Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.

That’s Not My Job: Is the Determination of ‘Scope of Employment’ in the FTCA a Merits Issue or a Jurisdiction Issue?

Background

The Federal Torts Claim Act (FTCA) grants federal courts jurisdiction to hear claims against the government for torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). The scope of employment issue is dispositive of both the federal court’s subject matter jurisdiction and the merits of the underlying tort claim. Thus, when a defendant wants to raise the defense that the employee was not acting within the scope of their employment, is it proper that they file a motion to dismiss for lack of subject matter jurisdiction (Rule 12(b)(1)), or a motion to dismiss on the merits (Rule 12(b)(6) or Rule 56)? The implications are huge in determining the plaintiff’s likelihood of success.

To survive a defendant’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the burden of proving subject matter jurisdiction (here specifically, the burden of proving that the defendant was acting within the scope of their employment) lies with the plaintiff. This can be a particularly difficult burden given that the discovery process has not begun yet at this stage. Moreover, trial courts have the discretion to independently evaluate factual issues for purposes of determining subject matter jurisdiction. On the other hand, for a plaintiff to survive a 12(b)(6) motion for failure to state a claim (a merit-based motion), the plaintiff’s pleaded facts are assumed to be true, and dismissal is only proper if the alleged facts fail to lay out a valid claim. The plaintiff then gets the benefit of the discovery process, allowing them to acquire otherwise private evidence of those facts, before having to prove them to the court.

The Split

The Fourth, Fifth, Ninth, and Eleventh Circuits all have held that when such a factual determination is inextricably tied to both the question of federal subject matter jurisdiction and the merits of the underlying case, the federal trial court is to assume jurisdiction, in order to evaluate the factual issue at the merits stage. The Fifth Circuit provided cogent reasoning for this stance:

No purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place greater restrictions on the district court’s discretion. Montez v. Dep’t of the Navy (5th Cir. 2004) (citing Williamson v. Tucker (5th Cir. 1981)).

The Second and Third Circuits have held that the proper way to raise the dispute as to scope of employment is at the outset—in a rule 12(b)(1) motion—citing structural implications in the FTCA as well as procedural ways to ameliorate the concerns cited above by the Fifth Circuit. The Third Circuit reasoned:

The scope-of-employment requirement of the FTCA appears in the same sentence as Congress’s grant of jurisdiction. See 28 U.S.C. § 1346(b)(1). “[J]urisdiction” in § 1346(b)(1) suggests that each clause of that provision represents a limitation on Congress’s waiver of sovereign immunity and thus a limitation on federal courts’ jurisdiction.

* * *

[W] here jurisdiction is intertwined with the merits of an FTCA claim, that a district court must take care not to reach the merits of a case when deciding a Rule 12(b)(1) motion . . Rule 12(b)(1) does not provide plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the truth of the plaintiff’s allegations. Thus, when faced with a jurisdictional issue that is intertwined with the merits of a claim, district courts “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.” CNA v. United States (3d Cir. 2008) (citing Gould Elecs., Inc. v. United States (3d Cir. 2000)).

Looking Forward

Do the normative concerns cited by the Fifth Circuit overshadow the textualist reasoning accepted by the Third Circuit? Does the Third Circuit’s claim that district courts will “demand less in the way of jurisdictional proof than would be appropriate at a trial stage” alleviate any of the concerns raised by the Fifth Circuit? For a detailed argument in favor of the Second and Third Circuit jurisdictional approach, check out Erin Murray Watkins’ article for George Mason Law Review, THE SCOPE OF EMPLOYMENT REQUIREMENT OF THE FEDERAL TORT CLAIMS ACT: THE IMPROPRIETY AND IMPLICATIONS OF THE MONTEZ DECISION, AND THE SUPERIOR JURISDICTIONAL PRIMA FACIE APPROACH.

Injury In Hack?

