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?’”
Tuesday, April 21, 2020
There were some interesting jurisdictional issues in yesterday’s Supreme Court decision in Atlantic Richfield Co. v. Christian.
First, the Court ruled that the Montana Supreme Court’s ruling was a “final judgment” that the Supreme Court had jurisdiction to review under 28 U.S.C. § 1257, even though the Montana court’s ruling allowed the case to proceed to trial. Chief Justice Roberts’ majority opinion reasoned that the Montana Supreme Court had “exercised review in this case through a writ of supervisory control” and that “[u]nder Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal.”
Second, the Supreme Court found that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) did not forbid state courts from exercising jurisdiction over actions based on state law. CERCLA “deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law.” Chief Justice Roberts reasoned:
Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. 42 U. S. C. §9613(b). This case, however, does not “arise under” the Act. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916).4
Footnote 4 clarifies:
There is a “special and small category of cases” that originate in state law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation marks omitted). To qualify for this narrow exception, a state law claim must “necessarily raise” a federal issue, among other requirements. Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 (2009).
Monday, April 13, 2020
Today the Supreme Court issued a press release stating: “The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases.”
Those cases are:
18-9526, McGirt v. Oklahoma
19-46, United States Patent and Trademark Office v. Booking.com B.V.
19-177, Agency for International Development v. Alliance for Open Society International, Inc.
19-267, Our Lady of Guadalupe School v. Morrissey-Berru, and 19-348, St. James School v. Biel
19-431, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and 19-454, Trump v. Pennsylvania
19-465, Chiafalo v. Washington
19-518, Colorado Department of State v. Baca
19-631, Barr v. American Association of Political Consultants, Inc.
19-635, Trump v. Vance
19-715, Trump v. Mazars USA, LLP, and 19-760, Trump v. Deutsche Bank AG
It remains to be seen what will happen with other postponed cases from the March and April calendars.
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.