Fed Courts Outline

Federal Courts—Professor StruveSpring 2002

FEDERAL COURTS

I. Background—Development of the Federal System

Art. III § 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Art. III § 2:The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under the Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Art. VI: … The Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

A. Federalists believed that a strong national government was necessary to solve the problems that arose under the Articles of Confederation. Part of this national government was the idea of a federal judiciary—although decisions about the judiciary were ancillary to decisions about other federal powers.

B. Why have a federal judiciary?1. Concern that state courts would not administer federal law2. Desire for uniform interpretation of federal law3. Need to protect individual liberties4. Need to solve conflicts between states

C. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”1. This structure came about as a result of the Madisonian Compromise.2. Delegates had agreed to the establishment of one supreme court but were mixed on the question

of inferior federal courts. Rutledge argued they were not necessary, as cases could be heard in state tribunals, and on appeal, in the S.Ct. Madison argued that “unless inferior federal tribunals were dispersed throughout the Republic with final jurisdiction in many cases, appeals would be multiplied to a most oppressive degree.”

3. After Rutledge’s proposal to strike “inferior tribunals” from the article, Madison moved a compromise resolution, which provided that the National Legislature should be empowered to institute inferior tribunals. Madison believed there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.

D. Independence of the Federal Judiciary1. Relates to the discussion of parity between federal and state courts.2. Art. III § 1: Life tenure and salary protection

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3. Power is judicial only—delegates rejected a suggestions that judges should sit with the executive on a committee to determine the constitutionality of laws.

E. Types of Jurisdiction1. Four broad categories

a. Enforcing federal authorityb. Relating to foreign affairsc. Providing interstate umpired. Provide impartial tribunal when state court might be biased

2. Three types of federal question jurisdictiona. Federal statute gives a right of actionb. Federal statute implies a right of actionc. Federal law forms an element of analysis as to state law

3. Original vs. appellate jurisdiction: appellate jurisdiction as to law and fact was an issue during the ratification debates. Courts nonetheless were given this power.

F. Basic themes of these issues (and the course)1. Separation of powers—what should be the role of federal courts in relation to other branches of

government. Comes up in debates over Congressional regulation of the courts, abstention, justiciability, and federal common law.

2. Federalism—what should be the relationship of the federal courts to state courts. Here, the debate over parity becomes central. Comes up in debates over SCT review of state court decisions, federal HC review.

II. The Nature of the Federal Judicial Function

A. Judicial Review1. Marbury v. Madison (1803)

a. Context: In 1801, the outgoing Adams administration created 42 five-year Justice of the Peace offices in D.C as a patronage move. This came after Congress had passed the “Midnight Judges” act creating 16 new circuit court positions. Congress quickly confirms the appointments to all these courts (positions are filled mostly by Federalists), but the executive is unable to deliver some of the commissions to the newly-appointed Justices before Adams’ term of office expires. When Jefferson takes office, he directs Madison (Sec. of State) to stop delivery of the commissions, and the next year, Congress repeals the law creating the new circuit court judgeships. The repeal and the prohibition on delivering the commissions were among the moves that the new Republican Congress and Executive took to asserts its power vis-à-vis the federal courts.

b. Issues presented(1) Whether Marbury had a vested legal right to his commission as a Justice of the Peace.

Yes(2) Whether the laws of the US afforded him a remedy.(3) Whether he was entitled to the remedy he was seeking.

c. Existence of a Remedy?(1) If the laws furnish no remedy for the violation of a vested legal right, then the

government of the US is not really one of laws.(2) The important question of whether the legality of an act of the head of a department is

examinable in a court of justice or not, must always depend on the nature of that act: Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of a President, or rather to act in case in which the executive possesses a constitutional or legal discretion, those acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the

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performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

(3) This case is not a discretionary action and is therefore justiciable.d. Entitled to the Remedy?

(1) Depends on the nature of the writ and the power of the court.(2) A writ is a command that an executive officer or court take a particular action, and is

available only if a party has no other remedy. Whether a court can tell the executive branch to do something depends on the nature of the action is has taken and would take in response. If it is justiciable, then mandamus is appropriate.

(3) The power of the SCT to issue such a writ depends on its grants of authority. Two sources:(a) Constitutional(b) Statutory--§ 13 of the Judiciary act. Under the Act, the Court can issue the writ.

(4) But, does the act provide a jurisdiction that conflicts with Art. III? The statute authorizes the ordering of a writ, and Marbury has asked the SCT to issue the writ as part of its original jurisdiction. But, the constitution defines the SCT’s original jurisdiction, and it does not include the ordering of writs to government officials. Art. III is a ceiling on jurisdiction, above which Congress cannot confer jurisdiction. Any other reading of Art. III would render its 2d sentence surplusage, and that cannot be allowed. Therefore, the SCT does not have jurisdiction to issue writs under original jurisdiction.

e. Does SCT have power to issue a write when that jurisdiction is conferred by an unconstitutional statute? Brings up question of judicial review

2. Judicial Review and its justificationsa. US has a written constitution. This means courts cannot enforce laws that violate it.

Otherwise, what good is it? [There is an argument that the Constitution could be no more than a guide for legislators—judicial review does not need to come part-and-parcel with a written constitution.]

b. Judicial review comes from court’s power to decide cases and controversies; if a case presents a question of enforcement under a statute, courts must evaluate whether the statute can be enforced.[Could Marbury be read to stand for something more? Here, the court decided much more than just the question in front of it, and definitely did not seek to avoid the constitutional question, even though it was never raised. Marbury seems to be the first “public rights” case.]

c. Art. III affords judicial power to all cases arising under the constitution. Necessarily, this means court should address any constitutional question in the cases before it.

Marshall believes this grant gives the courts the final word on what the constitution means.

d. Supremacy Clause—enforcing the Constitution as the Supreme Law of the Land requires the court to check whether statutes also sought to be enforced conform with constitutional requirements.

3. Public Rights Model of Litigationa. Describes the function of courts as something other than an incident of the power to resolve

particular, ongoing disputes between identified litigants (private rights model).b. Three aspects:

(1) Questions the importance of requiring that the plaintiff have a personal stake in the outcome of a lawsuit.

(2) Argues that the judiciary should not be viewed as a mere settler of disputes, but rather as an institution with a distinctive capacity to declare and explicate public values.

(3) Defends the exercise by courts of broad remedial powers in cases challenging the operating of public institutions.

c. Support:

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(1) Marbury , and Marshall’s repeated emphasis that a written constitution imposes limits on every organ of the state—welds judicial review to the political axiom of limited government.

(2) The increase in governmental regulation has created diffuse rights shared by large groups and new legal relationships that are hard to capture in traditional, private law terms.

(3) Substantial expansion of constitutional rights, especially under the Warren Court.(4) Increasingly pervasive conception of constitutional rights not as shields against

governmental coercion, but as swords authorizing the award of affirmative relief to redress injury to constitutionally protected interests.

B. Advisory Opinions1. The prohibition against advisory opinions have been termed the oldest and most consistent thread

in the federal law of justiciability2. Correspondence of the Justices : The lines of separation drawn by the Constitution between the

three departments of government—their being in certain respects checks upon each other—and our being judges of a court in the law resort—are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.

3. The prohibition against advisory opinions rests mostly on policies implicit in Article III.4. When does an advisory opinion happen?

a. Any judgment subject to review by a coequal branch of governmentb. Advice to a coequal branch of government prior to the other branch’s contemplated actionc. SCT review of any state judgment for which there is or may be an adequate and independent

state groundd. Any opinion, or portion thereof, not truly necessary to the disposition of the case at bar

(dicta)e. Any decision on the merits of a case that is moot or unripe or in which one of the parties

lacks standing (a)&(b)—constitutional. (c)(d)&(e)—function of judicial discretion

5. Declaratory Judgments (exception to prohibition on advisory opinions): a. Act of 1934 authorizes the federal courts to issue declaratory judgments establishing the

rights and legal relations of any interested party seeking such declaration in a case of actual controversy.

b. Essential question when approaching this doctrine is whether the situation presents an actual controversy or case. Case must be concrete and not hypothetical.

c. Purpose of the DJ Act was to prevent parties from accumulating damages; if rights are determined earlier, it minimizes the social welfare lost in the controversy.

d. Calderon v. Ashmus (1998): suit seeking a determination of whether prisons in California had 180 days or 1 year to file HC petitions was not a case or controversy under Article III to allow for a declaratory judgement to be rendered. The actual concrete controversy was whether the prisoner was entitled to HC relief, but he had not presented that question—he had tried to carve out a collateral legal issue. For a DJ to be justiciable, it must seek a ruling capable of resolving the entire, underlying case.

6. Advisory opinions may be available in state court

C. Finality Requirement1. Federal court judicial power only extends to cases that can be determined with finality—cases

that can receive final determinations on legal questions.2. Final means the case cannot be revisited by other branches of government.3. Hayburn’s Case (1792)

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a. Invalid Pensions Act of 1792 made courts an integral part of the process of review pension petitions; their determinations would then be passed on to the War Dept., and Secretary of War could withhold the award of a pension.

b. Case decided on grounds unrelated to finality AG could not bring case ex officio(1) AG had no personal stake in the outcome of the case; could not just bring suit on behalf

of an underprivileged class.(2) Contrast to Sprangler: Gov’t status as an intervenor in the case was authorized by statute;

thus, it had a sufficient stake to keep the case alive once the putative plaintiffs graduated.c. But issue was addressed by some of the courts hearing the case.d. Themes:

(1) Judicial independence: If decisions are subject to revision by executive branch members, than the decisions are no more than advisory opinions on behalf of the executive.

(2) “Properly judicial” functions: Legislative and exec branches cannot assign to Judicial branch that which is not properly judicial. Because these court decisions are subject to consideration of the Secretary and revision of the legislature, the functions outlined in the act are not properly judicial. Allowing such revision is inconsistent with the judicial power bested in courts and outlined in the Constitution. [SOP args]

judges do not have to completely refuse to hear the case, but they cannot do so as judges—must do so in their individual capacity as commissioners.

e. Why were the functions non-judicial?(1) Parties were not adverse(2) Government cannot sue itself (But see U.S. v. Nixon (holding that the “mere assertion of

a claim of an ‘intro-branch dispute’ without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry”) must look at whether parties in actuality are adverse.

(3) Decisions were subject to executive revision(4) Decisions were subject to any type of revision. Allowing final judgments to be revised by

Congress violates the grant of judicial power in the Constitution. Just as the Court cannot decide controversies that are not final, Congress cannot overturn final decisions of courts. Plaut v. Spendthrift Farm (1995): federal statute directing federal courts to reopen final judgments in private lawsuits violated Art. III and the separation of power. In enacting the statute, Congress had trenched on judicial power. The framers wished to insulate final judicial judgments from legislative revision.

f. If functions are non-judicial but are carried out by courts anyway, Art. III courts cannot take review of them.

4. How final does the decision have to be?a. Tutun v. U.S. (1926): Circuit courts have jurisdiction to review DC orders regarding

immigration petitions. Whether a proceeding is a case or controversy depends on the nature of the proceeding. Because this is clearly a case when it is in front of the DC, even though the decision may not have preclusive effect, it satisfies the requirements of being a case. See also Patent cases, where there are due process reasons for the decisions to not be preclusive, but the adjudication is still a judicial function.

b. U.S. v. Jones (1886): SCT can review decisions of the U.S. Court of Claims. Court’s decisions are properly judicial given that the determinations are not subject to review by the executive branch. Even though there is no guaranteed that the money will actually be paid by the government, the adjudication of the claim is still judicial. There is never a guarantee that a judgment will be paid, but the decision still stands. As long as the decision cannot be overturned, even if it cannot be effectuated, it is still a judicial decision.

D. Standing1. Article III basis for standing doctrine

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a. Case or Controversy Limitation—textualb. Emphasis on SOP—limited role of courts in a democratic society; standing rules limit a court

to its proper role vis-à-vis the other branches BUT, the broader the doctrine, the smaller the court’s jurisdiction; therefore, judicial branch becomes too small in comparison to the others.

2. Requirements for standinga. Constitutional:

(1) Injury (must be imminent)(2) Causation: did defendant’s conduct cause the injury?(3) Redressability: will the court’s decision towards the defendant take away the injury?

b. Prudential:(1) Cannot assert rights on behalf of third party(2) Zone of interests

3. Party asserting standing (usually P) has burden of proving standing requirements.4. Allen v. Wright (1984)

a. Facts: Plaintiffs are parents of black children who were attending public schools. They challenge the IRS rules under which school are given tax-exempt status. They argue that racially discriminatory private schools are still receiving tax-exempt status because the rules do not sufficiently determine whether a school is in fact non-discriminatory.

b. Relief sought: DJ; injunction ordering better enforcement; order for more effective guidelinesc. Held: Plaintiffs do not have standing to bring the action because they can show no actual

injury. Their children did not try to get into the schools and were rejected, thereby suffering a stigmatic injury. And the claim that there is a lower quality of education in public schools because they are not properly integrated is not fairly traceable to the IRS actions.

d. Analysis:(1) Injury

(a) Stigmatic—court finds this to be a generalized grievance that anyone in the country could have asserted. The plaintiff’s only injury is that they recognize that the government is not following the law. In order to have a specific grievance under this theory, plaintiffs would have had to apply to the discriminatory public schools and be turned down.

(b) Inability to attend an integrated public school—while this would have been sufficient injury to confer standing, the chain of causation is too attenuated.

(2) Causation—link between IRS rules and the segregated schools is too attenuated to be a cause.

e. Dissent: basic economic theory show’s the plaintiff’s causation theory works out.f. Struve complaints with this case: Standing inquiry happened too early. If court had allowed

plaintiffs to introduce evidence on the question of class certification, there might have been a stronger argument for standing. The court’s real problem in this case seems to be the weak argument for certification, not the weak argument for standing.

g. Contrast Allen to Norwood: Latter plaintiffs were not kicked out on standing. Court distinguishes Allen on theory that these plaintiffs were not already part of a desegregation order. Thus, there do not have a standing argument based on previous legal ties to the case.

5. Lujan v. Defenders of Wildlife (1992)a. Held: DOW does not have standing to bring suit against Dept. of Interior for possible

extinction in Egypt and Sri Lanka. Although two members filed affidavits asserting they would be injured by missing out on seeing animals in those two countries, they have no intention of visiting them anytime soon and cannot rely on their past visits for the source of the injury.

