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
This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” Ibid.
The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not.
The Court’s analysis looks closely at the summary judgment record, including Adams’ answers to interrogatories and deposition testimony, noting that “[t]his is a highly fact-specific case.” It ultimately concludes that “the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.” He therefore “failed to show that ‘personal,’ ‘concrete,’ and ‘imminent’ injury upon which our standing precedents insist.”
Justice Sotomayor authors a concurring opinion. Although she agrees that Adams lacked standing, she observes that the constitutional challenge to Delaware’s system “will likely be raised again.” Accordingly, she briefly identifies “two important considerations” relevant to such a challenge, including the difficulty in determining whether Delaware’s major party and bare majority requirements are severable from one another. On severability, Justice Sotomayor suggests that federal courts may be “well advised to consider certifying such a question to the State’s highest court.”
Friday, October 30, 2020
Yesterday the First Circuit issued its decision in Rhode Island v. Shell Oil Products Co., which addresses the scope of appellate jurisdiction over district court remand orders—the same issue for which the Supreme Court granted certiorari (in a Fourth Circuit case) earlier this month.
Judge Thompson’s opinion begins:
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.
Wednesday, October 28, 2020
Today on the Courts Law section of JOTWELL is Fred Smith’s essay, Assessing the Rise of the Governmental Plaintiff. Fred reviews Seth Davis’s recent article, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).
Friday, October 16, 2020
Today the Supreme Court set oral argument in Trump v. New York for Monday, November 30. Here are the questions presented, which include a question on the lower court's authority to grant relief under Article III:
Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “a statement showing the whole number of persons in each State * * * as ascertained under the * * * decennial census of the population.” 2 U.S.C. 2a(a). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:
(1) Whether the relief entered satisfies the requirements of Article III of the Constitution.
(2) Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.
Monday, October 5, 2020
The Supreme Court begins oral argument by telephone conference this morning. If you want to listen in, here’s some information from the Supreme Court’s press release:
The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The oral arguments are scheduled to begin at 10 a.m. On days when more than one case will be heard, there will be a three minute pause before the second case begins.
The Court will provide a live audio feed of the arguments to ABC News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. * * *
The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.
Today’s arguments include Carney v. Adams, which presents some interesting standing and severability issues.
Friday, October 2, 2020
The question presented involves the permissible scope of an appellate court’s review of a district court’s order remanding a case to state court. From the cert. petition:
Section 1447(d) of Title 28 of the United States Code generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * * removed pursuant to” the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443, “shall be reviewable by appeal or otherwise.” Some courts of appeals have interpreted Section 1447(d) to permit appellate review of any issue encompassed in a district court’s remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civil-rights ground for removal. The question presented is as follows:
Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
Friday, September 18, 2020
Last week, Donald Trump filed a petition for certiorari challenging the Fourth Circuit’s en banc decision in In re Trump. That case arises from a lawsuit filed in Maryland federal court alleging violations of the Emoluments Clauses. As covered earlier, the Fourth Circuit ultimately allowed the lawsuit to proceed, refusing to grant Trump a writ of mandamus directing the district court to dismiss the case.
The pending Supreme Court case is captioned Trump v. District of Columbia, and the questions are focused on appellate jurisdiction:
- Whether a writ of mandamus is appropriate because, contrary to the holding of the court of appeals, the district court’s denial of the President’s motion to dismiss was clear and indisputable legal error.
- Whether a writ of mandamus is appropriate, contrary to the holding of the court of appeals, where the district court’s refusal to grant the President’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. 1292(b).
If folks are interested, I talk about some of these issues in a recent article Appellate Jurisdiction and the Emoluments Litigation, which was part of the Akron Law Review’s recent symposium on federal appellate procedure.
Thursday, September 3, 2020
Rich Freer has posted on SSRN a draft of his article, The Political Reality of Diversity Jurisdiction, which is forthcoming in the Southern California Law Review. Here’s the abstract:
Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts.
But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine.
These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.
Monday, August 31, 2020
We covered earlier the D.C. Circuit’s grant of a writ of mandamus in In re Flynn, which involves the federal government’s Rule 48(a) motion to dismiss the criminal charges against Michael Flynn. Today the en banc D.C. Circuit reversed course, denying Flynn’s request for a writ of mandamus by an 8-2 vote.
From the court’s per curiam opinion:
As to Petitioner’s first two requests—to compel the immediate grant of the Government’s motion, and to vacate the District Court’s appointment of amicus—Petitioner has not established that he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381. We therefore deny the Petition.
