Scharf laments executive disrespect for courts in immigration enforcement

My friend and colleague Irene Scharf has written for the Human Rights At Home blog on "mid-case deportations" by Immigration and Customs Enforcement.  Professor Scharf is expert in immigration law, which I know next to nothing about.  But Professor Scharf raises the alarm about worrisome incidents of executive defiance of the courts, implicating the separation of powers and raising questions about the very rule of law in America today.

Responding to a Boston Globe editorial (pay wall) at the end of February, Professor Scharf wrote on March 20:

While I of course deplore the acts these crimes involved [subject of charges against immigration detainees], as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system.  The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling. To me, that is the most alarming issue behind these ICE moves.

She quoted respected Seventh Circuit Judge Easterbrook in a recent opinion (Justia), "We have never before encountered defiance of a remand order, and we hope never to see it again.... [I]t should not be necessary to remind the Board [of Immigration Appeals], all of whose members are lawyers, that the 'judicial Power' under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government."

Expert on Polish judicial crisis speaks to law class

Prof. Wortham

Professor Leah Wortham joined Dean Peltz-Steele and my Comparative Law class on Wednesday to discuss the crisis of judicial independence in Poland (latest).  Professor Emerita of the Columbus School of Law at the Catholic University of America (CUA), Wortham is a recipient of, among other honors, the Plus ratio quam medal of Jagiellonian University (JU) in Krakow.

With JU Professor Fryderyk Zoll, Professor Wortham authored Judicial Independence and Accountability: Withstanding Political Stress, recently published at 42 Fordham International Law Journal 875 (2019).  Here is the abstract.

For democracy and the rule of law to function and flourish, important actors in the justice system need sufficient independence from politicians in power to act under rule of law rather than political pressure. The court system must offer a place where government action can be reviewed, challenged, and, when necessary, limited to protect constitutional and legal bounds, safeguard internationally-recognized human rights, and prevent departures from a fair and impartial system of law enforcement and dispute resolution. Courts also should offer a place where government officials can be held accountable. People within and outside a country need faith that court decisions will be made fairly and under law. Because the Council of Europe’s Group of States against Corruption (“GRECO”) deems judicial independence critical to fighting corruption, GRECO makes a detailed analysis of their members’ judicial system part of their member review process. This Article is a case study of the performance of Poland’s mechanisms for judicial independence and accountability since 2015, a time of extreme political stress in that country. Readers will see parallels to comparable historical and current events around the world.

In discussion with the class, Professor Wortham remarked on parallels between the Polish judicial crisis and threats to the legitimacy of the courts in the United States.  She referenced recent remarks by U.S. District Judge Paul Friedman to the American Law Institute, in which Judge Friedman distinguished denigration and personal attacks on the judiciary from disagreement with judicial decisions accompanied by respect for a co-equal branch of government (ALI, CNN).  The class discussion about Poland also treated the recent decision of the Irish Supreme Court to order extradition of a Polish man wanted for drug trafficking offenses, despite concerns about judicial independence in Poland (Irish Times).

CUA offers summer study abroad opportunities for U.S. law students and, in cooperation with JU, an LL.M. program in Comparative and International Law.

U.S. Supreme Court widens tort liability exposure of New Deal-era, state-owned enterprises

On April 29, the U.S. Supreme Court held against the Government by reversing and remanding unanimously in Thacker v. Tennessee Valley Authority, No. 17-1201 (Oyez), a negligence claim arising under the Federal Tort Claims Act of 1946 (FTCA).

Per Justice Kagan, the Court held that the test for sovereign immunity in tort claims against New Deal-era "sued and be sued" entities such as the TVA is twofold.  First, the court must determine whether the conduct of the defendant was commercial or governmental.  Sovereign immunity can attach only to governmental conduct.  Second, if governmental, the court must determine whether suit is clearly inconsistent with constitutional or statutory scheme, or suit clearly would threaten interference with the governmental function (the test of FHA v Burr (U.S. 1940)).  Only in those narrow cases—much narrower than the statutory discretionary function exception to FTCA's waiver of sovereign immunity—does sovereign immunity attach.

The Court's decision hews to the plain text of the TVA Act of 1933 and represents a win for plaintiffs.  The case also throws into doubt other lines of federal case law in which the courts have borrowed and extended immunity concepts by analogy to the FTCA to shield government actors from liability in other statutory contexts.

You can hear my verbal review of the case at the Federalist Society's SCOTUScast.  Hear my pre-decision, post-argument analysis on SCOTUScast and view pre-argument analysis with engaging visuals from the Federalist Society on SCOTUSbrief.  The case is on SCOTUSblog with record links and informative analysis by Gregory Sisk.  Find the opinion and oral argument at Oyez.

