First Circuit Holds that Appeal from Denial of Federal Officer Removal Does Not Open the Door to Appealing Other Grounds for Removal

October 29th, 2020

     The federal First Circuit today held that denial of grounds for removal from state to federal court based on claiming to be a federal officer, while subject to appeal, does not open the door to appealing any other basis asserted in the removal. The decision in State of Rhode Island v. Shell Oil Company, a lawsuit over the oil companies' misrepresentations about the effects of oil use on climate change, is one of a number of cases in which federal courts have reached identical conclusions, with only some older cases in other appellate courts going the other way. In today's case, CCL represented the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association as amicus curiae, or friends of the court.

     A similar decision from the Fourth Circuit in a case brought by Baltimore was accepted for review by the U.S. Supreme Court in September. Briefing is now underway in the Baltimore case.

CCL's Robert S. Peck Recognized with "High Honors" for Pro Bono Work

October 29th, 2020

     The District of Columbia Courts announced today Center for Constitutional Litigation President Robert S. Peck has made its 2019 Pro Bono Honor Roll with "High Honors," the highest recognition it gives. The program, which dates back to 2011, is a joint project of the courts, the D.C. Access to Justice Commission, and the D.C. Bar Pro Bono Center. In awarding high honors to Peck, the courts recognize that he has provided more than 100 hours of pro bono legal work.


CCL President Interviewed about Upcoming Supreme Court Term

October 27th, 2020

     CCL President Robert S. Peck said that advocates on a wide range of issues were looking at the Supreme Court's newest member in calculating the likelihood that they can get their issues reviewed in that court, in an interview with WUSA9, the Washington, DC CBS affiliate. He emphasized that, at this earliest stage of her tenure, people are making what may best be described as educated guesses at how she might view any particular issue

     As an example, he noted that the Mississippi Attorney General had just filed a supplemental brief that was plainly written with newly confirmed Justice Amy Coney Barrett in mind in seeking review of a state statute that eliminated any right to abortion after the 15th week of pregnancy. The case, Dobbs v. Jackson Women's Health Org., goes to conference on October 30, where the Supreme Court could decide whether to take the case for plenary review and, if it takes the case, could decide whether Roe v. Wade remain a viable precedent. The brief makes the calculation that Justice Barrett would provide the vote necessary to approve the restriction that otherwise could not be reconciled with existing abortion precedents.

CCL's Peck Interviewed on Supreme Court Jurisdiction Case

October 10th, 2020

     CCL President Robert S. Peck told TRIAL magazine that oral argument in a major personal jurisdiction case before the Supreme Court demonstrated unexpected dissatisfaction by members of the Court with their recent jurisprudence. Over the past decade, the Court has increasingly restricted the authority of state courts over out-of-state defendants.

     However, in Ford v. Montana Eighth Jud. Dist. Ct., consolidated with another Ford case from Minnesota, the justices seemed to realize that it made little sense to say that there was some type of fundamental unfairness to making Ford appear in the Montana and Minnesota courts for injuries that occurred in those states from an allegation of product defect. In both instances, the vehicle was originally sold in another state, but the same model was sold and serviced in the forum states.

      Ford asked the Court to rule that it may only be sued in its place of incorporation, its headquarters state, the state where the car was manufactured, or, possibly, the place of first sale. Justices who had been part of the precedents that had restricted jurisdiction questioned the meaning of fair play under the Due Process Clause, that had led to a narrowing of personal jurisdiction. 

     The case, originally slated to be argued last April but postponed due to the pandemic, will be decided before the current Supreme Court term ends next June.

CCL Wins Discovery Limitation Battle for City of Sacramento against Wells Fargo

October 9th, 2020

     The U.S. District Court for the Eastern District of California denied a motion to limit the discovery the City of Sacramento could take in connection with its allegations that Wells Fargo & Co. had issued discriminatory mortgage loans in violation of the Fair Housing Act (FHA). CCL's Robert S. Peck argued the motion for the City on March 6. The court indicated that the coronavirus pandemic delayed resolution of the argued motion before today.

     The City alleged that, since 2004, the bank had issued loans that were either more expensive or riskier on the basis of race, resulting in a significant number of foreclosures to minority borrowers and reducing the City's property-tax revenue. Wells Fargo, which had used the same tactic in other similar cases, moved to bifurcate discovery, limiting the scope of discovery to the two-year period before the complaint was filed and then challenging the City to prove its entire case on that basis before being permitted to show a continuing violation.

     Peck argued, and the court agreed, that the information then obtained would not be statistically significant and would be inconsistent with U.S. Supreme Court FHA jurisprudence that treats continuing-violations, as defined in the statute, differently from isolated violations. The court held that limiting the period of discovery to the two-year period would unfairly handicap the City's case and denied Wells Fargo's motion.

     The case now moves into the discovery phase.