Friday, August 28, 2020
Last week the Second Circuit denied President Trump’s petition for en banc rehearing in CREW v. Trump. This left in place the panel decision (953 F.3d 178) reversing the district court’s dismissal for lack of standing.
Here’s a link to the en banc ruling, which features several separate opinions and statements:
José A. Cabranes, Circuit Judge, dissents by opinion from the denial of rehearing en banc.
Steven J. Menashi, Circuit Judge, joined by Debra Ann Livingston and Richard J. Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc.
John M. Walker, Jr., Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Pierre N. Leval, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.
Thursday, July 9, 2020
This morning featured some important decisions from the Supreme Court, but everyone knows the real action is at the after party. Here are some interesting grants of certiorari from this afternoon’s order list:
AMG Capital Management, LLC v. FTC and FTC v. Credit Bureau Center, LLC involve the extent to which § 13(b) of the Federal Trade Commission Act’s authorization for district courts to issue an “injunction” permits monetary relief such as restitution or the return of unlawfully obtained funds.
Uzuegbunam v. Preczewski presents the question “whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.”
Here’s where to go if you want to find the cert-stage briefing and follow the merits briefs as they come in:
Thursday, July 2, 2020
Today’s Supreme Court order list was a big one for the international side of civil procedure and federal courts. The Court granted certiorari in four interesting cases:
Republic of Hungary v. Simon presents the following question: “May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies?”
Federal Republic of Germany v. Philipp presents two questions:
1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.
2) Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.
Nestlé USA, Inc. v. Doe I presents two questions:
1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute, 28 U.S.C. § 1350, may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.
2) Whether the Judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.
And Cargill Inc. v. Doe I presents two related questions:
1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in—and the plaintiffs’ suffered their injuries in—a foreign country.
2) Whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.
The Court has consolidated Nestlé and Cargill for briefing and oral argument.
Here’s where to go if you want to find the cert-stage briefing and follow the merits briefs as they come in:
Thursday, June 4, 2020
In addition to Monday’s decision on Article III standing in Thole v. U.S. Bank, here are some other notable developments at One First Street this week...
The Court issued a 7-2 decision in Banister v. Davis. Justice Kagan’s majority opinion holds that a habeas petitioner’s FRCP 59(e) motion to alter or amend the habeas court’s judgment is not a second or successive habeas petition for purposes of 28 U.S.C. § 2244. Justice Alito writes a dissent, joined by Justice Thomas. Check out Steve Vladeck’s analysis at SCOTUSblog.
The Court issued a unanimous decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC. Justice Thomas’s opinion holds that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Convention) does not conflict with domestic equitable estoppel doctrines permitting the enforcement of arbitration agreements by nonsignatories. Justice Sotomayor authors a concurring opinion. Ronald Mann analyzes the decision at SCOTUSblog.
The Court issued a 7-2 decision in Nasrallah v. Barr. Justice Kavanaugh’s majority opinion interprets 8 U.S.C. § 1252(a)(2) to permit the federal courts of appeals to review a factual challenge to an order denying relief under the Convention Against Torture, even for individuals who committed a crime specified in § 1252(a)(2)(C). Justice Thomas writes a dissent, joined by Justice Alito. Check out Jennifer Chacon’s analysis at SCOTUSblog and Bryan Lammon’s post at Final Decisions.
Finally, Monday’s order list included denials of certiorari in two cases—Comcast v. Tillage and AT&T Mobility v. McArdle—involving FAA preemption of state law on the enforceability of contractual provisions that waive a party’s right to seek public injunctive relief. Alison Frankel has coverage at Reuters (On the Case).
Monday, June 1, 2020
Today the Supreme Court issued a 5-4 decision in Thole v. U.S. Bank N.A. Justice Kavanaugh’s majority opinion concludes that the plaintiffs lacked Article III standing. Some excerpts:
Plaintiffs James Thole and Sherry Smith are two retired participants in U. S. Bank’s retirement plan. Of decisive importance to this case, the plaintiffs’ retirement plan is a defined-benefit plan, not a defined-contribution plan. In a defined-benefit plan, retirees receive a fixed payment each month, and the payments do not fluctuate with the value of the plan or because of the plan fiduciaries’ good or bad investment decisions. * * *
We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny less. If Thole and Smith were to win this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no concrete stake in this lawsuit. To be sure, their attorneys have a stake in the lawsuit, but an “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990); see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 107 (1998) (same). Because the plaintiffs themselves have no concrete stake in the lawsuit, they lack Article III standing.
