Federal Courts Outline -

Downloaded From OutlineDepot.comKannar Federal Courts, Spring 2011

JUDICIAL REVIEW

A. General Considerations: Article III of the United States Constitution creates the federal judiciary and defines its powers. The language of the Article does five important things…

(1) Creates a Federal Judicial System: First, the initial words of Article III – “the judicial power of the United States shall be vested” – create a federal judicial system. Federal courts were desired to effectively implement the powers of the national government; there as fear that state courts might not fully enforce and implement federal policies, especially where there was conflict between state and federal law. At a minimum, a federal judiciary could help provide the uniform interpretation of the Constitution and federal laws; it could also protect individual liberties.

How Do you structure any system: What are the ground rules? What are the bases for the rules? All this doctrine is made by the S.C. S.C. makes a lot of changes that nobody notices. S.C. can make a lot of changes & subject to further changes. In a system of flux, it’s important to know where they came from, where they are, & where they are going ➝ what the trends are, *whether there is something that you can do to protect yourself/your client (highly technical aspect).

Nature of Justiciabilityo Whether a matter is justicable (standing , mootness). Look at the history of

it. History of division of fed. & state cts. Extent of which states enjoy immunity. Powers of Congress in defining fed. jurisdiction. Theme of judicial restraint.

o Felix Frankfurter (keep it out of politics) ➝ was silent during ct packing (FDR). Believed in independence, saw politicizing judiciary in a negative way. During 1930s & 1940s—tryoing to protect judiciary from itself (insulate institution from political attack).

(2) Creates Supreme Court and Permits Establishment of Lower Courts: Second, Article III vests the judicial power of the United States “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” Congress established lower federal courts in its first judiciary act, and they have existed ever since.

(3) Insulates Federal Judges: Third, Article III assures the independence of the federal judiciary by according all federal judges life tenure “during good behavior,” and salaries that cannot be decreased during their time in office. This difference from state courts makes federal judges uniquely suited for the protection of constitutional rights.

(4) Cases and Controversies Defined: Fourth, Article III defines the federal judicial power in terms of nine categories of cases and controversies. These nine categories fall into two major types of provisions. One set of clauses authorizes the federal courts to vindicate and enforce the powers of the federal government. The other authorizes the federal courts to serve an interstate umpiring function, resolving disputes between states and their citizens.

(5) Allocates Authority Between Supreme Court and Lower Courts: Fifth, Article III allocates judicial power between the Supreme Court and the lower federal courts. Article III states that the Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other

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cases, the Supreme Court is granted appellate jurisdiction, both as to law and fact, subject to such exceptions and under such regulations as Congress shall make.

B. Judicial Review: Article III courts have the power of judicial review, which enables them to determine the constitutionality of acts of the other two branches of the federal government and of the states. However, this power is limited by the “case and controversy” requirement and by justiciability doctrines.

Thomas Jefferson’s letter to the justices: questions about treaty w/France. John Jay writes back & says not w/in Court’s duties, job is not advisory. (Pg. 53—judiciary barred from giving advisory opinions (don’t give legal advice, only decide on cases that have already arisen).

Steel Co. v. Citizens: can see temptation of lower cts of justicability. Scalia says fed. cts. must resolve questions of subject matter jurisdiction. Can’t give advisory opinions.

o Ct wouldn’t take case if the result would be the same if there was an adequate & independent state ground (ct imposed rule). If S.C. rendered an opinion, it would be an advisory opinion.

Declaratory judgments: aren’t they on their face advisory opinions?o Aetna Life v. Haworth: Ct is limited to an injunction or damages.

Marbury v. Madison (1803) (created judicial review for the federal courts): Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as secretary of state, to deliver his judicial commission. Marbury claimed that the Judiciary Act of 1789 authorized the Supreme Court to grant mandamus in a proceeding filed originally in the Supreme Court. However, Madison claimed that the Constitution specifically limited the Court’s original jurisdiction to specific areas. Held: The Supreme Court has the power, under the Supremacy Clause and Article III, § 2 of the Constitution, to review acts of Congress which are repugnant to the Constitution and find them constitutional. The Court ruled against Marbury and held that it could not hear the case as a matter of original jurisdiction. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction, the statute was unconstitutional and hence void.

Establishes where the jurisdiction of the S.C. lies. It was a case about judicial power. Where the cts fit in the tri-part system.

Concept of political questions. Those that are political are not for the Ct to decide, they differ from legal questions. There will be cases/disputes that are not w/in Art. III power.

Reaffirms separation of powers. Have an independent separation of powers. Derive power from Constitution.

Appellate jurisdiction & what it means, he brings something over from the common law system.

o Discretion, Prudence, & Judicial Function-Marshall—Ct won’t take jurisdiction if it shouldn’t. Question of whether or not mandated by law to take the case..

o Ashwander v. TVA: says never make a rule constitutional broader. 2 ways of disposing of the case, use the non-constitutional one.

1. Federal Courts are Courts of Limited Jurisdiction: Federal courts may not hear matters unless there is constitutional authority, and Congress may not expand the jurisdiction granted in Article III of the Constitution.

i) Limited Original Jurisdiction: The Court in Marbury ruled that Article III creates the ceiling on the Supreme Court’s original jurisdiction. Congress cannot authorize original jurisdiction greater than that provided for within Article III.

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2. Role of Judiciary in Separations of Powers Doctrine: “It is emphatically the province and duty of the judicial department to say what the law is.” The Constitution imposes limits on government powers and those limits are meaningless unless subject to judicial enforcement.

C. Private v. Public Rights Models

1. Dispute Resolution or Private Rights Model: Some claim that the power of judicial review exists only as a necessary incident of the power to decide cases. The definition of such “cases” should be restricted to the kinds of disputes historically viewed as appropriate for judicial resolution – paradigmatically, those in which a defendant’s violation of a legal duty to the plaintiff has caused a distinct and palpable injury to an economic of other legally protected interest. Courts should avoid any role as a general overseer of government conduct, and should especially avoid the award of remedies that invade traditional and legislative prerogatives.

