Procedural Barriers to Court

  • November 24, 2010

    Senate obstruction of judicial nominees, two Supreme Court vacancies, public apathy and competing priorities all have contributed to the slow pace at which federal court seats have been filled during the Obama administration, experts explained during a lively ACS panel discussion on the judicial selection and confirmation process.

    As the number of vacancies on the federal courts rises to an alarming level, the risk of failing to fill these empty seats is that "people will lose confidence not only in the justice system, but in Congress' ability to support it," said American Bar Association President Elect Wm. T. (Bill) Robinson III.

    Panelists discussed the process of filling a seat on the federal bench, from the way in which state nominating commissions affect the vetting process in particular states, to the President's deferral to Senators from a given state on that state's nominees. Each of these steps presents an opportunity for delay, the panelists explained, but once a candidate is nominated by the president, it is Senate confirmation that stands in a nominee's way.

    During the Obama administration, the Senate has confirmed nominees to the district court at a much slower rate than occurred under President George Bush, said Brookings Institution Visiting Fellow Russell Wheeler.

    "It's true that in the lame-duck session of Congress in 2004, the Senate confirmed 17 Bush nominees," Wheeler explained. "Now, I guess it's theoretically possible for the Senate to confirm some more Obama nominees in the lame duck, but I certainly wouldn't hold my breath to see that happen."

    Robert Raben, president and founder of The Raben Group and an ACS Board Member, said the Democrats have done an "inadequate job" of creating a constituency that cares about judges.

    "I don't think Republicans are by their nature more obstructionist on this issue. I think they're better at it," Raben said. "For some of them it's more passionate, and the Democratic opposition to their opposition is not that strong.

    "There isn't a coherent mass of political effort on the Democratic side saying judges matter," Raben added.

    Robinson agreed with this sentiment, explaining that the ABA is strengthening its efforts to educate the public about the importance of judges.

    "When delays of this magnitude occur, those who really suffer are the people," Robinson said.

    Watch the full video below, and visit JudicialNominations.org to learn more about the judicial nominations process and track developments.

  • November 10, 2010
    Guest Post

    By Suzette M. Malveaux, an associate professor of law at Catholic University's Columbus School of Law. The following is a modified version of the introduction to Malveaux's ACS Issue Brief, "Salvaging Civil Rights Claims: How Plausibility Discovery Can Help Restore Federal Court Access After Twombly and Iqbal," which was released today. The Issue Brief will be a topic of discussion during the National Civil Rights Access to Justice Forum, which will begin at Emory University School of Law in Atlanta tomorrow evening and continue Friday, Nov. 12. Click here for more information about the event and to register.
    For over half a century, federal courts have opened their doors to all plaintiffs who could craft a complaint that provided basic notice to the defendant of their claims. This threshold, called "notice pleading," was established by the Supreme Court in Conley v. Gibson - a civil rights case brought by African-American railway workers challenging their union for failing to fairly represent their interests without regard to race. This seminal case established the rule that a complaint should only be dismissed if the plaintiff could prove "no set of facts in support of his claim that would entitle him to relief." This made it easy for a plaintiff to initiate a lawsuit because the system was designed to test the merits of the plaintiff's case later on, once both sides had the chance to collect evidence through the discovery process and to use other pre-trial procedures. It was important not to let procedural gamesmanship bar ordinary people from seeking justice and relief through the courts.

    Anchored in these principles, the Supreme Court consistently rejected efforts by the lower courts to raise the pleading standard, particularly in civil rights cases. The Court remained steadfast in enforcing Conley's "no set of facts" standard, only requiring plaintiffs to set forth a "short and plain statement of the claim" that would give the defendant notice, as stated in Rule 8 of the Federal Rules of Civil Procedure. It was important to give civil rights complainants, like everyone else, their day in court and let their cases be decided on the merits.

    After over half a century, however, this generous pleading standard upon which courts had historically relied has come to an abrupt halt. In Bell Atlantic Corp. v. Twombly (an antitrust class action by consumers against Internet and telephone service providers), the Supreme Court "retired" Conley's permissive "no set of facts" language. Instead of requiring plaintiffs to put forth facts showing their claims were possible, they now had to put forth facts showing their claims were plausible. In Ashcroft v. Iqbal (a constitutional civil rights case by Javaid Iqbal against top government officials), the Court clarified that the new standard applies to all civil actions, including discrimination claims. And the way a judge would determine if something is plausible would be to use his "judicial experience and common sense."

  • October 23, 2010

    AT&T Mobility v. Concepcion, which will be argued before the Supreme Court in November, is a case that "at first blush appears rather technical," hinging on a question of federal preemption. But "the stakes are high" in the case, explains Georgetown University Law Center professor Nina Pillard during an ACS panel, because the case has the potential to allow companies to ban class-actions in their standard-form contracts, thus eliminating the "classic way of enforcing rights that affect groups of people."

    Pillard set the stage for a lively and impassioned debate about the case, which could have significant implications for consumer and civil rights.

