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.”
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:
Monday, June 29, 2020
Today the Supreme Court issued its decision in June Medical Services L.L.C. v. Russo. By a 5-4 vote, the Court strikes down Louisiana’s admitting-privileges law (Act 620) as imposing an undue burden on women seeking an abortion. The five-Justice majority comes from Justice Breyer’s opinion, which is joined by Justices Ginsburg, Sotomayor, and Kagan, and Chief Justice Roberts’ concurring opinion. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent—each of them authoring dissenting opinions.
In addition to the substantive constitutional issues regarding access to abortion, the case implicates some interesting civil procedure and federal courts issues: standing, standards of review, and stare decisis.
The standing issue is whether the plaintiffs, who were abortion providers and clinics, could challenge the Louisiana law as infringing their patients’ rights. Justice Breyer’s opinion concludes that Louisiana waived its standing argument:
The State’s argument rests on the rule that a party cannot ordinarily “‘rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This rule is “prudential.” 543 U. S., at 128–129. It does not involve the Constitution’s “case-or-controversy requirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190, 193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976). And so, we have explained, it can be forfeited or waived. See Craig, 429 U. S., at 193–194.
Louisiana had argued in the lower courts that “there was ‘no question that the physicians had standing to contest’ Act 620.” This was an “unmistakable concession,” according to Justice Breyer. He adds that “even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis.” He explains:
What we said some 45 years ago in Craig applies equally today: “[A] decision by us to forgo consideration of the constitutional merits”—after “the parties have sought or at least have never resisted an authoritative constitutional determination” in the courts below—“in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.” 429 U. S., at 193–194 (quotation altered).
Justice Breyer also questions whether Louisiana’s standing argument would be persuasive in any event, noting that “[w]e have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”
Chief Justice Roberts concurs in Justice Breyer’s standing analysis: “For the reasons the plurality explains, ante, at 11–16, I agree that the abortion providers in this case have standing to assert the constitutional rights of their patients.”
2. Standard of Appellate Review
Another procedural issue is the standard of appellate review regarding the district court’s findings. Justice Breyer’s opinion notes:
We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule Civ. Proc. 52(a)(6). In “‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969)).
And the opinion concludes:
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution.
Chief Justice Roberts also emphasizes the deferential standard of review:
The question is not whether we would reach the same findings from the same record. These District Court findings “entail[ed] primarily . . . factual work” and therefore are “review[ed] only for clear error.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___, ___ (2018) (slip op., at 6, 9). Clear error review follows from a candid appraisal of the comparative advantages of trial courts and appellate courts.
3. Stare Decisis
And of course, the case presents important questions of stare decisis, especially in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down Texas’s admitting privileges requirement. Stare decisis is key to Chief Justice Roberts’ tie-breaking fifth vote in favor of the plaintiffs: “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Roberts concludes:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
Friday, June 26, 2020
SCOTUS Upholds IIRIRA's Restrictions on Federal Habeas Review of Asylum Claims: DHS v. Thuraissigiam
Yesterday the Supreme Court issued a 5-2-2 decision in Department of Homeland Security v. Thuraissigiam. The majority rejected a constitutional challenge—based on the Suspension Clause and the Due Process Clause—to provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that restrict federal habeas review of rejected asylum claims.
Justice Alito authored the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. Alito writes:
Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, respondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.
Respondent’s due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892). Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.
Justice Breyer authors a concurring opinion, joined by Justice Ginsburg, which agrees only that IIRIRA’s limit on federal habeas review comports with the Suspension Clause as applied “in this particular case” (emphasis in original). He reasons that the respondent had been apprehended “just 25 yards inside the border” and “has never lived in, or been lawfully admitted to, the United States.” And Breyer also argues that the respondent’s claims were either “challenges to factual findings” rather than claims of “legal error,” or “procedural claims” that “concern not the outright denial (or constructive denial) of a process, but the precise way in which the relevant procedures were administered.”
Justice Sotomayor authors a dissenting opinion, joined by Justice Kagan, which begins:
The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those respondent raises here, which fall within the heartland of habeas jurisdiction going directly to the origins of the Great Writ. ***
Making matters worse, the Court holds that the Constitution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance.