Justice Kavanaugh does leave open one possible avenue for participants in a defined-benefit plan to satisfy Article III’s standing requirements:
One last wrinkle remains. According to the plaintiffs’ amici, plan participants in a defined-benefit plan have standing to sue if the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits. Cf. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Verizon Communications, Inc., 837 F. 3d 523, 545–546 (CA5 2016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013). But the plaintiffs do not assert that theory of standing in this Court. In any event, the plaintiffs’ complaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the risk that the plan and the employer would fail and be unable to pay the plaintiffs’ future pension benefits. It is true that the plaintiffs’ complaint alleged that the plan was underfunded for a period of time. But a bare allegation of plan underfunding does not itself demonstrate a substantially increased risk that the plan and the employer would both fail.
Footnote 2 adds a wrinkle to the wrinkle, however:
Even if a defined-benefit plan is mismanaged into plan termination, the federal PBGC by law acts as a backstop and covers the vested pension benefits up to a certain amount and often in full. For example, if the plan and the employer in this case were to fail, the PBGC would be required to pay these two plaintiffs all of their vested pension benefits in full. * * * Any increased-risk-of-harm theory of standing therefore might not be available for plan participants whose benefits are guaranteed in full by the PBGC. But we need not decide that question in this case.
Justice Thomas authors a concurring opinion, joined by Justice Gorsuch, arguing that in a future case the Court should reconsider its precedents suggesting a need to make “analogies to trust law” when deciding Article III standing.
Justice Sotomayor authors a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan. It begins:
The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.
Tuesday, May 26, 2020
Today the Ninth Circuit rejected federal jurisdiction over two lawsuits against various energy companies based on the effect of fossil fuels on climate change. One action (County of San Mateo v. Chevron) was initially filed in state court but removed to federal court. Another (City of Oakland v. BP) was initially filed in federal court. Judge Ikuta writes the opinion in both cases, joined by Judges Christen and Lee.
The San Mateo decision begins:
In this appeal, we consider a district court’s order remanding complaints to state court after the defendants had removed the complaints to federal court on eight separate grounds. Under 28 U.S.C. § 1447(d), we have jurisdiction to review the remand order only to the extent it addresses whether removal was proper under § 1442(a)(1), see Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006), which authorizes removal by “any person acting under” a federal officer, 28 U.S.C. § 1442(a)(1). We conclude that the defendants did not carry their burden of establishing this criteria for removal. Because we lack jurisdiction to review other aspects of the remand order, we dismiss the remainder of the appeal.
The Oakland decision begins:
Two California cities brought actions in state court alleging that the defendants’ production and promotion of fossil fuels is a public nuisance under California law, and the defendants removed the complaints to federal court. We hold that the state-law claim for public nuisance does not arise under federal law for purposes of 28 U.S.C. § 1331, and we remand to the district court to consider whether there was an alternative basis for subject-matter jurisdiction.
Friday, May 15, 2020
There are major political implications, obviously, but these decisions are all about appellate jurisdiction—the majority declines to review the district court’s denial of Trump’s motions to dismiss without addressing the substantive merits of those rulings. Stay tuned, of course: it’s quite likely that this case is headed to the Supreme Court.
Friday, May 1, 2020
And here are some cases that present interesting procedural, jurisdictional, or other fed-courts-y issues:
Wednesday, May 6:
(1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and
(2) Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Barr v. American Association of Political Consultants (19-631) has an interesting severance issue. Here’s the question presented: Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Monday, May 11:
McGirt v. Oklahoma (18-9526) presents the question: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.
Tuesday, May 12:
In Trump v. Mazars USA (19-715) and Trump v. Deutsche Bank AG (19-760), the Court has directed the parties to file supplemental briefs addressing “political question doctrine or related justiciability principles.”
Wednesday, May 13:
Colorado Department of State v. Baca (19-518) presents this question on standing (among others): Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.
Monday, April 27, 2020
Today the Supreme Court issued its decision in New York State Rifle & Pistol Assn., Inc. v. City of New York, a case challenging New York City’s rule on transporting firearms (covered earlier here). The rule was amended after certiorari was granted, and today’s per curiam opinion finds that the “claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.” The Court remands the case for the lower courts to consider claims the plaintiffs may have regarding the City’s new rule, as well as whether the plaintiffs may add a claim for damages with respect to the old rule.
Justice Kavanaugh authors a concurring opinion.
Justice Alito authors a dissenting opinion, joined in full by Justice Gorsuch and in part by Justice Thomas, arguing that the case should not have been dismissed as moot and that the City’s rule violated the Second Amendment.