Monday, March 30, 2020
The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., waives the sovereign immunity of the United States and creates a cause of action for damages for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 1346(b)(1). The FTCA also imposes a judgment bar, which provides that “[t]he judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. 2676.
The question presented is whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
Monday, March 23, 2020
I just posted to SSRN my article, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057 (2020). Here’s the abstract:
According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.
Shout out to the Cardozo Law School, the Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy for hosting such an excellent symposium last spring. I’ll post links to all of the symposium pieces once they’re available.
Monday, March 2, 2020
Big Article III Standing and Severability Questions in Today's SCOTUS Cert Grants on the Affordable Care Act
Today the Supreme Court granted certiorari in California v. Texas and Texas v. California and consolidated the two cases. These cases involve the constitutionality of the minimum-coverage provision (also known as the “individual mandate”) of the Patient Protection and Affordable Care Act (ACA). They also present important questions regarding Article III standing (whether the individual and state plaintiffs have standing to challenge the minimum-coverage provision of the ACA) and severability (if the minimum-coverage provision is unconstitutional, can it be severed from the rest of the ACA).
Tuesday, February 25, 2020
The Supreme Court handed down a number of interesting opinions this morning:
Rodriguez v. FDIC, a unanimous opinion authored by Justice Gorsuch, rejected the use of federal common law to resolve competing claims to a tax refund.
Hernández v. Mesa was a 5-4 decision finding no Bivens damages remedy for claims arising from a cross-border shooting. Justice Alito writes the majority opinion (joined by Roberts, Thomas, Gorsuch & Kavanaugh) and Justice Ginsburg writes the dissent (joined by Breyer, Sotomayor & Kagan). Justice Thomas also writes a concurring opinion, joined by Gorsuch.
Monasky v. Taglieri addresses (among other things) the standard of appellate review for a district court’s determination of a child’s country of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction. Justice Ginsburg writes the majority opinion, joined in full by Roberts, Breyer, Sotomayor, Kagan, Gorsuch & Kavanaugh and in part by Justice Thomas. Justice Thomas and Justice Alito write separate concurring opinions.
Friday, January 31, 2020
This week the Supreme Court ruled on a stay application in Department of Homeland Security v. New York. By a 5-4 vote, the Court granted the Trump administration’s motion to stay a preliminary injunction issued by Judge Daniels of the Southern District of New York. The district court had blocked Trump’s “public charge” rule, which changed the criteria for determining whether a noncitizen applying for admission into the United States or a change in status is ineligible because she is likely to become a public charge. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the stay.
Justice Gorsuch authored a four-page opinion, joined by Justice Thomas, concurring in the grant of the stay. The opinion criticizes the issuance of so-called “nationwide” or “universal” injunctions. He concludes: “I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”
Friday, January 17, 2020
Today the Supreme Court granted certiorari in two cases on personal jurisdiction: Ford Motor Co. v. Montana Eighth Judicial District Court (19-368), and Ford Motor Co. v. Bandemer (19-369). Both present the following question:
The Due Process Clause permits a state court to exercise specific personal jurisdiction over a nonresident defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted).
The question presented is:
Whether the “arise out of or relate to” requirement is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
Tuesday, January 14, 2020
SCOTUS Decision in Ritzen Group: Appealability and Motions for Relief from Automatic Stays in Bankruptcy
The precise issue the Court today decides: Does a creditor’s motion for relief from the automatic stay initiate a distinct proceeding terminating in a final, appealable order when the bankruptcy court rules dispositively on the motion? In agreement with the courts below, our answer is “yes.” We hold that the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.
The opinion concludes:
Because the appropriate “proceeding” in this case is the adjudication of the motion for relief from the automatic stay, the Bankruptcy Court’s order conclusively denying that motion is “final.” The court’s order ended the stay-relief adjudication and left nothing more for the Bankruptcy Court to do in that proceeding. The Court of Appeals therefore correctly ranked the order as final and immediately appealable, and correctly affirmed the District Court’s dismissal of Ritzen’s appeal as untimely.
In a footnote, Justice Ginsburg observes:
We do not decide whether finality would attach to an order denying stay relief if the bankruptcy court enters it “without prejudice” because further developments might change the stay calculus. Nothing in the record before us suggests that this is such an order.