Friday, June 19, 2020
Yesterday the Supreme Court issued its decision in Department of Homeland Security v. Regents of University of California. As folks are surely aware by now, the Court voted 5-4 to vacate the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as “arbitrary and capricious” under the Administrative Procedure Act (APA).
The case raised some interesting issues relating to civil procedure and federal courts that are worth flagging. The first is pleading. On the APA issue, Chief Justice Roberts authors the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. But the plaintiffs had also argued that the rescission of DACA violated the equal protection component of the Fifth Amendment because the rescission was motivated by discriminatory animus. In Part IV—which Justice Sotomayor did not join—Chief Justice Roberts finds that the plaintiffs’ allegations of animus were “insufficient.” He writes:
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim.
Justice Sotomayor does not join this part of Chief Justice Roberts’ opinion, and she writes a partial dissent on the equal protection issues. From her opinion:
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 274 (EDNY 2018).
I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus.
The Supreme Court’s handling of the equal protection claims raises another recurring chestnut for federal courts enthusiasts: the Marks rule and nonmajority opinions. The dissenting justices on the APA issue—Justices Thomas, Alito, Gorsuch, and Kavanaugh—write that they “concur in the judgment insofar as the Court rejects [the] equal protection claim.” It’s not clear, however, whether and how those votes can be added to the four-justice plurality on the plaintiffs’ pleading of their equal protection claims to generate a binding “majority” opinion on that issue.
Finally, it’s worth noting that the Court avoided the recurring-yet-still-unaddressed question of nationwide injunctions (see, e.g., here). Footnote 7 of Chief Justice Roberts’ opinion explains that, because the Supreme Court affirmed the D.C. federal court’s order vacating the Trump administration’s rescission of DACA, it was “unnecessary to examine the propriety of the nationwide scope of the injunctions” that had been issued by other federal courts.
Monday, June 15, 2020
Today the Supreme Court granted certiorari in Henry Schein, Inc. v. Archer and White Sales, Inc. It presents the following question: “whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.”
You may recall that this litigation led to a January 2019 Supreme Court decision (Justice Kavanaugh’s debut opinion, incidentally), which addressed a slightly different question about whether the court or the arbitrator decides arbitrability.
Monday, June 8, 2020
Today the Supreme Court issued a unanimous decision in Lomax v. Ortiz-Marquez. Justice Kagan’s opinion begins:
To help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule. Jones v. Bock, 549 U. S. 199, 203 (2007). That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U. S. C. §1915(g). Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice. We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.
In footnote 4, Justice Kagan clarifies that a dismissal is not a strike “when a court gives a plaintiff leave to amend his complaint.” As she explains: “Courts often take that path if there is a chance that amendment can cure a deficient complaint. See Fed. Rule Civ. Proc. 15(a) (discussing amendments to pleadings). In that event, because the suit continues, the court’s action falls outside of Section 1915(g) and no strike accrues.” This is the one portion of the opinion that is not unanimous—Justice Thomas does not join as to this footnote.
Thursday, June 4, 2020
In addition to Monday’s decision on Article III standing in Thole v. U.S. Bank, here are some other notable developments at One First Street this week...
The Court issued a 7-2 decision in Banister v. Davis. Justice Kagan’s majority opinion holds that a habeas petitioner’s FRCP 59(e) motion to alter or amend the habeas court’s judgment is not a second or successive habeas petition for purposes of 28 U.S.C. § 2244. Justice Alito writes a dissent, joined by Justice Thomas. Check out Steve Vladeck’s analysis at SCOTUSblog.
The Court issued a unanimous decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC. Justice Thomas’s opinion holds that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Convention) does not conflict with domestic equitable estoppel doctrines permitting the enforcement of arbitration agreements by nonsignatories. Justice Sotomayor authors a concurring opinion. Ronald Mann analyzes the decision at SCOTUSblog.
The Court issued a 7-2 decision in Nasrallah v. Barr. Justice Kavanaugh’s majority opinion interprets 8 U.S.C. § 1252(a)(2) to permit the federal courts of appeals to review a factual challenge to an order denying relief under the Convention Against Torture, even for individuals who committed a crime specified in § 1252(a)(2)(C). Justice Thomas writes a dissent, joined by Justice Alito. Check out Jennifer Chacon’s analysis at SCOTUSblog and Bryan Lammon’s post at Final Decisions.