E.g. Frothingham

2. Public Rights Model: A more diffused conception of the function of courts in public law matters, which depicts constitutional interpretation by the courts as other than an incident of the power to resolve particular disputes between identified litigants, is called the public rights model. Advocates for this model argue 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 – norms that transcend individual controversies.

E.g. Flast

3. Connection to Standing: The private v. public model factors into standing doctrine because it determines how broad or narrow the claim needs to be.

JUSTICIABILITY: CONSTITUTIONAL & PRUDENTIAL LIMITS ON FEDERAL JUDICIAL POWER

A. Justiciability Rules Generally: Article III courts are only authorized to hear judicially cognizable disputes. In addition to the “case and controversy” limits set forth in Article III, the federal courts have developed a set of sub-constitutional factors – based on prudence – that dictate whether a dispute should be heard and/or decided.1. Reasoning: Justiciability rules are based on separation of powers concerns and define what

the court may hear and what the court must defer to other branches of the government. They also conserve judicial resources allowing the federal courts to focus their attention on the matters most deserving of review. Finally, they improve judicial decision-making by providing the federal courts with concrete controversies which will be zealously litigated for judicial resolution.

2. State courts not required to follow federal standing requirements, even for federal claims. (Fairchild: wanted to sue to keep the 19th amendment from being ratified. Suing the Sec. of State and Atty general, to keep it from being entered and enforced.)

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B. ADVISORY OPINIONS: Federal courts will not issue advisory opinions. Advisory opinions go to judicial propriety/ethics. These raise some questions b/c extra judicial actions (ex. Writing books). Notion of S.C. justices taking on other assignments (ethical issues). Moral/ethical issue: when Kennedy was assassinated, Chief Justice Warren led the investigation.1. Reasoning:

i) Separation of powers is maintained by keeping the courts out of the legislative process. The judicial role is limited to deciding actual disputes; it does not include giving advice to Congress or the President

ii) Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature

iii) Helps ensure that cases will be presented to the Court in terns of specific disputes, not as hypothetical legal questions (adverse parties will be more likely to present all the facts).

2. TEST : In order for a case to be justiciable and not be an advisory opinion, two criteria must be met…i) First, there must be an ACTUAL DISPUTE between adverse litigants

a. Must be adverse, if Congress just says you can file to get things clarified, the parties aren’t in dispute yet. (Muskrat v. U.S.)

ii) AND There must be a SUBSTANTIAL LIKELIHOOD that a federal court DECISION in favor of a claimant will bring about some CHANGE or have SOME EFFECT.a. Case where Court was asked to review Revolutionary War Vet benefits, but the

Secretary could ignore the court’s recommendations, that’s an advisory opinion. (Hayburn’s Case)

3. State Courts May Offer Advisory Opinions about the constitutionality of pending legislation or on constitutional questions referred to them by other branches of government.

These rulings can prevent unconstitutional laws and save legislature wasted effort

4. Declaratory Judgments Allowed: Congress adopted the Declaratory Judgment Act of 1934, authorizing a federal court to issue a declaratory judgment in a “case or controversy within its jurisdiction.” i) Must still meet requirement for judicial review. (Must be actual dispute b/w adverse

litigants & substantial likelihood that favorable decision will bring about some change.)ii) Aetna Life Insurance Co. v. Haworth (1937): upheld the constitutionality of the DJA.

“where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.”

C. FINALITY: A federal court will not decide a case if its decision is liable to be overturned by one of the coordinate branches of the federal government.

Because such action would violate the principle of separation of powers. It would interfere with the independence of the judicial branch by depriving its judgments of finality.

i) Hayburn’s Case (1792)-Not a Supreme Court Case. (no decisions that can be overturned by coordinate branches): Court was asked to determine Rev. War Vet benefits. But, the secretary could refuse to follow the court’s recommendation. The assignment of these tasks was unconstitutional b/c of separation of powers.

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Circuit ct judges in charge of determining if Revolutionary War Veteran’s pension. When judges issue decisions, Sec. of War reviews & makes decision to pay or not.

Judges decide fed. judiciary can’t do this. There were supposed to be 3 branches.

Problem w/way Congress set this up was judicial branch was making recommendations to executive branch. Sec. of War didn’t have to follow, it undermines judicial independence. There’s no finality.

Majority of judges said Act of Congress was void. This was the power of judicial review.

Congress then fixed the system.a. Class example: extradition proceedings, judge holds hearing, gives rec to Secretary who

decides whether to deliver the person to the country seeking extradition. There is adversarial proceeding, but seems like same problem from Hayburn, b/c Exec may overrule the judge. Argument for allowing it is the judges are acting as extradition officers. Maybe judge is deciding different issue (is the person extraditable) vs the Secretary who is deciding whether he will extradite or not.

Tutun v. US (84)—naturalization proceeding. No case or controversy b/c only 1 party (that is asking for a petition). Ct says that the US could always be a party & challenge.

2. Exceptions to Finality Requirement:i) Presidential Pardons: Although presidential pardons seems to wipe out judicial

decisions (thus compromises finality of criminal law decisions), this is a constitutionally recognized exception (Article II) and only occur in the most minimal sense (very rare exception).

ii) Immigration: Executive branch can rule on immigration issues – i.e. deportation orders.iii) Legislative Revision: Congress is forbidden from granting monetary relief to a party

which a federal court has ruled is entitled to none (retrospective = damages), BUT Congress may require federal courts to revise their injunctions to be in compliance with changes in federal law (prospective = injunctions).a. (Congress cannot give relief which judiciary ruled party is not entitled to): Plaut v.

Spendthrift Farm (1995). In 1991, the Court ruled that actions brought under securities laws had to be brought within one year of discovering the facts of the violation and three years of the violation. Congress then amended the law to allow cases to go forward that were filed before the decision if they could have been brought under the prior law. Held: The statute was unconstitutional as a violation of separation of powers. The Constitution gives the Federal judiciary the power not merely to rule on cases but to decide them. The statute was unconstitutional because it overturned a Supreme Court decision and gave relief to a party that the Court had said was entitled to none.

