SCOTUS Per Curiam Procedure Decisions Raise (At Least) As Many Questions As They Settle
by Michael Dorf
On Monday, the Supreme Court issued two unanimous per curiam opinions summarily reversing decisions of federal appeals courts -- i.e., granting certiorari and reversing on the merits in one fell swoop, without the benefit of oral argument. The Court sometimes does this when the lower court has misapplied or misinterpreted federal law but the issue is not sufficiently complicated or divisive to warrant full consideration.
Civil procedure scholars are chewing over the first order, in Johnson v. City of Shelby. There the Court held that dismissal (in this case at the summary judgment phase but more generally at the pleadings stage as well) is not appropriate where a plaintiff's complaint contains sufficient facts to make out a valid legal claim but fails to identify the particular statute creating the cause of action at issue, here 42 U.S.C. § 1983. The ruling is somewhat surprising because it cuts against the grain of two important cases that tightened the pleading requirement for factual allegations: 2007's Bell Atlantic v. Twombly and 2009's Ashcroft v. Iqbal. Those two cases--collectively sometimes called "Twiqbal" by the cognoscenti--have had a major impact on pleading doctrine in the federal courts, although their actual effect on pre-trial dispositions is subject to debate. (For a useful discussion of the empirical evidence, see this article by David Engstrom.)
The Johnson per curiam could be understood as a signal from the Supreme Court to the lower courts not to treat Twiqbal as a license to generate new grounds for pre-trial dismissals, either in general or in civil rights cases in particular. If so, it remains to be seen whether the Court succeeds. Johnson distinguishes Twiqbal by drawing a line between factual allegations and legal allegations, but then suggests that the failure to cite the proper legal authority should be remedied by giving the plaintiff an opportunity to amend the complaint to include a citation of § 1983. But plaintiffs are always entitled (at least initially) an opportunity to amend their complaints to cure defects--including failure to allege sufficiently plausible facts under Twiqbal--and so the amendment opportunity seems to contradict the core contention of the Johnson opinion in the first place: namely, that there is no obligation to cite the particular legal authority for a claim.
If Johnson ends up adding to rather than clearing up confusion regarding pleading practice in the lower federal courts, that will suggest that maybe the case wasn't appropriate for per curiam reversal after all. Even if the Court might have ultimately ended up unanimous anyway, full briefing and oral argument might have alerted the Justices to nuances and complications that the cert petition alone left unaddressed.
Monday's second per curiam was less problematic, although it uses an aside to raise an issue worth discussing. In Carroll v. Carman, the Court reversed a Third Circuit qualified immunity ruling. Plaintiffs sued a police officer who, without a warrant, had come to their back door, announced himself, and talked to the plaintiffs pursuant to the so-called "knock and talk" exception to the warrant requirement. The plaintiffs argued that the knock-and-talk exception allows police to knock and talk at the front door but not at the back door. Citing an earlier Third Circuit case, Estate of Smith v. Marasco, the appeals court agreed. Moreover, the Third Circuit also said that this limitation on the knock-and-talk exception was "clearly established" by Marasco, so that a reasonable officer would have known that knocking and talking at the back door was a violation of the plaintiffs' constitutional rights.
The Supreme Court summarily and unanimously reversed. Here is the core of the Court's reasoning.
Now to the interesting aside. In the course of discussing Marasco, the Court says that it assumes "for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances," and then directs the reader to page 7 of its 2012 decision in Reichle v. Howards. There one finds the Court also assuming arguendo that a federal appeals court precedent can clearly establish the law for qualified immunity purposes, but not analyzing the issue any further.
So, should a federal appeals court precedent be able to "clearly establish" the law for qualified immunity purposes? That question implicates the prior discussion (on this blog and elsewhere) regarding the effect of federal appeals court precedents on state courts. My two recent posts (here and here) indicate that there is disagreement over whether a state court can gratuitously decide to be bound by federal appeals court precedents but it is generally (if perhaps not quite universally) accepted that federal appeals court rulings do not now bind state courts. And therefore, one might think that a federal appeals court ruling cannot clearly establish the law for officers within the relevant jurisdiction: After all, if the state court judges in the quiet of their chambers are free to reach different conclusions from those reached by federal judges, then police officers making snap judgments should not be bound by those same federal decisions.
I think that's probably the right answer, but I also think a respectable argument can be made to go the other way. The point of qualified immunity is to avoid unfairly surprising government officials who try in good faith to comply with their legal obligations. As a substantive matter, the Court has taken a very broad view of qualified immunity. Thus, a right is not "clearly established" for QI purposes so long as its "contours" are unclear enough that a reasonable officer might not realize that his particular conduct violates the right. One could argue that a federal appeals court precedent--even though not binding on the states--could nonetheless serve to clarify the law sufficiently to meet this standard.
