Federal Courts Blog

Response to Lorayne’s point on joinder and finality

Regarding Lorayne’s point about linking finality and joinder (actually claim preclusion): Interesting idea. Note, though, that the breadth of preclusion doctrine and the fact that, when we are dealing (as we most frequently will be) with multiple claims by plaintiffs, it is relatively rare that a plaintiff will bring completely unrelated claims. So finality still would be in place in most situations because preclusion would be in play. Including, by the way, in Doe–all the plaintiffs’ claims arose from the same transaction or occurrence, the overtime work going on by these employees for SSA and the compenstation they received.

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Argument Transcripts

Excellent job on the oral arguments today, both as advocates and judges. If you are interested in listening again:

Freedom from Religion Foundation v. Nicholson

Wilson v. Libby

O’Neill v. Coughlan

Yahoo!, Inc. v. LICRA

Doe v. United States

Temple University v. DeJohnv

Summers v. Earth Island Institute

Rowland v. State Employees Bargaining Agent Coalition

Congratulations on finishing and thank you for a fun semester. Enjoy your break.

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Post Script

One quick thing before the curtain is drawn on fed courts :-(  In preparing my oral argument on finality, I started wondering if there is any link between finality and compulsory joinder claims.  For example, why not fashion a rule that there is finality when there are judgments on some claims, and the only other claims that remain are not of the compulsory kind (that is, they rely on different facts, different law, etc.).  In the case I worked on for oral arguments, the only claim remaining seemed to rely on different facts (the scheduled overtime, instead of the irregular overtime) and different legal standards.  It would seem that the efficiency concerns are not present where those claims are voluntarily dismissed without prejudice and where the trial court has not begun to really consider them.

I meant to raise this at oral argument, but time flies when you’re on the hot seat.

Lorayne

Happy holidays everyone!

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Reply to Maria, Mary, & Vanessa’s Posts

I think that suit could be brought in Federal Court under s1983 + substantive due process by the institutionalized persons against the state officials working in these institutions.  Also, we know from class that Sovereign Immunity was abrogated with regards to the 14th Amendment.  Therefore, if I remember correctly, Congress can pass a law abrogating State Sovereign Immunity when it acts with its section 5 powers under the Fourteenth Amendment.  This means that the State itself can be sued under s1983, no?  Also, under the prospective-compliance exception to
Sovereign Immunity it is not violative of the Eleventh Amendment to enjoin prospective compliance with the law, even where that compliance will have fiscal consequences to the State, so long as those consequences are a secondary effect of that prospective relief (We may have covered this in Civ Rights only).  A plaintiff could seek injunctive relief to force the State to update its institutions to come into compliance with modern standards.  So, I think there are definitely a number of ways that the Federal Courts can step in, that is, if the proper plaintiff files suit there.

Which brings us to parity.  Would a plaintiff feel just as comfortable filing this suit in Texas court?  Probably not.  I think it would be interesting if someone were to attempt to quantify parity to see if there really is such a thing.  I’m sure that, like all scientific/statistical undertakings, it would be far from perfect.  Perhaps parity is also too broad in its scope.  I mean, maybe there is parity in certain circuits, but not in others.  Is it possible that in certain areas of the nation, State courts are expanding our civil liberties beyond what the federal circuits are willing to do?  And vice versa?  I think so.

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Federalism and State violations of the Constitution

By Maria Saad:

In a recent Associated Press report, Texas has come under scrutiny for the inadequate level of care it offers mentally disabled patients housed in state run institutions. The article speaks about blatant physical abuse including beatings, sexual abuse and harassment, unclean facilities, etc. The Justice Department has called the actions of the facilities into question, stating that the lack of adequate care for these patients violates their constitutional rights. However since the Texas legislature created each facility, only they can close them down.  In the current economic crisis shutting down facilities that provide jobs, may not be the most popular of decisions.  But in the face of such human suffering and blatant violations of Constitutional rights what remedy can patients and family members of patients find in the federal courts?
The report states that Texas is the Institution Capital of America housing 5,000 residents in 13 institutions.  Furthermore in 2007 alone, officials in Texas verified 465 reports of abuse.  It would seem that the actions of the state in protecting these constitutional violations have prove insufficient, in light of the continued reports of abuse. The involvement of the Federal Justice Department seems justified.  I guess my question is whether the Federal Courts can issue injunctions to either temporary close, or force the remodeling of the state care facilities.  I understand that the institutions are created by state legislatures, and federal courts forcing state legislature to do or undo something no doubt raises federalism questions, but balancing the important Constitutional rights protected here, isn’t federal involvement merited?
Here is the link to the story http://www.msnbc.msn.com/id/28036793/

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Comment on Parity Versus Comity

I just wanted to comment on Vanessa’s statement that the “assumption of parity” is measurable. Although some may agree, I respectfully disagree — not only for the fact that I don’t think it is possible but also it is not a good idea.