S.C. decides it’s a much shorter statute of limitations than anyone thought & a lot of cases were closed. Congress amended & extended the statute of limitations & re-opened the closed cases. S.C. says Congress can revise legislation but can’t re-open a case by statute.

b. (Congress can require changes in injunctions to be in compliance with fed law): Miller v. French (2000) Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Thus, unlike Plaut, it is not the last word of the judicial department.

c. Legislative Revision: From Hayburn’s case to Plaut. US v. Klein: said that Congressional motives cannot be overlooked.

Furthermore, Congress cannot dictate the result in a case where it is the

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party to litigation. Cts had been making rulings. Congress thought Andrew Jackson was giving too many pardons, so they passed legislation to negate power of pardon. Klein & Boumediene cases are the only 2 cases that said Congress couldn’t so something. In Klein—a law about judicial significance of a pardon. Congress passes a law that a presidential pardon is not about proof of loyalty; the fact that you received a pardon means you’re disloyal & Ct should deny jurisdiction for hearing the case. Ct says no, there are some things that are essentially judicial. You can’t direct us; this is a judicial function (on how to take a certain piece of evidence). A proper Act of Congress was flatly rejected.

iv) Claims Against the United States: Payment of any judgment against the United States used to require a general or specific appropriation by Congress. The Ct has assumed that it is permissible for Congress to employ non-Article III tribunals (judges lack life tenure & whose powers are not subject to Art. III justiciability doctrines) either to adjudicate or to recommend to Congress whether to pay such claims. a. But, If Congress provides for review of the decisions of the tribunals by Article III

courts, justiciability rules apply to appeal.b. Judicial Revision

US v. Johnson Facts : The tenant brought suit against the landlord (rent control during

WWII), alleging violation of the Act and demanding treble damages and reasonable attorney fees. The landlord challenged the constitutionality of the Act via a motion to dismiss. The government intervened and filed a brief in support of the constitutionality of the Act.

The landlord basically sued himself, & the Ct said it was a collusive suit, NOT an actual dispute.

Holding : suit was collusive because it was not in any real sense adversary. In so holding, the court noted that the tenant had no active participation in the suit, exercised no control in the case, was only nominally represented by counsel, and his counsel was selected by the landlord's counsel.

Test cases: to see what the rights are. There are test cases framed by Congress: Muskrat v. US—Ct refused to entertain a suit that Congress had specifically authorized. Congress can’t set up an advisory opinion situation.

Consent decrees: there’s no adversity, how can Ct enter agreement? ➝ Some part of the deal has notion of force of law. There is adversity until judge’s signature goes on the line. Could also avoid cases.

3. Nonjusticiable State Court Decision of Federal Right: If a question of federal law is decided in a state court which does not have justiciability rules and thus the question would not have been cognizable in federal court, the Supreme Court still has the power to hear its appeal. This is based on reasoning that the state court decision itself satisfies the “injury” requirement necessary to get into federal court.

D. STANDING: Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication. Standing doctrine promotes separation of powers

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– i.e. by restricting who may sue in court, standing limits what matters the judiciary will address and minimizes judicial review of the actions of the other branches of government. Standing also conserves judicial resources, ensures zealous litigation, and serves the value of fairness by ensuring that people will raise only their own rights/concerns rather than intermeddling. Warren says that standing is an iceberg word—most of it is below water. The constitutional requirements of standing are: live case & controversy.

1. Standing Constitutional Requirements (TEST): Requirements for standing are derived from Court’s interpretation of Article III, and cannot be overridden by statute b/c they are based on Const. They must be satisfied whether they are challenged or not. i) The requirements for Standing are Injury-In Fact, Causation, & Redressibility.

(1) INJURY-IN-FACT: The plaintiff must show that he has sustained or is in immediate danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. (can’t be too speculative or abstract, but different than asking whether there is a cause of action)

(2) Flast v. Cohen: establishment clause ➝ it’s hard to determine who suffers when Congress passes a law that violates the establishment clause. The Ct systematically moves away from Flast (in Valley Forge & Hein). Hein reads Flast extremely narrowly.

a. Sierra Club v. Morton (1972) (organizational interest is insufficient injury): The Sierra Club sought to prevent the construction of a ski resort in Mineral King Valley in CA and asserted a special interest in the conservation and the sound maintenance of the national parks and forces of the country. Held: No standing because none of Sierra Club’s members had ever used Mineral King Valley. A mere interest in a problem is not sufficient for standing. Challenged approval of development of ski resort & had interest in national forest. Ct said they lacked standing b/c NO INJURY. Aggrieved is more than it makes you upset.

b. US v. SCRAP—basically same case as Sierra Club—Ct said they pled the right stuff (it had to do w/use). Πs actually hiked there. Importance of injury in fact requirement.

c. US v. Richardson—held that the Π lacked standing to litigate whether the CIA was violating Art. I §9 cl. 7.

d. Linda R.S. v. Richard D—mother bringing a case against the D.A. to force child support payments. Marshall says she’s making a speculative argument, he might not be able to pay b/c of other possible factors (not being prosecuted is speculative).

e. Simon v. Eastern Kentucky Welfare Rights—IRS allegedly violated a statute. Ct says it’s speculative & regulation of a requirement is not sufficiently definite. Redressability & causation tied together.

f. Lujan v. National Wildlife Federation (1990) (members must use specific lands damaged) Gov’t lessening the environmental protection of certain federal lands. Two members of the National Wildlife Federation submitted affidavits that they used land “in the vicinity.” Held: No standing: Too general to establish a particular injury. P failed to demonstrate that they used specific federal land that was being affected. Their plans to use the land were too conjectural (they didn’t have plane tickets to see the places)

g. Injuries to Statutory Rights Allowed: Violations of rights created by statute also are sufficient for standing purposes. Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even if

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the plaintiff would have suffered no cognizable injury absent the statute, but can’t be a generalized injury (still need injury in fact).

i. Trafficante v. Metropolitan Life Insurance (1972) (standing on Civil Rights Act): Two white residents of an apartment complex were accorded standing to challenge the owner’s discrimination against black applicants in violation of the Civil Rights Act of 1968. Statute created right to be free from discrimination

1. But See Lujan v. Defenders of Wildlife (1992) (no standing w/re Take Care Clause/General Public Interest): The Endangered Species Act provides that any person may commence a civil suit to enjoin a violation of the Act. Held: Congress could not create standing in this manner. It’s a general public interest. To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an individual right is to permit Congress to transfer from the president to the courts the Executive’s constitutional duty, to take care than the laws be faithfully executed.

