Do Federal Judges have absolute de facto discretion to refuse to hear cases? After Bell Atlantic v. Twombly, is there any real point in bringing controversial cases into Federal Court?


Justice Sandra Day O’Connor was Ronald Reagan’s first and to my mind most distinguished appointee to the Supreme Court.  She wrote, early in her career, that “federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them.”  Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).  Even this statement in the early 1980s was a retreat from the court’s position, a mere 8 years earlier, asserting, “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them” articulated in Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 817 (1976).  Today it seems that the Federal Courts spend more time (in important cases, too) limiting their own power by various doctrines than exercising their power.

The combined result of the Rooker-Feldman Doctrine, Younger v. Harris abstention and the judicial construction of the Civil Rights Removal  Statute is that State Courts are all but completely free to violate federally secured civil rights with impunity, because of a wall of barriers to review which make absolute judicial immunity a sad but real barrier.

The stupidest of all these doctrines, because it is on the one hand so banal and on the other hand so riddled with discretionary loopholes, is the Rooker-Feldman doctrine about which no one had ever even heard until 1983.  Rooker-Feldman has now been pronounced dead several times, first by Justice John Paul Stevens in his famous concurrence to Marshall v. Marshall (the “Anna Nicole Smith” probate case) but also by academic legal commentators (such as Samuel Bray, Rooker Feldman (1923-2006) 9 Green Bag 2d 317 “an entertaining journal of law” founded and edited by some fellow University of Chicago law grads I once knew) all in 2006.  Since it’s epitaph, however, the evil and “discretionary” flexibility of Rooker-Feldman as a tool to insulate state judges and corrupt judicial and quasi-judicial processes from examination and inquiry has not only not deterred but allowed, in fact guaranteed, this doctrine to come back as a vampire-like revenant over the past five years in District and US Courts of Appeals) everywhere.

Parallel to Rooker-Feldman is Younger v. Harris Abstention.   I have attacked repeatedly so-called Younger v. Harris abstention doctrine as a complete distorted perversion of the Dombrowski v. Pfister through Mitchum v. Foster line of cases which firmly established by legislative history and the very best of Supreme Court scholarship the power of U.S. District Courts to render injunctions against state court proceedings when asked to do so under 42 U.S.C. Sections 1983 & 1988(a).

Finally, the judicial disembowelment of the Civil Rights Removal Statute (28 U.S.C. Section 1443, 1447(d)) running from Strauder v. West Virginia, and Virginia v. Rives in 1880 through Greenwood v. Peacock and Georgia v. Rachel in 1966 ending in Johnson v. Mississippi (1975) has all but destroyed some of the strongest Congressional language ever written to protect the people from the “tyranny of local minorities” which periodically manage to take charge of the State Courts, by and through local elite cadres of lawyers who move almost invisibly from bench to bar and back again, trading favors and generally patting each other’s corrupt backsides in what is so genteelly known as “the Good Ole’ Boys’ network.”

None of these three doctrines, however, ever afforded to United States District Judges the free hand, the almost unlimited ability, to refuse to hear any cases not precisely to their liking the way that John Roberts’ court now has done.  There are two cases: Bell Atlantic v. Twombly and Ashcroft v. Iqbal which, together spell the doom of the Federal Courts as vehicles for securing equal protection of the laws or due process under the law.  The Roberts’ Court has, in effect, triumphantly announced that Federal Judges are indeed kings, with Royal Sovereign immunity even from reversal on appeal, because they have unfettered arbitrary and capricious discretion now to declare which cases, in their solely subjective opinions, present plausibly detailed allegations and which do not.  The result is that discovery is no longer a realistic vehicle for “fleshing out” reasonable suspicions in litigation: the Plaintiff must know, BEYOND REASONABLE DOUBT, all his facts, and must plead these facts in his complaint, and he must be certain that the Federal District (Royal Court) Judge whom he approaches will agree that his complete set of facts ABSOLUTELY entitle him to relief within the law as that Judge will apply it.  To state that this is a hard standard to meet is, perhaps, a serious understatement.

