Johnson v. California (03-6539), Scarborough v. Principi (02-1657) and Jones v. R.R. Donnelley & Sons (02-1205)

May 3, 2004 Supreme Court Update

Greetings Court fans!
The Court handed down five opinions today (four from argued cases and one summary reversal) and an order list. With so much ground to cover, I'll divide this update into two emails. Before we begin, though, did you see the small piece in the paper over the weekend about Justice Souter? He was attacked by a gang of youths while jogging alone on Friday night. He apparently suffered minor injuries, and was back on the bench this morning. Our best wishes to Justice Souter!
Ok, on to the opinions. First, in Johnson v. California (03-6539), the Court dismissed the case for lack of jurisdiction. This was a Batson case arising out of the California state courts. It turns out that while the state courts finally resolved the Batson issue, they had not resolved all of the issues in the case. Thus, the judgment below was not final and the Court lacks jurisdiction to review it under 28 USC 1257. In the short per curiam opinion announcing this disposition, the Court took the opportunity to admonish counsel that they should have brought this problem to the attention of the Court before everyone (counsel and Court) wasted time on the case.
Next, in Scarborough v. Principi (02-1657), the Court resolved a question under the Equal Access to Justice Act (EAJA). Specifically, the Court held that a timely fee petition under EAJA may be amended after the 30-day filing period to cure an initial failure to allege that the government's position was not substantially justified. (There was actually a circuit split on this question!) EAJA authorizes the payment of attorneys' fees to a "prevailing party" in a suit against the government when the government's position in the litigation was not "substantially justified." Under the statute, to obtain fees, an applicant must file a petition within 30 days of the final judgment with the following information: (1) a showing that the party is a prevailing party, (2) a showing that the applicant is eligible to receive an award (i.e., net worth less than $2 million), (3) a statement of the amount sought, and (4) an allegation that the government's position was not substantially justified. In this case, Scarborough filed a timely fee petition with the first three requirements, but omitted the final allegation about the government's position. When the government moved to dismiss the application because it lacked the allegation, Scarborough moved to amend his petition to cure the defect, but by this time, the 30 day filing requirement was long past. The Federal Circuit held that Scarborough could not recover fees, but the Supreme Court reversed.
In an opinion by Ginsburg (for everyone but Thomas and Scalia), the Court began by clarifying that the question before it is not one of "jurisdiction" in the sense of a court's power to hear a case. Although parties and courts have described this issue as one of "jurisdiction," it is really only a question of timing, and so the "jurisdiction" label should not be used. (This is a pet peeve of Ginsburg's; I seem to recall her making similar points in other cases.) Turning to the question, non-jurisdictional though it is, the Court noted that the requirement that a party allege that the government's conduct was not substantially justified is just a pleading requirement, designed to make the applicant examine the government's position before asking for attorneys' fees. Like signature requirements on pleadings, the allegation requirement is designed to encourage responsible behavior by litigants. As such, the Court holds that the "relation back" doctrine permits an amendment to a fee petition to relate back to the time of the original filing of the petition. Finally, the Court rejected the government's argument that the fee petition requirements should be enforced strictly because EAJA is a waiver of sovereign immunity. Once Congress waives sovereign immunity, according to Ginsburg, the government should be treated like any private party and thus subject to the "relation back" doctrine if applicable. Moreover, the government has never alleged that it was prejudiced by Scarborough's original petition. Under these circumstances, Scarborough's petition should have been considered timely.
Thomas (joined by Scalia) dissented. He would conclude, first, that the "no substantial justification" allegation must be made within 30 days, but would find that the relation back doctrine does not apply. According to Thomas, the statute defines a waiver of sovereign immunity, and does not expressly allow relation back, so he would construe the statute narrowly to prohibit it.
In Jones v. R.R. Donnelley & Sons (02-1205), the Court held that actions arising under 42 USC 1981, as amended by the Civil Rights Act of 1991, are governed by the four-year statute of limitations found in 28 USC 1658. Section 1981 contains no statute of limitations, and thus in 1987, the Supreme Court directed federal courts to apply the most analogous state statute of limitations to actions under that statute. Three years later, Congress enacted Section 1658 to apply a four-year statute of limitations for actions arising under federal statutes enacted after Dec. 1, 1990. The question in this case is thus whether the plaintiffs' causes of action, which allege violations of Section 1981, as amended in 1991, are governed by the statute of limitations in Section 1658. Stevens, for a unanimous Court, answered yes. Before Section 1658 was enacted, the absence of a uniform statute of limitations for federal causes of action generated a vast amount of litigation as parties and courts grappled with choosing the most analogous state statute. Congress was aware of these problems, and so enacted Section 1658 to minimize the need for borrowing statutes of limitations. This purpose would not be served if the statute only applied to entirely new sections of the US code. Therefore, a cause of action arises under a statute enacted after Dec. 1, 1990 (i.e., is governed by Section 1658) if the plaintiff's claim is made possible by the post-1990 amendment. Here, the plaintiffs' claims (hostile work environment, wrongful termination, etc.) arose under the 1991 act because the 1991 act made them possible. Before 1991, the plaintiffs' claims would not have been actionable under Section 1981.
That's all for tonight. I'll summarize the remaining two opinions (Drake v. Haley and Middleton v. McNeil) and the order list later this week. Until then, thanks for reading!
From the Appellate Practice Group at Wiggin and Dana.
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