2. Lujan: wildlife advocacy group sued for violation of §7(a)(2). A consultation, Π believes that consultation wasn’t done & believes they were appropriate ppl to bring this complaint. Πs lawyers were trying to claim an injury (lack of consultation increases chances of endangered species). Trying to make a personal injury claim (future enjoyment). Argument must be more than a cognizable injury; it must be an injury-in-fact (the ppl must actually be injured). 2 women traveled to 2 areas yrs before (they either saw or did not see the endangered species) & wanted them to survive & wanted to return one day & see the species again. Ct said this argument is not concrete, there’s not plan. Must have a connection to the animals. In section III(B)—Πs did not show redressibility and part IV (pg 133)—Congress created a “procedural injury” & a citizen may bring a civil suit.

In the ESA, the Ct is looking at #1. The statute says any person may sue any person for any possible violation. Scalia said Congress can’t get around cases & controversy standard of Art. III. This is not a case that is trying to enforce a procedural injury; this would be allowed.

If Congress can write a statue like this & cts will go along w/it, then judicial & legislative branches have taken power away from the executive branch—this is unconstitutional. It is the Ct’s duty to recognize separation of powers.

It is okay to Congress to allow injuries (for aesthetic injuries).

Kennedy & Souter—they’re on board w/Scalia—statute is overbroad, Congress could be read (through the statute) as saying no Art. III.

Stevens—concurring in the judgment—there is standing, they lose on the merits.

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Blackmun & O’Connor (dissent)—issue w/redressibility. In part II, Scalia says across the board standing in a non-instrumental complex & the dissenting judges think there are some areas of procedural harms that could have standing & Scalia is keeping these cases out. There are procedural protections in the statute

When the case came down, questions about environmental standing. It was a general/broad statute. Get clarification on pg 142(2)

o Fed. Election Comm’n v. Akins—FEC determine AIPAC was not a political committee & they didn’t have to disclose members. Π wants to sue FEC for misapplication of its law. Question of how can you sue an agency for not following its own rules (Wright) ➝ this case comes out the other way b/c of the statute. The statute was carefully drafted (dismissing complaint gives you standing)

What is the injury they have suffered?—They don’t have information to make decisions about candidates. People’s rights as voters are undermined ➝ this is an injury & gives enough basis to file a complaint & brings them in the suit.

This is a generalized grievance. Scalia’s dissent—unitary executive.

This is going too far, all trumping on executive branch & is still a generalized grievance.

3. How can Congress create standing: Pass a statute creating standing Pass a statute creating substantive rights, a violation

of these righs would create standing.ii. Federal Elections Commission v. Atkins (1998) (statutory right to

information created standing): Court granted standing and concluded that Congress had created a right to information about political committees and that the plaintiffs were denied the information by virtue of the FEC’s decision. Why is this not a generalized grievance like that in Lujan? Court thought right to information was more like other common, but cognizable injuries like mass torts or voting injuries, so it’s common but still important.

h. Massachusetts v. EPA: If state doesn’t regulate pollution, then greenhouse gases go up, ice caps melt, and the home owner’s beach front property will be eroded. 5 justices said this gave standing. By regulating the cars the court says it reduces the risk to the property. Refusal by EPA to enforce regulations. Massachusetts wants to challenge EPA’s failure to act. Massachusetts has to plead that they have some interest. The dissent talks about redressibility problem (it’s a globalized grievance). No redressibility, causation is very attenuated. Failure of EPA to issue vehicle emissions rules b/c of cars in China. State’s harms—gases will contribute to harm. Robert’s response to Stevens—then states do have special powers. It is probably limited to states.

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i. Summers v. Earth Island Institute (Supplement)—the Πs arguments is we’re so big, our interests are so nationwide, s programs are nationwide, the statistical probability is very high b/c of membership/interests that there will be a problem. The Ct. says no, you have to prove that a concrete injury happened to at least 1 individual. Dissent says if there were a statute (parallel to Akin) let people part of the rule-marking, it will give them standing.

j. Stigmatic injury doesn’t count. Only counts if plaintiff personally suffered injury. E.g., where parents claimed discrimination b/c IRS didn't deny tax exempt status to schools, no injury b/c parents didn't allege that their children applied/would apply to those schools (Allen v. Wright, 1984).

k. Right to receive benefits in a non-discriminatory manner counts, even if higher benefits wouldn't have actually been received (Heckler v. Mathews)

l. Freight tax's adverse impact on cost of recycling counts. Court bought argument that more expensive recycling would deplete natural resources around school (SCRAP case).

m. Taxpayer Standing: Usually not enough, different in municipality (can feel effects).

(3) CAUSATION: The plaintiff must allege that the injury is fairly traceable to the defendant’s conduct.

a. Allen v. Wright (1984): No causation when IRS didn’t follow law and deny tax-exempt status to racially-discriminatory leading to black children being stigmatized, denied integrated education. Real injury, but the injury is not fairly traceable to the government conduct. The injury to respondents is highly indirect and results from the independent action of some third party not before the court.

i. Could maybe get around this by defining the injury as being denied the right to receive economic benefits in a nondiscriminatory way.

ii. Common criticism is that standing is determined by how you define the injury

iii. Facts : Parents of black public school children are suing the IRS b/c it did not deny tax exempt status for desegregated private schools & that it was harming their children b/c schools were not integrated. On pg. 103, argument (a) sounds like a generalized grievance.

iv. Issue : whether Πs have standing to bring the suit.v. In II(A)—the Ct talks about justiciability in general. Core component is:

injury is fairly traceable & likely to be redressed by requested relief. All of the doctrines come from Art. III. The Πs claim 2 injuries. The 1st fails b/c there is no judicially cognizable injury—it is a generalized grievance. The stigmatizing injury the Ct said is too abstract, it needs to be concrete. It’s too generic & undefined. The 2nd claim of injury was the diminished opportunity for children to receive an education in a racially integrated public school (Ct said the link of causation is far too weak & sees Πs complaint as asking the Ct to fix IRS’s policy ➝ separation of powers argument.

vi. Holding : Respondents did not have standing to sue as their first basis for standing failed because it did not constitute a judicially cognizable injury and their second basis failed as the alleged injury was not fairly traceable to government conduct that respondents challenged as unlawful.

