Archive for October, 2013

A split panel of the Fourth Circuit has reversed, on interlocutory appeal, the denial of leave to amend a Title VII class action complaint alleging company-wide gender discrimination at  Family Dollar Stores. Judge Gregory wrote the opinion for the court in Scott v. Family Dollar Stores, Inc., in which Judge Keenan (who also wrote a separate concurrence) joined. Judge Wilkinson dissented.

This case is full of issues for proceduralists and class-action lawyers. It is likely to prove a source of significant worry for those defending employment class actions in the Fourth Circuit because it allows plaintiffs to transmute their original class allegations into something substantially different three years into the litigation (after briefing on the defendant’s motion for summary judgment was almost complete). The majority and dissent each think the other misunderstands the meaning of Wal-Mart Stores, Inc. v. Dukes, and this back-and-forth is worth studying. But the majority’s answers to the dissent’s identification of the various problems with allowing leave to amend seem unsatisfactory. One prominent criticism of the Supreme Court’s recent jurisprudence tightening up pleading and class certification requirements has been excessive solicitude for corporate defendants’ costs-of-litigation arguments. This decision seem subject to the mirror-image criticism. 

Judge Wilkinson’s discussion of the shortcomings of the majority’s analysis of prejudice is persuasive, particularly given the “clearly erroneous” standard of appellate review of factual determinations related to prejudice wrapped inside the “abuse of discretion” standard for reversing a denial of leave to amend. Perhaps the most impassioned part of Judge Wilkinson’s dissent, however, is his discussion of bad faith. Here is how that discussion begins:

A district court’s refusal to permit a pleading amendment on bad faith grounds is justified where “the plaintiff’s first theory of recovery is based on his own reading of . . . cases and it turns out that he misinterpreted how that theory would apply to the facts of his case.” [438 F.3d] at 428 (emphasis omitted). That situation is precisely what occurred here. Plaintiffs misinterpreted how certain class action precedents would apply to their case and then sought to construct an entirely new set of facts to overcome their error. Their willingness to adopt contradictory factual positions in order to match their evolving legal theories evidences a degree of bad faith sufficient to warrant denial of leave to amend. To the old-fashioned view that prior representations to a court actually count for something, the majority answers: Not much.

Judge Keenan writes separately “to emphasize that despite the dissent’s dystopian view, the majority has rendered a straightforward and limited decision: that the plaintiffs should be permitted to amend their original complaint after a dramatic shift in the law regarding class action certification.” Judge Keenan also notes that the majority opinion does not dictate that class certification is appropriate, and that “if the allegations included in the amended complaint ultimately are not substantiated, the class simply will not be certified, and the plaintiffs’ case will fail.” This observation, however, only underscores the prejudice that the plaintiffs’ flip imposes on the defendant. As the district court observed, “Plaintiffs wish to pursue extensive discovery to support and clarify their new theories, which will require the parties to re-open and conduct new expert discovery based on plaintiffs’ changed version of the facts.”

A footnote in Judge Wilkinson’s dissent responds to Judge Keenan’s concurrence, using about one-and-a-half times as many words in the footnote as the concurrence itself contained. After reciting a litany of questions assertedly unanswered by the majority, Judge Wilkinson concludes: “Perhaps my fine colleagues will some day provide some answers to some of these questions, but for now they are doing what football teams usually do on fourth down.”

On a different note, this is the second decision I’ve noted this week involving the concept of pendent appellate jurisdiction. The Seventh Circuit’s use of what Stephen Vladeck has described as “pendent appellate bootstrapping” seems to have been at the root of the Supreme Court’s DIG in Madigan v. Levin yesterday. The Fourth Circuit’s decision today was enabled by the court’s decision to use pendent appellate jurisdiction to review the denial of leave to amend on interlocutory appeal of the class certification decision. Unless I missed it, Judge Wilkinson did not take issue with this aspect of the majority’s decision, although doing so might have fit well with one of the primary themes of his dissent, namely that “this is a rude reversal.”

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Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

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Earlier this year, the editors of the Harvard Law Review added a gender component to the journal’s affirmative action policy. The Harvard Crimson headline is “Numbers of Female Harvard Law Review Editors Nearly Doubled in First Gender-Based Affirmative Action Cycle.” But as the story accurately notes, “it is unclear whether the increase in female editors is due to the new affirmative action policy or if more women were selected by chance using the gender-blind process.” And the law review’s President “declined to comment on whether the shift in the admissions process was a success.”

The current President’s refusal to comment is a fitting bookend to that editor’s comment on the new policy as then-incoming President: “It’s too soon to tell what impact the policy will have.” The curious lack of critical curiosity or even comment about how the policy would likely function or is functioning is a consequence of a deliberate insulation from knowledge of effects that has been built into the system itself. And until the law review’s policies provide for some sort of oversight into how the “discretionary committee” that implements the journal’s affirmative action “policies,” it appears that nobody will know how they are working or whether they are needed (putting aside for a moment the difficulty with defining “need” in this context). As I wrote when HLR added gender to its affirmative action “policy”, the existing policies appear designed to create a black box for the accomplishment of undefined mushy quotas:

I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.

At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee.  If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.

The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. [emphasis added 10/9/13] That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.

(Note: To repeat something mentioned in my earlier comment on this process, I welcome “factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.”)

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