In 2016, the number of American consumers impacted by identity theft rose to 15.4 million from 13.1 million in 2015. Eighty-five percent of identity theft victims do not realize their identity has been stolen for a year or longer; and, according to a study completed in 2006, only 0.14% of identity thieves are ever caught.

Unfortunately for these millions of Americans, circuit courts are split over whether threat of future identity theft satisfies the “imminent injury-in-fact” requirement for Article III standing. Article III standing requires: (1) concrete, imminent injury-in-fact; (2) proximate causation; and (3) redressability. The split concerns the meaning of “imminent” within the injury-in-fact requirement.

Clapper v. Amnesty International

The primary case cited by courts on both sides of the issue is Clapper v. Amnesty International. In Clapper, the Supreme Court ruled that an “objectively reasonable likelihood” a future injury will be suffered by the plaintiff is insufficient for Article III standing, and that costs incurred to mitigate speculative harm do not satisfy the injury-in-fact requirement for standing. However, the court stopped short of ruling plaintiffs must prove that the harm will certainly occur. In some cases, “substantial risk” the injury will occur is sufficient.

The Splits

Does increased risk of identity theft qualify as a “substantial risk,” satisfying the imminent injury-in-fact requirement for Article III standing?

To Stand….

The Sixth, Seventh, and Ninth Circuits have held increased threat of identity theft qualifies as an imminent injury-in-fact. Moreover, these courts have held that costs incurred in response to this imminent injury qualify as a present injury-in-fact.

The Sixth and Seventh Circuits rest their decisions on a broad reading of Clapper. The Ninth Circuit decision was made prior to the Supreme Court’s ruling. These courts consider the increased threat to identity theft to satisfy the “substantial risk” standard for injury-in-fact.

In addition to a broad interpretation of Clapper, these courts distinguish the increased threat of identity fraud from the plaintiffs’ claims in Clapper. Primarily, the plaintiffs know their information has been stolen. In contrast, the plaintiffs in Clapper only suspected their conversations were being record. Costs are incurred from a breach of personal information in both cases, but, these courts distinguish the costs incurred to prevent identity theft from the costs incurred by the Clapper plaintiffs. Because the harm in Clapper was purely speculative, the costs incurred therefrom were merely to mitigate tenuous harm. However, if the increased threat of identity theft is not a speculative harm, costs incurred to mitigate should qualify as present injury.

From a public policy perspective, these courts feel it’s unfair to force plaintiffs to wait until their identities are stolen to sue.

Or Not to Stand….

The Third and Fourth Circuits have held increased threat of identity theft does not qualify as an imminent injury-in-fact. Additionally, these courts hold that costs incurred in response to a breach of data information is mitigation of a speculative harm and, under Clapper, not considered sufficient present injury-in-fact.

Both courts consider the increased threat of identity theft to be merely speculative until actual misuse of the personal information can be shown. The Fourth Circuit rests its decision on a narrow reading of Clapper. The Fourth Circuit considers the costs incurred by the identity-theft plaintiffs to be analogous to the costs incurred by the plaintiffs in Clapper, and therefore, determines that the costs are insufficient to satisfy the injury-in-fact requirement. Both courts feel that the plaintiffs’ claims require too many steps in the causal chain to qualify as “imminent.”

From a public policy perspective, these courts consider the slippery-slope of allowing some plaintiffs to sue on hypothetical future injuries, regardless of the likelihood that injury will occur.

Conclusion

Considering the alarming number of Americans affected by identity theft, this split should be resolved to inform citizens as to their legal rights following a data breach. Since few identity thieves are ever caught, litigating against those who are responsible for data breaches may be the only remedy available to those who identities are stolen. Therefore, clarity as to Article III standing must be resolved. On a broader scale, the underlying conflict in interpretation of the “substantial risk” standard following Clapper should also be resolved as this conflicting interpretations will only lead to more splits of this nature.

Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

You Know What’s Coming…

Back to Regularly Scheduled Programming

Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.