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vii. Rule: the requirement of standing has a core component derived directly from the Constitution. A Π must allege personal injury fairly traceable to the ’s allegedly unlawful conduct & likely to be redressed by the requested relief.

viii. Steven’s dissent: preferential tax treatment—why should it change now? It is supposed to be about standing, not about separation of powers. Dooming the Πs w/o a chance to be heard.

b. ASARCO v. Kadish: state taxpayers were suing school teachers over mineral leases. Private leaseholders intervened as s. Once the lower ct ruled, a controversy began.

(4) REDRESSABILITY: The plaintiff must allege that a favorable federal court decision is likely to redress the injury.

a. Ex., if requested relief only cuts 10% of challenged project’s funding, that probably isn’t redressable, if it’s 90%, that’s probably redressable.

b. In case where student applying to med school sued b/c school has AA policy of setting aside 16 out of 100 spots per year for minorities. Even if there was no AA, he still might not get in so not redressable. But by defining it as the ability to compete for all 100 spots, there was redressability/causation and standing. (Bakke)

2. Prudential Limits: In addition to the constitutional limitations, the Court has also identified 3 prudential standing principles. Unlike constitutional requirements, Congress can override these by statute (e.g. qui tam)i) No third-party standing: A party may assert only his or her own rights and cannot raise

the claims of third parties not in court. (subject to a few limited exceptions, p. 90 in Chimerinsky)

ii) No generalized grievances: Can’t sue as citizen or taxpayer concerned w/ govt following lawa. Taxpayer Status Not enough for Standing when suing about how taxes are spent

(Frothingham): interest too minute and indeterminable, must be particularized injury to the partyi. Municipal tax payers usually do have standing, they can actually feel the effects

of how their taxes are spent.ii. Sometimes no one can sue, then it’s up to the political process.

iii) Zone of Interest Rule: A party must be within the zone of interests protected by the statute.a. Applies when person is challenging an administrative agency regulation that does not

directly control person’s actions. P must be part of the group intended to benefit from the law.

3. Qui Tam Actions: Qui tam is a provision in the False Claims Act, which allows for a private individual or whistleblower with knowledge of past or present fraud committed against the U.S. government to bring suit on its behalf. Someone has defrauded the government, private party sues the other party for the government. If they win, then the private party gets some money. They fed. government has assigned part of the rights to the government’s claim.

4. Competitor Standing—caused grief by what an agency did for a 3rd party.5. Pg. 157(2)—the traditional rule was that parties to a lawsuit could only assert their own rights

or immunities.6. Preliminary note on as-applied & facial challenges & problem of separability—pg. 162

—questions that arise when ppl litigate their own issue, 3rd parties may or may not be covered

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under a statute & it must be struck down on its face (as applied facial challenges). Pg 164(c)—series of cases in which Ct said some part of statute is discriminatory➝ limitation on 1 gender is unconstitutional & extend rights to other gender. Pg. 165—defn of crime or defense—no possibility of constitutional application b/c it’s perfectly unconstitutional. 168-174—overbreadth—basic notion, a person can attack the application of a statute to them, the fact that it is overbroad raises constitutional questions.

7. The Substantiality Requirement—Broadrick v. Oklahoma (169)—Cts should only apply overbreadth analysis when there is a “substantial” overbreadth to a case in which “merely speech” was involved.

8. Complicated fed. questions about state law. It’s must easier for fed. cts when a challenge is against a fed. statute b/c ct can give a narrowing construction.

9. Mass. v. Oakes—Mass. S.C. reversed a conviction under a state statute. State amends the statute. S.C. applies overbreadth doctrine & reverses state supreme ct (chilling effect).

10. Doe v. Reed (pg 8 Supp.)—has to raise question about referendum. Deemed to have satisfied the facial challenge.

11. As of 2006, the law begins to change (Ayotte & Gonzales). Ct is shifting from facial challenge methodology to as-applied methodology.

Ayotte—if issue of minor’s health comes into play, then apply as-applied methodology. Groups were upset b/c it won’t get to the Ct.

Gonzales v. Carhart—Congress found no one would come into this medical situation. Πs said there are people that need this procedure. The Ct found uncertainty so a fail challenge must fail. It is proper to consider an as-applied challenge.

E. MOOTNESS: A case is moot when events subsequent to the filing of the case resolve the dispute. An actual controversy must exist at all stages of federal court proceedings, both at the trial and appellate levels. This rule is derived from Article III’s prohibition against federal courts issuing advisory opinions. Ancient thoughts standing was about parties & mootness, ripeness & political question were about issues. Mootness is the doctrine of standing set in a time frame. The adversarial posture must exist at time of adjudication. For standing, you need a case or controversy and for mootness, it allows adjudication of issues capable of repetition yet evading review. If a case is moot, then judges are giving an advisory opinion. Standing requirements are more constitutional than mootness. If standing fails it fails (Wright) & Ct must dismiss the case. If there are questions about mootness, Ct will weigh policy concerns, it’s more flexible (it’s a managerial flexibility).1. Honig v. Doe—challenge to way of enforcing a CA law about handicapped children.

Whether CA was managing system w/in the Constitutional limits. While case was litigated, the children would turn 21, question arose whether the case could go forward. Rehnquist wanted an overt policy holding that if a case get the S.C., at that point, no mootness argument. It was the 3rd case that got the S.C. that was moot. In contrast, Scalia is much more conservative & thought the case should be dismissed as moot (constitutionally precluded from giving an advisory opinion if ct decides on a case that’s moot b/c there no Art. III case or controversy).

