Practical Consequences and Missing Legislative History in Mississippi ex rel. Hood v. AU Optronics Corporation

This past week, the Supreme Court issued a decision in a seemingly straightforward case that involved some noteworthy statutory interpretation maneuvers (and omissions): Mississippi ex rel. Hood v. AU Optronics Corporation.  The State of Mississippi sued manufacturers of liquid crystal displays (LCDs) in state court for alleged antitrust violations, seeking restitution for LCD purchases made both by itself and by its citizens.  The LCD manufacturers sought to remove the case to federal court, arguing that the lawsuit is a “mass action” under the Class Action Fairness Act of 2005 (“CAFA”).  CAFA defines a “mass action” to mean “any civil action … in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact”—and significantly relaxes diversity jurisdiction requirements for such actions.

So the statutory interpretation issue is whether a lawsuit brought by a State, which seeks damages for injuries suffered by a large number of the State’s citizens—but which does not name any of the State’s citizens as plaintiffs—qualifies as a “mass action” under CAFA.

The Fifth Circuit concluded that it does, reading the words “persons” and “plaintiffs” to refer to the “real parties in interest” in a lawsuit.  The Supreme Court last week unanimously reversed, holding that because Mississippi is the only named plaintiff in the lawsuit, the suit does not count as a “mass action.”  Justice Sotomayor’s opinion for the Court relies heavily on the whole act rule, ordinary meaning, a sprinkling of dictionary definitions, and an analogy to how the terms “persons” and “plaintiffs” are used in Federal Rule of Civil Procedure 20.  The opinion then turns to a practical consequences argument about the “administrative nightmare” that would result if it were to read the term “plaintiffs” to include unnamed real parties in interest in the lawsuit.  (The Court worries, inter alia, that such a construction would force district courts to engage in unwieldy factual inquiries in order to identify unnamed parties in interest whose claims are for less than $75,000, since CAFA allows “mass action” diversity jurisdiction only for plaintiffs whose claims exceed this amount.  “How is a district court to identify [such] unnamed parties?”  the Court asks.  “Would [it] have to hold an evidentiary hearing to determine the identity of each of the hundreds of thousands of unnamed Mississippi citizens who purchased one of respondent’s LCD products between 1996 and 2006? Even if it could identify every such person, how would it ascertain the amount in controversy for each individual claim?”).

We have seen this kind of practical consequences argument from the Roberts Court before, in another case involving diversity jurisdiction.  In the 2010 case, Hertz Corp v. Friend, the Court similarly emphasized the need for administrative simplicity when giving meaning to jurisdictional statutes.  I have previously discussed this form of practical consequences argument, calling it an “anti-messiness” principle and noting its prevalence in many statutory interpretation cases.  Here, I am particularly interested in the unanimity that the Court’s anti-messiness focus helped it achieve. The Court is not always unanimous when construing jurisdictional statutes, but it often decides such cases by a wide margin.  (My empirical research shows that the Roberts Court tends to reach unanimity in roughly half of its cases involving jurisdictional statutes, and to be closely divided in only 10% of such cases).  So what, if anything, explains the Court’s high levels of consensus in jurisdictional cases, or at least its unanimity in Hertz and AU Optronics?

I think the answer lies in a unique convergence that occurs in jurisdictional cases, perhaps especially in cases involving diversity jurisdiction.  What I mean is that in cases involving jurisdictional statutes, judicial concerns about fulfilling a statute’s policy objectives tend to merge with judicial concerns about administrability (e.g., the interpretation’s effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule it establishes).

Some justices on the Roberts Court care a lot about ensuring that any statutory interpretation they adopt will be relatively easy to administer and will fit coherently within the framework of legal rules surrounding it.  But other justices on the Court seem to care more about fulfilling the policy objectives of the particular statute that they are interpreting, and making sure that that statute is given an internally coherent and consistent meaning.  I have elsewhere described this coherence divide in detail.  But I think it plays out in interesting ways in cases involving jurisdictional statutes, for a number of reasons:  Jurisdictional statutes by their nature seek to organize the judicial system, drawing lines that establish which cases may be heard in which venues.  If the inquiry required to implement a jurisdictional statute becomes too complicated, or “messy,” disorganization results and the entire judicial system suffers—as multiple courts grapple with the threshold question of where a case may be heard, before they even get to the substantive issues raised in the case.  In other words, because jurisdictional statutes are designed to organize the judicial system, simplicity, clarity, and predictability are key to their effectiveness.  As a result, all jurists confronted with the application of a jurisdictional statute tend to focus, at least to some extent, on administrability concerns when deciding how best to interpret the statute—even those jurists who do not ordinarily privilege predictability, clarity, and other such rule of law values when interpreting statutes.  Perhaps another way to put it is that with jurisdictional statutes, there is rarely conflict between the underlying policy of the statute and administrability concerns, because ease of administration is part of the statute’s purpose.  So when one interpretation of a jurisdictional statute is significantly easier to administer than others (or when one interpretation is an “administrative nightmare” to implement), the Justices find it relatively easy to agree upon the easier-to-administer interpretation.

Missing Legislative History?

Also noteworthy in AU Optronics is the Court’s failure to make any reference to some helpful, on-point legislative history.  Specifically, the Senate committee report on CAFA describes “mass actions” as “suits that are brought on behalf of numerous named plaintiffs who claim that their suits present common questions of law or fact that should be tried together even though they do not seek class certification status.”  (My emphasis).  This definition provides strong support for the Court’s conclusion that a lawsuit brought by a State as sole named plaintiff cannot qualify as a “mass action,” even if the action is based on injuries to numerous unnamed citizens of the State.  The Mississippi Attorney General’s brief highlighted this helpful legislative history, and Justice Ginsburg referenced it at oral argument.  Yet there is no mention whatsoever of the committee report, or of any other legislative history, in the Court’s opinion—not even a passing statement that the legislative history corroborates the Court’s construction.  This omission is noteworthy, I think, given the Court’s—and particularly opinion author Justice Sotomayor’s—willingness to make corroborative legislative history references in other cases.  One possible explanation for the Court’s omission is that the Senate report was issued ten days after CAFA was signed into law by the President—so it cannot be said to have influenced members’ votes on the bill.  A majority of the Court previously has rejected legislative history that was inserted into the record after a bill was enacted into law (See Hamdan v. Rumsfeld – there, floor statements).  But the Court at least discussed the after-the-fact legislative history in that case.  Here, the lack of mention and lack of debate about the value of the committee report strikes me as interesting.  Statements made in a committee report issued shortly after a statute’s enactment may not have been relied upon by those voting for the law, but they do reflect the understanding of those who drafted the statute and who are most familiar with its components, so it seems odd that at least some of the justices did not find the Senate report’s statements worth noting.

In the end, I am left wondering whether the Court’s failure to mention the Senate report in this case reflects an overall judgment that committee reports dated after a statute’s enactment are not good or useful legislative history, or whether the Court’s omission was a strategic one, designed to protect unanimity in this case?  Did the Court decline to mention the after-the-fact committee report because of a desire to avoid controversy, or to retain Justice Scalia’s vote (what James Brudney has called the “Scalia Effect”)—or did it do so because it has decided that committee reports issued after a law is enacted lack credibility?

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