Deep in the Heart of Venue: A Patent Procedure Wrinkle

Before I begin, I should note that it is difficult to pinpoint circuit splits in the intellectual property context, particularly in patent law. Because of the highly specialized subject-matter jurisdiction of the United States Court of Appeals for the Federal Circuit (CAFC)—a court empowered to deal with patent matters from both the USPTO & the Federal District courts under 35 USC §141(a) and 28 USC §1295—the rulings released by CAFC are typically binding law, sans Congressional action in changing patent laws. South Corp. v. United States, (Fed. Cir. 1982). CAFC decisions are also not usually granted discretionary review by SCOTUS. Because of this specific scope of CAFC and its weight of authority in patent adjudication, there are often no real circuit splits that arise in patent law that are subject to SCOTUS review like in other areas of US law.

Nevertheless, internal splits do arise, and intellectual property is rife with authorities taking competing positions—particularly when IP law intertwines with other areas of law. This post highlights such a split. Let’s dive in.

What’s “Patent Venue”?

Within the volumes of Title 28 of the United States Code are the (in)famous provisions detailing how one invokes the jurisdiction of the US Federal Court system. While the fountainheads of federal question and diversity of citizenship under §1331 & §1332(a) are certainly important (and draw the ire of your 1L author), our super-juicy bit today centers on 28 USC §1400, which deals with Patent Venues.

Under §1400(b):

any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

SCOTUS weighed in on this provision in Fourco Glass Co. v. Transmirra Products Corp. (1957), and held that §1400 is one of several special statutes not subject to the general venue provisions codified in §1391(c). Specifically,

The question is not whether §1391(c) is clear and general . . . [but] whether it supplements §1400 . . . . We think it is clear that §1391(c) is a general corporation venue statute . . . [and] the law is settled that ‘however inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment’ . . . . [As such], §1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and it is not to be supplemented by the provisions of 28 USC §1391(c).

The rule from Fourco is a relatively unambiguous rule for the world of patent litigation—that as a matter of procedure, the only statute that controls patent venue considerations is codified in §1400(b).

 Solo Split: The Federal Circuit, VE Holding, & TC Heartland

Despite the clarity of the venue provisions for patent litigation in §1400(b), CAFC threw a wrench into the mix with VE Holding Corp. v. Johnson Gas Appliance Co. (1990). The court deviated from SCOTUS’s bright-line test, applying some handy-dandy tools of statutory interpretation to hold that §1400(b) actually IS supplemented by §1391(c). Using both the textual context given by the 1988 revisions to §1391(c), and the clear lack of any expressed Congressional intent to maintain the exclusivity of §1400(b), the court held that §1400(b) is in fact modified by §1391(c). The court reasoned that:

[§1391(c)] as it was in Fourco is [gone, and] Congress could have easily added ‘except for §1400(b)’ . . . . The language of the statute is clear and its meaning is unambiguous . . . . The general rule that a specific statute is not controlled or nullified by a general statute regardless of priority of enactment, absent a clear intention or otherwise, does not govern the present situation. [§1391(c)] expressly reads itself into §1400(b)…[ §1391(c)] only operates to define a term in §1400(b) [nor does it conflict with §1400(b)]. Furthermore, even were the rule applicable . . . the language of the statute would reveal a ‘clear intention’ that §1391(c) is to supplement §1400(b).

In Kraft Food Group Brands, LLC v. TC Heartland, LLC (2015), the District Court of Delaware affirmed the holding in VE Holding Corp. This decision was ultimately affirmed by the CAFC in In re TC Heartland, LLC (2016). In both cases, TC Heartland argued that as part of the 2011 revisions to the US Code, the language in §1391(c) that CAFC relied on in VE Holding was changed, thus no longer modifying §1400(b). CAFC dismissed this in short order on TC Heartland’s appeal from Delaware, claiming that the changes made as part of the 2011 revisions were minor, and merely was a “broadening of the applicability of corporate residence, not a narrowing.” Further, the court assuming arguendo that Congress had intended to capture the meaning of the venue provisions in §1400(b), Fourco was not the precedent that Congress would have captured.