2. DeFunis v. Odegaard (exception) (1974) (3L (admitted via p. injunction pending case over discrimination) seeking admission. Case was moot b/c school said he’d be allowed to graduate no matter what, controversy was over):

Facts: Petitioner student commenced action against respondent law school contending that the procedures and criteria employed by respondent invidiously discriminated against him on account of his race in violation of the Equal Protection

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Clause. S.C. decides the case is moot after oral argument. The doctrinal reason for dismissing the case as moot ➝ an actual controversy must exist (not just when filing), no matter what Ct decides, he will get what he wants (the record states that school will allow him to finish the semester).

Holding: controversy between the parties had clearly ceased to be "definite and concrete" and no longer touched the legal relations of parties having adverse legal interests because the petitioner would have completed his law school studies at the end of the term for which he was registered regardless of any decision the court reached on the merits of the litigation. The court found that it could not, consistently with the limitations of U.S. Const. art. III, consider the substantive constitutional issues tendered by the parties.

Brennan says there are many possible factors that the stipulation does not speak to (what if he gets sick & drops out).

Pg 184—DeFunis did not file a class action lawsuit, & it is important to the way the ct treats the case.

Pg 185—the stipulation depends upon their good faith, they have not changed their policy. S.C. says it doesn’t matter that case is moot b/c of stipulation.

3. Exceptions i) Wrongs Capable of Repetition Yet Evading Review: When the injury is BOTH likely

to recur to plaintiff (not just anyone) AND is of an inherently short duration that would make complete federal court review impossible, then case is still moot, but not dismissed The relevant question is the possibility of recurrence with respect to the complaining party, not another member at large. Roe v. Wade, Court refused to dismiss the case on mootness grounds, explaining that

the duration of pregnancy was inherently likely to be shorter than the time required for federal court litigation. Thus, the challenge to the state laws prohibiting abortions could be capable of repetition yet evading review.

Prior restraints on speech commonly fall under this exception (likely to happen again, over quickly)

ii) Voluntary Cessation: A case is not dismissed as moot if the defendant voluntarily ceases the allegedly improper conduct but is free to return to it at any time. Only if there is no reasonable chance that the defendant could resume the offending behavior is a case deemed moot on the basis of voluntary cessation. Cts play institutional role. Ct’s looking at s, if could moot out a case by not doing what is complained of while the case is ongoing. would be manipulating jurisdiction of the ct & when case is dismissed as moot, could do some activity the day after case is dismissed. Ct will not allow s in bad faith to moot cases out. If DeFunis had been a class action & Washington said that they changed policies, then apply voluntary cessation doctrine.

Ex. Roe v. Wade—capable of repetition claim, nature of gestation & judicial process, it is almost impossible for a pregnant woman to go through cts to S.C. (it will take more than 9 months). Impossible to obtain review & moot out by the birth of the baby. It’s different from voluntary cessation b/c repetition is a bad fit to judicial fit. This also happens in elections cases (pg 190)

City of Erie v. Pap’s (voluntary cessation)—highest state ct strikes down law. Erie brings it to S.C. & Pap’s voluntarily goes out of business & argues that there’s no party so it’s moot (so the high ct’s ruling stands). Owner of Pap’s opens another business. S.C. cuts through it & held that the case was not moot.

iii) Collateral Consequences: A case is not moot where a secondary or collateral injury survives after the plaintiff’s primary injury has been resolved (e.g. employee reinstated, but back pay Q remains). So long as decision has some effect in the future, case shouldn’t be dismissed.

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a. E.g. a challenge to a criminal conviction is not moot, even after the defendant has completed the sentence and is released from custody, when the defendant continues to face adverse consequences of the criminal conviction, including preventing certain occupational licenses, voting, etc.

b. Class Actions: Properly certified class actions not mooted even if named party’s claims are mooted as long as some members of the class still have a live controversy.

iv) Mootness in Criminal Cases What do you do on appeal?

In civil cases, Munsingwear go all the way down, remand & dismiss so case never existed. But in Bankcorp, it is altered b/c the party settled. Bankcorp wanted Ct to apply Munsingwear. Scalia said that once mootness is gone, higher ct can’t do anything. Bankcorp was trying to do something like voluntary cessation. Munsingwear should be thought of as equitable as something that may or may not be applied.

Fed. Criminal cases—if someone dies, it’s moot; the record below was dismissed under Durham (Dove).

4. Procedural Issue: Mootness can be raised by the court sua sponte. Usual practice when a civil case becomes moot pending appeal is to vacate lower decision and remand with an order to dismiss the case. This also clears the path for future litigation between the parties if needed.i) But Settlement: United States Bankcorp: after certiorari granted, settlement occurred,

losing party in court of appeals asked for that decision to be vacated. SCOTUS said mootness by reason of settlement usually doesn’t justify vacatur of judgment under review. Precedent is still useful.a. Most important for repeat players so they don’t just keep settling until they get a

useful judgment. May no apply in a one-off case.5. In mootness, there may be a drift to de-constitutionalize a fed. class action, make motion if

fed. ct., if certified, then proceed for the class. Potential problem w/class action: Sosna v. Iowa—could state require you to stay in the state for 1 yr to get a

divorce? It was class certified, Π moots out, could class move forward & get a resolution close to capable of repetition.

Franks—is more difficult. Whether the class can go forward when no party has seniority. Look to see if it’s an adversary relationship.

Gerstein v. Pugh—pre-trial detention. People were complaining about 1st 6 days (waiting for bail) in jail—everybody will always move out. The problem is the mooting out of the named parties happened before the class is certified.

Public defender absorbs role of named Π. There will always be someone (the class will always exist).

Geraghty—parole guidelines legitimacy in question. People kept getting out. District Ct. refused to certify the class & Πs mooted out—what happens?—S.C. separates the case in 2 ➝ look to see if certification was appropriate.

Issues: 1 is claim on the merits & other is claim that he is entitled to represent a class.

Holding: action brought on behalf of a class doesn’t become moot upon expiration of named Πs substantive claim. Ct is thinking maximal practicality.