Although we can discuss and debate the topic of parity, how exactly can we place a quantitative measure on things like processes, qualifications, appointments, “right” decisions, etc. when those terms have qualitative meanings? What would that empirical data contain and by what method would we measure it by?

I don’t think that placing a “value” or “number” on those issues/terms/notions/etc. would be of any support in the debate on the “assumption of parity” because those issues/terms/notions/etc. are too complex and dependant on subjectivity. What one might call a qualification of a judge another may call impairment.

Additionally, it isn’t a good idea because placing a value on something that can’t be measured by any method of empirical certainty doesn’t get us anywhere on the “assumption of parity” debate. It could actually be a dangerous thing.

-Mary

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Damages in emergencies

By Maria Saad

The fear and unrest caused by September 11th have paved the way for a series of laws and covert actions that raise serious issues of morality and constitutionality.  One such action is the act of extraordinary rendition, where a person in U.S. custody is transferred to a foreign jurisdiction to be “interrogated.”  Few cases have come to light about these events, only to be defeated in the courts under some of our familiar doctrines.  In Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D. N.Y. 2006) A dual citizen of Canada and Syria was order deported by the INS to Syria for allegedly being a member of Al Qaeda. He was detained for several days in American detention centers in solitary confinement, and was denied a lawyer for his interrogations.  He was deported (without a formal hearing) despite Arar informing law enforcement that he would be torture if sent to Syria. Nonetheless U.S. officials boarded Arar on a small jet, and handed him over to Syrian authorities, who tortured him for 10 months.

Behind the court’s denial of his complaint for civil damages, was the courts reluctance to “meddle” with issues of national security.  The court said “a judge who declares on his or her own Article III authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious of consequences to our foreign relations or national security or both.” Id. at 283. The court further noted that Judges lacked the experience and competency to define the rights of individuals vis-à-vis the needs of officials acting to protect the security of the United States.  Id. at 282. Perhaps nowhere is the question of separation of power as critical as it is national security issues, however it is the federal courts precisely that were charged in protecting the rights of individuals against the political whims of the majority.  If the elected branches of government are acting pursuant to the apprehension and fear of the majority against ethnic minorities, and if the court stays its hand in deciding these issues, is there any protection against the tyranny of the majority?  Separation of powers should not serve as a “cop out” for the responsibility of the judiciary to enforce individual rights even in the most trying of times.

Editorial Note: SCOTUS heard oral argument on this case today. Transcript and summary.

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Clarification on Doe

The order is correct; Doe (the employer) is Petitioner and the United States is Respondent. It ends up looking odd procedurally, but sometimes we have to play loose with rules to make this project work. So Doe is the petitioner because she lost in the court below, but SCOTUS only wants to talk about the jurisdictional issues.

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Confusion: Doe v. United States

You mentioned:

“Not every case on our “docket” for oral arguments actually has had cert granted–only Summers, actually; the rest we are acting as if cert were granted on the issues identified and arguing that.”

In Doe v. United States, the employee lost the case overall, but won on the jurisdictional argument.  The court held that it had jurisdiction because dismissing without prejudice is final and appealable, so long as there is no evidence of intent to manipulate.

The Supreme Court case is called Doe v. United States.  Is Doe the petitioner?  Why would he be granted cert on an issue he won?  Can you provide a little clarification?  Perhaps, I am mistaken.

Loryane was planning on representing the employee as petitioner and I was planning on representing the government as respondent.  Is this correct, or should we reverse something?

Many thanks, Professor!!!

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A note on oral arguments

Not every case on our “docket” for oral arguments actually has had cert granted–only Summers, actually; the rest we are acting as if cert were granted on the issues identified and arguing that. You should have no trouble preparing both to argue and judge from reading the case being reviewed (and the cases discussed in the opinion) and looking at the briefs in the courts of appeals, which should be on Westlaw.

Also, the only issues that you ever argue to a reviewing court are those that are presented to the reviewing court. In SCOTUS, that is the issue on which cert has been granted. Thus, the only thing you should be ready to argue tomorrow is the issue identified in the original list of cases and in the Argument Schedule.

Finally, for those looking to refresh themselves on what a good argument should sound like (as both an advocate and a judge), check out oyez.org, which has audio of all recent SCOTUS cases, as well as more famous and important cases from the past 50 years. (H/T: Lorayne Perez, who came up with the idea).

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