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.”
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).
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.”
Monday, October 26, 2020
The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?
I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.
Monday, October 19, 2020
Today’s Supreme Court order list contained some high-profile grants of certiorari that include some interesting federal courts issues.
Wolf v. Innovation Law Lab involves a challenge to the Trump administration’s “Remain in Mexico” policy, which had been enjoined by lower federal courts. One of the four questions presented is “[w]hether the district court’s universal preliminary injunction is impermissibly overbroad.”
Trump v. Sierra Club involves the Trump administration’s diversion of Department of Defense (DoD) funds to build portions of a wall along the U.S.-Mexico border. The first question presented is whether the plaintiffs “have a cognizable cause of action to obtain review of the Acting Secretary’s compliance with Section 8005’s proviso in transferring funds internally between DoD appropriations accounts.”
Here's where you can check out the cert-stage briefing and follow the merits briefs as they come in:
Supreme Court website:
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.
Tuesday, October 6, 2020
The Supreme Court hears oral argument tomorrow in the much-anticipated Ford cases—the latest in the Court’s recent run of decisions on personal jurisdiction. Oral argument in the two consolidated cases was originally scheduled for last spring, but it was postponed until this week due to the COVID-19 pandemic.
The two cases involve a similar fact pattern. The plaintiffs were injured in accidents involving Ford vehicles, and they sued Ford in the state where they lived and where the accidents occurred. Ford is actively involved in marketing its automobiles in those states (as it is throughout the United States), including the specific kinds of automobiles involved in these accidents. Ford, however, has argued against specific jurisdiction because the vehicles involved in these accidents were initially sold to customers in other states. The vehicle involved in the Minnesota accident was initially sold to a customer in North Dakota. The vehicle involved in the Montana accident was initially sold to a customer in Washington State. Accordingly, Ford contends that its contacts with Minnesota and Montana were not the “cause” of the accidents that occurred there. The plaintiffs, on the other hand, argue that “[s]pecific jurisdiction over a defendant is permissible where a plaintiff has been injured in the forum by a product that the defendant has systematically marketed, sold, and serviced in the forum.”
Numerous law professors have filed amicus briefs supporting personal jurisdiction in Ford (here, here, here, here, and here) and weighed in with blog posts (e.g., here and here). There is also a remarkable amicus brief filed by 39 states and the District of Columbia arguing in support of jurisdiction—a brief joined by many states whose administrations would hardly be considered friends of the plaintiffs’ bar.
Although the Supreme Court has decided lots of cases about when a defendant’s contacts are constitutionally sufficient for specific jurisdiction, it has yet to provide meaningful guidance on what sort of forum-controversy “affiliation” is required to justify specific jurisdiction. I’ve argued elsewhere that the appropriate affiliation touchstone is rationality—that is, whether there is a rational basis for the forum state to adjudicate the availability of judicial remedies in that particular case. But the Supreme Court need not go that far to uphold specific jurisdiction in Ford. The test proposed by the plaintiffs is a sensible one that vindicates the well-established notion that a defendant is subject to personal jurisdiction when it seeks to serve the market for its product in the forum state and its product causes injury there.
There’s a lot more to be said, but with this quick post I want to highlight an additional concern about Ford’s causation argument—one that could sweep beyond the precise facts of these cases and into more traditional “stream of commerce” cases where the product is purchased initially by a customer in the forum state. The plurality and concurring opinions in the Supreme Court’s McIntyre decision indicate that a single product entering the forum state is not a sufficient contact for establishing personal jurisdiction—even if that single product is the one that gives rise to the litigation. Yet Ford’s proposed causal requirement suggests that the only relevant contact is the single vehicle or piece of machinery that was involved in the accident. If that’s right, then every case might turn into McIntyre. Regardless of whether the flow of the defendant’s products into the forum state is a stream, an eddy, or a rushing river, the only contact that would count is the single drop that caused the plaintiff’s injuries. And a single drop is never enough. That would be a radical, unfortunate departure from established doctrine—and it’s another reason why the Court should uphold personal jurisdiction in the Ford cases.
Larry Solum has posted Two Suggestions re Ford Motor Company v. Montana Eighth Judicial District Court (Personal Jurisdiction Case to Be Argued Tomorrow) on the Legal Theory Blog.
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.
Wednesday, September 30, 2020
Case-Linked Jurisdiction and the Ford Cases (Guest Post by Howard M. Erichson, John C. P. Goldberg & Benjamin C. Zipursky)
Howie Erichson, John Goldberg, and Ben Zipursky present the following guest post on the much-anticipated Ford cases that will be argued next week:
* * *
On October 7, an eight-member Supreme Court will hop on the phone and hear oral argument in a pair of cases carried over from last term: Ford Motor Company v. Montana Eighth Judicial District Court and Ford Motor Company v. Bandemer. Because these cases focus on personal jurisdiction, Justice Ginsburg will be especially missed. A former civil procedure professor, Justice Ginsburg was the most important voice on the Court in this area of the law. Here, as elsewhere, she occupied positions of principle that cut across political divides.
The Court will need wisdom for these cases because they present a surprisingly difficult legal problem whose resolution could have a significant impact on future civil litigation. Suits were brought on behalf of a Montana resident and a Minnesota resident involved in car accidents in their respective home states. The Montana resident was killed and the Minnesotan suffered a severe brain injury. In both cases, the injury was allegedly caused by a product malfunction in the Ford vehicle in which they rode: a Ford Explorer with rollover problems in the Montana case and a Ford Crown Victoria with defective airbags in Minnesota. Ford has argued that, because the Explorer was first sold by a Ford dealer in Washington State, rather than Montana, the Montana courts have no personal jurisdiction over it. Similarly, it has argued that because the Crown Victoria was first sold by a Ford dealer in North Dakota, rather than Minnesota, the Minnesota courts have no personal jurisdiction over it. The high courts of Montana and Minnesota rejected Ford’s arguments, but Ford successfully petitioned the U.S. Supreme Court to hear both cases. Due to COVID-19, the oral argument originally scheduled in May of 2020 was pushed over until the Term that is about to begin.
Tuesday, September 29, 2020
I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.
Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.
Wednesday, September 23, 2020
Monday’s episode of the Strict Scrutiny podcast—with Leah Litman, Melissa Murray, Anne Joseph O’Connell, and Kate Shaw—has an interesting exchange about RBG and civil procedure (starting at around 14:00).
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.
Wednesday, September 16, 2020
As folks will recall, the last Supreme Court Term ended with oral arguments being held telephonically.
Today the Supreme Court issued a press release stating that “[t]he Court will hear all oral arguments scheduled for the October session by telephone conference, following the same format used for the May teleconference arguments.” And:
The Court will provide a live audio feed of the October oral arguments to a media pool as it did for the May arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.
Tuesday, August 11, 2020
Now on the Courts Law section of JOTWELL is my essay, No Laughing Matter. I review a recent article by Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019).
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:
Monday, July 6, 2020
Today the Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., holding that the government-debt exception to the TCPA’s prohibition on robocalls to cell phones violated the First Amendment. The Court was sharply divided, as the breakdown indicates:
KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.
The lack of a majority opinion will surely be of interest to Marks-rule enthusiasts. Readers may also be interested in the Justices’ severability analysis. Seven Justices (Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan & Kavanaugh) conclude that the unconstitutional government-debt exception is severable from the rest of the TCPA. Gorsuch’s opinion, joined by Thomas, disagrees: “Respectfully, if this is what modern ‘severability doctrine’ has become, it seems to me all the more reason to reconsider our course.”