E.D.Va. Holds that Removed Diversity Case with Lowered Ad Danum Cannot Be Remanded

Senior U.S. District Judge Henry Coke Morgan recently issued an opinion in Hatcher v. Lowe's Home Centers, Inc., in which he held that a post-removal amendment of the amount in controversy to less than $75,000 does not divest the district court of jurisdiction such that a remand is required. The opinion can be viewed here.

FJC Researchers Post Report on Attorney Views of Litigation Costs

Thomas Willging and Emery Lee (Federal Judicial Center) recently posted a report entitled In Their Words: Attorney Views About Costs and Procedures in Federal Civil Litigation on SSRN. It may be downloaded by visiting http://ssrn.com/abstract=1606866.

SCOTUS Decides that EAJA Awards Are Payable to Litigants

The Supreme Court recently decided Astrue v. Ratliff, a case concerning fees awarded under the Equal Access to Justice Act. Here is an excerpt from the Syllabus:

Respondent Ratliff was Ruby Kills Ree’s attorney in Ree’s successful suit against the United States Social Security Administration for Social Security benefits. The District Court granted Ree’s unopposed motion for attorney’s fees under the Equal Access to Justice Act (EAJA), which provides, inter alia, that “a court shall award to a prevailing party … fees and other expenses … in any civil action … brought by or against the United States.” 28 U. S. C. §2412(d)(1)(A). Before paying the fees award, the Government discovered that Ree owed the United States a debt that predated the award. Accordingly, it sought an administrative offset against the award under 31 U. S. C. §3716, which subjects to offset all “funds payable by the United States,” §3701(a)(1), to an individual who owes certain delinquent federal debts, see §3701(b), unless, e.g., payment is exempted by statute or regulation. See, e.g., §3716(e)(2). The parties to this case have not established that any such exemption applies to §2412(d) fees awards, which, as of 2005, are covered by the Treasury Department’s Offset Program (TOP). After the Government notified Ree that it would apply TOP to offset her fees award against a portion of her debt, Ratliff intervened, challenging the offset on the grounds that §2412(d) fees belong to a litigant’s attorney and thus may not be used to satisfy the litigant’s federal debts. The District Court held that because §2412(d) directs that fees be awarded to the “prevailing party,” not to her attorney, Ratliff lacked standing to challenge the offset. The Eighth Circuit reversed, holding that under its precedent, EAJA attorney’s fees are awarded to prevailing parties’ attorneys.

Held: A §2412(d)(1)(A) attorney’s fees award is payable to the litigant and is therefore subject to an offset to satisfy the litigant’s pre-existing debt to the Government. Pp. 3–11.

Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Stevens and Ginsburg, JJ., joined.

Profs. Woolhandler and Collins Post Article on Holmes and Federal Question Jurisdiction

Professors Ann Woolhandler and Michael Collins (both of UVA) have recently posted their forthcoming Article entitled Federal Question Jurisdiction and Justice Holmes on SSRN. Here is the Abstract:

Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under § 1331. This second class status is partly due to Justice Holmes’s pronouncement that, 'A suit arises under the law that creates the cause of action.' This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of 'primary rights.' What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.

This Article, which will be published in the Notre Dame Law Review, may be downloaded by visiting http://ssrn.com/abstract=1441974.

SCOTUS Decides FRCP 15(c) Relation Back Case: Krupski v. Costa Crociere

The Supreme Court has issued its opinion in Krupski v. Costa Crociere, No. 09-337, a case that refines our understanding of the meaning of the term "mistake" in FRCP Rule 15(c), the rule governing the relation back of amendments. The lower courts had held that the plaintiff had not made a mistake regarding the identity of the proper party to be sued because she knew or should have known the identity of the proper party and delayed amending her complaint for months.

The Supreme Court reversed, holding that the amending party's knowledge is irrelevant to the 15(c) mistake analysis. What matters, rather, whether the party to be added knew or should have known that it should have been the party named in the action.

SCOTUS Holds FSIA Does Not Immunize Foreign Government Officials

The Supreme Court recently decided Samantar v. Yousuf, No. 08-1555, in which it held that the Foreign Sovereign Immunities Act does not apply to the immunity claims of foreign officials. Here is an excerpt from the Syllabus of the case:

Respondents, who were persecuted by the Somali government during the 1980’s, filed a damages action alleging that petitioner, who then held high level government positions, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission. The District Court concluded that it lacked subject-matter jurisdiction and granted petitioner’s motion to dismiss the suit, resting its decision on the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), which provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed, holding that the FSIA does not apply to officials of a foreign state.

Held: The FSIA does not govern petitioner’s claim of immunity. Pp. 4–20.

. . .

(b) Reading the FSIA as a whole, there is nothing to suggest that “foreign state” should be read to include an official acting on behalf of that state. The Act specifies that a foreign state “includes a political subdivision … or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Textual clues in the “agency or instrumentality” definition—“any entity” matching three specified characteristics, ibid. —cut against reading it to include a foreign official. “Entity” typically refers to an organization; and the required statutory characteristics— e.g ., “separate legal person,” §1603(b)(1)—apply awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state” definition is also inapplicable. The list set out there, even if illustrative rather than exclusive, does not suggest that officials are included, since the listed defendants are all entities. The Court’s conclusion is also supported by the fact that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state. Moreover, other FSIA provisions— e.g., §1608(a)—point away from reading “foreign state” to include foreign officials. Pp. 7–13.