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b. Relief sought: DJ that agencies are incorrect that section in question does not apply in foreign countries; injunction requiring Secretary promulgate regulations indicating international application.

c. Analysis: (1) Injury is too speculative. Just because certain group members have previously visited the

animals does not mean they will do so in the future. Therefore, it does not mean they will likely suffer from the possible loss of the animals. Must show that they are imminently going to return to these habitats.

(2) Redressability: Even if the court orders the relief requested, the agency does not have to abide by it. There is a question as to whether the Secretary’s interpretation of the law will be applicable to other agencies.

6. Congress’ ability to confer standinga. A Congressional grant of standing does not overcome requirement that a party assert a

specific and individualized grievance.b. Would make sense if this requirement came from Art. III, but Court has not said that.c. This doctrine weighs against the “public rights” theory of litigation—Court has required that

if Congress wants to confer standing, that it must identify the injury and the class of persons suffering from it. The requirement that citizen suit provisions be specific indicates the Court is not viewing these suits from a public rights mindset.

d. Illustration: FEC v. Atkins (finding standing requirements satisfied in context of statute where Congress has created right to information

e. If Court lets Congress have absolute power to confer standing, then the balance of powers is shifted. Congress might use it to confer on the Courts power to oversee Executive branch on issues that are no more than generalized grievances.

E. Mootness and Ripeness1. Mootness

a. The inability of the federal judiciary to review moot cases derives from the requirement of Art. III under which the exercise of judicial power depends upon the existence of a case or controversy.

b. Question of mootness is a federal one.c. If the controversy between the parties has ceased to be definite and concrete and no longer

touches the legal relations of parties having adverse legal interests, the case is moot.d. DeFunis v. Odegaard (1974)

(1) Facts: individual suit against UW claiming that admission policies were discriminatory—seeking admission as a remedy. P was admitted pending appeal of a decision in his favor. At time SCT case he had reached his 3d year and regardless of the decision of the court on the merits of the admission policy, P would be allowed to graduate.

(2) Held: the controversy between P and UW was moot because there was no way P would be taken out of the school—he got what he wanted by reaching his 3d year of school.

e. Exceptions to Mootness doctrine(1) Voluntary Cessation: an action seeking prospective relief does not become moot merely

because the conduct ended if there is a possibility of recurrence. See Erie v. Pap’s AM (holding case still alive even though club had ceased operation; if case were held to be moot just because P went out of business, the city would have lost its opportunity to appeal, and that’s just not fair). Test is whether there is no reasonable expectation that the wrong will be repeated. If D will be allowed to return to his old ways, then the case is not moot.

(2) “Capable of Repetition Yet Evading Review:” prime example is cases brought by pregnant women seeking changes in policies. Because pregnancy only lasts 9 months, and the case could last longer than that, a doctrine that held the case to be moot one P

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delivered would never allow the legal challenge to be fully heard. As long as there is a chance the case will return to the court and be fully adjudicated by a different plaintiff, then it is not unable to be review.

f. When should the court conduct this analysis? A case or controversy clearly existed when DeFunis filed his case—sufficient to satisfy Art. III requirements. Given that an adversarial process has already occurred (which is the idea), there is no need to throw out the case now and leave those other opinions out there.

g. Contrast to standing analysis: Friends of the Earth: just because P’s injury can no longer be redressed does not make the case moot. There, because the parties are still adverse and because D may have to pay fines, case is still alive.

h. Incentives: mootness looks to whether it would be wasteful to actually decide the case, recognizing that there has already been an outlay of sunk costs. Standing analysis looks at whether there is no reason to waste scarce judicial resources to hear the case in the first place.

i. Cardinal Chemical : just because legal question is determined on one theory does not make counterclaims moot—higher court can always reverse on that first question, and then be unable to render a decision on the second question because it was dismissed.

2. Ripenessa. Plaintiffs must allege some threatened or actual injury resulting from the putatively illegal

action before a federal court may assume jurisdiction. Comes from Art. III case/controversy requirement.

b. O’Shea v. Littleton (1974): (1) Case was not ripe because plaintiffs had not suffered from any injury in the past, were not

suffering from continuing injury, and only had potential for future injury if they violated the law, and were put in front of the evil judges.

(2) But this determination had to be made based on the court’s understanding of the P’s theories and desired relief. Because it would thrown out on ripeness before they were able to make sufficient evidentiary submissions on injury, the court predetermined its own holding.

(3) Also seems to conflate ripeness analysis with injunctive relief requirements:(a) Irreparable harm(b) Inadequate remedy at law

c. Lyons (1983): just because the damages claim is ripe does not mean the claim for injunctive relief is ripe. If order to get an injunction, P must show he may suffer from these actions again. Because that analysis is so speculative, court holds he cannot bring the case.

F. Political Questions1. A controversy is nonjusticiable (involves a political question) where there is:

a. A textually demonstrable constitutional commitment of the issue to a coordinate political department, or,

b. A lack of judicially discoverable and manageable standards for resolving it.2. See Baker v. Carr. Other factors to consider:

a. Needs an initial policy determination from another branchb. Runs risk of expressing a lack of respect for other branchesc. Involves unusual need for an unquestioning adherence to a political decision already maded. Exists potential for embarrassment because of multiple pronouncements from different

branches3. Political question doctrine exists to support the system of checks and balances. If the judicial

branch could take review of legislative functions, it would interfere the scope of legislative power. a. Especially in the context of impeachments, where those procedures provide the legislatures

only check on the JUDICIARY.

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b. This doctrine seems to put a limit on Marbury; there seem to exist parts of the constitution that the court should not look into should not address the constitutionality of actions of other branches if those actions are too close are essential to the functioning of the system.

c. Political question doctrine provides a partial answer to the question of how Art. III actions relate to Art. I and Art. II actions.

4. Nixon v. US (1993)a. Facts: P alleged that his impeachment under a Rule adopted by Congress violated Art. I § 3

(impeachment are supposed to be in Senate).b. Held: Not a justiciable case—political question.

5. “Textually demonstrable commitment:” In Nixon, the Court found that the Constitution gave the Senate the sole power to try impeachments—this shows that such procedures are not a function of the judicial branch. “If the courts may review the actions of the Senate in order to determine whether that body tried na impeached official, it is difficult to see how the Senate would be functioning independently and without assistance or interference.”

6. “Judicially-discoverable standards:” In Nixon, the Court found that the lack of finality and the difficulty of fashioning relief counsel against justiciability.

7. Other political questions: Guarantee clause questions.

III. Congressional Control of the Distribution of Judicial Power

A. Congressional Regulation1. Sources of Congressional Power over Federal Courts

a. Art. III § 2 cl. 3: specifies that the appellate jurisdiction of the SCT “shall be subject to such Exceptions as the Congress shall make.”

b. Art. III § 1: provides for the vesting of federal judicial power in “one SCT and in such inferior Courts as the Congress may from time to time ordain and establish.”

2. Sheldon v. Sill (1850):a. Facts: § 11 of Judiciary Act restrains Circuit Courts from taking cognizance of any suit to

recover the contents of any promissory note or other chose in action … if no assignment had been made.

b. Issue: Whether Congress has power to enact § 11—to limit jurisdiction of federal courts—when the Constitution would otherwise allow the Court to hear this case.

c. Held: Congress has the authority to define the bounds of jurisdiction, and can therefore narrow it. The Constitution defines the outer limits, but does not require that federal courts have jurisdiction up to these bounds. “The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the Circuit Court; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.”

3. Ex Parte McCardle (1869): Statute taking away federal habeas corpus for state prisoners is constitutional. Congress clearly limited the Court’s jurisdiction and will not allow it to hear this type of case. Acts of Congress are generally affirmative acts granting jurisdiction; the necessary corollary is the negation of the exercise of appellate power if not granted by the statute.

4. Debates over the Power of Congress to Limit the Jurisdiction of the Federal Courtsa. Congressional Power to Exclude Cases from the Lower Federal Courts

(1) Does the holding in Sheldon v. Sill have to be right given that the exclusion clause in Article III was put in as part of the Madisonian Compromise?

(2) Lower federal courts have never had the full extent of jurisdiction the Constitution might allow them to have:(a) Grant of federal question jurisdiction is rather recent(b) Amount in controversy requirement(c) Well-pleaded complaint rule

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(d) Strict requirements of diversity(3) Justice Story’s Argument

(a) Congress is obligated to vest all of the judicial power either in an original or appellate form in some federal court

(b) If any cases described in Article III are beyond the jurisdiction of the state courts, and thus non capable of review on appeal from a state court to the SCT, Congress would be obligated to create inferior federal courts in order that these cases might be entertained in some federal court.

(c) Argument is limited to the first three categories of cases described in Article III—to those in which the Framers used the adjective “all.”

(4) Contemporary supporters of Story:(a) Clinton: Congress must allocate to the federal judiciary as a whole each and every

type of case or controversy within the scope of Article III excluding possibly only those cases that Congress deemed to be so trivial that they would pose an unnecessary burden.

(b) Redish & Woods: Constitution precludes state courts from exercising jurisdiction in at least some cases in which the Constitution also requires that a court be available to rule on claims of legal right.

(5) Internal and External Restraints—EP and 5A DP.(a) Sheldon : no Art. III constraints on Congress’ power to limit lower federal court

jurisdiction.(b) Tribe: to single out cases involving a particular category of constitutional claims for

exclusion from the federal courts imposes an impermissible burden on the underlying constitutional right being asserted in those cases.

(6) Norris-LaGuardia Act: restricted the authority of federal courts to issue injunctions in labor disputes; provided “yellow-dog” contracts would not be enforceable in federal courts.(a) SCT had previously found a due process right to condition employment on an

undertaking not to join a labor union.(b) Lauf v. E.G. Shinner (1938): rejected suggestion that the Act’s restrictions on federal

injunctions violated the Constitution. “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the US.”

(c) But , isn’t this just giving Congress the power to redraw jurisdictional lines in part because it dislikes certain federal court decisions?

b. Congressional Power over the SCT’s Appellate Jurisdiction(1) Congress’ power to limit the SCT’s appellate jurisdiction is presumably subject to he

same external restraints from constitutional provisions other than Art. III, such as the DP clause, as is the power to define the lower courts’ jurisdiction.

(2) Any Art. III limitations on Congress’ authority to create exceptions?(a) If there were no limitations, presumably the exceptions could swallow the rule, and

there would be no jurisdiction.(b) Hart: The measure of necessary reservation is that the exceptions must not be such as

will destroy the essential role of the SCT in the constitutional plan.(c) Ratner: exceptions to the Court’s appellate jurisdiction must not negate the Court’s

essential constitutional functions of maintaining the uniformity and supremacy of federal law. Legislation that precludes SCT review in every case involving a particular subject is an unconstitutional encroachment.

(d) BUT, see Wechsler: I see no basis for this view and think it antithetical to the plan of the Constitution for the Courts—which was quite simply that the Congress would decide from time to time how far the federal judicial institution should be used within the limits of the federal judicial power, or, how far judicial jurisdiction should be left

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to the state courts, bound as they are by the Constitution as the supreme Law of the Land. Federal courts do not pass on constitutional questions because there is a special function bested in them to enforce the Constitution or police the other agencies of the government. They do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction and in doing so must give effect to the supreme law of the land.

(3) US v. Klein (1871): Court held statute requiring dismissal for want of jurisdiction any pending claims based on post-Civil War pardons to be unconstitutional.(a) Statute did not limit jurisdiction to all of these types of case, but merely adopted a

rule of decision in causes pending. This is not an exercise of Congress’ exception power. Implies that the invocation of the language of jurisdiction is not a tailsman. See also Plaut. But see Robertson v. Seattle Audobon Society (finding that Congress did not instruct a court in how to apply pre-existing legal standards to a pending case, but rather amended the statute, which is permissible). Decisions in Klein and Plaut seem to be motivated by SOP concerns.

(b) Rule of decision in question impaired the effect of a presidential pardon and thus infringed the constitutional power of the Executive.

(c) Jurisdiction-stripping legislation enacted as a means to an end that is itself constitutionally impermissible is not an exercise of the acknowledged power of Congress to make exceptions and prescriptive regulations to the appellate power.

c. Congressional Power to Withdraw All Federal Jurisdiction(1) Question: Would simultaneous restrictions on lower federal court and SCT appellate

jurisdiction in the came class or cases raise distinctive issues under Art. III?(2) Theoretically, no, given the Judiciary Act of 1789 and its limitations on the federal

judiciary.(3) Sager: the Constitution requires either original or appellate federal jurisdiction of

constitutional claims. These are the cases in which, in light of the history and logic of the Constitution, there is the largest constitutional interest in adjudication by as judge with the safeguards from political influence established by Art. II.

(4) Amar: picks up Story argument of two-tiered requirements of jurisdiction. Selective use of the word “all” in Art. III § 2 indicates that it require the vesting of either original or appellate federal jurisdiction in three of the categories of cases listed. The text of Art. III establishes two tiers of federal jurisdiction in which federal jurisdiction is mandatory in three categories, and discretionary in the other six categories. This analysis leaves a role for congressional discretion, as contemplated by the Madisonian Compromise, and accords significance to Congress’ power to create exceptions to SCT’s appellate jurisdiction.

(5) Santa Clara Pueblo v. Martinez (1978): federal courts possess no jurisdiction over suits to enforce the federal Indian Civil Rights Act; although suits arise under federal law, enforcement actions can be filed only in tribal courts and there is no possibility of SCT review. Apparently, it does not matter that the purpose of ICRA is to “protect individual Indians from arbitrary and unjust actions of tribal governments.

d. Congressional Preclusion of Both State and Federal Jurisdiction(1) Example: Portal-to-Portal Act, eliminating claims under the FLSA.

(a) Sections 2(a) and (b) wiped out the retroactive liabilities of ERs; “no ER shall be subject to any liability or punishment” under the FLSA for failure to compensate the work at issue.

(b) Section 2(d) said no court (State, terrirorial or federal) shall have jurisdiction of nay action or proceeding that sought to enforce any liability or impose any punishment WRT activities that were deemed not compensible under §§ (a) and (b).