From a personal standpoint, from my first day in Law School at the University of Chicago, I had always strongly preferred the Federal Court system. Quite simply, the rules were cleaner, more orderly, fewer in number, and seemed better designed to insure “substantial justice” than the rules and practice in the State Courts.  Frankly, the day before my first day in Law School, I had asked a (then quite young) Professor David A. Strauss whether law was a science or an art, and was there any room for creativity in the field of law, towards using law to construct a better world.  I told him that I had finally decided to choose law, as between law on the one hand and anthropology & history on the other, because I felt unsatisfied only observing and trying to describe or interpret past societies, that I wanted to be part of the construction and reconstruction of living societies.  Although he would later co-author a book called “The Living Constitution” about exactly such use of the law in the construction and reconstruction of society, Professor Strauss was at that moment dumbstruck and asked nothing more than, “well, what if you decide that the U.S. Legal is worse than all the others that came before it?”  It turned out to be a rather prophetic exchange.  Not that I have concluded that the U.S. Legal system as “alive” under the Constitution is worse than any other system, quite the contrary.  What I have concluded as of my 51st birthday—as I enter “Area 51” of my life, 3 x 17—is that the U.S. Constitution itself is either dead or on very mechanically intensive life-support, and that the legal system under the dead or dying constitution has become at least as bad as some of the worst in world history—despite its potential if the Constitution were somehow to be resuscitated and live.  Freedom is the only guardian of truth and beauty, because only in a free society can we debate the truth among competing ideas, and choose for ourselves what is the good, the bad, and the ugly—not to mention the beautiful.  Any exercise of freedom for the purpose of advancing the bad and the ugly of repression is, to put it mildly, very disappointing—but that seems to be the most common recent exercise of the residual use or appearance of vanishing freedom in America.

I did not begin Law School until I had almost completed my doctorate at Harvard University, so Law was in some sense my “Second Career” although as a child I had met several distinguished lawyers and judges, been told that I had descended from several others, and so I had always fantasized about being a lawyer long before I heard about archaeology.****

In my first year of law school, the then recently (forcibly) retired Judge Robert H. Bork among together with all other professors essentially gave a rousing endorsement to the Federal Rules of Civil Procedure as the most efficient and noble experiment in procedural justice as the guarantor of substantive justice ever.  One of the key points was the reform of pleading: that detailed, formalistic “writ pleading” was “forever abolished” along with the more arcane forms of defenses, so that at law or in equity or in admiralty there would henceforth be but “one form of civil action”, and that was outlined under the FRCP, first promulgated in the late 1930s.

One of the key points in learning the simplicity of the Federal Rules was the Conley v. Gibson doctrine of dismissal, which had already survived 30 venerable years when I began my studies at Chicago: “No complaint should ever be dismissed unless it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief.”  Any civil complaint NOT written by the Zodiac killer, in essence, would have a fairly good chance of surviving this standard.

In the year 2007, exactly 50 years after Conley v. Gibson was handed down at a time when the Federal Courts were opening their doors and exercising their broad Congressional grants of expanded their jurisdiction, the U.S. Supreme Court handed down what I would say without much (if any) exaggeration is the death-knell of both substantive and procedural due process in the United States.

A judge in a case in which I was deeply involved recently asked my distinguished counsel, a former State Assistant Attorney General, how he would get around or otherwise handle Bell Atlantic v. Twombly, 550 U.S. 544 (2007).   In that case, the Supreme Court expressly overruled Conley v. Gibson as the standard of decision under 12(b)(6) Motions, and adopted a rule that a judge must find subjective plausibility in a Plaintiff’s complaint before allowing that complaint to continue to discovery and trial.  I write “subjective plausibility” although the Court itself only required a judge to find the facts “plausible”.   I add the word “subjective” because I cannot imagine, and the Court did not provide, an “objective” standard of plausibility.  In math or physics there might be some “objective” standard of probability (which one might then equate with “plausibility”, but since the history of humankind has been riddled with the most implausible and outlandish events and turns and twists of the human psyche and behavior, it seems to me obvious that Bell Atlantic v. Twombly endows each United States District Judge with the power basically to say, “I don’t like this complaint, it’s ridiculous” and dismiss on grounds of implausibility.   Plausibility or implausibility is pretty obviously, “in the eye of the beholder.”  What is plausible or not is rather like “obscenity” in that sense, “I don’t know what it is but I can recognize it when I see it.”  Plaintiffs in Federal Court are now quite simply left at the mercy of judges PREJUDICES and BIASES regarding what facts may or may not be “PLAUSIBLE” which may in fact be a subliminal message to each judge that they can simply engage in their own miniature reigns of terror by deciding cases in advance, at the 12(b)(6) Motion to Dismiss for Failure to State a Claim upon which Relief Can be Granted, whom or which side they deem worth of winning a case.  Getting past the (now especially) inevitable 12(b)(6) Motion to Dismiss in Federal Court certainly does not guarantee final victory at trial-by-jury, much less on appeal, but it is a gate by and through which every complaint (or at least 98.5% of all complaints filed in Federal Court) must pass.

