Friday, May 27, 2022

Martin v. Pierce County (9th Cir. - May 27, 2022)

It goes without saying that COVID has changed a ton of things for the worse. Not the least of which being the million-plus individuals in the United States who have died as a result of the pandemic.

But there are also some much less important, albeit extant, upsides. The option of working remotely or at home, for example, has never been more salient.

Similar trends exist on the legal education front. For example, where I teach, all classes are now routinely videotaped and available to students online. So now, students who are sick -- or who are simply not able to make it to class -- aren't merely limited to getting notes from a fellow student. They can actually watch the lecture. As a bonus, when studying for exams, students can go back and rewatch a lecture on any topic on which they might have been confused. That's a huge upside. It helps a ton. (Or at least is if the underlying lectures are good ones.)

I mention all this because, after reading this opinion from the Ninth Circuit today, my overall reaction was:

The Ninth Circuit might want to boot up a lecture about Shady Grove from a first-year Civil Procedure class and give it a watch. Because, uh, there are some fairly big analytical holes here.

I was initially attracted to the opinion by the caption. Plaintiff's last name is "Martin" (no relation). And the plaintiff's lawyer's name is "Martin" (again, no relation). Finally, the syllabus of the opinion lists the topic of the opinion as "Federal Rules of Procedure." All of that's right up my alley.

The opinion is all about the Erie doctrine. Now, for some of you, that'll mean you'll stop reading pretty much immediately, lest one risk a recurrence of PTSD on this topic from first-year Civil Procedure. But fear not. I can make it easy. (Okay, maybe not "easy", but at least followable. I hope, anyway.)

Washington state court has a rule that says that when you file a medical malpractice lawsuit, you have to file a declaration alongside the complaint that says that plaintiff was presented with the option to file arbitration but declined to do so. Needless to say, the Federal Rules of Civil Procedure contain no such express requirement.

Does the federal court have to follow the state rule? 

That's a classic Erie question.

There are, as you might perhaps recall, a number of different Supreme Court opinions on the topic, the most famous of which are Swift v. Tyson (the old days) and Erie itself. Now, depending on how old you are, you may or may not have been taught the Supreme Court's most recent opinion on the subject -- its 2010 decision in Shady Grove.

Regardless, the basics of the Erie doctrine are well-established, and the opinion by Judge Selna here (sitting by designation from the Central District of California) recounts the first-level analytical process fairly accurately. First, you see if there's a Federal Rule of Civil Procedure that's broad enough to cover the issue; i.e., to answer the question. Here, Judge Selna concludes that both Rule 8 (the basic pleading rule) and Rule 3 (the commencement rule) are indeed broad enough to provide an answer -- that both of 'em require only the filing of a lawsuit, not a declaration. In this regard, I think he's right about Rule 8, but wrong about Rule 3 -- and I'm fairly surprised by the failure of the opinion to discuss (or even cite) Walker v. Armco, which is a Supreme Court Erie opinion precisely about Rule 3 on this score.

But whatever. Since he's right about Rule 8 (even if he's wrong about Rule 3), there's a federal rule that tells you what to do, so the "new" Erie test applies -- which says to apply the federal rule, and hence to ignore the state rule, so long as the federal rule is permissible under the Rules Enabling Act as well as the Constitution. So that's the prong where Judge Selna (correctly) ends up, albeit for arguably only half the right reasons.

That's where Shady Grove comes in. Judge Selna cites and relies upon Shady Grove throughout the opinion, and it's indeed the Supreme Court's last word on the relevant subject. But what today's Ninth Circuit opinion doesn't mention -- indeed, obscures -- is that Shady Grove doesn't contain a majority opinion; instead, it's a 4-1-4 decision, with only a plurality on the topside.

Which, obviously, makes deciphering the opinion (and ultimate holding) not as easy as some other cases.

So what caught my eye at the very outset was that today's Ninth Circuit opinion starts out by quoting Justice Stevens for the relevant test -- the "1" in the 4-1-4 opinion. Which, among other things, is a bit surprising since not a single other justice agrees with Justice Stevens that his is the right test. 

It's also surprising since, later in the opinion, Judge Selna cites Justice Scalia's opinion when holding that the federal rules survives the relevant test, saying:  "As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.)." The problem is that Justices Scalia and Stevens could not agree less on this point; indeed, that's the whole point of the competing opinions -- Justice Scalia says (at length) that Justice Steven's test is not the right one, and Justice Stevens says the same about Justice Scalia's. So Judge Selna is mixing and matching two things that, fairly self-evidently, do not mix and match.

