Judicial Lecture w/ Judge Emil Bove III

 Monday, November 9

For Monday, November 2

Tuesday audio. 

We will finish Eleventh Amendment. We will start where we left off: What is the argument that EpY is not a legal fiction but an inherent and necessary part of sovereign immunity--built into SI'S principle that the sovereign cannot be sued eo nomine? Also consider the following:

   Plaintiff is fired from a job as deputy prison warden. He brings an action against the Superintendent of Prisons, who made the firing decision. Can he obtain the following remedies if he prevails on the merits?

       • Damages for pain and suffering

      • Reinstatement (which will include future salary once back at work

     • Backpay (an equitable remedy, recovering the wages he would have earned between the firing and the judgment

    • Front pay in lieu of reinstatement (because reinstatement is not feasible, a monetary award of the wages he would have earned had he been reinstated, for a short period)

    • Attorney's fees (available as a prevailing party under civil rights laws)

Then move to Standing: Constitutional and Statutory Considerations. This will take as through the end of class on Tuesday; go ahead and prep the entire thing.

No appellate jurisdiction in California case

So says a divided Ninth Circuit panel. Note, however, that the Court did not reject it on the simple "TRO's are not appealable" grounds. Instead, the issue was whether the district court's inaction (he ordered briefing and argument for about five days later) rose to the level of a constructive denial of an injunction.

A prof at another school argues this opinion--regardless of the outcome--reflects the fraying of the long-standing proposition that TROs are not appealable, at least when this Administration seeks review. He links that fraying with SCOTUS's increased use of the Shadow/Interim/Emergency/Voldemort Docket.

For Tuesday, October 27

Monday audio. Non-Art.III/DJ/EpY papers due tomorrow.

Prep/Review the rest of Eleventh Amendment. We start where we left off: How did PennEast and Torres change what we thought we knew: Subject to Bankruptcy exceptionalism and the consent of the Spending Clause, Congress cannot subject states to suit under its Art. I § 8 powers?

Creative (or desperate) appellate maneuvers

The U.S. sent California a list of people (about 22k) the U.S. says are ineligible to vote but remain on the California voter roles; it asked for an injunction ordering the state to check its voter roles to remove these (and presumably other) names. The U.S. moved for a TRO prohibiting California from proceeding with vote counting until it checks on these voters; it requested an expedited ruling. The court ordered briefing and a hearing by October 27 (early next week), given the complicated nature of the case and the attempted intervention of voting-rights groups.

The U.S. has appealed the court's refusal to immediately rule on the TRO, arguing that the refusal to rule expeditiously constitutes constructive denial of the TRO. Note two big issues here. First, even accepting the government's constructive-denial argument, denial (constructive or otherwise) of an ex parte TRO is not ordinarily appealable. This case might test if anything remains of the TRO/PI distinction for § 1292(a) purposes. Second, the traditional method for challenging district court inaction has been mandamus, with the high standard it carries. You can see why the U.S. would try something less within the court of appeals' discretion.

For Monday, October 26

Tuesday audio. Three-Judge/DJ/Non-Art. III papers due next Tuesday.

Prep the remainder of Eleventh Amendment. We will start with the other facts that define whether an entity is sovereign entitled to immunity. I expect this to take both days next week, with Standing beginning the following week. 

Federal claims or district court?

What we discussed in class yesterday, from the Fourth Circuit.

For Tuesday, October 20

Monday audio.

We will discuss Bankruptcy Courts (which should take about 20 minutes). We then move to Eleventh Amendment. Prep Chemerinsky pp. 395-417, 438-49, and 624-28, along with the Eleventh Amendment itself. Plus, read Galette v. NJT, the Court's most recent statement on sovereign immunity, from last term.

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.

For Monday, October 5

Tuesday audio. Court of Appeals papers due Monday.

Prep the remainder of Arising Under. We begin with the distinction among three things--legal rights, jurisdictional grants, and rights of action; what are the differences and how do they affect whether a claim arises under?

Consider the following, in light of Morrison:

The US prosecutes X for sex trafficking. The purported basis for jurisdiction is 18 U.S.C. § 3231, granting district courts original jurisdiction over "all offenses against the laws of the United States." The sex-trafficking statute requires that the defendant's actions be "in or affecting interstate commerce."  The court determines that the use of money and a car manufactured in another state does not satisfy that requirement and so the prosecution must be dismissed. What is the basis for that dismissal?

 

For Tuesday, September 29

Monday audio. Court of Appeals papers due next Monday.

We pick up with the distinction between exclusive and concurrent jurisdiction in district courts and how that affects which statutes you cite for jurisdiction.

Prep all of Removal, Exclusive Jurisdiction,  and Arising Under: Arising Under.

On writing

Count me on the more formal side of this discussion.

TROs and appeals

Judge Timothy Kelly (D.D.C.) issued a TRO against the White House stripping three news outlets of press credentials. The court resolves the case on due process grounds--the failure to provide notice prior to taking away the credential.

The relevant points for our purposes come on pp 7-8.

First, the court declines to stay the TRO, pointing out that 1) TROs are not "generally unappealable" and 2) the whole point of a TRO is to immediately-but-temporarily preserve the status quo, a purpose undermined by a stay. As to # 1, courts of appeals have been allowing appeals of TROs in Trump-related litigation, albeit without explanation or applying the established criteria for treating a TRO as a PI. Judge Kelly emphasizes the 14-day duration, highlighting the key feature that makes something a TRO rather than a PI.

Second, FRCP 65(c) requires the court to impose a bond on the plaintiff obtaining the injunction--some money to cover the costs the defendant's suffer from a wrongly issued injunction. This was looming as in issue in the antitrust litigation over the Paramount merger, where Paramount was seeking a bond in the billions of dollars. In constitutional cases such as this one, courts tend to impose nominal bonds of $ 1, since the government's cost (inability to enforce a law or policy for a time) are not monetized. Judge Kelly did that here.

But note that this was a point of discussion in 2025, where DOJ was threatening to seek substantial bonds in constitutional cases. Many feared this would chill constitutional litigants and lawyers, who do not have the funds to post substantial bonds, from bringing litigation.

Update: Prof. Vladeck offers some thoughts on how the distinction between TRO and PI has collapsed, especially around stays and appealability.

For Monday, September 28

Tuesday audio.

Some last-minute clean-up on Courts of Appeals. Papers will be due the following Monday (October 5).

We then start District Courts. Prep Structure, Jurisdictional Overview, and Well Pleaded Complaint.