Consider a stylized example. Let's suppose that a Supreme Court decision called Bloe v. Rumsfeld holds that waterboarding prisoners amounts to unconstitutional cruel and unusual punishment. Then let's say that officials in a New Jersey prison decide they want to subject prisoners to "orange-juice-boarding" (which substitutes orange juice for water but is otherwise identical to waterboarding). Suppose that a Third Circuit opinion in a case I'll call Doe v. Roe (outside the context of qualified immunity) says that orange-juice-boarding is also cruel and unusual punishment. Now suppose that a guard in a Pennsylvania prison subjects a prisoner to "apple-juice-boarding," and is sued by the prisoner. The guard claims qualified immunity. The plaintiff points to both Bloe (the Supreme Court waterboarding case) and Doe (the Third Circuit orange-juice-boarding case) to say that it was clearly established that "liquid boarding" is cruel and unusual punishment, regardless of the liquid used. Even though the Pennsylvania Supreme Court is not bound by Doe, we might nonetheless think that Doe put prison guards throughout the Third Circuit on notice that it doesn't matter what liquid is used.
The reason I find the foregoing reasoning only partly persuasive is that I think that Bloe itself probably should have been enough to clearly establish the unconstitutionality of apple-juice-boarding. Nonetheless, I can see a legitimate argument for saying that there might be cases where Supreme Court precedent falls just short of clearly establishing that what the particular officer did violated rights, but that a federal appeals court case is enough to push the case over the edge. The idea (which I'm only advancing very tentatively) is that the federal appeals court plays a special role in this sort of case: It makes it harder for the officer to say "it never occurred to me that the Supreme Court case applied to facts like these." At the margin, perhaps that's enough to clearly establish what would otherwise be not quite clearly established.
Finally, I think it's worth noting that in the somewhat related context of federal habeas corpus--where the Antiterrorism and Effective Death Penalty Act put in place a similar no-unfair-surprise rule--the statute expressly states that a rule can only be "clearly established" for federal habeas purposes if a Supreme Court decision establishes it. This language of course cuts both ways. On the one hand, it indicates that Congress thought that the sorts of unfair-surprise concerns that give rise to a requirement of "clearly established" law require that the SCOTUS itself be the body to establish the law. That would suggest that a federal appeals court cannot clearly establish the law for qualified immunity purposes. On the other hand, the fact that Congress thought it necessary to expressly spell out that only the SCOTUS gets to "clearly establish" federal law indicates at least the conceptual possibility of law being clearly established by lower courts.
On Monday, the Supreme Court issued two unanimous per curiam opinions summarily reversing decisions of federal appeals courts -- i.e., granting certiorari and reversing on the merits in one fell swoop, without the benefit of oral argument. The Court sometimes does this when the lower court has misapplied or misinterpreted federal law but the issue is not sufficiently complicated or divisive to warrant full consideration.
Civil procedure scholars are chewing over the first order, in Johnson v. City of Shelby. There the Court held that dismissal (in this case at the summary judgment phase but more generally at the pleadings stage as well) is not appropriate where a plaintiff's complaint contains sufficient facts to make out a valid legal claim but fails to identify the particular statute creating the cause of action at issue, here 42 U.S.C. § 1983. The ruling is somewhat surprising because it cuts against the grain of two important cases that tightened the pleading requirement for factual allegations: 2007's Bell Atlantic v. Twombly and 2009's Ashcroft v. Iqbal. Those two cases--collectively sometimes called "Twiqbal" by the cognoscenti--have had a major impact on pleading doctrine in the federal courts, although their actual effect on pre-trial dispositions is subject to debate. (For a useful discussion of the empirical evidence, see this article by David Engstrom.)
The Johnson per curiam could be understood as a signal from the Supreme Court to the lower courts not to treat Twiqbal as a license to generate new grounds for pre-trial dismissals, either in general or in civil rights cases in particular. If so, it remains to be seen whether the Court succeeds. Johnson distinguishes Twiqbal by drawing a line between factual allegations and legal allegations, but then suggests that the failure to cite the proper legal authority should be remedied by giving the plaintiff an opportunity to amend the complaint to include a citation of § 1983. But plaintiffs are always entitled (at least initially) an opportunity to amend their complaints to cure defects--including failure to allege sufficiently plausible facts under Twiqbal--and so the amendment opportunity seems to contradict the core contention of the Johnson opinion in the first place: namely, that there is no obligation to cite the particular legal authority for a claim.
If Johnson ends up adding to rather than clearing up confusion regarding pleading practice in the lower federal courts, that will suggest that maybe the case wasn't appropriate for per curiam reversal after all. Even if the Court might have ultimately ended up unanimous anyway, full briefing and oral argument might have alerted the Justices to nuances and complications that the cert petition alone left unaddressed.