(c) Claim that the Act destroyed vested rights in violation of 5A was rejected.

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(d) But courts held the question open to decision, despite § 2(d). See Battaglia (“The exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of 5A. … it must not so exercise that power as to deprive any person of life, liberty, or property without due process. … Regardless of whether (d) had an independent end in itself, if one of its effects would be to deprive the appellants of property without due process or just compensation, it would be invalid.”).

(2) Battaglia principle: Under what circumstances might a withdrawal of jurisdiction from state and federal courts alike violate the fifth amendment.?(a) Webster v. Doe (1988): Congress had not manifested its intent to preclude review of

constitutional challenges with sufficient clarity for the statute to be construed as precluding such review. There is an interest in avoiding the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.

(b) Court has strained to construe statutes to permit judicial review of constitutional questions, even when they clearly prohibit judicial review of other questions. Court has done this even though it has never held there is a constitutional right of access to a judicial forum in every case involving a constitutional claim.

(c) Isn’t the question of whether one has a constitutional right to judicial review bound up with the question of whether one has a constitutional right to a remedy? Because there are so many immunity doctrines out there, there are circumstances in which the law provides no effective remedy for a violation of someone’s constitutional rights.

(3) Hart discusses this problem and how the SCT has ducked it, and finds that sovereign immunity does not provide the strongest counter-argument to Battaglia. First, the existence of sovereign immunity does not close off all potential remedies for violations. Second, there are market and democratic reasons why a government might waive its sovereign immunity to suit in certain circumstances.

(4) Nonetheless, the Court has found there to be a constitutional right to remedies in certain circumstances: takings, coercive collection of taxes. Has not settled the question whether the constitution mandates the availability of similar judicial protection for other rights.

(5) Hart concludes that it is a necessary postulate of constitutional government that a court must always be available to pass on claims of constitutional right to judicial process, and to provide such process if the claim is sustained.

(6) Fallon & Meltzer: The constitutional tradition reflects two remedial principles. First, the idea that there should be individually effective redress for all violations of constitutional rights is strong but not unyielding; it can sometimes be outweighed by the kinds of practical imperatives that underlie immunity doctrines. Second, the structural principle which demands a system of constitutional remedies adequate to keep government generally within the bounds of the law is more unyielding in its own terms, but can tolerate the denial of particular remedies, and sometimes of any individual redress to the victim of a constitutional violation.

(7) Struve: the denial of individual remedies would be more of a problem if it resulted in the branches no being kept in check.

e. Congressional Apportionment of Jurisdiction Among Federal Courts and Limitations on the Authority of Enforcement Courts(1) Lockerty v. Phillips (1943): Challenged Price Control Act giving exclusive jurisdiction to

hear protests to Administrator’s decisions to the Emergency Court of Appeals.(a) “All federal courts other than the SCT derive their jurisdiction wholly from the

exercise of the authority to ordain and establish inferior courts, conferred on Congress.

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(b) The Congressional power to ordain and establish inferior courts includes the power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.

(c) It is plain that Congress has power to provide that the equity jurisdiction ot restrain enforcement of the Act, or of regulations promulgated under it, be restricted to the ECA, and, upon review of its decisions, to this Court.”

(2) Yakus v. US (1944): Presented question of status of a claim of invalidity of the Price Control Act or of a regulation as a defense to a criminal prosecution, given that jurisdiction of such question was constrained to ECA.(a) Question is whether the procedure for review in the ECA affords those affected a

reasonably opportunity to be heard and present evidence.(b) Here, D can challenge the regulation; having to do it in a different court from where

he is being prosecuted is not a violation of the sixth amendment.(c) Struve: is it fair for the defendant to be deprived of this affirmative defense during his

prosecution? Doesn’t that make his case more sympathetic?(d) Rutledge dissent: if Congress wants to avail itself of Art. III courts to prosecute

violations of the Act, it cannot limit what they are allowed to hear. Here, it turns courts into a rubber stamp of the administrator’s decision. Congress has cut out the Court’s right to look at the validity of the law before sentencing someone for violating it.

(3) Falbo : in prosecution for failure to report for military service, D cannot raise argument that he was wrongly classified by the service must first exhaust administrative remedies asserting this claim before it can be brought to the court.

(4) Estep : In similar case but where D had exhausted administrative remedies, court held that D was entitled to make the defense that the local board had “acted beyond its jurisdiction.” The jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave to the registrant.(a) Hart: in this decision, the Court was saying that Congress has power under Art. I to

direct courts created under Art. III to employ the judicial power conferred by Art. III to convict a man of a crime and send him to jail without his ever having had a chance to make his defenses.

B. Federal authority and state-court jurisdiction1. Concurrent Versus Exclusive Jurisdiction

a. Federalist 82(1) Presents question of whether jurisdiction of federal courts is supposed to be exclusive or

concurrent regarding the question of those causes which are under consideration for being submitted to federal jurisdiction.

(2) Answer: state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.

(3) But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the state courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the constitution to be established.

(4) Appeals: would lie from state courts to the SCT of the US. The constitution in direct terms, gives an appellate jurisdiction to the SCT in all the enumerated cases of federal cognizance, in which it is not to have an original one; without a single expression to confine its operation to the inferior federal courts. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national

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concern, else the judiciary authority of the union may be eluded at the pleasure of every plaintiff or prosecutor.

b. Tafflin v. Levitt (1990)(1) Issue: whether state courts have concurrent jurisdiction over civil actions brought under

RICO.(2) Held: They do.(3) Analysis:

(a) Court has consistently held that state courts have inherent authority, and are thus presumptively competent to adjudicate claims arising under the laws of the U.S.

(b) This presumption can be rebutted if Congress affirmatively ousts the state courts of jurisdiction over a particular federal claim: must make an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.

(4) Legislative history: no evidence that Congress even considered the question of concurrent state court jurisdiction over RICO claims, must less any suggestion that Congress affirmatively intended to confer exclusive jurisdiction over such claims on the federal courts. Test is whether Congress in its deliberations may be said to have affirmatively or unmistakably intended jurisdiction to be exclusively federal.

(5) Incompatibility: factors include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims. If concurrent jurisdiction creates a significant danger of inconsistent application of federal criminal law, then it should not be assumed.

(6) Scalia: it takes an affirmative act of power under the Supremacy Clause to oust the states of jurisdiction—an exercise of the power of Congress to withdraw federal claims from state court jurisdiction. It is wrong in principle to assert that Congress can effect this affirmative legislative act by simply talking about it with unmistakable clarity. What is needed to oust the States of jurisdiction is Congressional action, not merely Congressional discussion.

[MORE???? GET NOTES FROM 1/25]c. Tarble’s Case (1872): State courts cannot issue writs of habeas corpus to federal officials.

(1) Facts: Tarble sought release from military; writ of habeas corpus from Wisconsin state courts.

(2) Held: State court lacked jurisdiction to issue the order—because the federal government has plenary power over regulation of the national military, allowing a state court to issue these writs might be used to the detriment of the public service.

(3) Federal and state governments are separate and distinct, and each supreme in their separate spheres. Under the federal system, these spheres are not supposed to interfere with each other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful supremacy in cases of conflict of authority.

(4) Only the federal government could give states this type of power—it is not inherent, and the states themselves cannot confer such jurisdiction.

d. What do Federalist 82 and other basic principles of federal jurisdiction have to say about specific instances questioning concurrent jurisdiction? (1) In circumstance of habeas, 82 would support arguments on both sides. If Congress did

not create lower federal courts, then writs would have to issued from state courts. Habeas is a constitutionally protected right that must be able to be enforced somewhere. [DOES THIS MEAN THAT JURISDICTION MUST BE CONCURRENT—INHERENT TO STATES? OR DOES IT MEAN THAT SINCE LOWER FEDERAL COURTS WERE CREATED, STATES DO NOT HAVE SUCH JURISDICTION?]

(2) Redish & Woods: because the rule of Tarble’s case bars a state court from providing constitutionally required review when a federal officer is the defendant, it would violate

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5A to prevent the federal courts from hearing those cases. Thus, Congress’ power to control the jurisdiction of lower federal courts must be limited by a 5A obligation to provide a federal forum to protect constitutional rights where Tarble’s Case prevents a state court from acting.

e. Extensions principles of Tarble’s Case:(1) McClung v. Silliman (1821): state court lacked jurisdiction f a suit for mandamus to

compel the register of a federal land office to make a conveyance. U.S. has denied its own courts authority to issue such a mandamus—cannot let state courts do it and keep that in place. Plus, the substantive area is one that the gov’t needs to control—the federal government must be allowed to dispose of property in its own way.

(2) Clinton v. Jones (1997): although federal court has jurisdiction to hear damages action against he President, that answer might be different if the case were brought in state court. It is possible that concerns with federalism, comity, and local bias against federal officials might make a stronger case for the application of immunity.

(3) If state courts cannot hear cases regarding writs of mandamus, they cannot hear cases bringing suit against federal officials for injunctive relief. SCT has not answered the question, but this seems right.

(4) State courts are without power to restrain federal-court proceedings in personam actions.

2. The Obligation of State Courts to Enforce Federal Lawa. Testa v. Katt (1947): state court must hear federal law claims if courts have concurrent

jurisdiction. It does not matter if the state disagrees with the law or considers such laws “foreign” to it—the plan of the constitution requires the supremacy of federal law. Under the Supremacy Clause, federal law becomes the law of the states themselves.

b. Exceptions for Valid Excuses: a state court may refuse to accept jurisdiction of federal causes of action in certain circumstances. (1) Court has said that while state courts can be forbidden to discriminate against federal

causes of action, it is an open question whether they can be more straightfowardly required to hear federal claims.

(2) Douglas : NY law can prohibit state courts from hearing actions by nonresidents against foreign corporations in certain circumstances.

(3) Southern RR v. Mayfield (1950): doctrine of forum non conveniens, if applied without discrimination to all nonresidents, constitutes a valid excuse.

(4) Howlett v. Rose (1990): if excuse if discriminatory, it is not valid. State statute cannot waive immunity to state claims and not federal claims.

(5) Felder v. Casey (1988): rule discriminated against the precise type of civil rights action that Congress had created in § 1983—thus, rule limiting jurisdiction is not valid.

(6) Alden v. Maine (1999): Congress may not require state courts to entertain suits against unconsenting states in any case in which, as a result of the eleventh amendment, Congress could not force unconsenting states to submit to suit in fed court.

c. There is no commandeering problem here—state courts and judges are different from all other state officials, and they can be required to hear federal claims.

IV. Supreme Court review of State Court decisions

A. The establishment of the jurisdiction1. § 25 of the Judiciary Act of 1978 provided that “a final judgment or decree in any suit, in the

highest court of a State … may be re-examined and reversed or affirmed in the SCT of the U.S. upon a writ of error.

2. Martin v. Hunter’s Lessee (1816) [opinion by Story]

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a. Issue: whether SCT can hear appeals from state courts.b. Starting point: Constitution was ordained and established not by the states in their sovereign

capacities but by the People of the United States. This provides a limitation on the power of the states.

c. Held: (1) Art. III gives SCT appellate jurisdiction over all cases that it does not have original

jurisdiction. There is no limitation in Art. III indicating that SCT has appellate jurisdiction only over cases in federal courts. Instead, it looks to the subject matter or the case or the parties involved. It does not preclude appellate jurisdiction over state court cases.

(2) If SCT had no appellate jurisdiction over state court decisions, then they would not be able to hear federal claims—federal judicial power extends to all cases arising under the Constitution, and the Constitution would not allow the fencing off of those federal claims that are first heard in state courts.

(3) Such a limitation on jurisdiction would also preclude collateral attack on state court convictions. How could D attack a conviction for violating ex post facto clause if SCT cannot hear appeals from state courts?

(4) If state courts continue to hear fed claims but SCT cannot review such claims, there is a great possibility for inconsistency within federal law.

(5) There is a reason federal jurisdiction is party-based—possible bias in state courts and the general comfort certain parties might feel having their cases adjudicated in by federal judges. SCT must get to hear case eventually to be able to secure a D’s right to have his federally-guaranteed rights protected.

(6) Analogizes to removal jurisdiction as a type of appellate jurisdiction—but this kicks in before state court has actually rendered a decision.

3. Provisions for SCT enforcement against state courtsa. Orders generally say “enter judgment in accordance with this opinion.”b. If the state court refuses, the prevailing party can seek a writ of cert again to enforce the

judgment; can seek a writ of mandamus to compel state court to enforce the judgment, but SCT will be unlikely to rule on the merits of the writ; SCT can execute judgment itself; can seek contempt orders against state officials not carrying out SCT orders.

4. Congress deleted “exception clause” from § 25 of judiciary act in 18675. Murdock v. City of Memphis (1875): As long as party is asserting he has been denied a right

guaranteed under federal law, the SCT has jurisdiction over the appeal.a. M. is claiming he has a right under a federal statute—this is sufficient to confer jurisdiction.b. Court draws distinction between federal questions and non-federal questions. If Court

reverses determination on federal question, it will not continue to the other questions, but will remand for the state court to do so.

c. Although Congress deleted the section of the statute limiting SCT’s review to those federal questions presented on the face of the appeal, this does not mean Congress intended SCT should decide the entire case. “In reversing the policy of the government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention must assume that Congress intended only light treading into state law determinations, given the nature of the federal system.

d. Rules:(1) A federal question upon which jurisdiction is sought to be based must have been raised

and presented to the state court.(2) The decision must have been necessary to the judgment rendered in the case.(3) The decision must have been against the right claimed or asserted by plaintiff in error

under federal law.

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B. The relation between state and federal law1. Substantive Law

a. Fox Film Corp v. Muller (1935)(1) Facts: Fox sued Muller for breach of K in state court. Muller answered, asserting the

defense that the Ks were invalid under federal law. Minn court held the arbitration Ks were not severable from the rest of the K, and that the entire K violated federal law.

(2) Respondent argued that only the question of severability was decided by the lower court, such that there is no federal question to base SCT jurisdiction upon.

(3) Rule: where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment.