Finally, Monday’s order list included denials of certiorari in two cases—Comcast v. Tillage and AT&T Mobility v. McArdle—involving FAA preemption of state law on the enforceability of contractual provisions that waive a party’s right to seek public injunctive relief. Alison Frankel has coverage at Reuters (On the Case).
Monday, June 1, 2020
Today the Supreme Court issued a 5-4 decision in Thole v. U.S. Bank N.A. Justice Kavanaugh’s majority opinion concludes that the plaintiffs lacked Article III standing. Some excerpts:
Plaintiffs James Thole and Sherry Smith are two retired participants in U. S. Bank’s retirement plan. Of decisive importance to this case, the plaintiffs’ retirement plan is a defined-benefit plan, not a defined-contribution plan. In a defined-benefit plan, retirees receive a fixed payment each month, and the payments do not fluctuate with the value of the plan or because of the plan fiduciaries’ good or bad investment decisions. * * *
We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. If Thole and Smith were to lose this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny less. If Thole and Smith were to win this lawsuit, they would still receive the exact same monthly benefits that they are already slated to receive, not a penny more. The plaintiffs therefore have no concrete stake in this lawsuit. To be sure, their attorneys have a stake in the lawsuit, but an “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990); see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 107 (1998) (same). Because the plaintiffs themselves have no concrete stake in the lawsuit, they lack Article III standing.
Justice Kavanaugh does leave open one possible avenue for participants in a defined-benefit plan to satisfy Article III’s standing requirements:
One last wrinkle remains. According to the plaintiffs’ amici, plan participants in a defined-benefit plan have standing to sue if the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits. Cf. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013); Lee v. Verizon Communications, Inc., 837 F. 3d 523, 545–546 (CA5 2016); David v. Alphin, 704 F. 3d 327, 336–338 (CA4 2013). But the plaintiffs do not assert that theory of standing in this Court. In any event, the plaintiffs’ complaint did not plausibly and clearly claim that the alleged mismanagement of the plan substantially increased the risk that the plan and the employer would fail and be unable to pay the plaintiffs’ future pension benefits. It is true that the plaintiffs’ complaint alleged that the plan was underfunded for a period of time. But a bare allegation of plan underfunding does not itself demonstrate a substantially increased risk that the plan and the employer would both fail.
Footnote 2 adds a wrinkle to the wrinkle, however:
Even if a defined-benefit plan is mismanaged into plan termination, the federal PBGC by law acts as a backstop and covers the vested pension benefits up to a certain amount and often in full. For example, if the plan and the employer in this case were to fail, the PBGC would be required to pay these two plaintiffs all of their vested pension benefits in full. * * * Any increased-risk-of-harm theory of standing therefore might not be available for plan participants whose benefits are guaranteed in full by the PBGC. But we need not decide that question in this case.
Justice Thomas authors a concurring opinion, joined by Justice Gorsuch, arguing that in a future case the Court should reconsider its precedents suggesting a need to make “analogies to trust law” when deciding Article III standing.
Justice Sotomayor authors a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan. It begins:
The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.
Thursday, May 14, 2020
Today the Supreme Court issued a unanimous decision in Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. The Court rejects the application of what Justice Sotomayor’s opinion describes as “so-called ‘defense preclusion,’” which would preclude a party from invoking a defense in a later lawsuit because of its failure to invoke that defense in an earlier lawsuit. This case arises from “protracted litigation” between Lucky Brand and Marcel over alleged infringement of Marcel’s “Get Lucky” trademark:
In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action.
Justice Sotomayor notes that the Supreme Court “has never explicitly recognized ‘defense preclusion’ as a standalone category of res judicata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion.” Given that the defense asserted in the later case had not been actually litigated in the earlier lawsuit, issue preclusion could not apply. So any application of defense preclusion must at least satisfy claim preclusion’s general requirement that the two lawsuits share a “common nucleus of operative facts.” That wasn’t the case here: “At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses.”