Looking Forward

What’s the Future for Patent Venues?

Based on this ruling by the CAFC, TC Heartland has begun the process of SCOTUS review, relying on the argument that CAFC has unilaterally overturned Supreme Court precedent in neglecting the holding of Fourco. As the amici briefs churn into the SCOTUS docket for this case, it raises the question of just where the Supreme Court will fall on this.

Given other SCOTUS decisions like Alice Corp. v. CLS Bank Int’l. (2014) and the affirmation of vague understandings of technology patents by both CAFC and SCOTUS, it is more than a little hazy as to where the Justices will stand on this question of patent venue provisions.

If the court chooses to side with CAFC’s cracking of the precedent in Fourco, it might be the case that more broad venue provisions would create a windfall for patent litigants who would gain the freedom to sue patent infringers anywhere that §1391(c) can be applied. However, if SCOTUS flexes its judicial muscle and overrules CAFC in favor of its 1957 holding in Fourco, we might just get another instance of an appeals court with a bit of egg in its face. Patent cases are a HUGE source of business for firms and agencies across the world, and this case has the potential to change the face of how patent litigation will be undertaken.

For further reading, see what firms Baker Botts and White & Case have to say on the matter.

An Erie Split: Anti-Slapp Laws and Rule 11

This is the second of two posts about the Erie doctrine, anti-SLAPP laws, and the Federal Rules of Civil Procedure. To see the first post, which covered anti-SLAPP laws and the conflict with Rules 12 and 56 of the FRCP, click here.

The Rule 11 Split

Should it be easier to sue your doctor or lawyer in federal court than in state court? The Eleventh Circuit purportedly says “yes,” while the Third and Tenth Circuits disagree. This consequential Erie Doctrine circuit split has complicated malpractice actions in federal courts for decades, and even touches some anti-SLAPP laws.

Many states have passed “tort reform” laws to protect doctors and lawyers from “frivolous lawsuits.” If you want to sue a doctor for malpractice in Georgia, for example, state law provides that you must attach an expert’s affidavit to your complaint or your case will be dismissed.

These statutes differ in timing (they may require filing an affidavit along with the complaint, or a certain number of days after) or to whom they apply (the affidavit may have to be signed by an attorney, a party, and/or an expert)—see the U. Penn. Law Review for a catalogue of the differences. But in federal court, all such laws run a risk of conflict with Rule 11, which states that, “Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit.”

The Third Circuit in Liggon-Redding v. Estate of Sugarman (2011) allowed a Pennsylvania affidavit-of-merit statute to apply in a legal malpractice case despite Rule 11. The court emphasized the procedural differences between the Pennsylvania law and the federal rule to find no conflict under Hanna:

Pennsylvania Rule 1042.3 requires an additional written statement by ‘an appropriate licensed professional’ attesting to a ‘reasonable probability’ that a ‘licensed professional deviated from an acceptable professional standard.’ Additionally, the Pennsylvania certificate of merit must be filed within sixty (60) days of the filing of the complaint. Federal Rule 11, in contrast, does not require an additional consultation with experts or the filing of a separate written statement within sixty (60) days of the filing of the complaint. . . . Federal Rule of Civil Procedure 11 can co-exist with the Pennsylvania certificate of merit rule because each rule controls its own intended area of influence without any conflict.

The Tenth Circuit held there was no conflict under Hanna between Rule 11 and a similar Colorado statute in Trierweiler v. Croxton and Trench Holding Corp. (1996):

Despite the superficial similarity of the two rules, we conclude that they do not collide. . . . While § 13–20–602 penalizes the party, Rule 11 targets the attorney . . . . Furthermore, § 13–20–602 does not merely operate to discourage frivolous claims; it does so only with respect to lawsuits filed against licensed professionals, and it also seeks “to expedite the litigation process in [such] cases” by imposing a 60–day time limit. By protecting a particular class of defendants, and by expediting such cases, the statute vindicates substantive interests of Colorado not covered by Rule 11. Although the state and federal rules are similar, there is no “direct collision” between the two.