Tuesday, December 10, 2019
The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U. S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered.
Although the majority criticizes a “general ‘discovery rule’” as a “bad wine of recent vintage,” it leaves open the possibility that “an equitable, fraud-specific discovery rule” can apply in particular cases:
This Court has noted the existence of decisions applying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, 559 U. S. 633, 644 (2010); Gabelli v. SEC, 568 U. S. 442, 450 (2013) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 10–11); Lozano v. Montoya Alvarez, 572 U. S. 1, 10–11 (2014); Credit Suisse Securities (USA) LLC v. Simmonds, 566 U. S. 221, 226–227 (2012); Young v. United States, 535 U. S. 43, 49–50 (2002). Rotkiske failed to preserve this issue before the Third Circuit, 890 F. 3d, at 428, and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing.
Justice Sotomayor authors a brief concurring opinion, emphasizing that a fraud-specific discovery rule is a “historical exception” that the Supreme Court has “long recognized and applied.”
Justice Ginsburg dissents. Although she states at the outset that “[g]enerally, I agree with the Court, the ‘discovery rule’ does not apply to the one-year statute of limitations contained in the Fair Debt Collection Practices Act (FDCPA),” she writes: “I do not agree that Rotkiske failed to preserve a fraud-based discovery rule argument in the Court of Appeals. . . . Nor do I agree that Rotkiske forfeited the issue by not raising it in his petition for certiorari.” Considering the merits of his statute of limitations argument, Justice Ginsburg explains:
Rotkiske’s FDCPA complaint, in my view, falls comfortably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intentionally serving process in a manner designed to prevent Rotkiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s untimely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
Tuesday, December 3, 2019
Mootness played a major role in yesterday’s Supreme Court oral argument in New York State Rifle & Pistol Association Inc. v. City of New York.
Here’s the oral argument transcript.
Friday, November 22, 2019
SCOTUS cert grant in FNU Tanzin v. Tanvir: can individual federal employees be sued for money damages under the Religious Freedom Restoration Act?
Today the Supreme Court granted certiorari in FNU Tanzin v. Tanvir, which presents the following question: “Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., permits suits seeking money damages against individual federal employees.”
Friday, October 4, 2019
The Friday Before First Monday: SCOTUS Cert Grant in Louisiana Abortion Case Presents Questions About Standing
Today the Supreme Court granted petitions for certiorari arising from a challenge to Louisiana’s abortion regulations. The cases are June Medical Services LLC v. Gee (18-1323), and Gee v. June Medical Services, LLC (18-1460).
The first petition asks whether the Louisiana law is unconstitutional, especially in light of the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The second petition is about standing, presenting the following questions:
1. Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?
2. Are objections to prudential standing waivable (per the Fourth, Fifth, Seventh, Ninth, Tenth, and Federal Circuits) or non-waivable (per the D.C., Second, and Sixth Circuits)?
Thursday, September 12, 2019
The Supreme Court’s order stays the district court’s preliminary injunction against the Trump administration’s recent restrictions on asylum eligibility. The order states:
The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.
Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. She concludes:
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
Friday, August 2, 2019
This week Arizona filed a bill of complaint (and a motion for leave to file that bill of complaint) in the Supreme Court.
The bill begins:
1. Defendants Richard Sackler, Theresa Sackler, Kathe Sackler, Jonathan Sackler, Mortimer D.A. Sackler, Beverly Sackler, David Sackler, and Ilene Sackler Lefcourt (“the Sacklers”) for decades owned and controlled The Purdue Frederick Company, Inc., Purdue Pharma Inc. and Purdue Pharma, L.P. (collectively, “Purdue”). The Sacklers and Purdue have made billions of dollars off the promotion and sale of opioids, fueling a crisis with devastating effects in Arizona and the nation. The Sacklers and Purdue reaped profits through misleading marketing tactics that were barred by a 2007 consent judgment that Purdue entered into with the State of Arizona. The State is seeking civil penalties and other relief for violation of that consent judgment in a pending case before Pima County Superior Court. See Arizona ex rel. Brnovich v. Purdue Pharma, L.P., et al., No. C20072471 (Ariz. Super. Ct.).
