Monday, March 15, 2021
Emory Law School’s Center on Federalism and Intersystemic Governance is hosting a conference on federal diversity jurisdiction this Friday, March 19 (11:20am – 5:40pm Eastern Time).
Here’s the link to register: https://emorylaw.wufoo.com/forms/conference-on-federal-diversity-jurisdiction/
(H/T: Jonathan Nash)
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.”
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.”
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).