Roper (197)—not a public interest case. Named Πs are given what they want from the banks & ct denies class certification. S.C. holds the same way as Geraghty ( s are trying to moot cases out, like in Bankcorp). The issue was whether it was proper to deny class certification.

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F. RIPENESS: The ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative and may never occur, from those cases that are appropriate for federal court decision. Dispute must have progressed beyond the point where a legal question is merely hypothetical. It is designed to ensure that an actual, immediate, and concrete controversy is presented to the court. It is closely related to standing (b/c no injury is often = injury hasn’t happened yet)1. United Public Workers v. Mitchell

Facts: employees contended that § 9(a) of the Hatch Act, which prohibited them from taking an active part in political management or political campaigns, violated their rights. The Hatch Act forbade executive officers & employees from taking part in political management/campaigns. Workers wanted to challenge the rules b/c they wanted to engage in political activities.

Holding: the federal employees who had not yet engaged in the activities prohibited by § 9(a) did not state a cognizable controversy because they sought an advisory opinion on broad claims of constitutional rights. Therefore, the district court erred in hearing the claims of those employees. Third, although the federal employee who had been charged by the commission with political activity presented matters appropriate for judicial determination, the Court held that a breach of the Hatch Act and Civil Service Rule 1 could, without violating the Constitution, be made the basis for disciplinary action. Section 9(a) was only directed at partisan political activity and its application to all federal employees was justified.

Ct decided that there were many employees that did not engage in political activity, only 1 was involved. The rest of them, it’s not clear what they wanted to do. For everyone other than Poole, the case is not ripe. Suit has not yet taken shape for review. If it is deemed so indefinite, ripeness is the doctrine the Ct will invoke b/c the controversy isn’t definite enough.

2. Abbott Labs Test: Abbott Labs & Toilet Goods v. Gardner (companion cases). Regulation in toilet goods—have to give fed. inspectors total access, if access is refused, commissioner can suspend manufacturer’s need. In Abbott, the regulation was about writing on drugs. In Toilet Goods, there were a bunch of contingencies & none occurred.

Abbott Labs—nothing has happened but the regulation is self-enforcing & need to know now if the law is good b/c of packaging (would have to change all labels if the regulation is enforceable). Pre-enforcement challenge to an agency regulation.

Harlan—2 matters that are important (1) whether they look like legal issues (fitness) & (2) judgments as to the bottom line of fitness, if you wait (better fitted controversy), sense if anyone will get hurt if you wait (for fitness) ➝ ex. could evolve further & no one will get hurt. In Toilet, it could never be enforced, but Abbott, need to know now.

3. Lugan v. National Wildlife Federation—objecting to change in management of forests. Not an agency action (doesn’t fall under APA), it’s a program, not an adjudication. Not ripe b/c you don’t know what they are going to do.

4. Reno v. Catholic Social Services—not ripe for review b/c haven’t shown class will be injured b/c of statute they are challenging.

5. Buckley v. Valeo—Ct thinks it’s time to give a ruling before the next big election.6. Duke Power v. Carolina Environmental Study Group (210)—a challenge to provisions of

the Price-Anderson Act which limits liability of employers dealing w/nuclear material. The ruling on Price-Anderson was RIPE (contingencies have to happen for cap to matter but it is deemed ripe b/c people that want to build these plants are exposed to liability w/o the cap, they would never want to build b/c they would want to know the liability in the future today

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(Like Abbott Labs, it’s a legal issue also). Being a legal issue makes it more likely that it’s ripe).

7. Anticipation of injury is not sufficient: (O’Shea v. Littleton) (1974) Not ripe: Black Ps alleged that magistrate and a judge discriminated against blacks in setting bail and imposing sentences. None of the plaintiffs currently faced proceedings in the defendants’ courtrooms so the threat of injury form the alleged course of conduct was too remote to satisfy the case-or-controversy requirement. Attempting to anticipate when and if injury will occur is forbidden speculation and conjecture.i) ***This decision could be placed either under the label of standing – no injury was alleged – or

ripeness – the type of injury was adequate but had not yet occurred.***ii) Damage claims never go moot. Future claims may become pure speculations.iii) Facts : Respondents commenced a civil rights action against petitioners alleging they intentionally

engaged in various patterns of conduct in the administration of the criminal justice system that deprived respondents of their constitutional rights and their rights. A lot of the claims are in general terms, none of the Πs at the time of the complaint suffered any injury in the manner alleged. It was institutional racism.

iv) Holding : issuance of an injunction was not forbidden and that directed the lower court to fashion appropriate injunctive relief. The Supreme Court held that the complaint failed to satisfy the threshold requirement imposed by U.S. Const. art. III that those who seek to invoke the power of federal courts must allege an actual case or controversy. None of respondents claimed they suffered any injury in the manner specified, and the case or controversy requirement was not satisfied by general assertions that respondents would be prosecuted for violating valid criminal laws. Moreover, respondents did not establish likelihood of substantial and immediate irreparable injury and inadequacy of remedies at law.

v) Ripeness: a specific party has to be injured. There is something too amorphous about the claim. What is the shapelessness in the case?—No injury, it’s about future injury. It’s too speculative that those people will become subject to the criminal justice process generally or subject to what they allege. Claims are too generic, general, & it hasn’t assumed a concrete form.

vi) Under II (215)—no basis for equitable relief. Downside of entering relief in cases like this. Problem w/ remedy is it’s too difficult to enforce & would amount to a fed. judicial takeover of a state criminal justice system.

vii) The big question after O’Shea—is there any way to construct a justicable case or controversy when involving the government?

Rizzo v. Goode-discrimination. Ct. said it’s antidotal, will have a problem showing it will happen again.

