[EL] FW: On Congress and federal court jurisdiction: fixing a Scalia decision

Wed Sep 21 23:47:11 PDT 2011

Justice Scalia has recognized that the jurisdiction of the federal 
courts, including the U.S. Supreme Court, is determined by statute.  The 
Detainee Treatment Act of 2005 § 1005(e)(1) stated: "no court ... shall 
have jurisdiction to hear or consider ... an application for ... habeas 
corpus filed by ... an alien detained ... at Guantanamo Bay."  In 
reviewing that statute, Justice Scalia wrote:

    "[T]he aptly named " Exceptions Clause" of Article III, § 2, which,
    in making our appellate jurisdiction subject to "such Exceptions,
    and under such Regulations as the Congress shall make," explicitly
    permits exactly what Congress has done here.

Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723, 74 
USLW 4579  (dissent).

Dan Meek
dan at meek.net
	10949 S.W. 4th Ave
Portland, OR 97219 	503-293-9021
866-926-9646 fax

On 9/21/2011 7:30 PM, Mozaffar, Shaheen wrote:
> The two messages below from Professor Arthur Hellman and Professor Stephen Wasby were posted on the American Political Science Associations' Legislative Studies Section listserve.  They concern the patent bill President Obama signed into law on Friday.  The bill includes Professor Hellman's proposal for overruling Supreme Court decision on federal jurisdiction.  As Professor Wasby says, it is not often that many us get our ideas enacted into law.  While the substantive issue is not related to election law, it offers an interesting insight into the relationship between law, politics, and policy that might of interest to list members.
>
> Professor Wasby and Professor Hellman have given permission for posting the messages.  List members may contact Professor Hellman (hellman at pitt.edu<mailto:hellman at pitt.edu>) for further inquiries.
>
> **************************************************
> Shaheen Mozaffar, Ph.D.
> Professor
> Department of Political Science
> 180 Summer Street
> Bridgewater State University
> Bridgewater, MA 02325
> USA
>
> +1-508-531-2291 (me)
> +1-508-531-1387 (dept)
> +1-508-531-6186 (fax)
>
> smozaffar at bridgew.edu<mailto:smozaffar at bridgew.edu>
> www.bridgew.edu<http://www.bridgew.edu/>
> **************************************************
>
>
> ----- Original Message -----
> From: Stephen L. Wasby<mailto:wasb at albany.edu><mailto:wasb at albany.edu>
> Sent: Monday, September 19, 2011 12:27 PM
> Subject: on Congress and federal court jurisdiction: fixing a Scalia
> decision
>
> I am posting the message below at the request of Prof. Arthur Hellman of the
> University of Pittsburgh School of Law. Declaration and disclaimer: Arthur
> and I both write about the Ninth Circuit -- shame on us! -- but now for
> something completely different.
>
> First, a plug. (If I plug someone else's work, it isn't shameless.) If you
> follow the link to the 2006 House Report (at the end of Prof. Hellman's
> message), you will discover (on page 6) that the "Holmes Group fix" that the
> President signed into law Friday adopts the approach proposed by Prof.
> Hellman himself. Or, to quote from the press release issued by Prof.
> Hellman's law school: "Congress has passed and sent to the President a bill
> that adopts Professor Arthur Hellman's suggested approach for overruling a
> Supreme Court decision on federal jurisdiction. President Obama will sign
> the bill on Friday, and Professor Hellman's proposals will be enacted into
> law as part of the Judicial Code (Title 28)."
>
> In addition to the reasons why this should be of interest to law courts folk,
> as indicated in the first paragraph of Prof. Hellman's message, there is
> also something of interest here for legislative scholars, because Prof.
> Hellman says he "had given the bill up for dead after the 109th Congress,"
> but, lo and behold, here it is enacted into law. He says he is still
> pinching himself. Tain't many of us who get our ideas enacted into law.
>
> I have copied Prof. Hellman on this message, and I know that he'll be happy
> to respond to any questions.
>
>       Steve Wasby (Stephen L. Wasby, professor emeritus, University at
> Albany); Eastham, Mass.
>
> = = =
>
> Here is Prof. Hellman's message:
> Buried in the patent bill that President Obama signed into law Friday (Pub.
> L. No. 112-29, the "America Invents Act") is a set of amendments that may be
> of interest from a Law&  Courts perspective for several reasons, perhaps
> most importantly because the amendments illustrate congressional overruling
> of a Supreme Court decision, but also because this episode speaks to the
> question of specialization in the courts, about which Larry Baum has written
> so cogently. The amendments effectively overrule a 2002 Supreme Court