(4) Held: Severability of K is not a question of federal law. The lower court had only to decide this question since the federal question (validity of the clause) was conceded. Therefore, the nonfederal ground is adequate to sustain the judgment. Also, the questions were clearly independent of each other

b. Policy reasons for Ind/Adeq doctrine(1) respect for the independent of state courts(2) avoidance of rendering advisory opinions

c. Effect of Ind/Adeq doctrine: If an ind/adeq state law ground exists, then federal court cannot take review of the case, even if the state court decided an issue of federal law in conjunction with the case. SCT has no power to fix the state court’s erroneous holding until another cases arises challenging it.

d. Four possibilities for outcomes (using Fox Film example):(1) D wins on state law ground—nonseverability. No review, because state ground is

adequate.(2) D wins on state and federal grounds—nonseverable, and K is unenforceable under federal

law. No review, because state ground is independent.(3) D wins on federal law ground—K violates federal law. Review, because no state

grounds pass upon.(4) D loses on both federal and state grounds. Review, because federal claim has been

determined by the court, just to D’s detriment.e. Michigan v. Long (1983): if state court decision fairly appears to rest primarily on federal

law, or to be interwoven with the federal law, AND when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonably explanation that the state court decided the case the way it did because it believed that federal law required it to do so.(1) to rebut this presumption of federal law reliance, state court need only to make clear by a

plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.

(2) If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we will not undertake to review the decision.

(3) Theory behind rule: more respect for state courts than demanding afterwards for an explanation of how the decision was reached.

(4) Held: state court mentioned state law only twice; therefore, relied primarily on federal law and the SCT has jurisdiction to review.

(5) Stevens dissent: SCT should imply the opposite presumption—that state court had independent and adequate state law grounds. SCT should worry itself more with cases

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where state courts are not protecting constitutional rights enough. Here, state court provided more protection than federal courts—why go so far as to overturn this?

f. Policy reasons for Plain statement rule(1) need to respect state court decisions—intrusive for federal court to require elaborate

explanations of their opinions(2) efficiency(3) state courts may not want to review already decided cases.

g. Where this becomes difficult—when state law tracks federal law (esp. in context of constitutional provisions). How could a state court be expected to overturn all its prior case law and separate its analysis from federal analysis just to insulate its decisions? Court will look to the extent to which the state court felt compelled by federal law to decide the case in the way it did.

2. Procedural Requirements and the Preservation of Federal Issuesa. In order to invoke SCT jurisdiction for a case litigated in federal court, parties must have

properly raised the federal issue in the state court proceedings and have followed state law procedures in doing so.

b. If any court finds the party did not properly raise the issue, it could constitute an adequate and independent ground for a dismissal, which renders it unreviewable.

c. States are free to fashion their own procedural requirements regarding constitutional claims. The failure to comply with these requirements is presumptively an adequate and independent state ground for dismissal of the claim.

d. Rules:(1) D must raise his federal constitutional argument during the lower court proceedings.

Issue must be raised and objections must be reserved. See Cardinale v. La (1969)(a) Jurisdictional reasons:(b) Prudential reasons: record on the issue may be inadequate or unclear if issue was not

properly raised below. Constitutional avoidance—it is generally better for claims to be decided on nonconstitutional grounds if possible.

(c) “Raised” means the claim had to have been raised below—the specific argument made in regards to that claim can change. See Yee v. City of Escondido; Vachon v. NH (even though argument below was not raised as a due process claim, it was sufficiently raised; Struve thinks this is the outer reaches of the doctrine).

(2) A state court procedural requirement does not count as an independent and adequate ground for dismissal if the requirement is unduly burdensome or inconsistently applied.(a) See Staub v. City of Baxley (holding that a local requirement that D identify the

specific sections of the ordinance she believes violate her rights is not an adequate nonfederal ground of decision in this case).

(b) Frankfurter dissent—our federalism.(c) Unduly burdensome: the general rule is that the assertion of federal rights should

not be defeated by local procedures. They must serve a legitimate state purpose, and if an alternative, less burdensome procedure would serve the same state purpose, failure to comply with the procedure is not adequate [Struve says this arg has never been picked up in the case law.]

(3) A state procedure that violates the constitution would not constitute an adequate ground, so long as the SCT finds that the procedure violates the constitution. (violates DP)

(4) State court cannot have too much discretion to excuse procedural violations. If the rule is discretionary, then there is a fear it will be applied only against parties asserting federal constitutional rights.

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V. Federal Habeas Corpus/Military Tribunals

VI. Federal Common Law

A. Defining Primary Obligations1. Assuming that there is no statutory law that explicitly governs the question, when should the

federal courts fashion a federal rule of decision to deal with the question?2. Erie RR: there is no general federal common law—court must decide which state law to apply in

diversity cases.3. The Theory: D’Oench Duhme & Co., v. FDIC (1942)

a. Suit to recover on a note payable to an IL bank. Suing FDIC, which had insured the bank.b. Held: it was unnecessary to determine which state’s law applied because the liability of

petitioner on the note involves decision of a federal, not a state, question. There is a federal policy to protect respondent, and the public funds which it administers, against misrepresentations as to the securities or other assets in the portfolios of the banks which respondent insures or to which it makes loans.

c. Concurrence by Jackson: This case is not entertained by the federal courts because of diversity. It is here because a federal agency brings the action, and the law of its being provides that “All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States.” “The federal courts have no general common law … But this is not to say that wherever we have occasion to decide a federal question which cannot be answered from federal statutes alone we may not resort to all the source materials of the common law, or that when we have fashioned an answer it does not become a part of the federal non-statutory or common law.

4. Clearfield Trust v. U.S. (1943)a. Suit against Bank to recover on the value of a check; Bank raises defense of unreasonable

delay in US bringing the case.b. Held: Rule of Erie does not apply to this action. The rights and duties of the US on

commercial paper which it issues are governed by federal rather than local law. In the absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards.

c. Why? Interest in uniformity—applying state law would subject identical transactions to the vagaries of the laws of the several states.

d. Therefore, source of the law must be the general commercial law that was developed before Erie became the rule.

5. Arguments against federal common law:a. federalism—common law is the province of the state courts.b. SOP—judges are not policymakers/lawmakers

6. Clearfield does not require the application of uniform federal law to all questions in federal government litigation.a. United States v. Kimball Foods (1979): issue is whether the priority of the government’s liens

as against competing liens was governed by ordinary state commercial law rules or by a federal common law rule.(1) Federal law governs questions involving the rights of the US arising under nationwide

federal programs.(2) In the absence of a statutory rule of decision, Clearfield directs federal courts to fill the

interstices of federal legislation according to their own standards.(3) But when there is little need for a nationally uniform body of law, state law may be

incorporated as the federal rule of decision.

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b. See United States v. Standard Oil (1947): although liability of D to US for injuring a soldier is a question of federal law, not state, it is also a question of “fiscal policy” that is within the province of the Congress, not the courts.

c. Reconstruction Finance Corp v. Beaver County (1946): because uniformity was unattainable under the statute before the Court, and local taxation was geared to concepts of real property that are deeply rooted in state traditions and laws, real property should be defined under state law so long as the definitions do not discriminate against the government.

d. De Sylva v. Ballentine (1956): because the statute deals with family relationships, it makes sense to refer to the ready-made body of state law defining this relationship and status.

e. But see Choctaw Indians v. Holyfield (1989): definition of “domiciled” should come from federal law. “general assumption that in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”

7. When should state law apply?a. where the federal government has no lawmaking authorityb. where Congress could make law but has not done soc. where federal law calls for application of state law as part of the schemed. where federal common law incorporates state law Absent an indication by Congress that state law is supposed to fill into federal common law/statutory law, courts will assume there should be uniform federal application.

8. Delegationsa. There are places in the law where the Congress has invited federal courts to create federal

law. Examples: Fed. R. Evid. 501; Sherman Act § 1b. There are also places in the law where Congress has told federal courts to borrow state law.

Examples: Fed. R. Evid. 501; Rules of Decision Act , 28 USC § 1652.c. There are places where federal common law is strictly prohibited: common law crimes;

general rules of tort liability.9. Textile Workers Union v. Lincoln Mills (1957): union seeking order compelling ER to arbitrate

under § 301 of LMRAa. Two theories of § 301

(1) merely gives federal district courts jurisdiction in controversies that involve labor organizations

(2) authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements and includes within that federal law specific performance of promises to arbitrate grievances under such agreements.

b. Court accepts latter theory—in order to effectuate the purpose of the statue, courts must be able to award remedies such as specific performance of the arb clause.

c. Struve thinks it is dicey to justify the application of federal common law based on a grant of jurisdiction—would this argument then apply in diversity cases?

10. Choice of law within federal regulatory programs. General rule: if Congress has occupied the space with legislation, then it is not a proper subject for federal common law. See Interstate Water Pollution Cases.

11. Act of State Doctrine: courts of the US will not inquire into the public acts of sovereign state governments unless there is a treaty allowing for such. In Sabbatino, the Court held that the scope of the act of state doctrine must be determined according to federal law.

B. Enforcing Primary Obligations1. Implied private rights of action for statutory violations

a. Historical Precepts(1) Texas & Pacific RR v. Rigsby (1916): decided under Swift v. Tyson regime, it

confronted the question of whether the standards of care defined by a federal statue

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applied to a tort action. Court created the substantive standards of liability applicable to a common-law negligence claims brought in federal court.

(2) Bell v. Hood (1946): implied that a right of action could be implied under the constitution. Not clear how this relates to the question of implying rights of action under statutes, seeing as constitutional claims have always been considered different.

(3) JI Case v. Borak (1964): held that a private party could sue for violations of the proxy rules under the 34 Act. Theory was that private enforcement was a necessary supplement to agency enforcement.

b. Application: Cannon v. University of Chicago (1979)(1) Issue is whether P has a private right of action under Title IX of the Civil Rights Act(2) Held: she does. (3) Analysis: Court applies Cort v. Ash test

(a) Whether statute was enacted for the benefit of a special class of which P is a member.(b) Whether the legislative history of the statute permits such an interpretation.(c) Whether the implication of a private remedy would frustrate the underlying purpose

of the legislative scheme.(d) Whether the subject matter of the statute involves an area that is basically the concern

of the states.(4) Application in this case:

(a) P is supposed to benefit from the statute(b) Legislative history indicates Congress intended Title IX to track Title VI, and that

section has a private right of action under it. Therefore, Title IX must have been intended to have one as well. Congress has not done anything in the context of this statute to prevent court from implying a private right of action.

(c) Intent of the statute is to protect individual rights and to get institutions to stop discriminating. Private enforcement clearly would not frustrate this.

(d) This is a federal statute in an area largely ignored by the states.(5) Although the Court implied a private right of action here, it recognized that the better

route would have been for Congress to enact one explicitly.c. Questions:

(1) Is it better to put the burden on Congress to indicate its intent to have a private right of action, or to indicate its intent not to?

(2) Why is it bad for courts to create private rights of action? Because they are expanding their own jurisdiction, which is strange for an institution that has limited jurisdiction.

d. Since Cannon, the Court has required clear evidence that Congress has intended there to be a private right of action. But, it has not taken away any rights it has already granted.

e. Related question—whether there exist private rights of action under regulations interpreting statutes. Anderson v. Sandoval: must look to the relationship between the regulation and the statute. Is the regulation part of the interpretation that gives the right of action?

f. Implied rights of action for Contribution. Texas Industries: delegation to courts to develop antitrust rules does not extent to the development of remedial rules like contribution.

2. Procedural Rules in Cases Involving Federal Rightsa. Statutes of Limitations

(1) 28 USC § 1658 provides a 4 year SOL for all civil actions enacted after 1990, but is not applicable if the substantive statute provides for its own SOL.

(2) Alternative to 1658 when statute does not provide its own—borrowing from state statutes.

(3) See also Tolling statutes. Johnson v. Railway Express: there is no special tolling statute for § 1981 claims to bring them in line with Title VII claims, even though they are substantively similar. Instead, should keep it in line with state tolling rules.

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(4) Board of Regents v. Tomanio (1980): adopt not only state SOL but also tolling rules. Since § 1983 is deficient because it does not provide its own SOL, and there is no inconsistency between policy of 1983 and state statute, can borrow from there.

b. Where to borrow from? Analogize federal claim to a state claim.(1) Ex: Owens v. Okure: 1983 can be analogized to personal injury statutes under that law.(2) Rule is always to go from the broader statute, not the more narrow statute that also seems

analogous.c. What state? Must apply choice of law rules.d. Can also borrow from federal statutes

(1) McAllister: Cannot borrow shorter SOL for similar federal claims if there is an analogous federal statute that provides an SOL

(2) DelCostello: borrow federal law SOL because state SOL would interfere with federal statute. Must make sure state SOL is sufficient to fill in the gaps but still effectuates the purpose of the federal statute.

e. Survival of 1983 actions—can borrow survival rule from state lawf. Compare to survival rules for Bivens actions—must use federal common law

3. Remedies for Constitutional Violationsa. Ward v. Love County (1920)b. Bivens v. Six Unknown Named Agents (1971)

(1) Issue: Whether a violation of 4A by federal agent acting under color of authority give rise to a cause of action for damages consequent on unconstitutional conduct.

(2) Facts: Petitioner was arrested and searched without probable cause in violation of 4A by an FBI agent. Seeks federal court action for damages.

(3) D argues that Constitution should be considered a defense for a state tort law action. When sued for invasion of privacy, agents can argue it was a valid search. If shown that agents had violated 4A, valid search defense would disappear.

(4) Held: Cause of action exists directly under constitution. Can infer a private right of action against federal officers.

(5) Justification: There is no tort remedy designed for this situation to go only to state court. The harm of violating someone’s constitutional rights is great. A cause of action arising under the federal constitution is distinct from one arising under state law. As the Court said in Bell, “where legal rights are invaded, federal statute provides for general right to sue for such invasion, federal courts may use any available remedy to make good wrong done.” From this, the Court gets precedent for the idea that a jurisdiction grant may ground authority to formulate federal common law remedies and the right to sue for relief.

(6) But see Malesko: Rehnquist says Borak is more limited that the Court has been construing it. There are not as many causes of action that can be implied under it.

c. Davis v. Passman : upholds availability of Bivens action in DP violation. Courts are the defenders of the constitution; when there is no other available relief, courts must step it.

d. Times when Bivens is not available (see Carlson v. Green for discussion):(1) Special factors counseling hesitation (SFCH)

(a) The Military. See Wallace v. Chappell: No Bivens claim. Art. I gives Congress plenary power over the military. This is a special relationship, the Court should not mess with it, and it is clearly a special factor. The Court would mess with the relationship by imposing damage liability.

