Indian Status as jurisdiction or merits

I posted this case to the Evidence blog because it is largely about whether the defendant's status as an Indian is an element or affirmative defense. But there is an interesting discussion (beginning on p.31) of this as a jurisdictional element and thus whether it goes to the court's jurisdiction or to the merits of the prosecution.

Magistrate Consent

Dispute in Louisiana and the Fifth Circuit has been going on for several years, where party consented to a magistrate trial, then learned of a longstanding friendship between the mag and the opposing counsel. A prior panel (which we used for arguments a couple years ago) said it looked bad but needed further factual development; a second panel in September said the consent was invalid. An en banc petition is pending.

For Monday, October 19

Tuesday audio.

We continue with Non-Article III Tribunals. We will continue with Public Rights, then turn to Magistrates and Bankruptcy Judges; be sure to review the statutes governing both. Look at § 1491 and § 1346(a)(2), then consider the following: What actions are channeled to the Court of Federal Claims and what determines whether it is within the Court of Federal Claims exclusion jurisdiction, as opposed to a federal district court?

Consider two examples involving recent controversies over the Trump Administration trying to withhold or terminate federal grants:

   • The federal government terminates a federal research grant; the researcher sues, arguing that the grant was improperly terminated and that the money should be restored.

   • A school district institutes a policy allowing students to use the bathroom aligned with their gender identity; the federal government threatens to withhold funds; the school district believes any other policy would violate Title IX (prohibiting sex discrimination by recipients of federal funds). The school seeks a declaratory judgment that it is complying with Title IX and that the federal government cannot withhold funds.

Consider the following:

   The Federal Communications Commission (FCC) can investigate regulated entities for violating federal communications law and, following that investigation, may impose monetary forfeiture for the violation. The FCC issues notices of "apparent liability," to which entities can respond; the FCC then can determine liability and assess penalties. Once that assessment has been made, one of two things can happen: The entities can challenge it in the court of appeals, which reviews the FCC order (without a jury). Or the entities can do nothing and the FCC refers the matter to the Department of Justice, which can commence a civil action in district court to recover the amount owed; the civil action is de novo, meaning the FCC's prior determination is entitled to no deference.

   Does this scheme violate the 7th Amendment under Jarkesy? 

We might get to the next panel by late Monday, so Eleventh Amendment should be ready to go. For Monday, prep Chemerinsky pp. 395-417, 438-49, and 624-28, along with the Eleventh Amendment itself. We will do more on Tuesday, depending on how far we get.

 

For Tuesday, October 13

Monday audio. District Court papers due tomorrow.

We pick on the question of how to determine federal question jurisdiction of a declaratory judgment action? Is there jurisdiction in any of the DJ actions we discussed today? Look specifically at the complaint in MGM.

Then prep Non-Art. III Tribunals. In addition, consider the following:

   The Federal Communications Commission (FCC) can investigate regulated entities for violating federal communications law and, following that investigation, may impose monetary forfeiture for the violation. The FCC issues notices of "apparent liability," to which entities can respond; the FCC then can determine liability and assess penalties. Once that assessment has been made, one of two things can happen: The entities can challenge it in the court of appeals, which reviews the FCC order (without a jury). Or the entities can do nothing and the FCC refers the matter to the Department of Justice, which can commence a civil action in district court to recover the amount owed; the civil action is de novo, meaning the FCC's prior determination is entitled to no deference.

   Does this scheme violate the 7th Amendment under Jarkesy? 

For Monday, October 12

Tuesday audio. District Court papers due Tuesday.

For Monday, prep Three-Judge and Declaratory Judgments. For both, consider how these devices respond to and resolve criticisms of EpY. Be ready to analyze the problems provided.

We will get to Non-Article III on Tuesday. I expect this panel will continue until the following Monday, October 19. 

For Tuesday, October 6

Monday audio.

We will finish District Courts. We will begin with the competing principles: "Plaintiff is master of the complaint" and the "Rule Against Artful Pleading." What does each mean and how do they interact?

We then move to the next panel: Three-Judge Courts/Declaratory Judgments/Non-Art. III. For tomorrow, prep the first two pieces. Our starting point for this is Ex parte Young; both three-judge courts and the DJA are response to EpY. Here is a working link for McManus.

Also, here is the transcript and audio for the Suncor argument.

Shadow Docket orders and cert grants

SCOTUS on Wednesday issued an order staying an injunction prohibiting the Administration from deporting people third countries (countries other than of their origin) without process and granting cert. Three justices dissented, although no one wrote anything to explain.

Two things of note.

First is to consider how the balance of equities could have worked here. Staying the execution means some plaintiffs will be deported to third countries where they might face torture; that is not remediable should the Court affirm the lower court. We can assume the Court's view that any limitation on the executive's ability to pursue its policy goals is a harm that dominates the balance.

Second, the Court granted cert on four questions. The last is: "Such other questions that the Government determines are appropriate for the proper disposition of the case." Court commentators insist they have never seen this done before. The Petitioner (the government in this case) frames and controls the QP, although the Court must approve it. Blanket permission to the petitioner to raise whatever issues it chooses is something very new. Recall that granting cert on narrower questions (rather than the case) was an unintended (at least by Congress) development. But having moved to reviewing questions, the Court does something very different in granting the petitioner carte blanche as to what it raises.