But the Eleventh Circuit created a circuit split with Trierweiler and Liggon-Redding in Royalty Network, Inc. v. Harris (2014). At issue was a bizarre former version of Georgia’s anti-SLAPP statute, which required a SLAPP plaintiff to file an affidavit if the lawsuit was filed against someone who was exercising First Amendment speech or petition rights. The court found a direct conflict under Hanna between the Georgia law and Rule 11:

The federal rule explicitly provides that a pleading need not be verified or accompanied by an affidavit and allows parties discretion in deciding whether to verify pleadings. The Georgia statute, by comparison, mandates that a complaint or pleading asserting a claim must be accompanied by a verification making specific representations.

The Eleventh Circuit added that Rule 11 does not incorporate state laws:

We acknowledge that Rule 11 states a pleading need not contain a verification ‘[u]nless a rule or statute specifically states otherwise.’ The rule’s reference to other rules or statutes, however, means other federal rules or statutes.

A reasonable reader might think the circuit cases could be distinguished based on the timing of the statutes at play: The Georgia statute, which did not apply in federal court, required an affidavit to be filed contemporaneously with the complaint. The Colorado and Pennsylvania statutes, which did apply in federal court, allowed 60 days after filing the complaint to file an affidavit.

But the district courts haven’t divided on that fault line. For example, the Western District of Michigan has applied a Michigan statute that, like Georgia’s, required a contemporaneously filed affidavit, concluding that the conflict with Rule 11 was “illusory.” But the Western District of Texas refused to apply a statute requiring an expert report within 120 days of the complaint, because it would “get in the way of the operation of Rule 11.” District courts have, in fact, been long divided about affidavit-of-merit requirements, which may also conflict with Rules 8 and 9—an issue beyond the scope of this blog entry (see the Pennsylvania and Arizona Law Reviews for more).

(For more still, read the Western District of Michigan case linked above. It’s a doozy of a case, covering issues arising from Section 1983 and medical malpractice. The court extensively discusses the Erie problem, and touches not just on the Rule 11 conflict described here, but issues with Rules 8, 9, and 26. And, of special interest to readers of this blog, the court even discusses which circuits and district courts are split applying the Rules. Consider it the cherry on top of this sundae.)

Looking Forward

A final note about Georgia. This year, the General Assembly passed an amendment to Georgia’s anti-SLAPP statute to make it look like most other states’. The new law provides a “special motion to dismiss” for SLAPP defendants, eliminating the requirement that a plaintiff file an affidavit of merit at the pleading stage. Arkansas is now the only state whose anti-SLAPP law requires SLAPP plaintiffs to file a verification with their pleading.

Now that Georgia’s anti-SLAPP law falls within the Rule 12/56 split rather than the Rule 11 split, it has a fresh chance at applying in federal court—if the Eleventh Circuit allows it.

An Erie Split: Anti-Slapp Laws, Rule 12, and Rule 56

Substantive or procedural? This age-old conceptual “split” lies at the heart of the Erie Doctrine, which we tackle here in our first post. The issue: when a state law imposes procedural requirements on litigants so as to advance a substantive policy goal, do those requirements apply in federal court? We have seen two circuit splits on this problem, so—befittingly—we have “split” our first post into two parts.

The Rule 12/Rule 56 Split

A major circuit split is developing on the Erie problem of whether state anti-SLAPP laws conflict with Federal Rules of Civil Procedure 12 and 56. SLAPP’s, or “Strategic Lawsuits Against Public Participation,” occur when someone is sued for defamation just for exercising her right to petition or speak out in public. The plaintiff—a company, for example—hopes the cost and stress of defending the lawsuit will stop the defendant—perhaps a recently fired employee— from speaking.