(b) US. v. Stanley (1987): Former military man brings action against civilian doctors who used him for LSD experiments. No Bivens action here because military as defendant is a SFCH. O’Connor believes that what the military did was really bad and requires judicial review.

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(c) Federal Personnel Policy: Congress has paid continuing attention to developing statutes and regulations regarding federal employment policy. See Bush v. Lucas.

(d) Social Security: Schweiker v. Chilicky: Suit by SS recipients that were cut off and then reinstated as part of change in rules. In response to change in rules, Congress enacted statute providing remedies for those cut off (mostly compensatory remedies). Although the system set up by Congress did not provide adequate remedies and there was no express intent to have remedies replace Bivens remedies, still no cause of action. The fact that Congress has enacted a remedial statute addressing THIS EXACT problem and has not included punys, and that Congress is attending to the problem, it is SFCH.

(e) FDIC v. Meyer (1994): Bivens action does not extend to suits against federal agencies—only against federal officials.

(f) Malesko (2001): relying on Meyer, holds no Bivens claim against private company operating a prison. The purpose of the claim is to deter individual federal officers from violating the constitution. There is no reason why a P should be able to go after a private contractor just because it can’t get at an agency.

(2) Affirmative action by Congress that is:(a) specifically intended to replace implied remedy, and(b) equally effective. See Carlson v. Green (1980): Petitioner is mother of prisoner who

died in prison. Suit under 8A. Court holds that she has a cause of action under Bivens paradigm, even though she could have sued the fed gov’t directly under FTCA. But, because Congress did not intend FTCA to replace Bivens actions, and because remedies under FTCA are not as good as those provided by federal courts (state law inconsistency, no punys, no jury), it cannot be considered a replacement. BUT SEE SCHWEIKER v. CHILICKY

e. Does this make sense? Court is Schweiker seemed to collapse the two-prong limitations question into one, finding that ANY Congressional action is a SFCH.

f. Is Bivens constitutionally required? There is a constitutional obligation to provide a remedy in two settings.(1) 5A Just Compensation Clause(2) Where no adequate remedy pre-payment in tax challenge, state is under DP obligation to

provide a refund remedy.g. Struve: If we imply a right of action to protect the interests of securities holders, we should

imply a right of action to protect those whose constitutional rights are being violated.

VII. Federal Question Jurisdiction

A. Constitutional Grant

Art. III § 2 cl. 1: “Judicial power shall extend to all case, in Law or Equity, arising under the Constitution, the Laws of the United States …”

1. Osborn v. Bank of the United States (1824): stands for the principle that the constitutional grant of subject matter jurisdiction is broader than the statutory grant.a. Bank of the U.S. seeking injunction against enforcement of Ohio tax laws; after Ohio

officials seized the money, Bank filed amended bill in federal court seeking to get its money back. Basis of suit is state law (conversion), and defenses by Ohio will be based in state law (tax law as justification).

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b. But, because Bank is a creature of federal law, it will eventually have to raise a federal argument challenging the application of the state law to this Bank. This provides enough of a federal question for the case to come with the scope of the Constitutional grant.

c. Analysis:(1) Ability of Bank to sue in federal court comes from its authorizing statute—allows Bank

to “sue and be sued” in any Circuit Court of the U.S. This clearly gives the Bank the power to sue in fed courts. Question is whether that provision of the statute is within the constitutional grant.

(2) Constitutional question: what does it mean that federal courts have been vested with judicial power? (a) Existence of non-federal questions: prohibiting federal court jurisdiction whenever

non-federal questions existed in a case would prove too much—every case has more issues than just those governed by federal law. No case exists where every part of it depends on federal law.

(b) Original vs. appellate jurisdiction: In cases that fall within the SCT’s original jurisdiction, Congress cannot assign lower federal courts concurrent jurisdiction. Therefore, if these lower courts were not given original jurisdiction of some cases, then it might prevent the effective exercise of the SCT’s jurisdiction. The SCT would have nothing to review. Consequently, there is no argument that Congress is incapable of giving Circuit Courts original jurisdiction in any case to which appellate jurisdiction extends.

(c) These principles are specifically applicable to the Bank. The Bank is a creature of federal law; therefore, when it involves itself in legal disputes, principles of federal law are implicated. The Bank can act only if authorized by statute.

(d) This is different from the case of a naturalized citizen, because that person is no dependent on federal law for the full breadth of his legal rights.

2. Textile Workers Union v. Lincoln Mills (1957)a. In determining that § 301 of the LMRA allowed the federal courts to create a body of

substantive federal common law in reference to labor disputes, the majority pretermitted the Constitutional issues it would have had to address if § 301(a) had been read solely as a grant of subject-matter jurisdiction.

b. Burton concurrence: jurisdiction is constitutional under the theory of protective jurisdiction. Because Congress could have legislated substantively and thereby could give rise to litigation under a statute of the US, it can provide a federal forum for state-created rights.

c. Frankfurter dissent(1) Variant Theory of jurisdiction: Applied in Osborn, Pacific RR Removal Cases, and in

bankruptcy cases. These are exceptional cases that potentially involve federal questions not apparent on the face of the complaints.

(2) Protective theory of jurisdiction: This theory would vastly extend the principles of Osborn, and would allow for the extension of jurisdiction even when no substantive federal law is present in the background of the case.

(3) Mishkin theory: regulation of a field. Under this theory, jurisdiction would be extended in order to protect the legislation Congress has already enacted in the field generally.

(4) Alternative theory: Union is a juristic entity whose rights to enter into Ks were created by the federal law and must be protected in the same way.

Rejects all these theories as a basis for jurisdiction. The history of Art. III suggests that the are is not great and that it will require the presence of some substantial federal interest, one of greater weight and dignity than questionable doubt concerning the effectiveness of state procedure.

3. Important reasons for federal question jurisdiction: need federal courts to explicate the law; need federal courts to enforce the law.

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4. Bankruptcy: Court has construed federal question jurisdiction in this context broadly.a. Federal cases: Initial petition, suits in law or equity against the assignee.b. The right of Congress to set up a uniform BR system was upheld in Lathrop—justified by the

avoidance of expense and delay in this important time.c. Northern Pipeline (1982): struck down parts of the BR Act of 1978 because cases were being

heard by non-Art. III judges in violation of Art. III. But, the Court upheld the grant of federal court jurisdiction over these cases.

5. Foreign Sovereign Immunities Acta. Established when and how suits could be brought against foreign states in federal and state

courts, and classified when a foreign state is not immune from such a suit.b. Verlinden B.V. v. Central Bank of Nigeria (1983): federal question exists in these cases to

justify “arising under” jurisdiction. The threshold question will always be whether the party is immune or excepted from immunity under the statute. Necessarily, the grant of jurisdiction is permitted. [Case could not be brought under alienage jurisdiction because neither of the parties was American—had to rely on arising under jurisdiction.]

B. Statutory Grant1. The Judiciary Act of 1789 did not provide a grant of federal subject matter jurisdiction. Plaintiffs

who sought to recover under federal statutes had to do so in state court.2. Judiciary Act of 1875 provided the first grant of federal question jurisdiction, but plaintiffs had to

meet an amount in controversy requirement. Also provided for removal jurisdiction, but allowed only defendant to undertake such removal. Also provided that remand provisions were not appealable.

3. Current states still limit removal power to defendants and do not allow remands to be appealed, but there is no longer an amount in controversy requirement.

4. Propriety of jurisdiction is an issue the court can raise sua sponte. IT is the duty of the court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by statute, is not exceeded.

5. Well-pleaded complaint rulea. Louisville & Nashville RR v. Mottley (1908): Whether the case arises under the laws of the

U.S. is determined by whether federal question is part of a well-pleaded complaint. If it is not, then jurisdiction does not extend. Cannot base jurisdiction on question of whether defendant is likely to raise a federal law defense.

b. Well-pleaded complaint rule is related to issue of removal. The general removal statute has been limited to cases falling within the original jurisdiction of the district court. Thus, a case like Mottley for example, if brought in state court, could not be removed to federal court, even though the federal issues raised by the defendant were the decisive issues in the litigation. Debates about the need for a federal forum seem to apply only to plaintiffs, because here, under this rule, defendants cannot get themselves into the federal forum.

6. Presence of a federal issue in a state-created cause of action: Holmes testa. American Well Works v. Layne & Bowler (1916) Holmes test for determining whether case

is within federal question jurisdiction. “A suit arises under the law that creates the cause of action.” In this case, the patent question was merely a factual dispute that made up one element of the case. The case itself was a libel and slander case, which is a state law claim.

b. Smith v. Kansas City Title & Trust (1921)—repudiation of the Holmes Test: although the cause of action giving rise to the suit is one from state law, “the controversy concerns the constitutional validity of an act of Congress which is directly drawn in question.” Therefore, a federal question was presented. Here, the case questioned the validity of the Federal Farm Loan Act.

c. Merrell Dow Pharmaceuticals v. Thompson (1986)

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(1) Issue: Whether in a state law complaint that alleges a violation of federal law but that does not give rise to the cause of action, the complaint presents a federal question.

(2) Facts: Ps claim that D’s misbranding of drugs in violation of the FDCA proximately caused the injury. Cause of action is negligence.

(3) Factors to consider:(a) Congressional Intent: no cause of action was included in the FDCA—seems to

indicate that Congress did not expect the FDCA would be a basis for federal court jurisdiction.

(b) Whether Ps part of class for whose benefit the statute was passed(c) Purpose of the underlying legislative scheme(d) Whether the cause of action is a subject traditionally relegated to state law.

(4) Held: No federal question presented. “A complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim arising under the Constitution, laws, or treaties of the US.”

(5) Analysis: The significance of the necessary assumption that there is no federal private cause of action cannot be overstated. The ultimate import of such a conclusion is that it would flout congressional intent to provide a private federal remedy for the violation of the federal statute.

d. What is left of Smith after Merrell Dow? Not really an issue because the vast majority of the cases are screened out at the Holmes test stage and do not get so far as to weigh the next level of cases against each other.

e. [See discussion on how jurisdictional question relates to question of implied remedies, 933]7. Declaratory Judgment Act § 2201

a. A declaratory judgment actions turns a potential defendant into a plaintiff.b. In such a suit, how do the rules of federal question jurisdiction apply?c. Skelly Oil v. Phillips Petroleum (1950)

(1) Facts: Skelly Oil had agreed to sell Phillips natural gas; K gave Skelly power to terminate the contract at any time if FPC had not issued a certificate of convenience and necessity to a 3d party to whom Phillips intended to resell the gas. Skelly informed Phillips it would terminate the contract, because FPC was only issuing conditional certificate by deadline date. Phillips brought DJ action seeking determination that the K was still in effect.

(2) Held: No federal question presented.(3) Analysis: Under the well-pleaded complaint rule, an action by Phillips to enforce its

contract would not present a federal question. “If but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state-created action, jurisdiction is lacking.”

d. Franchise Tax Board v. Construction Laborers Vacation Trust (1983)(1) Facts: Tax Board sued CLVT for damages for failing to comply with three tax levies and

a declaratory judgment that the Trust had to comply with all future tax levies. The question of whether the Trust had to comply with future levies was determined by whether ERISA preempted the State’s power to levy funds held in trust.

(2) Held: Case was not within removal jurisdiction—there is no federal question presented.(3) Analysis:

(a) Well-pleaded complaint rule applies to this case, even though it may produce awkward results. Even when neither the obligation created by state law nor the defendant’s factual failure to comply are in dispute, and both parties admit that the only question for decision is raised by a federal preemption defense, the rule applies.

(b) Skelly Oil applies to DJs brought under state law, even though the case was limited to federal law DJs.

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(c) Under Skelly Oil, there is no federal question presented. If the Tax Board had brought suit to enforce the liens, it would not have mentioned ERISA in a well-pleaded complaint; CLVT would have brought it up as a defense. This is insufficient to raise a federal question.

(d) Although Skelly Oil presents one way of looking at the case, court could posit another hypo—what if CLVT had sued Tax Board for violating § 502(a)(3) of ERISA to get an injunction to prevent the Board from levying taxes on the Trust? Then ERISA claim would have been on the complaint. BUT, Court holds that ERISA is limited in allowing only certain parties to enter federal court—those parties that Congress presumed would need a federal forum to further the statute’s purposes. The parties here do not count.

(e) The fact that ERISA confers exclusive federal jurisdiction on claims—preempting state tort or contract claims—does not matter. Here, preemption is still merely a defense. Distinguishes Avco Corp. v. Aero Lodge (LMRA).

8. Injunctions: same rules apply to parties seeking injunctions as to parties seeking DJs. See Wycoff.

C. Removal

§ 1441: Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, …§ 1446(a): A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.§ 1447§ 1450§ 1651

1. § 1441(a) allows for removal of any case when the court would have had jurisdiction.2. § 1441 does not allow for the removal of cases based on federal defenses. The federal question

must have been pleaded in the complaint for the case to fall under federal court removal jurisdiction.

3. The Complete Preemption Rationale for Removala. A claim of federal preemption is usually a defense to a state-law coercive action, and thus

typically does not furnish a basis for removal. But if the plaintiff’s claim, albeit cast as a state-law claim, is itself really a federal claim, removal will be permitted on the ground that the plaintiff should not, by artful pleading, be allowed to negate the defendant’s removal rights.

b. See Avco Corp v. Aero Lodge (1968): a claim that D had violated a collective bargaining agreement, although labeled as a state contract claim, “necessarily” arose under § 301 of the LMRA and was therefore removable by the defendant.

c. Complete Preemption Doctrine: once an area of state law has been completely preempted, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.

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d. Also applies in context of ERISA § 502(a)(1)(B) (civil enforcement provision). State tort and contract claims brought by EE against ER are completely preempted by ERISA provision; thus, state court actions artfully pleading around ERISA still present a federal question. See Metropolitan Life v. Taylor (1987).

4. Removal Jurisdiction and Procedurea. § 1446: file notice in fed court; file notice with opposing party; file notice with state court.