    AT&T's lawyers are arguing that California state courts have discriminated against arbitration clauses in holding that those that do not allow class actions are unconscionable, explained Stephen J. Ware, a law professor at the University of Kansas School of Law. This is a violation of the Federal Arbitration Act, a federal law that should trump state law, AT&T argues.

    But F. Paul Bland Jr. said the case is absolutely not about arbitration clauses.

    "The case is about whether AT&T can ban class actions," he said. " ... This case is about if you take a term, a ban on class actions, that is in a given case exculpatory, and you take it out of a general contract, and you put it in a contract term that has the label over it that says arbitration clause, does the phrase arbitration clause over the paragraph strike down the normal California rule against exculpatory clauses?"

    Alan Kaplinsky, a partner at Ballard Spahr, said the statistics cited by some courts show that consumers do better with individual arbitration than with class cases, because they win more money, the cases take less time, and they are likely to receive attorneys' fees.

    But Bland called a class action ban a "get out of jail free card" for corporations, who may be bilking 100,000 people out of $30, only 100 of whom pursue individual arbitration. By not allowing class actions, the company never has to pay the remaining 99,900 people, Bland explained.

    Watch the full discussion below.

     

  • September 20, 2010
    Recent Supreme Court decisions have made it more difficult for a growing number of people to access the courts, two civil liberties attorneys write in a new ACS Issue Brief.

    Joshua Civin, an assistant counsel at the NAACP Legal Defense & Educational Fund, Inc., (LDF) and Debo P. Adegbile, associate director-counsel and director of litigation at LDF, write that the high court has "skewed the balance away from access to the courts by elevating the threshold standard that all plaintiffs must meet to pursue legal claims. The two cases [Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal], have "without clear necessity overturned well-settled law and imposed a more stringent standard for federal cases to survive," they maintain.

    In "Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation," Civin and Adegbile explain that when the Federal Rules of Civil Procedure were created in 1938, "they transformed civil litigation by establishing a liberal standard for what plaintiffs must plead in their complaints to initiate a federal lawsuit to withstand a motion dismiss." Specifically the federal rules merely required that plaintiffs lodge a "short and plain" statement about why they are entitled to relief.

    But with Twombly and Iqbal the high court, the authors state, has "usurped by judicial fiat the deliberative and inclusive process that Congress has established ...."

    The Twombly case applied specifically to antitrust laws, but in the 5-4 Iqbal opinion, the majority expanded the more stringent pleading standards to all civil cases. Writing for the narrow majority, Justice Anthony Kennedy held that for a complaint to survive a motion to dismiss, plaintiffs must provide much more specific factual information, and that a court can "draw on its judicial experience and common sense," in determining whether to dismiss a lawsuit, the authors write.

    "The new emphasis on factual specificity is especially onerous for civil rights plaintiffs," Civin and Adegbile say. "In many civil rights cases, most, if not all, pertinent information is within the exclusive province of the defendant - through its agents, employees, records, and documents. For instance, when a plaintiff alleges she was the victim of a discriminatory practice, she typically must expose the defendant's ‘private, behind-closed-doors-conduct,' including ‘particular meetings and conversations, which individuals were involved, when and where meetings occurred, what was discussed, and, ultimately, who knew what, when, and why.'"

    The authors urge Congress to pass legislation to return the pleading standards to those used for five decades and required courts "to view allegations in the complaint in the light most favorable to the plaintiff."

    Lawmakers in Congress have introduced a bill, the "Notice and Pleading Restoration Act," which is intended to require federal courts to follow traditional civil procedure rules for filing lawsuits.

    For more on Iqbal and Twmobly, see video of an ACS symposium on the decisions and ACSblog guest post from Vermont law school professor Anthony F. Renzo.

  • September 9, 2010

    by Jeremy Leaming

    The federal appeals court decision rejecting a lawsuit brought by former prisoners charging the CIA with abducting and transporting them to secret prisons in other countries where they were tortured is garnering widespread derision as a dangerous continuation of unwieldy executive power.

    In Mohamed et al. v. Jeppesen Dataplan, Inc., the full U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit lodged in 2007 on behalf of five men kidnapped by the CIA and sent to other countries for imprisonment and interrogation. The ACLU represented the men and argued that they had been tortured during their imprisonment. The Bush and Obama administrations argued that the lawsuit should be dismissed because it could uncover so-called "state secrets," undermining national security. The Ninth Circuit sided with the government, maintaining that it represented a "rare case" in which the government's claims to protect national security were stronger than considering whether human rights were violated.

    The ACLU's Ben Wizner, who represented the former prisoners, said in a press release, "This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court."

    The New York Times editorial board blasted the Ninth Circuit's decision, saying it "diminishes any hope that this odious practice [extraordinary rendition, where military captives are sent to secret prisons in other countries] will finally receive the legal label it deserves: a violation of international law."

    The Atlantic blogger Andrew Sullivan writes:

    The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

    The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

    For discussion on the history of the government's use of the "state secrets" privilege, see an ACS panel discussion, including Wizner, here.