Wholly apart from the fact that neither of these opinions commands a majority of the Court. If only because the four dissenters express no opinion about either of these competing tests (since they think there's no conflict and hence you don't have to reach that point).

Not to get too deep into Erie, but the fight between Justices Scalia and Stevens is whether federal rules that are "procedural" can nonetheless be invalid under the Rules Enabling Act as ones that abridge or modify state substantive rights. Justice Stevens think they can be -- hence his (more restrictive) test. Justice Scalia thinks they can't be -- hence his contrary test.

Judge Selna cites Justice Steven's test as the relevant one, but then holds that the rules here are valid under Justice Scalia's less rigorous test. You can't do that. Wholly apart, mind you, from the fact that neither of these tests in Shady Grove commands a majority of the Court.

Plus, even if Justice Scalia's test was the correct one, today's opinion doesn't actually even apply it under its own terms. Part A of Judge Selna's opinion says that Rules 3 and 8 cover the matter. Great. So now we're in the second part of the test -- are those rules valid. Judge Selna concludes they are. But he does so simply by saying that no federal rule of civil procedure has ever been struck down as invalid, and hence -- since there's a valid rule -- you don't have to get any deeper.

Which is literally assuming away the entire second part of the test.

Yes, it's true, no federal rule has ever been struck down as invalid under Erie. But that doesn't mean they couldn't be, or that there's no test, or that the rule here is satisfied. You actually have to apply the test. Yes, we've got a keen sense, based on history, that the relevant test will likely be satisfied, since at least in the Supreme Court, that's always been the way the cases have ended up. But that's not the test. The test is not "since no rule has ever been declared invalid before, the present rule is valid." There's literally no one on the Supreme Court who's ever said that's the rule; indeed, that's why there's an active fight about what the actual rule is -- a rule that, yeah, has historically always been satisfied, but that's the rule regardless.

So that's a gaping hole in the opinion.

(If you think I might perhaps be mischaracterizing or less charitable about what today's Ninth Circuit opinion says, here's the entirety of Section B of the opinion, alongside the last sentence of Section A for context:) 

"As RCW 7.70A.020 answers the “same question” as Rule 3, they directly conflict. 

B. Rules 3 and 8 are Valid and Displace Washington’s Declaration Requirement 

In conclusion, RCW 7.70A.020 is inconsistent with Rules 3 and 8 of the Federal Rules of Civil Procedure. Rules 3 and 8(a) are both within Congress’s constitutional rulemaking power and the statutory authorization provided by the Rules Enabling Act. Shady Grove, 559 U.S. at 398–99; see Gallivan, 943 F.3d at 294 (“The Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.”) (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336 (D.C. Cir. 2015)). Like the other courts to consider this issue, “we have no reason to doubt the validity of the Federal Rules at issue here.” Id.; see also Pledger, 5 F.4th at 521 (same); Albright, 24 F.4th at 1048 (same). 

Thus, Washington’s arbitration declaration requirement is displaced by those rules in federal court. As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.). We hold that Washington’s arbitration declaration requirement does not apply in the federal courts. The district court should have applied the Federal Rules, not RCW 7.70A.020 in this case."

You see why that's not enough, right?

To be clear, in the end, I think that the result that Judge Selna reaches is the correct one. Under Justice Scalia's test, Rule 8 is arguably a procedural one, so it's valid, and displaces the state rule. And even if you apply Justice Steven's more restrictive test, Rule 8 isn't one of those rare instances of rules that are procedural and yet invade an area bound up in a state's substantive right, because while I can see a non-frivolous claim to the contrary, I don't think the state arbitration-declaration provision here really is so bound up in the substantive malpractice remedy. So regardless of which test you apply, the federal rule here (Rule 8, not Rule 3, but whatever) applies, and federal courts ignore the contrary state rule.

But you gotta get there in a different way than today's opinion does.

Or at least that's most definitely what I'd want my first year law students to do on any exam I gave 'em with this "hypothetical."

Put another way, if this was their draft answer on a practice exam, I'd tell 'em to go back and rewatch our class lecture on Shady Grove and give it another shot.