> decision (authored by Justice Scalia) that is a paradigm of the text-based
> approach to statutory interpretation, and they also demonstrate Congress's
> commitment to preserving a system of specialized appellate review it
> previously enacted.
>
>
> What follows is technical but such is the law of federal jurisdiction. (SLW:
> Attendez-vous!)
>
>
> The amendments are known as the "Holmes Group fix" because they address
> issues raised by the Supreme Court's decision in Holmes Group, Inc. v.
> Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002).
> In Holmes Group, the Court held that the appellate jurisdiction of the Court
> of Appeals for the Federal Circuit does not encompass cases in which claims
> under the patent laws are raised in a responsive pleading (e.g., as a
> counterclaim) rather than in the plaintiff's complaint.  The Court reached
> this result through interpretation of the two governing sections of the
> Judicial Code.  Section 1295(a)(1) provided that the Federal Circuit shall
> have exclusive jurisdiction over appeals from the district courts "if the
> jurisdiction of [the district court] was based, in whole or in part, on
> section 1338 of this title."  Section 1338(a), in turn, vests original
> jurisdiction in the district courts "of any civil action arising under any
> Act of Congress relating to patents . . ."
>
>
> The Court held that § 1338(a) must be interpreted in accordance with the
> "well-pleaded complaint" rule long established for § 1331 general
> federal-question jurisdiction cases-and under that rule, a counterclaim does
> not support "arising under" jurisdiction.  The Court's result was criticized
> for contravening Congress's intent to create a uniform body of patent law by
> having all patent appeals heard by the Federal Circuit. In fact, the Court
> more or less acknowledged this, saying  that "Our task here is not to
> determine what would further Congress's goal of ensuring patent-law
> uniformity." And because the exclusive jurisdiction of federal courts in
> patent and copyright cases is tied to original jurisdiction, the decision
> also had the effect of allowing state courts to hear counterclaims under the
> patent and copyright laws.
>
>
> The "Holmes Group fix" (contained in § 19 of Pub. L. No. 112-29) addresses
> these concerns by amending two existing sections of the Judicial Code and
> adding one new section. The amendments have only prospective application,
> that is, they are to be applied only in civil actions commenced on or after
> the date of their enactment.
>
>
> First, the new law overrules the specific holding of Holmes Group by
> defining the appellate jurisdiction of the Federal Circuit to include an
> appeal from a final decision of a district court "in any civil action
> arising under, or in any civil action in which a party has asserted a
> compulsory counterclaim under, any Act of Congress relating to patents or
> plant variety protection."
>
>
> Second, the second sentence of § 1338(a) is deleted and replaced with:  "No
> State court shall have jurisdiction over any claim for relief arising from
> any Act of Congress relating to patents, plant variety protection, or
> copyrights," with "State" defined broadly to include the District of
> Columbia, Puerto Rico, and territories.
>
>
> Finally, the act adds a new section (28 U.S.C. § 1454) authorizing removal
> of "[a] civil action in which any party asserts a claim for relief arising
> under any Act of Congress relating to patents, plant variety protection, or
> copyrights."
>
>
> The Public Law is not yet on line, but the new statutory language can be
> found at pp. 48-49 of the enrolled bill:
> http://www.gpo.gov/fdsys/pkg/BILLS-112hr1249enr/pdf/BILLS-112hr1249enr.pdf
> The authoritative legislative history of the "America Invents Act" is the
> House Report on H.R. 1249, the bill that became Pub. L. No. 112-29.  That
> report has little to say about the Holmes Group fix.  It notes:  "The Act
> clarifies the jurisdiction of the US District Courts and stipulates that the
> US Court of Appeals for the Federal Circuit has jurisdiction over appeals
> involving compulsory patent counterclaims.  The legislative history of this
> provision, which we reaffirm and adopt as our own, appears in the Committee
> Report accompanying H.R. 2955 from the 109th Congress" in 2006.  That
> Committee Report, No. 109-407, can be found at this link:
> http://www.gpo.gov/fdsys/pkg/CRPT-109hrpt407/pdf/CRPT-109hrpt407.pdf
> The version of the "fix" that has now become law differs in a few respects,
> not worth detailing here, from the version reported by the House Judiciary
> Committee in 2006.l
>
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