In footnote 2, Justice Sotomayor leaves open the question of whether claim preclusion can ever be applied to defenses:
There may be good reasons to question any application of claim preclusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the defendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller §4414. This is because “[v]arious considerations, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” Cromwell v. County of Sac, 94 U. S. 351, 356 (1877). Here, however, this Court need not determine when (if ever) applying claim preclusion to defenses may be appropriate, because a necessary predicate—identity of claims—is lacking.
Friday, May 8, 2020
SCOTUS orders supplemental briefing in Google v. Oracle on the Seventh Amendment and the standard of review for a jury's fair-use finding
Google LLC v. Oracle America, Inc. is one of the Supreme Court cases that has been postponed until the October Term 2020 in light of the COVID-19 situation. It presents the following questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
This week, the Supreme Court directed the parties to file supplemental briefs addressing “the appropriate standard of review” for the jury’s fair-use finding, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
H/T Shaun Shaughnessy
Thursday, May 7, 2020
Today the Supreme Court issued an interesting decision in United States v. Sineneng-Smith, a case in which the Ninth Circuit held that the federal statute making it a crime to encourage or induce illegal immigration for commercial advantage or private financial gain was facially overbroad in violation of the First Amendment. Justice Ginsburg’s unanimous opinion did not address this constitutional question, however. Rather, the Court held that the Ninth Circuit had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion,” and remanded the case “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”
Neither party had raised the First Amendment overbreath issue in either the district court or the initial round of Ninth Circuit briefing. But “[i]nstead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel,” including “whether the statute of conviction is overbroad . . . under the First Amendment.” In today’s opinion, the Supreme Court reasons that “[n]o extraordinary circumstances justified the panel’s takeover of the appeal.” Although Justice Ginsburg recognizes that “a court is not hidebound by the precise arguments of counsel,” she writes that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”
Sineneng-Smith is a criminal case, but Justice Ginsburg’s opinion notes that this principle of party presentation applies in civil litigation as well:
In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.
Footnote 3, in fact, cites to Ben Kaplan’s 1960 article, Civil Procedure—Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, for the proposition that the U.S. system “exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge” while the “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal.”
In footnote 4, the Court does acknowledge some tension between this “principle of party presentation” and the Supreme Court’s own practice: “In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” That addendum, which begins at p.10 of the slip opinion, is an interesting resource in and of itself.
Justice Thomas writes a concurring opinion, arguing that the Ninth Circuit’s decision “violates far more than the party presentation rule. The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.”
Wednesday, May 6, 2020
As covered earlier, the Supreme Court’s April decision in Ramos v. Louisiana holds that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But it left open the important question of retroactivity—can the right to a unanimous jury verdict be raised on collateral/habeas review?
On Monday, the Supreme Court set itself up to answer this question. It granted certiorari in Edwards v. Vannoy, limited to the following question: “Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.”
Friday, May 1, 2020
And here are some cases that present interesting procedural, jurisdictional, or other fed-courts-y issues:
Wednesday, May 6:
(1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and
(2) Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Barr v. American Association of Political Consultants (19-631) has an interesting severance issue. Here’s the question presented: Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Monday, May 11:
McGirt v. Oklahoma (18-9526) presents the question: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.
Tuesday, May 12:
In Trump v. Mazars USA (19-715) and Trump v. Deutsche Bank AG (19-760), the Court has directed the parties to file supplemental briefs addressing “political question doctrine or related justiciability principles.”
Wednesday, May 13:
Colorado Department of State v. Baca (19-518) presents this question on standing (among others): Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.
Thursday, April 30, 2020
The Court will provide a live audio feed of the arguments to FOX 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.
The network pool will distribute the teleconference live audio feed to Pool 6 for network subscribers. Media organizations not included in the network pool may access the AP live audio feed via an AP website. For more information, media organizations may contact Jack Auresto, AP Washington deputy bureau chief, at 202-304-4891. C-SPAN will livestream the audio of all of the teleconference oral arguments on television, online at C-SPAN.org, and on the free C-SPAN Radio app.
The oral argument audio and a transcript of the oral arguments will be posted on the Court’s website following oral argument each day.