To deter these suits and preserve a robust First Amendment, twenty-eight states, plus D.C. and Guam, have passed anti-SLAPP laws. Though these laws have a substantive purpose (protecting free speech), they often take procedural form, providing SLAPP defendants with a “special motion to dismiss” that they can bring as soon as they are sued. Unfortunately for SLAPP defendants, Erie problems result if special motions to dismiss conflict with the Federal Rules of Civil Procedure.

The Erie Doctrine at its simplest has two steps: under Hanna v. Plumer,  if a state law conflicts with a valid federal rule, the federal rule controls. If there is no conflict, then under Erie, the court should apply state rules that are substantive enough to affect the outcome of the case. Here’s how anti-SLAPP laws can conflict with the Rules.

First, Rule 12 allows defendants to move to dismiss, but defendants must choose from among the seven grounds for dismissal listed in 12(b)—“I’ve been slapped with a SLAPP” is not listed. As the D.C. Circuit has noted (see below), anti-SLAPP laws may “conflict with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.”

Second, if a “special motion to dismiss” counts as a 12(b)(6) motion to dismiss for failure to state a claim, anti-SLAPP laws may conflict with Rule 56. Rule 12(d) provides that, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” But anti-SLAPP laws, such as Maine’s, flip the burden of proof required on summary judgment, putting it not on the SLAPP defendant, but on the SLAPP plaintiff—the nonmoving party.

The Ninth Circuit first considered whether anti-SLAPP laws conflict with Federal Rules 8, 12, and 56 in United States ex rel. Newsham v. Lockheed Missiles and Space Company (1999). The court found no conflict between the California anti-SLAPP law and the Federal Rules, under Hanna:

[T]here is no indication that Rules 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims. . . . The Anti-SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules:  the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’

The Fifth Circuit seemed to ratify this reasoning in Henry v. Lake Charles American Press (2009), applying Louisiana’s anti-SLAPP statute in federal court without Erie analysis. And the following year, the First Circuit agreed with Newsham and Henry, applying Maine’s anti-SLAPP statute in federal court and finding no conflict under Hanna with the Federal Rules:

Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. . . . Maine has not created a substitute for the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.

Judge Alex Kozinski of the Ninth Circuit, however, argued in a concurrence in Makaeff v. Trump University, LLC (2013), that Newsham was wrongly decided on two grounds. First, state procedural rules cannot apply in federal court, even absent a conflict:

Newsham‘s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive. It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.

And second, Judge Kozinski disagreed with Newsham and Godin, finding that anti-SLAPP laws do conflict with the Federal Rules:

The Federal Rules …provide an integrated program of pre-trial, trial and post-trial procedures designed to ensure “the just, speedy, and inexpensive determination of every action and proceeding.” . . . The California anti-SLAPP statute cuts an ugly gash through this orderly process. . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.

The D.C. Circuit, citing Judge Kozinski’s concerns, narrowly avoided creating a circuit split with Newsham, Henry, and Godin in Abbas v. Foreign Policy Group, LLC (2015), when it granted dismissal of a lawsuit based on 12(b)(6) but argued in dicta that the D.C. anti-SLAPP statute should not apply in federal court:

Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

It seems only a matter of time before another Court of Appeals adopts Judge Kozinski’s opinion and Abbas’s dicta into a holding and creates a circuit split with Newsham, Godin, and Henry. The Supreme Court spectacularly failed to clarify the Erie Doctrine in its 2010 case Shady Grove Orthopedic Associates v. Allstate Insurance Co., when the Justices split 4-1-4 with no majority opinion. But with Justice Scalia—author of the Shady Grove plurality—and Justice Stevens—author of the concurrence in judgment—no longer on the Court, we expect the Erie Doctrine to appear again at the high court.

For further reading, see these law review pieces from Boston College and Case Western.