Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power

Author:Elizabeth T. Lear
Position:Professor of Law, University of Florida

Elizabeth T. Lear: Professor of Law, University of Florida, Fredrick G. Levin College of Law. I wish to thank Thomas Cotter, Lyrissa Lidsky, William Page, Allan Stein, Mary Twitchell, and Barbara Woodhouse for their thoughtful comments and suggestions on earlier drafts of this Article. I am also grateful to Matthew Hill, William Snyder, Stacey Steinburg, and Jennifer Voss for their excellent research assistance.

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For many years the federal judiciary has treated forum non conveniens as a housekeeping rule for the federal court system.1 If indeed this is correct, the federal house is in need of a serious spring cleaning. Circuit splits abound,2 the standards used and the evidence required for forum non conveniens dismissals vary widely among the district courts,3 and reverse forum shopping through removal and transfer is commonplace.4 The problem, however, goes beyond a little clutter. Closer inspection reveals that the very foundation upon which the doctrine rests is unstable. Though built upon the inherent authority of Article III, federal forum non conveniens lies in the area over which Congress may exercise plenary power. Time has changed the congressional landscape: the base upon which the forum non conveniens dismissal structure rests has eroded away, leaving the federal courts in congressionally occupied territory without constitutional support.

In 1947, Gulf Oil Corp. v. Gilbert5 claimed that the courts had inherent power under Article III to dismiss properly filed actions if necessary to protect defendants and courts from abusive tactics by plaintiffs.6 In Gulf Oil, both personal jurisdiction and venue were undoubtedly proper in the district where the plaintiff filed the diversity action.7 And while admonishing courts that a "plaintiff's choice of forum should rarely be disturbed,"8 Gulf Oil asserted for the judiciary the inherent authority to "decline jurisdiction in exceptional circumstances"9-instances in which plaintiffs "seek not simply justice but perhaps justice blended with some harassment."10 Gulf Oil set forth a laundry list of private and public interest factors to be considered Page 1149 in the "rare case"11 and left such decisions to the "sound discretion" of the trial court.12

In dissent, Justice Black objected strenuously that the Supreme Court had no power to decline congressionally conferred jurisdiction in a case at common law.13 As if viewing the twenty-first century through a crystal ball, he predicted:

The Court's new rule will thus clutter the very threshold of the federal courts with a preliminary trial of fact concerning the relative convenience of forums. . . . The broad and indefinite discretion left to federal courts to decide the question of convenience from the welter of factors which are relevant to such a judgment, will inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of the proper forum will become difficult, if not impossible.14

In closing, Justice Black wrote: "[w]hether the doctrine of forum non conveniens is good or bad, I should wait for Congress to adopt it."15

Only months after the Gulf Oil decision, Congress responded to the forum non conveniens dilemma by authorizing inter-district transfers under 28 U.S.C. ß 1404.16 Section 1404 puts to rest the domestic forum non conveniens problem raised in Gulf Oil. The federal forum non conveniens doctrine now comes into play only in transnational cases where the alternative forum is foreign.17 The 1981 decision in Piper Aircraft Co. v. Reyno,18 therefore, was of particular importance. By a four-to-three vote, the Piper Court distinguished between the deference due to a domestic plaintiff's choice of forum and that required when the plaintiff is foreign.19According to Piper, a foreign plaintiff's choice of forum "deserves less Page 1150 deference."20 Justice Marshall explained: "[w]hen the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable."21

The post-Piper forum non conveniens regime has received scant praise in the academic literature.22 As currently styled, the doctrine rewards forum shopping, specifically reverse forum shopping by defendants.23 The antics of the Brown & Yellow Taxicab Company of Erie fame24 are positively amateurish when compared to the sophisticated forum non conveniens practice of American corporate defendants in transnational disputes. Moreover, forum non conveniens dismissal standards have become steadily less predictable over the years. Uncertainty breeds litigation. Since Piper, courts and litigants have jumped on the forum non conveniens bandwagon. Although the Ninth Circuit recently admonished lower courts that "less deference is not the same thing as no deference,"25 it is not at all clear what the forum non conveniens standard is. What is clear is that virtually no case involving a transnational event is immune from a forum non conveniens Page 1151 battle. In the decade following Gulf Oil, the federal courts delivered approximately twenty-nine forum non conveniens opinions;26 almost twice that many decisions were reported in 2003 alone.27

The contours of the "inherent power" upon which the forum non conveniens dismissal authority is premised are similarly murky.28 For centuries, the judiciary has spoken of an "inherent power" that emanates from Article III.29 The Court has relied on this implied authority in a variety of situations to sanction misbehavior in and out of the courtroom,30 to manage litigation and control dockets,31 and to supervise federal criminal litigation.32 Page 1152

Although there exists a core judicial (or adjudicatory33) power immune from congressional regulation, the Court has long acknowledged that much of its inherent authority is subject to partial or complete legislative control.34Forum non conveniens resides near the outer edge of the inherent power, within the territory over which Congress retains plenary authority. The problem lies in determining when Congress has regulated this outermost province with sufficient conviction to preclude judicial occupation. Congress may change course, revise statutes, or reserve greater authority to itself in the area; or the inherent power doctrine itself may develop in a manner inconsistent with congressional regulatory goals. A judicial inherent power innovation, though constitutional at inception, may find itself in a constitutional no-man's land with the passage of time.

In the forum non conveniens context, the inherent power landscape has undergone a transformation since Gulf Oil and Piper. Revisions of the general venue statutes now explicitly provide for the routine transnational case,35 myriad federal enactments seek to regulate extraterritorial conduct,36and the Court and Congress have come to different understandings of their respective spheres under the Rules Enabling and Rules of Decision Acts.37Federal forum non conveniens jurisprudence forms a "crazy quilt"38 of arbitrary and inconsistent decisions. And the exponential growth of the global economy has altered irrevocably the very nature of litigation in the United States courts.39

This Article takes the position that the Court must abandon the forum non conveniens doctrine as an unconstitutional usurpation of congressional power. Supreme Court precedents stress that the inherent authority should be used only in cases of strict necessity and under strict control.40 When Page 1153 Congress has provided venue and jurisdiction, or more particularly the rules of decision in a case, necessity, in all but the most unusual situation, is difficult to infer. In terms of control, the arbitrary nature of the current approach smacks of lawlessness. And like its cousin, the general common law of Swift v. Tyson,41 "[e]xperience in applying the doctrine . . . ha[s] revealed its defects, political and social; and the benefits expected to flow from the rule [have] not accrue[d]."42 A "housekeeping rule" that generates litigation and widespread forum shopping deserves no such designation. The time has come to put the federal house in order.

Part I of this Article discusses the development of the forum non conveniens doctrine in the Supreme Court and the prevailing pandemonium in the lower federal courts. Part II explores the limits of the federal judiciary's inherent power. This section argues that the Supreme Court's approach, which assumes that Congress legislates against a backdrop of inherent power lawmaking, has no place in the outer reaches of the inherent authority where the forum non conveniens doctrine lies. As the judiciary moves toward the periphery of its inherent power, the Court, rather than Congress, should shoulder the burden of insuring that inherent power innovation conflicts neither directly nor indirectly with congressional policy goals. Part III exposes the friction-producing aspects of the forum non conveniens regime by examining the conflicts between the prevailing doctrine and each of the following: the federal venue and transfer scheme, jurisdiction to prescribe theory, the Rules Enabling Act, and the Rules of Decision Act. Part IV concludes that the Court's forum non conveniens regime encroaches directly upon congressional territory and is therefore unconstitutional.

I Forum Non Conveniens In The Federal Courts


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