Wednesday, April 29, 2020
SCOTUS asks for supplemental briefing on the political question doctrine and justiciability in Trump documents cases
Among the Supreme Court’s October Term 2019 cases that will be argued remotely in the coming weeks are two cases relating to Congress’s attempt to obtain documents from President Trump’s banks and accountant (Trump v. Mazars USA & Trump v. Deutsche Bank AG). Those cases are set for oral argument on Tuesday, May 12.
Monday’s order list directed the parties to file “supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” Stay tuned!
Monday, April 27, 2020
Today the Supreme Court issued its decision in New York State Rifle & Pistol Assn., Inc. v. City of New York, a case challenging New York City’s rule on transporting firearms (covered earlier here). The rule was amended after certiorari was granted, and today’s per curiam opinion finds that the “claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.” The Court remands the case for the lower courts to consider claims the plaintiffs may have regarding the City’s new rule, as well as whether the plaintiffs may add a claim for damages with respect to the old rule.
Justice Kavanaugh authors a concurring opinion.
Justice Alito authors a dissenting opinion, joined in full by Justice Gorsuch and in part by Justice Thomas, arguing that the case should not have been dismissed as moot and that the City’s rule violated the Second Amendment.
Wednesday, April 22, 2020
This week’s Supreme Court decision in Ramos v. Louisiana will primarily be of interest to criminal law/procedure folks: the main takeaway is that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But there are some really interesting federal courts/procedure issues as well.
As an initial matter, Ramos has an opinion breakdown that is sure to intrigue SCOTUS head-counters:
GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.
In its broadest strokes, the decision is an unusual 6-3 split: Gorsuch, Breyer, Ginsburg, Sotomayor, Kavanaugh, and Thomas vote in favor of the unanimous-jury requirement; Alito, Roberts, and Kagan dissent.
Ramos also prompts an important retroactivity question. Gorsuch, Ginsburg, Breyer & Sotomayor (in Part IV-B-2 of the Gorsuch opinion) recognize that they can’t formally decide the retroactivity issue in Ramos itself: “Whether the right to jury unanimity applies to cases on collateral review is a question for a future case where the parties will have a chance to brief the issue and we will benefit from their adversarial presentation.” But they note that: “[u]nder Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review”; “Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it”; and the Teague test “is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments.” Justice Kavanaugh is more aggressive on the retroactivity point in his concurring opinion: “assuming that the Court faithfully applies Teague, today’s decision will not apply retroactively on federal habeas corpus review and will not disturb convictions that are final.” (Ramos would, of course, apply to convictions that are currently on direct appeal.)
Finally, the Ramos decision confronts stare decisis. The key question—and the crux of the disagreement between the justices in the majority and those in dissent—is whether the Court should overrule its 1972 decision in Apodaca v. Oregon, which had upheld state convictions based on non-unanimous jury verdicts. But there’s an intriguing threshold issue that the Ramos opinions address: what, if anything, was the precedential content of Apodaca in the first place? (In general, this content-identification question is an aspect of stare decisis that gets less attention than the question of when precedent should be overruled—for my own thoughts, see here, here, and here.) As for Apodaca, this inquiry is complicated by the fact that Apodaca was a 4-1-4 decision: a four-justice plurality found that the Sixth Amendment did not require unanimity; Justice Powell concurred on the basis that the Sixth Amendment required unanimity but that this aspect of the Sixth Amendment was not applicable against the states; and the Apodaca dissenters would have required state convictions to be based on unanimous verdicts.
There’s lots of interesting stuff in the Ramos opinions on this content-identification question, including what role the Marks rule plays for a decision like Apodaca. To summarize, Gorsuch, Ginsburg, and Breyer (in Part IV-A of the Gorsuch opinion) reason that Apodaca did not create a “governing precedent,” because the unusual breakdown Apodaca deprived it of any “ratio decidendi” that would “allow it to have life and effect in the disposition of future cases.” Kavanaugh disagrees on this point, most forcefully in footnote 6 of his concurring opinion, writing that Apodaca’s “bottom-line result” that “state criminal juries need not be unanimous” was binding precedent. Alito, Roberts, and Kagan also treat Apodaca as creating a binding precedent; Part II of Alito’s dissenting opinion begins: “It is remarkable that it is even necessary to address this question, but in Part IV-A of the principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: ‘Really?’”