Only when all three steps are complete is removal complete.b. Can only remove within 30 days of D being served in the lawsuit, and after having notice that

the case was removable.c. Shamrock Oil & Gas v. Sheets (1941): only defendants can remove cases. Even plaintiff

against whom counterclaims have been filed cannot remove. Court will look only to the original claim to see whether removal can be premised on it.

d. Effect of state court actions before removal? See Granny Goose Foods v. Teamsters (1974) where court held that “an ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65(b).

[Any More Notes from 3/21??]

D. Supplemental Jurisdiction

§ 1367: In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Art. III. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

1. As Justice Marshall said in Osborn v. Bank of the United States, the Court should have the power to decide the whole case, even if it involves both federal and state claims.

2. Old rules:a. Siler v. Louisville & Nashville R. Co. (1909): held that federal courts can resolve claims

under state law even when there is no diversity between the parties. (Decided before FRCP enacted) Policy reasons:(1) Avoidance—federal court should have power to decide case on state grounds so as to

avoid the constitutional question if possible.(2) Interest is deciding the entire case in one shot.

b. Hurn v. Oursler : must draw distinction between two types of pendent state claims. If the claims are really just two theories within the same “cause of action,” then the state claim is pendent to the federal claim. If the claims actually allege two different causes of action (ex: regarding two different events), then the second should not supplement the federal claim.

3. The Rule: United Mine Workers v. Gibbs (1966)a. Facts: P sues union for violation § 303 of LMRA and for tortious interference with Ks (state

claim). b. Issue: Whether the district court properly entertained jurisdiction of the claim based on

Tennessee law.c. Theory: Pendent jurisdiction exists whenever there is a claim arising under the Constitution,

the Laws of the United States … and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.”

d. Rule: The state and federal claims must derive from a common nucleus of operative fact. If the plaintiff’s claims are such that he would ordinarily be expected to try them all in one

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judicial proceeding, then, assuming the federal issues are substantial enough to confer subject matter jurisdiction, there is power in the federal courts to hear the whole.

e. BUT, doctrine of pendent jurisdiction is one of discretion, not of plaintiff’s right. Considerations:(1) whether federal claims was dismissed before trialshould dismiss state claim(2) whether refusing to exercise pendent jurisdiction would require P to bring the federal

claims in state court to Ps and federal law detriment.f. Held: exercise of jurisdiction was within Court’s discretion.

4. Diversity Jurisdictiona. § 1332b. In the context of class actions, diversity is only determined by the citizenship of the class reps

as compared to the D. Does not look at the citizenship of the putative class members.c. Owen Equipment v. Kroger (1978): P’s claim against Owen cannot be heard by federal court.

(1) There is no independent basis of federal jurisdiction over the respondent’ state0law tort action against the petitioner.

(2) CA relied upon the doctrine of ancillary jurisdiction; federal jurisdiction is also limited by Acts of Congress.

(3) § 1332 requires complete diversity of citizenship. When P amended her complaint to include a charge against Owen, complete diversity was destroyed just as surely as if she had sued Owen initially.

(4) Requirement of complete diversity must be strictly construed.(5) Concern that any other ruling could be used strategically against the courts to join parties

after federal jurisdiction is established.d. § 1367:

(1) (b) In any civil action of which the district courts have original jurisdiction founded solely on [diversity], the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under (joinder rules) when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

excludes claims by plaintiffs against persons made parties under Rules 14, 19, 20, or 24, as well as persons proposed to be joined as plaintiffs under Rule 19 or seeking to intervene as plaintiff under Rule 24.

(2) (c) District courts may decline to exercise supplemental jurisdiction over a claim if …(3) (d) Tolls statue of limitations while claim is pending and for a period of 30 days after it is

dismissed.e. Hypothetical: Kroger (Iowa res.) sues OPPD (Neb res.). Joins Owen (Neb. & Iowa res.)

If OPPD impleads Owen, can court take jurisdiction?(a) Must meet Gibbs standard it does(b) OPPD brought in Owen, not Kroger not problem imagined in

Kroger because OPPD doesn’t control litigation(c) Discretion

If Kroger then sues Owen?(a) Must meet Gibbs standard(b) BUT, Owen was brought in pursuant to R. 14 and claim was made

by a P; jurisdiction would be inconsistent with 1332. cannot take jurisdiction

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VIII. Constitutional Litigation

A. The 11th Amendment and State Sovereign Immunity

Amendment XI: The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

1. Historical backgrounda. 1793: Chisholm v. Georgia decided – order for the State of Georgia to pay Chisholm for

debts incurred during the Revolutionary War. Case brought in federal court because Chisholm was not a resident of Georgia. Two Justices argued that sovereign immunity was inconsistent with the principle of popular sovereignty established by the Constitution, and two others argued that the text of Article III evidence the States’ surrender of sovereign immunity as to those provisions extending jurisdiction over suits to which States were parties.

b. In response, Congress adopted 11A in 1798 to make sure states could not be sued by private parties – intent was to overturn the case law developed in Chisholm. The fear expressed in the debates was that the federal government could take a right secured by the states and use it to hurt them by making their courts available. Cases based on diversity jurisdiction were the only difficult ones because federal question jurisdiction had not been developed in 18th century.

c. The 11th Amendment does not apply to the appeal of state court convictions. See Cohens v. VA. A writ of error is not a “suit.”

d. After the Civil War, southern states were again indebted to many private parties. Many of these parties would find residents of the state to sue the state for repayment of these debts to avoid the restrictions of the 11th Amendment. In Hans v. Louisiana, the Court held that an unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. Court held that it would be more of an insult to the dignity of the state to be sued in federal court than in state court, and it would not be fair to allow Hans to sue when citizens of all other states do not have such a privilege.

2. What does the 11th Amendment mean? 11A is a mere codification of the understanding that states could not be sued in federal court. This understanding is evidenced by reading Federalist 81 and understanding the purposes of limited federal courts under Art. III. 11A may only have reversed Chisholm on its facts, but it reinforced the construction ideal of Art. III. The Plan of the Convention would never have been agreed to if the States had understood that they would be subjected to suit by individuals.

3. What is the State? a. Because only states are protected by 11A immunity, the Court must determine whether quasi-

state and multi-state agencies are states. See Hess v. PATH (1994): Injured RR workers brought FELA action against PATH, which is a bistate railway. Even though PATH seems to be politically controlled by the state, financially, it is an independent entity whose debts do not fall upon the states. Given that a theory supporting 11A immunity from damages suits is subjecting the state to judgments to its citizens, the fact that the states are not obligated to pay PATH’s debts means they will not be subject to judgment.

b. 11A immunity does not apply to municipalities. See Mt. Healthy. If directors of an agency are appointed by the state but the financial liabilities of the agency are left to the municipality, there is no 11A immunity. See Auer v. Robbins.

4. Exception to the doctrine:a. Ex Parte Young (1908): AG of Minnesota enjoined from prosecuting RR for violations of a

state law.

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(1) If the act the state official seeks to enforce is alleged to be unconstitutional, the act is an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional.

(2) The state has no power to impart to him any immunity from responsibility to the supreme authority of the united states.

(3) Rule: State sovereign immunity does not prohibit a suit seeking an injunction against a state official in his official capacity.

(4) DOUGLAS: this distinction is stupid because prospective relief could end up costing the state just as much as retrospective relief does (from Edelman)

b. Edelman v. Jordan (1974): (1) Facts: Class action for injunctive and declaratory relief against state officials

administering a welfare program. Plaintiffs sought retrospective benefits and injunctive relief barring future unconstitutional actions. Relief awarded in Ex Parte Young was prospective only. This type of relief is permitted. In contrast, a suit requiring the payment of a substantial amount of money is barred by 11A. (Prospective-retrospective distinction).

(2) Held: Plaintiffs can obtain prospective relief, but not retrospective. Payment of damages out of the state’s treasury is subjecting the state to suit, which is prescribed by 11A.

(3) Theory: Prospective vs. Retrospective relief: 11A clearly bars retrospective relief because it forces the state to pay money on an order of the federal courts. Prospective relief must be considered an injunction against the state officer in his official capacity, not against the state [but still state action]. The difference is a legal fiction: the Court adopts the theory that a state officer, acting in accordance with a state statute that is found to violate the US Constitution, is not acting within his role as a representative of the state. (Magic circle explanation). Equitable relief is not more than a requirement for the officer to get back into the magic circle of permissible state activities.

Money InjunctionsDiversity Jurisdiction No – 11A No – 11AFed Question Jurisdiction

No – Hans v. La Yes – Ex Parte Young

(4) What is prospective relief?(a) Court ordered school district to pay for improving its reading, in-service teacher

training, testing and counseling. Even though this involves much cash, it is prospective relief because it will get the schools up to the level of non-segregated schools. Why not retrospective? See Milliken v. Bradley. Citizens not raiding the coffers of the state treasury. Must look at the purpose of the award, which is to obtain a prospective goal.

(b) Quern v. Jordan (1979) order to state officials to send explanatory notice to members of the plaintiff class falls on the Ex Parte Young side of the relief line. The notice is more properly viewed as ancillary to the prospective relief already ordered by the court.

(c) Green v. Mansour (1985): But, if there is no possibility of prospective recovery, the notice relief is no more than compensatory or deterrent and those interests cannot outweigh the interests in preserving 11A immunity.

(d) Attorneys fees. If they were ancillary to obtaining prospective relief, then the state is subject to them. Similarly, the state is subject to enhancement of the fees as compensation for late payment. See Missouri v. Jenkins.

5. Pennhurst State School & Hospital v. Halderman (1984)

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a. Facts: Residents of the hospital asserted federal and state claims against the state agency running it.

b. Held: The Eleventh Amendment bars relief based on state law.c. Theory: Ex Parte Young exception does not apply in the context of state law. The need to

reconcile that competing interests of state dignity and federal law supremacy are absent when P alleges a state official has violated state law. Also, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to when state law. Such a result conflicts directly with the principals of federalism that underlie the Eleventh Amendment.

d. Alternatives after Pennhurst: (1) file federal and state claims in state court, but then must give up right to federal forum(2) file federal claim in federal court, but then must either forgo state law claim or file a

second lawsuit in state court asserting the state law claim [raises problems of abstention, preclusion]

6. Abrogation by Congressional Act: Seminole Tribe v. Florida (1996)a. Issue: To what extent can Congress abrogate sovereign immunity when it creates a private

right of action?b. Facts: Tribe was suing under IGRA, seeking order against Florida to require them to

negotiate in good faith with the Tribe.c. Rule: Two requirements for abrogation:

(1) Congress must have clearly intended to abrogate the immunity—must provide an unmistakably clear statement of its intent to abrogate.(a) Why have clear statement rule? The Congress must realize it is legislating against a

common law background of state sovereign immunity.(b) Also important for Congress persons to be politically accountable for their actions.

(2) Congress must have acted pursuant to a valid exercise of power when abrogating.d. Valid exercise of power:

(1) Old rule: Union Gas (holding that the Commerce Clause granted Congress the power to abrogate state sovereign immunity).

(2) Union Gas is overruled here.(3) Florida Prepaid v. College Savings Bank (1999): Suing Florida for violation of Patent

Remedy Act. Taking of property is a constitutional violation only if it was done intentionally and there was no remedy for compensation in state courts. Because the Act prohibits all takings of patents, it reaches beyond those actions which are constitutional violations. No other good reason to prohibit it – not like takings of patents by states happens every day.

(4) Since Art. I does not provide Congress the power to abrogate state sovereign immunity. Thus, any legislation enacted based on power granted by Art. I will not abrogate, regardless of whether it makes a clear statement.

e. Failure to find abrogation is not disastrous for federal law. If necessary, the U.S. can sue Florida, and if Florida consents to suit in state court, then the SCT will eventually have review of it.

f. Ex Parte Young does not apply in this context: the Act lays out a complicated scheme through which a tribe gets the state to negotiate. If it could just go to Court and enjoin the Governor, the whole scheme could be avoided.

7. Does abrogation still exist? Only under § 5 of 14A according to Fitzpatrick.a. Why? The adoption of 14A radically altered the relationship between the federal government

and the states, giving the federal government immense power to enact remedial legislation. See Ex Parte Virginia.

b. Fitzpatrick v. Bitzer (1976): Plaintiffs sued for sex discrimination under Title VII for the state’s retirement benefit plan. Court held that 11A does not bar a backpay award

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(retrospective relief) since the penumbra of 11A is limited by the enforcement provisions of § 5 of 14A. Because Congress was authorize to enact Title VII under § 5, plaintiffs must be authorized to sue the state under it.

c. Rule: Statutes enacted in furtherance of the Fourteenth Amendment providing private parties rights against state governments supercede the principles of sovereign immunity. 14A >11A no immunity.

d. Test: must determine whether Congress had proper power to enact the statute under 14A; must be proportional and congruent. See Katzenbach v. Morgan, South Carolina v. Katzenbach: upheld constitutionality of Voting Rights Act even though the specific actions prohibited were not prohibited in the Amendments. Congress can also prohibit facially neutral actions that could lead to Constitutional violations. (1) City of Boerne : Religious Freedom Restoration Act was overbroad. Congress cannot tell

courts how to interpret 14A. If Courts say P does not have 14A right, the Congress cannot change that determination.

(2) Kimel v. Florida Board of Regents (2000): Suing Florida for violation of ADEA and amendment which applied it to the states. Because age is not a suspect classification under EP clause, there must be only RB for classifications. Here, the statute prohibiting discrimination is not based on an action prohibited by the constitution. Congress cannot create unconstitutional acts that the Court does not recognize; therefore, does not supercede rights under 11A.

(3) Garrett (2001): Because persons with disabilities do not comprise a “suspect class,” Congress cannot heighten the level of scrutiny applied to them. Thus, the ADA does not provide a congruent and proportional remedy to the harm sought to be prevented.