2. The State brings this action because it has evidence that the Sacklers, Purdue, and the other Defendants were parties in recent years to massive cash transfers—totaling billions of dollars— at a time when Purdue faced enormous exposure for its role in fueling the opioids crisis. These transfers threaten the ability of Purdue to satisfy any relief the State may obtain in its pending proceeding against Purdue. The State therefore brings this action to hold the Defendants accountable for their attempts to loot Purdue, and to ensure that the people of Arizona can obtain adequate relief for the devastation that the Sacklers and Purdue have wrought in this state.
The bill asserts jurisdiction under 28 U.S.C. § 1251(b)(3), which provides: “The Supreme Court shall have original but not exclusive jurisdiction of . . . [a]ll actions or proceedings by a State against the citizens of another State or against aliens.”
Here’s a NYT story from Adam Liptak: Arizona Files Novel Lawsuit in Supreme Court Over Opioid Crisis.
Saturday, July 27, 2019
Last night the Supreme Court issued an order in Trump v. Sierra Club, staying an injunction issued by the U.S. District Court for the Northern District of California that blocked the Trump Administration from funding the construction of a border wall by declaring a national emergency under Section 8005 of the Department of Defense Appropriations Act. The full text is here:
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment.
Justices Ginsburg, Sotomayor, and Kagan would have denied the stay.
Justice Breyer dissented in part from the majority’s order, authoring an opinion that concludes:
I can therefore find no justification for granting the stay in full, as the majority does. I would grant the Government’s application to stay the injunction only to the extent that the injunction prevents the Government from finalizing the contracts or taking other preparatory administrative action, but leave it in place insofar as it precludes the Government from disbursing those funds or beginning construction. I accordingly would grant the stay in part and deny it in part.
Monday, July 22, 2019
Banister v. Davis presents the question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC presents the question: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
Guerrero-Lasprilla v. Barr and Ovalles v. Barr (consolidated) involve motions to reopen removal proceedings before the Board of Immigration Appeals. Here is the question presented (as phrased in the Guerrero-Lasprilla petition) is:
The deadline to file a statutory motion to reopen under 8 U.S.C. § 1229a(c)(7) is subject to equitable tolling; all the courts of appeals are in agreement. But they are in conflict as to whether they have jurisdiction to review an agency’s denial of a request for equitable tolling made by someone subject to the “criminal alien bar” pursuant to 8 U.S.C. § 1252(a)(2)(C).
The Fifth and Fourth Circuit say review of equitable tolling is a “question of fact” precluded from review under 8 U.S.C. § 1252(a)(2)(C). In contrast, the Ninth Circuit says equitable tolling is a “mixed question,” i.e., “a question of law,” which falls under the jurisdictional savings clause under 8 U.S.C. § 1252(a)(2)(D).
Therefore, the question presented is: Is a request for equitable tolling, as it applies to statutory motions to reopen, judicially reviewable as a “question of law?”
Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc. presents the question: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
Opati v. Sudan presents the question: Whether, consistent with this Court’s decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
Rodriguez v. Federal Deposit Insurance Corp. presents the question: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.
Thole v. U.S. Bank, N.A. presents two questions relating to ERISA claims, but the Court itself added a third question: Whether petitioners have demonstrated Article III standing.
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 10, 2019
There are some interesting grants of certiorari on today’s Supreme Court order list:
Atlantic Richfield Co. v. Christian (17-1498) presents three questions on the relationship between the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and state common-law claims, including “whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.”
Comcast Corp. v. National Association of African American-Owned Media (18-1171) presents the question: “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?” (There was a second question presented involving pleading standards under Twombly and Iqbal, but the Court granted cert only as to question #1.)
Intel Corp. Investment Policy Committee v. Sulyma (18-1116) presents the question: “Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, 29 U.S.C. 1113(2), which runs from ‘the earliest date on which the plaintiff had actual knowledge of the breach or violation,’ bars suit where all of the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.”
McKinney v. Arizona (18-1109) presents the question: “Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.” The second question presented is: “Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.”
Monasky v. Taglieri (18-935) presents two questions relating to the Hague Convention on the Civil Aspects of International Child Abduction. The first is: “Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.” The second question involves “whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.”
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.”