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.”
Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:
Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
Tuesday, May 28, 2019
Today the Supreme Court handed down a 5-4 decision in Home Depot U. S. A., Inc. v. Jackson. Justice Thomas authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. It begins:
The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove.
Justice Alito authored a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.
Today the Supreme Court granted certiorari in Hernandez v. Mesa, limited to the following question: Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)?
This is the case’s second trip to SCOTUS; earlier coverage of the 2017 decision is here.
Tuesday, May 21, 2019
The main issue in yesterday’s Supreme Court decision in Mission Product Holdings, Inc. v. Tempnology, LLC involved the provision of the bankruptcy code regarding a debtor’s rejection of an executory contract. But there was an interesting exchange regarding mootness.
From Justice Kagan’s majority opinion:
Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172.
Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot.
Monday, May 20, 2019
Today the Supreme Court granted certiorari in Ritzen Group, Inc. v. Jackson Masonry, LLC, which involves the federal district courts’ appellate jurisdiction over certain bankruptcy court orders The question presented is: “Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).”
Today the Supreme Court handed down its decision in Merck Sharp & Dohme Corp. v. Albrecht. Justice Breyer authored the majority opinion, which was joined by Justices Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch. It begins:
When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers.
For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U. S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning.
Justice Thomas joins the majority opinion but also writes a separate concurring opinion arguing that the preemption defense should fail as a matter of law. (The majority remands the case for the lower courts to address whether the plaintiff’s state-law tort claim is preempted in this case).
Justice Alito writes a concurring opinion, joined by Chief Justice Roberts and Justice Kavanaugh. Justice Alito agrees that this is a question of law to be decided by courts rather than juries, but he is “concerned that [the majority’s] discussion of the law and the facts may be misleading on remand.”
Tuesday, May 14, 2019
Yesterday the Supreme Court issued a 5-4 decision in Franchise Tax Board of California v. Hyatt, covered earlier here. Justice Thomas’s majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh, begins:
This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U. S. 410 (1979).
Justice Breyer authored the dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan.
Tuesday, April 30, 2019
Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.
The petition for certiorari presents the following questions:
1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.
2. Whether the Government forfeited its timeliness defense.
As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.
As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.
Stay tuned, everyone!
Wednesday, April 24, 2019
SCOTUS decision in Lamps Plus v. Varela: interpreting ambiguous arbitration agreements to allow classwide arbitration
Today the Supreme Court issued a 5-4 decision in Lamps Plus, Inc. v. Varela. The majority opinion, authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, addresses whether the Federal Arbitration Act (FAA) bars an order requiring class arbitration when an arbitration agreement is “ambiguous” about the availability of class arbitration. According to the majority, it does.
The Court first rules that § 16(a)(3) of the FAA permits appellate review when a party seeks an order compelling individual arbitration but the district court issues an order compelling arbitration on a classwide basis. It then decides that “[c]ourts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.” [Op. 12] The Court does not, however, address whether the availability of class arbitration is necessarily a question for the judge—rather than the arbitrator—to decide. Footnote 4 emphasizes that “the parties agreed that a court, not an arbitrator, should resolve the question about class arbitration.”
Justice Thomas joins the majority opinion but authors a brief concurring opinion. There were four dissenting opinions: one by Justice Ginsburg, which was joined by Justices Breyer and Sotomayor; one by Justice Breyer; one by Justice Sotomayor; and one by Justice Kagan, which was joined by Justices Ginsburg and Breyer and partially joined by Justice Sotomayor.
Tuesday, March 26, 2019
SCOTUS Decision in Republic of Sudan v. Harrison: Service of Process on a Foreign State under the FSIA
This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U. S. C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country.
Justice Thomas dissented, writing: “I would hold that respondents complied with the FSIA when they addressed and dispatched a service packet to Sudan’s Minister of Foreign Affairs at Sudan’s Embassy in Washington, D. C.”
Now on the Courts Law section of JOTWELL is my essay, When American Pipe Met Erie. I review a recent article by Steve Burbank and Tobias Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).
Wednesday, March 20, 2019
Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.
Today’s per curiam opinion remands the case for the lower courts to consider the standing question:
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”
Monday, March 4, 2019
Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)
On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”
You can find all the details – and register for the symposium (it’s free) – here. Come join us!
From the announcement:
An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.
The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.
Confirmed panelists include:
Wednesday, February 27, 2019
SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling
Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.
In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:
“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]
Howard Wasserman has a more detailed recap at SCOTUSblog.