Article III Judicial power, the adverse-party requirement, and non-contentious jurisdiction.

• Author: Pfander, James E.
• Position: II. Scholarly Reactions to Ex Parte and Non-Contentious Proceedings through III. Contentious and Non-Contentious Jurisdiction, p. 1391-1440

2. SCHOLARLY REACTIONS TO EX PARTE AND NON-CONTENTIOUS PROCEEDINGS

   Existing scholarship on the adverse-party requirement has yet to confront the widespread appearance of ex parte and non-contentious proceedings on the dockets of the federal courts. Nor has it come to grips with the consistent line of Supreme Court decisions upholding such assignments. Of those few commentators who have encountered an instance of non-contentious practice and have identified a potential justiciability problem with the practice, some simply have denied the legitimacy of the exception, viewing it as a violation of the adverse-party or case-or-controversy requirements; (213) others have dismissed the practice as an isolated departure or one that lies beyond the scope of their specific project. (214) We consider arguments against the legitimacy of non-contentious proceedings in later sections of this Article. In this Part, we critically evaluate prior attempts to fit these proceedings within the judicial power as it currently is understood.

   1. Isolated Departures and Historical Aberrations

      Scholarly treatment of ex parte proceedings often tends to occur in the context of an encounter with a single non-contentious practice--for example, bankruptcy or naturalization proceedings. (215) Perhaps as a result, a common response has been to treat the encounter as an isolated and insignificant departure from the courts' otherwise broad-based commitment to adverse-party proceedings. (216) Apart from the fact that such an approach is unsatisfying from a doctrinal perspective, the rather lengthy catalog of ex parte matters in Part I makes the argument from isolated aberration difficult to sustain. These matters are neither isolated nor considered aberrations in the unbroken line of cases upholding them. The denial practiced by scholars does little to explain the existence of non-contentious proceedings.

      Another common response to encounters with non-contentious proceedings has been to treat the specific practice as a vestige of an earlier day--a vestige obviously inconsistent with the adverse-party rule but perhaps too well established to overthrow. (217) One could argue, for instance, that the federal courts' role in naturalization proceedings dates from early in the nation's history and depends for its constitutionality on its pedigree rather than on its compliance with the demands of Article III. (218) The instinct that underlies this strategy may be sound: an early practice, consistently followed, can claim respect as liquidating or fixing the meaning of Article III. For example, the Court cited historical pedigree in upholding qui tarn relator actions, despite the fact that a relator prosecuting the claim on the government's behalf was said to lack standing in his own right. (219)

      With respect to non-contentious proceedings, however, the practices "grandfathered" occupy such a broad swath of judicial business that they raise a fundamental question about the soundness of the adverse-party requirement. If the Constitution really does embody such a requirement, then why were the Framers and others in the early Republic apparently so untroubled by the widespread exercise of jurisdiction in non-contentious matters in their federal courts, and why did the First Congress assign, apparently without concern, such matters to the courts' dockets? Also, how can grandfathering explain the consistent appearance of non-contentious business on federal court dockets in new manifestations today, such as the relatively recent creation of the FISA court and the provision for trademark seizure proceedings? Resolving these questions requires more than indulgence; it requires a coherent, possibly separate, classification for non-contentious proceedings and perhaps a fundamental rethinking of prevailing views of federal judicial power.

   2. Tutun v. United States and the Possible Adversary Theory

      Some scholars attempt to explain non-contentious proceedings by drawing on what has come to be known as the "possible adversary" theory supposedly outlined in Tutun v. United States. (220) Under the possible adversary theory, the prospect of eventual adverse-party litigation in the future can justify the exercise of jurisdiction without an adverse party in the present. (221) In Tutun, two circuit courts certified to the Supreme Court the question of whether they could exercise jurisdiction over appeals of district court denials of naturalization petitions. (222) Justice Brandeis, writing for the Court, held that naturalization proceedings are proper exercises of the judicial power despite the lack of concrete adverseness until (and unless) naturalization is denied and the question goes up on appeal. In a stray statement from the decision, Justice Brandeis hypothesized that one ground for upholding such proceedings was that the federal government remained a potentially adverse party that might intervene to contest the petition if it so chose. (223)

