchange regarding mootness.
From Justice Kagan’s majority opinion:
Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172.
Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot.
Monday, May 20, 2019
Today the Supreme Court granted certiorari in Ritzen Group, Inc. v. Jackson Masonry, LLC, which involves the federal district courts’ appellate jurisdiction over certain bankruptcy court orders The question presented is: “Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).”
Tuesday, April 30, 2019
Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.
The petition for certiorari presents the following questions:
1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.
2. Whether the Government forfeited its timeliness defense.
As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.
As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.
Stay tuned, everyone!
Wednesday, March 20, 2019
Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.
Today’s per curiam opinion remands the case for the lower courts to consider the standing question:
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”
Friday, January 11, 2019
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Id. § 2000e-5(b), (f)(1).
The question presented is: Whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim-processing rule, as eight Circuits have held.
Friday, September 28, 2018
This action was commenced when Citibank, N.A. filed a routine state-court collection action against respondent George W. Jackson. Petitioner Home Depot U. S. A., Inc. was not a party to that action and never became a party to that collection dispute. Jackson then filed a counterclaim against Citibank asserting class-action consumer-protection claims. In addition to naming Citibank, Jackson named Home Depot and another company as original defendant to that counterclaim class action. The Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, permits "any defendant in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements. Petitioner Home Depot is an original defendant in the class action at issue here and was never a plaintiff in any claim associated with this case.
The question presented is: Whether an original defendant to a class-action claim can remove the class action if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act when the class action was originally asserted as a counterclaim against a co-defendant.
The Court also directed the parties to address the following question:
Should this court’s holding in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)—that an original plaintiff may not remove a counterclaim against it—extend to third-party counterclaim defendants?
Friday, September 14, 2018
Here is a quick summary:
- H.R. 3487. This bill’s purpose is to “amend section 1332 of title 28, United States Code, to provide that the requirement for diversity of citizenship jurisdiction is met if any one party to the case is diverse in citizenship from any one adverse party in the case.”
Here is the text of the bill.
H.R. 3487 was not reported, apparently because no reporting quorum was present. (See 3:54:25 here.)
- H.R. 6730, the “Injunctive Authority Clarification Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to prohibit the issuance of national injunctions, and for other purposes.”
Here is the text of the bill.
H.R. 6730 was ordered to be reported during the hearing.
- H.R. 6754, the “CIRCUIT Act of 2018” or the “Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018.” This bill’s purpose is to “amend title 28, United States Code, to modify the structure of the Court of Appeals for the Ninth Circuit, and for other purposes.”
Here is the text of the bill.
H.R. 6754 was ordered to be reported during the hearing.
- H.R. 6755, the “Judiciary Reforms, Organization and Operational Modernization Act of 2018” or the “Judiciary ROOM Act of 2018.” This bill’s purpose is to “provide for additional Article III judges, to modernize the administration of justice, and for other purposes.”
Here is the text of the bill.
H.R. 6755 was ordered to be reported during the hearing.
Monday, August 6, 2018
Andy Hessick has published Consenting to Adjudication Outside the Article III Courts, 71 Vand. L. Rev. 715 (2018). Here’s the abstract:
Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.
Thursday, July 26, 2018
SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census
Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:
Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.
In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.
In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:
For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.
The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:
Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.
Tuesday, June 26, 2018
Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:
Sudan v. Harrison presents the question:
Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Nutraceutical Corp. v. Lambert presents the question:
Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).
The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?
And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)
Tuesday, June 5, 2018
Brad Shannon has published Reconciling Subject-Matter Jurisdiction, 46 Hofstra L. Rev. 913 (2018). From the conclusion:
Current subject-matter jurisdiction practice, though well-entrenched, seems upon closer examination to be somewhat indefensible. Changes should be made. Federal Rule of Civil Procedure 8 should be amended to eliminate the pleading of subject-matter jurisdiction. This should help obviate the need to respond to allegations of this nature. Moreover, Rules 12 and 60 should be amended to prevent the assertion of this defense beyond the pleading stage (except in the default judgment context). Such a move would significantly (and appropriately) limit the ability to raise this defense on direct or collateral review. It would, in short, help “secure the just, speedy, and inexpensive determination of every action.” Perhaps more importantly, the practice relating to federal subject-matter jurisdiction would be reconciled with that relating to other “jurisdictional” concepts such as personal jurisdiction and venue, as well as state subject-matter jurisdiction practice, which has avoided many of these problems without incident.