Must identify a history of discrimination by the government to justify such legislation.8. In State Court: Alden v. Maine (1999):

a. Facts: Alden brought action against employer (State of Maine) for violations of FLSA. Dismissed from Federal Court on 11A grounds, refiled in state court.

b. Theory: Sovereign immunity of the states neither derives form nor is limited by the terms 11A. It is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today except as altered by the plan of the Convention or certain Constitutional Amendments. This structural principle is not directly related to the scope of the judicial power established by Article III, but inheres in the system of federalism established by the Constitution. In exercising its Article I powers Congress may subject the States to private suits in their own courts only if there is compelling evidence that the States were required to surrender this power to Congress pursuant to constitutional design. The Supremacy Clause enshrines as the supreme law only those federal Acts that accord with the constitutional design.

c. Our federalism: forcing Maine to stand suit subjects it to the indignity of being hauled into court.

d. SOP: forcing a state’s executive or administrative branch to stand suit in court threatens to reallocate the responsibilities between the branches of state government.

e. This is OK because states will subject themselves to suit in their own courts when the political consequences of invoking immunity will be too much to bear. Also, the plaintiff can always sue the state officials in their individual capacities for refusing to make the state subject to suit, and the federal government can always sue the state.

f. Finally, any other conclusion would have been anomalous—the Court already held that Congress cannot abrogate sovereign immunity for suit brought in federal court—cannot have different results in different courts.

g. Held: Congress lacks power under Art. I to abrogate state sovereign immunity in state court.h. Distinguishing prior precedent:

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(1) Nevada v. Hall (1979): held there was no sovereign immunity bar to California courts hearing a damages action against Nevada. But this holding never subjected a state to suit in its own courts. That is the real harm.

(2) Reich v. Collins (1994): held that the state must allow taxpayers to seek a refund in state court (post-deprivation remedy) for his taxes already paid. But this holding was constitutionally required—due process is guaranteed by 5A. The remedy under the FLSA was only statutorily required.

(3) Hilton : held that when a state is engaging in a field governed by federal law, the state consent to the waiver of SI. But this holding does not apply because parties did not contest sovereign immunity.

(4) Howlett v. Rose (1990): held that a state court could not refuse to hear a § 1983 suit. But this case did not address the question of whether the state in the first place could compel an unconsenting state to be sued.

9. Struve’s Big Thoughts: Article III was included, and courts were created, by the constitution for a reason. Explanations include the idea that there should be a remedy for every violation of federal law. Article III also contemplates suits against states. But Seminole Tribe and Alden seem to have taken away the principle that for every right there must be a remedy.

10. What’s left?a. Suits brought under statutes authorized by § 5 of 14Ab. Consent/waiver of SI—but there is no more implied consent. Nonetheless, there can be

conditional waivers required under the Spending Clause, so long as they are not coercive under Dole.

c. Suit by U.S. or another stated. Suits brought in another state’s courts—but effects of standing doctrine and minimum

contacts may make this route difficult.e. Ex Parte Young —for prospective relief against state officials. But see Idaho v. Coeur

D’Alene Tribe (1997): Tribe sought a declaratory judgment, which seems to be prospective relief, but Court held it was outside the scope of the Ex Parte Young exception. Kennedy writes an opinion based wholly on the balancing test argument, joined by Rehnquist, and holds that the Court must balance the importance of the supremacy interest with the negative impact is has on the state. Because this has a big time impact on the state of Idaho and its rights, the challenge cannot be heard.

f. Suits against officers in their individual capacities.g. Suits against local governments.

B. Federal Protections Against State Action1. The Cause of Action: 42 USC § 1983

a. “Every person who, under color of [law] subjects or causes to be subjected any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

b. The history(1) The problem was not the unavailability of state remedies to deal with the deprivation of

constitutional rights, but the failure of certain States to enforce the laws with an equal hand

(2) Rep. Lowe (Kansas): the local administrations have been found inadequate or unwilling to apply the proper corrective

(3) Rep. Burchard (Illinois): But if its statutes show no discrimination, yet in its judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another, … the State has not afforded to all its citizens the equal protection of the laws.

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(4) Rep. Shellabarger: The model for the KKK act will be found in the [§ 242]. This section has been construed in Classic and Screws to define actions under color of law to include any action made possible only because the wrongdoer is clothed with the authority of state law.

(5) Sherman Amendment: Proposed to the KKK Act in 1871 but eventually rejected. The Amendment would have held all the citizens of a municipality responsible for the costs of mob violence occurring within it. It was based on the theory that the citizens of the town should take the responsibility of securing the rights of those living within it. If they fail in this task, they must be held responsible. The amendment was rejected by the House because certain representatives insisted that they would reject the bill unless the “liability upon towns and counties … go[es] out.” From this rejection, the court has implied that Congress had no power to force liability upon cities and municipalities. But, in Monell, the Court held that this limitation on Congressional power to levy liability existed only when it would impose liability for nonperformance of a duty which Congress could not require municipalities to perform.

2. The justificationa. Resolution of constitutional violations is the highest callingb. National rights deserve national remediesc. The violation of rights through state action is really bad and should not be considered the

same as a tort or criminal action committed by a private person.d. The judicial forum offered by state and local governments may not be independent of state

political actors.3. The framework

a. Person: includes any person in his individual capacity as well as cities and municipalities. [School Board injunction cases, Monell]

b. Color of law: includes actions in pursuance to law and taken in violation of state law if they were done with a use of power possessed through the law (pretext of law). [Monroe]

c. Deprivation: must be read in the background of tort liability; no specific intent requirement. [Monroe]

d. Rights privileges and immunities: includes anything in the constitution. Must be construed more broadly that the Court did so in Slaughterhouse. [Monroe]

4. Suits Against Officersa. When a suit named an individual officer, the suit is against him in his individual capacity.

Therefore, he pays if liability is found—not the government. Accordingly 11A is inapplicable. But individuals may have immunity defenses available (qualified or absolute).

b. When a suit names an individual officer in his official capacity, the suit is really against the government entity. (1) In § 1983 suits for equitable relief, 11A does not apply (Ex Parte Young)(2) Immunities by individual officers might still be a problem

c. The difference: for suits in equity, there is no difference. But for suits seeking monetary damages, it is important to know who is paying, so determine what immunities should apply.

5. Who can be sued?a. Police officers/State and City Officials – are acting color of law when acting as officers,

even if they are doing so in violation of state or municipal law. Can be sued in their individual capacity.(1) Monroe v. Pape (1961): § 1983 creates a federal remedy, cognizable in federal court,

against a state official for violation of federal rights—even if the official’s conduct is wholly unauthorized under state law.(a) Suit against Officer Pape and the City of Chicago under § 1983 for violation of

Monroe’s constitutional rights under 4A. Officer Pape arguments:

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(b) RPI have been construed narrowly (see Slaughterhouse cases) to apply to those rights that are peculiarly national. wrong

(c) § 1983 requires a finding of specific intent. § 1983 is different from § 242 because it is a civil statute that does not require a mens rea finding. § 1983 should be read in the background of tort liability

(d) official cannot be acting under color of law when he acts in violation of it. Color of law must apply to more than just unconstitutional laws. The Court recognizes that officials are given immense power by the state when they are agents of the state. There is a possibility of misuse of this power at any time, and the statute was intended to protect people against this misuse however it occurs. Relies on stare decisis and the decision in US v. Classic defining color of law in this manner.

(e) Frankfurter dissent: there must be an important distinction between actions done with the approval of law (or customary interpretation of the law) and those done in violation of such. Federalism: the burden of protecting its people must be left to the state governments, while the federal function should be invoked only when the local political system fails. Fear of having uniform standards and methods of protecting civil rights – advantage to having a variety of practices. If the federal government always steps in, local governments are more able to shirk their responsibility and there may be a backlash against the federal courts. There is a benefit to restraining the use of federal power – not the best allocation of resources to use it when state law can address the violation.

(2) To recover under § 1983, P must establish injury resulting from an unconstitutional state action.(a) Definitions of state action:(b) Some relationship with the state (like partial funding).

Nexus requirement – the violation must be related to the state relationship in that the action of the funded agency may be fairly treated as that of the State itself. See Rendell-Baker. Similarly, it would help if the State had provided significant encouragement for the private actor to commit the unconstitutional action. See American Manufacturing v. Sullivan. The mere fact that a private business is subject to extensive state regulation does not by itself convert its action into that of the State if it cannot be shown that the State had no relationship to the challenged action.

Symbiotic relationship – the degree of interaction between the state and challenged entity is ongoing and repetitive.

(c) Public function – an entity that carries out an activity that is uniquely a state action is subject to liability. See West v. Atkins. Because the state has an obligation to provide medical services to prisoners, it cannot avoid liability for the constitutional violations caused while carrying out those duties if it has delegated them to an outside contractor.

(d) Action taken by state but motivated or directed by a private party – action must be fairly attributable to the state. Deprivation must have been caused by the exercise of some right or privilege

created by the State The party charged with the deprivation must be a person who may fairly be said

to be a state actor. See Lugar v. Edmondson Oil. Plaintiff must allege the state statute used by

private party to cause the violation as being unconstitutional. Private party will be considered a State Actor if he is invoking the aid of state officials to take advantage of state-created attachment procedures.

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See Edmonson v. Leesville Concrete. Defendant’s exercise of peremptory challenges was pursuant to a course of state action and is therefore subject to constitutional requirements. (1) Actor relied on government rights and privileges, and they would have no power outside the setting established by gov’t; (2) Action in question involves a traditional governmental function; (3) Power of action is aggravated in a unique way by the incidents of governmental authority.

b. Cities/Municipalities – can be sued directly when the action that is alleged to be unconstitutional implements or executes a policy promulgated by those whose edicts or acts may fairly be said to represent official policy.(1) Monell v. City of New York (1977): Overrules Monroe v. Pape which said that “person”

does not include cities and municipalities. Only when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.(a) The Court had decided the merits of a score of cases brought under § 1983 in which

the principal defendant was a school board and had found them to be persons under § 1983 for the purposes of injunctive relief.

(b) Monroe was decided wrongly in that it relief on the Court’s interpretation of the debate over the Sherman Amendment to the KKK Act. The opponents to the Amendment did not object to it because they felt they had no power to levy liability on cities, but because they believe they had no power to levy liability on cities/municipalities to obligate them to keep the peace when those cities were not obligated to do so by their state charters. Cannot be charged with liability for nonperformance of a duty which Congress could not require municipalities to perform. Similarly, it is clear that in adopting the KKK Act, Congress intended it to apply to takings by cities. It doesn’t make sense to exempt cities from liability for takings and to impose that liability only upon officials of the government.

(c) The plaintiff must prove some policy or custom, because Congress did not intend cities to be held liable merely under a respondiat superior theory. The strong causation language in Monell and the amendment of § 2 to apply only to those who neglected or failed to stop group violence (over Sherman’s suggestion of holding everybody) implies that Congress intended not to impose any vicarious liability.

(d) But see Owen v. City of Independence Missouri (1980): No qualified immunity for municipalities. Chief of Police brought § 1983 action against city, council members and city manager alleging he was discharged without notice, hearing, and in violation of his due process rights. Monell held that § 1983 was intended to encompass municipal corporations as well as natural persons. Nonetheless, on several occasions, the court has found a tradition of immunity so firmly rooted in the common law and supported by such strong policy reasons that Congress must have specifically mentioned if it wished to abolish the doctrine with the adopted on § 1983. But, there is no history of immunity for municipal corporations and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity the city seeks.

(2) Policy and Policymakers(a) City of St. Louis v. Praprotnik (1988): Determining the policy maker is a matter of

state law. Praprotnik was fired by his supervisor after he successfully appealed a disciplinary action to the Civil Service Commission. P argued that his firing was in retaliation for his appeal, and that it violated his First A rights. Brought § 1983 action against City. Court held that the supervisors could not be considered policymakers, and as a result, it was not proven that he had been fired in accordance with a city

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policy. Just because supervisors had the power to hire and fire did not authorize them to establish employment policy for the city.

(b) Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority.

(c) Deliberate indifference: If the city or policymakers of the city are deliberately indifferent to the violation of constitutional rights, that inaction can be considered a policy to subject the city to liability. Specific example: Failure to train. BUT, there must be a clear line of proximate causation before the court will hold the city liable for the indifference. Can be KNOWN or OBVIOUS

(d) City of Canton v. Harris (1989): Harris was arrested and was ill during the process of her arrest. Police did not provide her with medical care. Alleges the failure to train the police on what constitutes a need for medical was a violation of her rights. Court held that a deficiency in city policy can be the basis for liability in § 1983 action if the deficiency is at the level of deliberate indifference to the constitutional violations that may result from the deficiency. Case remanded for determination.

(e) These rules are different from those applicable to fed gov. Under the FTCA, the U.S. is liable on a respondiat superior theory. The exception is where acts are taken in due care of a statute or regulation, whether valid or not.

c. Summary: Ways to hold a city liable(1) Official enactment(2) Official decision(3) Binding delegation from policy maker to an executive official(4) Covert command – must show that real policy is not the official policy(5) Ratification(6) Deliberate indifference (known)(7) Deliberate indifference (obvious)(8) Custom

d. States and State Agencies as Defendants(1) See Will v. Michigan Dept. of State Police (holding that neither a state nor a state official

acting in an official capacity is a person under § 1983, at least when sued for retrospective relief.

(2) Section 1983 does not contain a clear statement waiving immunity for states. Given the fact that states have 11A protecting them from suit in federal courts, it does not make sense that Congress would enact a statute giving private parties more rights by bringing action in state court. Thus, states are not persons under § 1983 and cannot be sued in state court under it. The court does not have to reach the 11A question.

(3) Objections to Will: Section 1983 was adopted before Congress was aware of the “clear statement” rule and before they could have understood how the court would construe 11A immunity.

6. § 1983 as a Remedy for the Violation of a Federal Statutea. Maine v. Thiboutot (1980)

(1) Issue: Should 1983 be interpreted as limited to actions claiming violations of equal rights statutes?

(2) Facts: P brings action for denial of welfare benefits in state court where the statute had no application.

(3) Held: P does not have to assert denial of equal rights to state a claim under 1983. No contrary legislative history warrants departure from the plain text of the statute.

b. Limitations(1) Middlesex County : Plaintiffs may not receive remedies other than those expressly

provided in the regulatory statutes. Under the statute cited, Congress provided a

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comprehensive enforcement mechanism. The provisions foreclosed implied private actions and supplanted any remedy otherwise available under 1983.

(2) Wright v. Roanoke Redevelopment Authority : 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose private enforcement. Here, federal law created enforceable rights, and HUD’s power to audit and cut off funds were insufficient to indicate congressional intent to foreclose enforcement under 1983.

c. Remedies in other circumstances:(1) Preemption claims: Golden State Transit Corp v. LA (1989): The availability of a 1983

remedy turns on whether the statute, by its terms or interpreted, creates obligations sufficiently specific and definite to be within the competence of the judiciary to enforce, is intended to benefit the putative plaintiff, and is not foreclosed by express provision.