      One finds the idea of a possible adversary expressed in a variety of contexts, as scholars have deployed this theory to address a surprisingly wide range of justiciability problems. (224) Some scholars have invoked the possible adversary theory to explain the many uncontested matters that find their way onto the dockets of the bankruptcy courts. (225) Others have invoked it to explain the willingness of federal courts to entertain ex parte warrant applications, arguing that the warrant issues in the shadow of a criminal investigation that may lead to criminal charges in which the target of the warrant can presumably test its legality. (226) Running with this notion, some scholars have explored the relevance of the possible adversary theory to ex parte FISA warrant practice. (227) (FISA warrants rarely lead to criminal proceedings, however, making "razor thin" the fiction that their issuance may result in an adversary proceeding.) (228) Others suggest that Congress should address the absence of any possible adversary by authorizing an after-the-fact suit for damages in which targets of certain FISA warrants could contest their legality. (229) Indeed, a similar justification for the exercise of jurisdiction could be offered in prize cases heard in admiralty; the seized ship's owner, captain, or crew could potentially (and sometimes did) appear to contest condemnation of the prize. (230) One might also use the possible adversary theory to explain federal court jurisdiction over remission petitions, trademark seizure orders, and the issuance of administrative subpoenas, among others. (231)

      The possible adversary theory has some appeal in that it offers a means of reconciling the adverse-party requirement with the reality of non-contentious practice, but it cannot bear the weight that scholars have placed upon it. To begin with, whatever the theory's appeal in the isolated context of certain ex parte proceedings, it is difficult to square with other elements of justiciability doctrine. Under bedrock justiciability principles, only ripe disputes between concretely interested parties can invoke the machinery of the federal judiciary. Indeed, in one of the Court's more recent standing decisions, Clapper v. Amnesty International USA, the Court reiterated that "threatened injury must be certainly impending to constitute injury in fact" and that "[a] negations of possible future injury" will not suffice. (232) Ripeness decisions point in the same direction, rejecting the idea that the possibility of a future disagreement can provide a sufficient basis for the invocation of the judicial power. (233) If these proclamations hold, then hypothetical future adverseness cannot solve an actual justiciability problem in a pending case any more than the prospect of hypothetical future injury can confer standing and ripeness in a case where they are lacking. (234) This is particularly true where the possibility of future appearance by an adverse party is, as in FISA proceedings, little more than speculative. (235)

      Moreover, the prospect of a future adverse party does little to assuage the concerns that underlie the adverse-party requirement. Hypothetical adverseness does not improve the quality of the record presented to the court, and it does not allow for a balanced presentation of factual or legal propositions; nor does it prevent a court from deciding issues that could compromise the rights of third parties or from interfering with the prerogatives of the political branches of the government. (236) And where an adverse party does not appear (a frequent outcome, as we have seen,237) these problems will persist. It thus is difficult to perceive how the hypothecation of a possible future adversary can offer a plausible justification for non-contentious federal court proceedings.

      Apart from questioning the coherence of the possible adversary theory, we have serious doubts that Tutun actually endorsed such a theory. In hearing Tutun, the Court resolved a division in the lower courts as to whether a district court order adjudicating a petition of naturalization was subject to appellate review. (238) The relevant statute empowered the federal appellate courts to hear

      appeals from final decisions in "all cases." (239) Rather than limit its analysis to the narrow question of the proper interpretation of that phrase, Justice Brandeis's opinion tackled the more fundamental issue of Article III authority. (240) In doing so, Justice Brandeis adverted to the fact that the congressional practice of assigning naturalization proceedings to the federal courts had begun in the 1790s and had never been questioned. (241) What's more, Justice Brandeis noted, "[i]f the proceeding were not a case or controversy within the meaning of Art[icle] III, [section] 2, this delegation of power upon the courts would have been invalid." (242) The accompanying citation of authority suggests that Justice Brandeis saw no problem with the practice in question under the...