I, for one, have read and review reviewed the Complaint which was the subject of the ruling in Twombly and I am unable to believe that Chief Justice John Roberts’ Court upheld dismissal of those facts.  The original and amended Twombly complaints were very fine, professionally drafted antitrust complaints drafted by experts in the field of Plaintiffs’ Antitrust law.

If that complaint could be found “implausible” upon judicial whim, then I submit to you that now the law would appear to be that any federal complaint can be found “implausible” within the judicial discretion and whim of a judge without real stated justification.

As a result, I submit and suggest that EVERY PLAINTIFF WHO FILES HIS OR HER COMPLAINT IN FEDERAL COURT, from now until Twombly IS overruled (or more likely, when it is abolished by legislative fiat), must ask as an essential part of his or her complaint that the Court NOT apply the Twombly standard of decision in the particular circumstances of their case(s).   This must become as habitual as Cato the Elder’s famous closing remark at the close of each senatorial address “Cartago delendam esse” (“Carthage must be destroyed.”)  The Twombly standard must be abandoned abrogated, and something much closer to the old Conley v. Gibson standard reinstated.

For example, each person acting without a lawyer should include in her or his complaint a count by which to request declaratory judgment that as a matter of due process and equal protection, their Court must grant, allow, and define an exception to the Bell Atlantic v. Twombly rule for pro se litigants involved in fundamentally private individual litigation with no governmental defendants or publicly held and traded corporations involved.   Where none of the defendants are publicly owned or traded corporations or entities of any kind, Twombly ought NEVER apply.  Where there are no governmental defendants here nor great public policy issues at stake, even if the underlying reasons for the relationship between the parties arose from a matter of some public interest and concern, a much more liberal and objective standard of pleading must be allowed.  There is nothing good about shutting the doors of the Federal Courthouses to as many claims as can be subjectively eliminated on any judge’s evaluation of “plausibility” of allegations, prior to discovery and in many cases prior to deep factual research—-very few clients, honestly, will pay for fifty to a hundred or more hours of pre-filing litigation research, yet the Roberts Court has all but mandated such exhaustive pre-litigation inquiry.

The only real public issue relevant to Twombly in most cases is that of the honor and integrity of the judicial system.  Twombly is  obscene in the sense that it is “without redeeming social importance.”  Twombly is not a “tough” standard, but is so subjective that it is the equivalent of “no standard at all—absolute judicial discretion allowed.”

In the Old English system of “writs”, dismissal for failure to conform one’s pleading EXACTLY to the authorized writ formal was commonplace—-and so the courts of law and equity (Exchequer, Queen’s Bench, Common Pleas, Ecclesiastical Matters) in Mediaeval through Colonial times and even most of the 19th Century (except in havens of radical legal practice like the Republic of Texas—where a revolutionary rule of “unlimited free amendment of petitions and other pleadings” was adopted in 1836 at the time of the Revolution against Mexico and has been preserved more-or-less intact until the present time) examined the forms of each Plaintiff’s complaint and each Defendant’s answer thereto for legal sufficiency according to some very ancient and rigid templates

Under Twombly, there are no such (learnable, if difficult) rigid templates, there is only the U.S. District Judge, sitting like a Danton or Robespierre at the height of the reign of terror in France, ready and now empowered to chop off the head of each offender….

I submit that the United States Courts are being corrupted by the absolute power which Twombly affords to the Federal Judiciary.  Truly, under this modern regime, no appeal of a dismissal of any case could EVER be considered to be an abuse of discretion much less prejudicial and biased per se.

If allowed to proceed, each Plaintiff must include a plea for relief to this effect in his or her complaint: the Court shall allow each complaint to go forward to discovery, pre-trial dispositive motions (e.g. Motions for Summary Judgment after discovery) and trial itself, so long as the Complaint pleads sufficiently to put the Defendant on accurate notice of the charges against him.

***I had learned Latin first by reading Cicero and the Codex Iuris Civilis, ancient copies of which sat around my grandparents house inherited from their own respective lawyer father (my grandmother Helen’s father “Judge Benny”) and grandfather (my grandfather Alphonse’s grandfather, Rufus Daniel, the Marquis of Reading, Lord Chancellor and Viceroy of India).

One response to “Do Federal Judges have absolute de facto discretion to refuse to hear cases? After Bell Atlantic v. Twombly, is there any real point in bringing controversial cases into Federal Court?

  1. Pingback: Do Federal Judges have absolute de facto discretion to refuse to … « judicial system report

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