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12/19/2012

FRCP 55(d) and the case-or-controversy requirement
Chris Green (Guest Blogging)

Mike Ramsey argues that if the executive branch refuses to defend a law, there is no justiciable controversy, and the court should simply award the plaintiff her relief without inquiring into the merits of her claim. But that seems to be contrary to the rule in Federal Rule of Civil Procedure 55(d): "A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court."  

That requires the court to inquire into the merits of a claim against the federal government, even when both the plaintiff and defendant agree about the matter.  BLAG's arguments in Windsor are merely helping the court discharge this obligation.  28 USC 1608(e), part of the Foreign Soverign Immunities Act, has a similar rule for default judgments against foreign states.

It is of course possible that FRCP 55 and FSIA violate the original meaning of "judicial power" in Article III.  However, the historical pedigree of the rule suggests otherwise.  The rule for default judgments against the United States has been in place since the adoption of the Tucker Act in 1887.  Section 6 of the original act required, "[S]hould the district attorney neglect or refuse to file the plea, answer, demurrer, or defense, as required, the plaintiff may proceed with the case under such rules as the court may adopt in the premises; but the plaintiff shall not have judgment or decree for his claim, or any part thereof, unless he shall establish the same by proof satisfactory to the court."  See 24 Stat. 505, 506.

Historically, courts have sometimes awarded default judgments without inquiring into the merits at all and sometimes performed a FRCP55(d)-style inquiry.  Thomson v. Wooster, 114 U.S. 104, 110-11 (1885), gives a good bit of the history. Williams v. Corwin, Hopk. Ch. 471, 477 (N.Y. 1824), established this rule: "When the allegations of a bill are distinct and positive, and the bill is confessed, such allegations are taken as true, without proof. Where the allegations of a bill are indefinite, or the demand of the complainant, is in its nature uncertain, the certainty requisite to a proper decree, must be afforded by proofs."  Williams relied on Sheehy v. Mandeville, 11 U.S. 208, 218 (1812), in which the Supreme Court noted the prevailing rule required a plaintiff suing on a note to produce the note, even in the case of a default.  

How to reconcile these traditional procedures with standing doctrine is not perfectly clear, in part because, as Mike Rappaport notes, the historical foundation for standing doctrine is itself not perfectly clear.  But the no-controversy-without-a-defense position has some historical problems.