(2) Dennis v. Higgins (1991): A violation of the dormant Commerce Clause is cognizable in an action under 1983.

7. Official Immunity from Suita. General

(1) Absolute Immunity – official cannot be liable for suit when acting within the parameters of his official capacity, even if there is a showing of malice or ill will.

(2) Qualified Immunity – official cannot be liable for suit when acting within the parameters of his official capacity unless there is a showing of malice of lack of a good faith belief in the constitutionality of the statute.

(3) When determining whether immunity doctrines apply to § 1983, must look to whether the immunity was clearly established in the common law at the time the KKK act was adopted.

b. Qualified Immunity(1) The idea: Pierson v. Ray (1966): A policeman’s lot is not so unhappy that he must

choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages is he does. Therefore, they should not be liable if they acted in good faith and with probably cause in making an arrest under a statute that they believed to be valid.

(2) Old doctrine. Qualified immunity exists unless:(a) they knew or reasonably should have known that the action they took within their

sphere of official responsibility would violate the constitutional rights of the plaintiff affected [objective standard], or

(b) if they took the action with the malicious intention to cause a deprivation of such rights or other injury to the plaintiff [subjective standard].

(c) BIG THEORY: zone of discretion on unsettled questions of law unless intent to violate rights

(3) Example: school board officials. See Wood v. Strickland.(a) School officials are entitled to a qualified good-faith immunity from liability for

damages under § 1983.(b) Justification: School board officials are asked to make discretionary decisions on a

regular basis. Denying any measure of immunity in these circumstances would contribute not to principled and fearless decision making but to intimidation and would deter qualified candidates from taking such positions.

(4) Subjective analysis is too much effort! See Harlow v. Fitzgerald (1982)(a) New Doctrine: A court evaluating a qualified immunity claim must first

determine whether the plaintiff has alleged the deprivation of a constitutional right, and, if so, proceed to determine whether that right was clearly established at the time of the violation. Subject beliefs about the constitutionality of the conduct play no role in this analysis.

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(b) Because qualified immunity is an affirmative defense that must be pleaded by the defendant, the subjective inquiry into malice is a lengthy and disruptive analysis. This subjective inquiry is incompatible with the principle that insubstantial claims should not proceed to trial. Government officials performing discretionary function generally are shielded from liability for civil damages insofar as their conduct does not violate “clearly established” statutory or constitutional rights of which a reasonably person would have known or which the official actually did know. Because subjective good faith is often regarded as inherently requiring resolution by a jury, many of these cases must proceed to trial, and this is bad (great big policy argument).

(c) Eliminating the subjective prong of immunity analysis does not eliminate the need for it in other constitutional claims. The doctrines adopted regarding motive do not apply to the merits of constitutional questions. Plaintiffs raising these arguments do not have to establish by clear and convincing evidence the existence of animus to avoid dismissal on summary judgment.

(5) What is a Clearly established constitutional right?(a) Doctrine: Clearly established means that the contours of the rights must be

sufficiently clear that a reasonable official would understand that what he is doing violates that right. His very action need not previously have been held unlawful, but in the light of pre-existing law its unlawfulness must be apparent.

(b) Just because a right is clearly established in regulations or state law does not mean the federal constitutional right is clearly established. Defendant does not forfeit qualified immunity just because the right is established by state or municipal law. See Davis v. Scherer.

(c) Clearly established is determined by the objecting legal reasonableness of the action; court must determine whether a reasonable in the defendant’s position could have believed that the action was constitutional. It does not matter whether the defendant actually believed the action to be constitutional. This doctrine allows officials a zone of discretion on unsettled questions of the application of settled law.

(d) Anderson v. Creighton (1987): Facts: FBI officer participated in warrantless search of plaintiff’s home. P filed

Bivens action for violation of his 4A rights. Held: A warrantless search would have been constitutional if it was supported by

probably cause or exigent circumstances. Whether the agent’s conduct comported with 4A is determined by an objective analysis of whether a reasonable agent could have believed plaintiff’s warrantless search to be lawful, in light of clearly established law and the information the searching agents possessed.

(e) Obviousness: even if the law isn’t technically settled in an area, if the action was obviously violating some sort of right, the official is not entitled to immunity. See US v. Lanier. Clearly established means that the official must have had fair warning about what is constitutional, or his actions must have been apparently unlawful.

(f) Big theory: Court is attempting to protect officials from the penalty of litigating claims when the are not morally culpable and are trying to ensure that the prospect of drawn out litigation does not deter state actors from participating in legitimate activities in pursuance of the official duties.

(6) Appealability(a) A denial of a defendant’s claim of qualified immunity is an immediately appealable

“collateral order.” The purpose of immunity is to prevent immune defendants from having to stand trial. See Mitchell v. Forsyth.

(b) The collateral order doctrine has been limited to those questions addressing the legal issue of whether a legal right was clearly established. When the question on summary

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judgment is whether the violation actually occurred, appeal of that determination must wait until the trial is concluded. See Johnson v. Jones.

c. Municipal Immunity(1) There is no qualified immunity on behalf of cities and municipalities. Cities are strictly

liable for constitutional violations committed on their behalf and cannot assert a good-faith affirmative defense. Legislative history indicates municipal immunity did not exist at the time § 1983 was adopted.

(2) The policy arguments that favor giving qualified immunity to state actors are less compelling when made on behalf of municipalities.

(3) Remember Monell: City can only be held liable if there is a provable policy that is unconstitutional.

(4) But, municipalities are not liable for punitive damages for their violations of constitutionally protected rights. See Newport v. Fact Concerts.

d. Absolute Immunity. (1) Available to

(a) Judges(b) Prosecutors(c) Legislators—from speech and debate clause(d) President of US

(2) Immunity is only available when the officials are acting in their own functions. For example, judges acting administratively do not count. Prosecutors must be associated with the judicial phase of the prosecution to receive the immunity. If they are engaged in investigatory parts of the job, there is no absolute immunity. (a) Idea. Enforcement of § 1983 against these people could have a chilling effect on their

activities and there is no need to do this. Judges should not be faced with the fear that unsatisfied litigants may hound them with litigation charging malice or corruption and should not be intimidated into making determinations that do not accord with justice.

(b) EXCEPTION: Judges are not immune from prospective relief. See Pulliam v. Allen. Procedure: declaratory relief must be granted before injunctive relief unless the harm is likely

to occur immediately. In those situations, the court can grant a preliminary injunction. (according to amendment to § 1983)

Relief Legislator Judge Prosecutor State Executive City PrivateDamages Absolute

TenneyAbsolutePierson

AbsoluteYselli

Absolute11A (in fed)

QualifiedHarlow, Pierson, Wood

NoneOwen, Newport

None

Inj. AbsoluteSup. Court of VA

Limited by § 1983 amend

Equity None NoneEx Parte Young

None None

IX. Judicial Federalism

A. Statutory limits on federal court jurisdiction1. Tax Injunction Act2. Johnson Act: fed courts cannot enjoin state enforcement of utility rates.3. Anti-Injunction Act

a. 28 USC § 2283: A court of the US may not grant an injunction to stay proceedings in a State court except as: (1) expressly authorized by Act of Congress, or (2) where necessary in aid of its jurisdiction, or (3) to protect or effectuate its judgments.

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b. “Expressly authorized by Act”(1) Example: § 1983 abrogates the Anti-Injunction Act(2) See Mitchum v. Foster (1972): § 1983 fulfills the requirements of the “expressly

authorized” exception to § 2283.(3) Test: whether an Act of Congress, clearly creating a federal right or remedy enforceable

in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding.

(4) Held: The purpose of 1983 was to empower federal courts to enjoin state court proceedings that violate civil rights. Injunctive relief against state courts may be essential to preserve someone’s constitutional rights.

(5) It is not essential that the statute specifically mention it intends to enjoin state court proceedings. Although the court cites a number of statutes that make such a clear statement, it is not an essential element. And none of those statutes specifically mentions the AIA.

c. “In aid of its jurisdiction”(1) Typical case is in rem action – any action involving property and the court’s need to

obtain control over it(2) Has expanded the in rem analogy to include class actions.

d. “To protect or effectuate its judgments”(1) has been interpreted narrowly(2) Under this exception, an injunction is available only if questions in the state court action

are the same as those already decided by the federal court. See Chick Kan Choo: P’s fed court suit was dismissed on two grounds. Held D cannot get fed court to enjoin subsequent state proceeding because the fed determination in first case may not be the same as the state court determination in the second case. Because preclusion does not necessarily apply, it is not necessary “to effectuate its judgments” for the fed court to enjoin state court.

(3) Otherwise, the federal court does not need an injunction to effectuate its judgments because no judgment has actually been made.

(4) BUT SEE Parsons Steel: cannot get an injunction to overturn a state court decision once it has already been rendered, even if the question has already been determined in fed court. While state court may disagree with fed court, and one of them must be wrong, it would be disastrous for the fed court to overturn the state court’s decision. If state court had not yet rendered decision, it would have been OK.

B. Equity, Comity and federalism1. Abstention because of unsettled state law

a. One of the reasons for the creation of the federal courts is the idea that federal courts are necessary for the vindication of rights, especially constitutional rights. Federal question jurisdiction could be seen as a response to state court failure to protect individual rights. This theory both supports and defeats the argument for increased abstention of federal courts.

b. Pullman abstention(1) Pullman , the case

(a) RR challenged a RR Comm’n regulation. Argued regulation was not authorized by Texas law, and that it violated the federal constitution.

(b) Held: this is a sensitive subject that can be avoided by focusing on the question of state law alone. Issue may be able to be avoided with a definite ruling on the state issue.

(c) Frankfurter does not take the easy (and defensible) way out by relying on the distinction between equity and law jurisdiction. Instead he relies on principles of federalism, which clearly share no history with equitable principles.

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(2) Rule: Federal courts should stay their determinations of federal constitutional challenges to state statutes until the highest court of the state has had the opportunity to interpret the challenged statute

(3) Purposes:(a) enhances comity(b) may make the federal constitutional question disappear(c) state court interpretation will be binding on the state courts(d) Also allows the Court to dodge a challenging question that may not turn out well.

(4) Drawbacks:(a) fed court is declining to hear a case properly before it(b) additional cost and delay for the plaintiff(c) Cohens v. VA : to fail to exercise jurisdiction given would be treason to the

Constitution(d) SOP: Congress has decided how federal courts will relate to state courts (by defining

federal court jurisdiction), and the Court has upset that balance by choosing to abstain.

(5) Why is this not treason to the Constitution? Distinction between equity and law. Equity jurisdiction has always been discretionary, especially as compared to legal jurisdiction. Argument that “because we have power, we must exercise it,” is not as strong in the context of equity.

(6) Some weirdness: Pullman allows a federal court to abstain even if the Ps have not brought the state law claim in state or federal court. Court can recognize a state law question that should have been raised, and stay on the principle that it should have been raised.

(7) England reservation: allows a litigant to return to federal court for a de novo review of his reserved federal claims once the state court proceedings are over – avoids the preclusive effect of an adverse state court determination. P must make it clear that he does not want the federal question determined by the state court, but he must also inform the state court that a federal question is pending.

(8) Federal court can only claim abstention if P is asserting a federal constitutional claim along with his state claim.

(9) State issues must be (a) unsettled(b) susceptible of a limiting construction (Harrison, Midkiff)(c) unique to state law. If state constitutional issue is asserted, and state constitutional

provision tracks the federal, there is no reason to abstain under Pullman (see Constantineau).

c. Burford Abstention(1) Federal courts should dismiss cases in which the state has an overriding interest in

adjudicating. Usually limited to regulatory matter where there is a complicated system of adjudication already established, or where the intrusion of federal adjudication might handicap state government.

(2) Quackenbush v. Allstate (1996) – Brought in context of a Burford abstention; if P is seeking damages, federal courts cannot abstain by dismissing and remanding, but still can stay the case. Usually Burford abstention cases are dismissed, because there is nothing to wait for, just a good reason to get rid of the case. (Compare to Pullman, where the fed courts are waiting to see if something good will come back to them.)

2. Exhaustion of state nonjudicial remedies

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a. Federal courts will not hear P’s claim against a state officer if he has failed to exhaust his administrative remedies against the officer. See Prentis.

b. Patsy : such exhaustion is not required in § 1983 actions.3. Abstention because of pending state proceedings

a. Equitable Abstention under Younger v. Harris(1) Facts: P brought § 1983 claim in federal court alleging violations of 1A, 14A; sought

injunction against state court prosecution under what he argued as a statute that violated his constitutional rights.

(2) Held: While Harris has standing to bring the suit because he is currently being prosecuted (contrast to intervenors), the federal court must abstain from issuing the injunction.

(3) Rule: Federal court cannot enjoin a state court criminal proceeding. Must dismiss federal action if:(a) there is a duplicative state proceeding going on that implicates important state

judicial system interests(b) the party had sufficient opportunity to air its constitutional claims in the state court.

(4) Why? Equity jurisdiction is discretionary, and this is not a good place to use it.(5) Extension to quasi-criminal civil actions under Huffman(6) Extension also to damages actions. See Samuels. “Payment of damages for

constitutional violations is just as disruptive as the issuance of an injunction.”(7) Pennzoil v. Texaco : suit seeking to enforce a state court judgment

(a) Judgment against Texaco for substantial $$. Texaco § 1983 action against Texas that the proceedings violated constitutionally protected rights.

(b) Holding: Younger applies(8) Policies of Younger have been held applicable even within a pending court martial

prosecution.b. Declaratory Judgments: Stoeffel: If state prosecution is threatened but not undertaken,

possible criminal D can get a preliminary injunction against prosecution. But, this must happen before prosecution.

c. Exceptions: (1) Bad faith prosecution/harassment: must show evidence of bad faith (Dombrowski). SCT

has not, post-Younger, found harassment.(2) Patently, flagrantly unconstitutional statute.

(a) Must show entire statute to be unconstitutional.(b) Will not apply Younger to stop an incompetent state administrative agency. [???]

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Documents

Fed Courts Outline