Monday's second per curiam was less problematic, although it uses an aside to raise an issue worth discussing. In Carroll v. Carman, the Court reversed a Third Circuit qualified immunity ruling. Plaintiffs sued a police officer who, without a warrant, had come to their back door, announced himself, and talked to the plaintiffs pursuant to the so-called "knock and talk" exception to the warrant requirement. The plaintiffs argued that the knock-and-talk exception allows police to knock and talk at the front door but not at the back door. Citing an earlier Third Circuit case, Estate of Smith v. Marasco, the appeals court agreed. Moreover, the Third Circuit also said that this limitation on the knock-and-talk exception was "clearly established" by Marasco, so that a reasonable officer would have known that knocking and talking at the back door was a violation of the plaintiffs' constitutional rights.
The Supreme Court summarily and unanimously reversed. Here is the core of the Court's reasoning.
Marasco held that an unsuccessful “knock and talk” at the front door does not automatically allow officers to go onto other parts of the property. It did not hold, however, that knocking on the front door is required before officers go onto other parts of the property that are open to visitors. Thus, Marasco simply did not answer the question whether a “knock and talk” must begin at the front door when visitors may also go to the back door.And if a case did not address an issue, then that case cannot "clearly establish" anything with respect to that issue. Thus, the SCOTUS concluded, the Third Circuit was wrong.
Now to the interesting aside. In the course of discussing Marasco, the Court says that it assumes "for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances," and then directs the reader to page 7 of its 2012 decision in Reichle v. Howards. There one finds the Court also assuming arguendo that a federal appeals court precedent can clearly establish the law for qualified immunity purposes, but not analyzing the issue any further.
So, should a federal appeals court precedent be able to "clearly establish" the law for qualified immunity purposes? That question implicates the prior discussion (on this blog and elsewhere) regarding the effect of federal appeals court precedents on state courts. My two recent posts (here and here) indicate that there is disagreement over whether a state court can gratuitously decide to be bound by federal appeals court precedents but it is generally (if perhaps not quite universally) accepted that federal appeals court rulings do not now bind state courts. And therefore, one might think that a federal appeals court ruling cannot clearly establish the law for officers within the relevant jurisdiction: After all, if the state court judges in the quiet of their chambers are free to reach different conclusions from those reached by federal judges, then police officers making snap judgments should not be bound by those same federal decisions.
I think that's probably the right answer, but I also think a respectable argument can be made to go the other way. The point of qualified immunity is to avoid unfairly surprising government officials who try in good faith to comply with their legal obligations. As a substantive matter, the Court has taken a very broad view of qualified immunity. Thus, a right is not "clearly established" for QI purposes so long as its "contours" are unclear enough that a reasonable officer might not realize that his particular conduct violates the right. One could argue that a federal appeals court precedent--even though not binding on the states--could nonetheless serve to clarify the law sufficiently to meet this standard.
Consider a stylized example. Let's suppose that a Supreme Court decision called Bloe v. Rumsfeld holds that waterboarding prisoners amounts to unconstitutional cruel and unusual punishment. Then let's say that officials in a New Jersey prison decide they want to subject prisoners to "orange-juice-boarding" (which substitutes orange juice for water but is otherwise identical to waterboarding). Suppose that a Third Circuit opinion in a case I'll call Doe v. Roe (outside the context of qualified immunity) says that orange-juice-boarding is also cruel and unusual punishment. Now suppose that a guard in a Pennsylvania prison subjects a prisoner to "apple-juice-boarding," and is sued by the prisoner. The guard claims qualified immunity. The plaintiff points to both Bloe (the Supreme Court waterboarding case) and Doe (the Third Circuit orange-juice-boarding case) to say that it was clearly established that "liquid boarding" is cruel and unusual punishment, regardless of the liquid used. Even though the Pennsylvania Supreme Court is not bound by Doe, we might nonetheless think that Doe put prison guards throughout the Third Circuit on notice that it doesn't matter what liquid is used.
The reason I find the foregoing reasoning only partly persuasive is that I think that Bloe itself probably should have been enough to clearly establish the unconstitutionality of apple-juice-boarding. Nonetheless, I can see a legitimate argument for saying that there might be cases where Supreme Court precedent falls just short of clearly establishing that what the particular officer did violated rights, but that a federal appeals court case is enough to push the case over the edge. The idea (which I'm only advancing very tentatively) is that the federal appeals court plays a special role in this sort of case: It makes it harder for the officer to say "it never occurred to me that the Supreme Court case applied to facts like these." At the margin, perhaps that's enough to clearly establish what would otherwise be not quite clearly established.
Finally, I think it's worth noting that in the somewhat related context of federal habeas corpus--where the Antiterrorism and Effective Death Penalty Act put in place a similar no-unfair-surprise rule--the statute expressly states that a rule can only be "clearly established" for federal habeas purposes if a Supreme Court decision establishes it. This language of course cuts both ways. On the one hand, it indicates that Congress thought that the sorts of unfair-surprise concerns that give rise to a requirement of "clearly established" law require that the SCOTUS itself be the body to establish the law. That would suggest that a federal appeals court cannot clearly establish the law for qualified immunity purposes. On the other hand, the fact that Congress thought it necessary to expressly spell out that only the SCOTUS gets to "clearly establish" federal law indicates at least the conceptual possibility of law being clearly established by lower courts.