Alas, sound reasoning might not be enough to get the Rules Committee to proceed on some of these matters. Tradition is a powerful thing. Moreover, the fact that the amendments proposed here would, in actuality, have little effect on post-pleading practice, though seemingly a virtue, might actually be a deterrent. Hopefully it will be enough that these amendments would promote simplicity, uniformity, predictability, and avoid unnecessary waste. Exceptions might be unavoidable regardless of which way one goes on these issues, and cases probably will continue to be decided suboptimally. The questions for now relate to baseline presumptions and how best to minimize errors and increase the efficiency of the federal courts.
Monday, May 14, 2018
Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.”
The Court rejected both theories and found that the case was moot. In conclusion, however, Chief Justice Roberts observed:
None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.
Monday, April 23, 2018
Today a panel of the Ninth Circuit issued its decision in Naruto v. Slater (the Monkey Selfie case), covered earlier here. People for the Ethical Treatment of Animals (PETA) brought suit as the next friend of Naruto, who “was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia.” The majority opinion by Judge Carlos Bea begins:
We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.
Although the majority opinion stated that “[w]e gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey,” it wrote:
Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes “next friend” lawsuits, obligates the court “to consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” U.S. v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has “broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 2556 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”)). See also Harris v. Mangum, 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem . . . could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).
Proceeding to Naruto’s constitutional standing, the majority concluded that Naruto’s claim satisfied Article III:
Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.
In reaching these conclusions, the majority found that it was bound by an earlier Ninth Circuit decision—Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In a footnote, however, the majority argued that Cetacean was “incorrectly decided” and “needs reexamination.”
Ultimately, the panel found that the district court correctly dismissed the case because “Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”
Judge N.R. Smith wrote a concurring opinion that disagreed with the majority’s handling of PETA’s lack of next-friend standing.
Tuesday, April 10, 2018
Bryan Lammon has posted on SSRN a draft of his article, Finality, Appealability, and the Scope of Interlocutory Review, which will be published in the Washington Law Review. Here’s the abstract:
Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be final. Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”
This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those appeals. Though related, these contexts are distinct and involve unique issues and interests. Successful reform must fill each of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.
Wednesday, March 28, 2018
Three Terms ago, we held that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of whether any of the others remain pending. Gelboim v. Bank of America Corp., 574 U. S. ___ (2015). We left open, however, the question whether the same is true with respect to cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure. Id., at ___, n. 4 (slip op., at 7, n. 4). This case presents that question.
And the answer to that question is yes:
Rule 42(a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.
Friday, March 23, 2018
Bryan Lammon has posted on SSRN a draft of his article, Cumulative Finality, which will be published in the Georgia Law Review. Here’s the abstract:
A proper notice of appeal is a necessary first step in most federal appeals. But federal litigants sometimes file their notice of appeal early, before district court proceedings have ended. When those proceedings finally end and no new notice is filed, the law of cumulative finality determines what effect-if any-the premature notice has. Sometimes the notice is effective and the appeal proceeds as normal. Sometimes it's not, and litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks from a distance. Up close, the courts of appeals are hopelessly divided on matters of cumulative finality. They disagree what law governs cumulative finality issues-whether they're governed solely by Rule of Appellate Procedure 4(a)(2) or also by a common-law cumulative finality doctrine that preceded the rule-and under what conditions a premature notice of appeal is saved. Three distinct approaches to cumulative finality have emerged, resulting in a deep circuit split. To make matters worse, decisions within several of the circuits have applied different approaches, resulting in intra-circuit divides.
This Article offers a fix. Neither the text of the Rules of Appellate Procedure nor their history provide a clear cumulative finality rule. But looking to the practicalities of the issue suggests allowing a subsequent judgment to save any prematurely filed notice of appeal. Doing so imposes few costs while preserving litigants' right to appeal.
The current cumulative finality mess illuminates a larger issue with the appellate jurisdiction literature and its attendant reform efforts. The literature has long maligned the unnecessary complexity and uncertainty of the entire federal appellate jurisdiction regime and advocated reform. But most of that literature focuses on only one part of that regime-appeals before a final judgment. Equally important are issues with determining when district court proceedings have ended and parties thus have a right to appeal. Cumulative finality is only one piece in this other aspect of appellate jurisdiction. There are more. Successful reform might require establishing a new, clearer point at which parties have a right to appeal. So this other aspect of appellate jurisdiction needs similar attention if reform is to succeed.