Advocates in SCOTUS case on tort and sovereign immunity stick to their guns, frustrate Court's search for middle ground

For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January.  You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.

The Tennessee River dips into northern Alabama, where the accident in

Thacker occurred. (Map by Shannon1, CC BY-SA 4.0).

Here is background on the case from the Federalist Society:

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.

In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. 

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. 

Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.

The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.

Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument.  Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative.  The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.

Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions.  But neither counsel was willing to bite.  That led to a lively oral argument.  Thacker's case seems the stronger, but it is unclear how the Court will get to either result.

SCOTUS ponders governmental immunity in boating accident suit against TVA

The Federalist Society produced a beautifully illustrated video, as part the SCOTUSbrief series, to accompany the January 14 oral argument (transcript) in the U.S. Supreme Court in Thacker v. Tennessee Valley Authority, a personal injury suit.  The case compels the Court to analyze what, if any, governmental immunity is afforded to a range of New Deal entities, such as the TVA, which Congress broadly authorized "to sue and be sued," decades before the Federal Tort Claims Act came into being.  The Federalist Society generously invited me to provide narration for this video.  At SCOTUSblog, Professor Gregory Sisk, of St. Thomas Law, has an expert analysis of Monday's oral argument.  When available, audio of the oral argument will be posted at Oyez and at C-Span.

Statute of repose bars tort-like consumer claim, Mass. high court rules

Yesterday the Massachusetts Supreme Judicial Court (SJC) held that a statute of repose bars a claim under the Commonwealth's key consumer protection statute, chapter 93A.  The case examines the oddly "contort" (contracts-torts) role of 93A and occasions a majority-dissent dispute over judicial construction of statute vs. "usurpation of ... legislative prerogative," i.e., corrective justice vs. distributive justice.

Chapter 93A is important in Massachusetts tort law because it is drawn much more broadly than the usual state consumer protection statute.  In a Massachusetts tort case, chapter 93A often provides a parallel avenue for relief and can afford a plaintiff double or treble damages, as well as fee shifting.  That makes it a powerful accountability tool in areas such as product liability, well beyond the usual consumer protection fare in trade practices.

The SJC, per Justice Cypher, published a sound primer on statutes of limitation and repose:

Statutes of repose and statutes of limitations are different kinds of limitations on actions. A statute of limitations specifies the time limit for commencing an action after the cause of action has accrued, but a statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon occurrence of a specified event....  A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date....  Statutes of limitations have been described as a "procedural defense" to a legal claim, whereas statutes of repose have been described as providing a "substantive right to be free from liability after a given period of time has elapsed from a defined event." Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 125 (2014). The statutes are independent of one another and they do not affect each other directly as they are triggered by entirely distinct events.  [Citations omitted.]

Chapter 93A is covered by a four-year statute of limitations.  A six-year statute of repose covers tort actions arising from deficiencies in improvements to real property: "after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner."

In the instant case, the plaintiff sought relief for damage resulting from a fire 15 years ago.  The plaintiff attributed the fire to multiple deficiencies in electrical work completed by defendant contractors.  Arguing that the electrical work was not done in compliance with the state code, the plaintiff characterized 93A as "neither wholly tortious nor wholly contractual in nature."  The court, however, found the plaintiff's claim "indistinguishable from a claim of negligence," so barred by the statute.

Three justices dissented.   Chief Justice Gants in dissent pointed out that the general statute of repose does not mention chapter 93A, while the general limitations provision does.  And yet another statute, stating terms of both limitation and repose, purports to govern both contract and tort malpractice actions against doctors.  So the legislature knew how to write what it meant.  The general statute of repose, the chief observed, predated chapter 93A, so could not have anticipated it.  Moreover, statutes of limitation and repose have distinct policy objectives:

In short, as is alleged in this case, the property owner may be barred by the statute of repose from bringing a claim before he or she knows, or reasonably should know, that he or she even has a claim -- even where the defendant has fraudulently concealed the claim from the plaintiff. Consequently, a statute of repose reflects a legislative decision that it is more important to protect certain defendants from old claims than it is to protect the right of plaintiffs to enforce otherwise valid and timely claims.

Thus a statute of repose should not be construed to cover 93A absent plain legislative direction.  The chief concluded: "[T]his is a usurpation of a distinctly legislative prerogative."

The case is Bridgwood v. A.J. Wood Construction, Inc., No. SJC-12352 (Mass. Aug. 29, 2018) (PDF opinion; oral argument via Suffolk Law School).