8. “Substantial Likelihood” TEST: In order for a person to have standing to seek an injunction, the individual must allege a substantial likelihood that he or she, personally, will be subjected to or injured by the allegedly illegal policy in the future. Absent proof of such a substantial likelihood, the case will be dismissed on standing and ripeness grounds.i) City of Los Angeles v. Lyons (1983) (not ripe if no substantial likelihood that plaintiff would be

subjected to illegal chokehold in future): Lyons was subjected to such a chokehold. Lyons did not have standing to seek injunctive relief. Although Lyons could bring a suit seeking damages for his injuries, he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he, personally, would be choked again in the future. Lyons has been subjected to “unjustifiably” using chokeholds on black arrestees or suspects. He alleged damages & sought an injunction. He had a damage claim, not abstract, his complaint suggested he had been subject to this treatment. S.C. distinguishes b/w damage claim & injunction damage claim can be decided below but talks about injunction ➝ don’t know if he will be subject to this treatment again. Not demonstrated that it will happen again. Ct treated Lyons as a standing case. Why isn’t it a mootness case?—The injury already happened, & Ct doesn’t know if it will happen again.

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ii) Note 5 (220)—Ct is as friendly to class actions as it is opposed to institutional injunctions. Ct seems to like class actions that are filed early. If you find a plaintiff that has standing once the class is certified, then it’s a stronger case.

iii) Gratz v. Bollinger—it’s outcome-centric. When the Ct wants to reach something, these doctrines are malleable the other way (unlike Allen v. Wright).

iv) For standing & mootness, certify class action w/complaint, have an actual injury. For ripeness—narrowly tailor the remedies. Hardship of delaying adjudication helps Π w/issues of standing & ripeness. In ripeness, they may have to wait until the situation takes on a concrete shape.

v) Lujan v. Defenders of Wildlife (1992) (not ripe w/out concrete plans): Suing to save endangered species overseas. The fact that plaintiffs had visited the areas in the past proved nothing and their desire to return in the future “some day” is insufficient for standing without any description of some concrete plans or any specification concerning when that “some day” will be.

G. POLITICAL QUESTION DOCTRINE: Certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met. In other words, the political question doctrine refers to subject matter that the Court deems to

be inappropriate for judicial review. Although there is an allegation that the Constitution has been violated, the federal courts

refuse to rule and instead dismiss the case, leaving the constitutional question to be resolved by the political process.

It remains about issues mostly & stands apart from the other 3 (standing, mootness & ripeness). Some are non-justicable b/c they are non-amendable to the shaping of the judiciary.

1. Political Question Factors TEST: The Court, in Baker v. Carr (1962), stated, prominent on the surface of any case held to involve a political question is found …i) A TEXTUALLY DEMONSTRABLE COMMITMENT of the issue to a coordinate political

departmentii) A LACK of judicially DISCOVERABLE and MANAGEABLE STANDARDS for resolving itiii) The impossibility of deciding without an INITIAL POLICY DETERMINATION of a kind

clearly for nonjudicial discretioniv) The impossibility of a court’s undertaking independent resolution without EXPRESSING LACK

OF THE RESPECT DUE coordinate branches of the governmentv) Any unusual need for UNQUESTIONING ADHERENCE to a POLITICAL DECISION

already madevi) The potentialality of embarrassment from MULTIFARIOUS PRONOUNCEMENTS by various

departments on one question.vii) Pg. 247—the mere fact that something involves politics doesn’t mean it’s a political question.

2. Nixon v. US Facts : federal judge was convicted of lying to a grand jury & he refused to resign

& still collected his salary. He challenged the impeachment & claimed that going before the Senate was not a trial.

The Senate claimed that the judiciary couldn’t review the claim. Nixon’s lawyers try to blow by a good Senate argument (entrusted to Senate, not

reviewable ➝ Senate shall have SOLE power). The Ct says “sole” only appears in 1 other part of the Constitution. The sole

place you can try this case is the Senate. At this point how should Nixon’s lawyers respond?

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o There’s no check on Congress. It focuses on what “try” means. “Try” or “trial” is that clause is a substantive word & he is allowed to have a substantive trial, even if Senate can try the case Nixon has the right to have the judiciary review it.

o S.C. responds that they’re hesitant b/c of “sole” word. Hesitant to 2nd guess the Senate giving a trial.

o On 230, Justice White characterized the majority as having said that they don’t know what a trial is.

o 231—Souter concurs—element of discretion in political question. Want to reserve some judicial power. There is a resemblance to a trial.

3. Examples of Test Applied: The Court has considered and adhered to the political question doctrine in the following areas: the republican form of government clause and the electoral process; foreign affairs; Congress’ ability to regulate its internal processes; the process for ratifying constitutional amendments; instances where the federal could cannot shape effective equitable relief; and the impeachment process.

4. Textual Demonstrable Commitment to Another Branch Vieth v. Jubelirer (2004): deliberate partisan gerrymandering comes close to Ct

throwing up their hands. (Note pg. 238) Luther v. Borden—the Guarantee clause. Ct declines to get involved, it’s up to

Congress to decide. Constitutional Amendments—treat w/deference. Foreign Affairs—Goldwater v. Carter—Π takes Senate to enter a treaty; it must take

Senate to get out. Ct says it takes great deference in foreign affairs & will not tell president what he can/can’t do.

CONGRESSIONAL REGULATION OF JURISDICTION

A. CONGRESSIONAL RESTRICTION OF LOWER FEDERAL COURT JURISDICTION1. Madisonian Compromise: Congress has authority to determine/limit the jurisdiction of the

federal courts because Congress had the discretion as to whether to establish those tribunals in the first place.

2. Establishment of non Art. III Cts (ex. territorial, military cts). There is a legitimate place for them. In the necessary & proper clause—Congress is to determine the exclusivity of

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jurisdiction. The Ct has fought to preserve jurisdiction (278). 292-93—Congress wanted to limit Ct’s power from intervening in labor disputes. There’s a distinction of judicial limitation statutes. One—strip Ct of jurisdiction. Alternative form—concedes jurisdiction but precludes certain remedies.

3. Parity Debate—arises from perception of Civil Rights lawyers. Evaluative argument. Lock horns about where there is parity among state & fed. systems regarding less popular groups (State Cts—judges have to be re-elected).i) Sheldon v. Sill (1850) Lender assigned debt to out of state person to obtain diversity jurisdiction.

Under the Judiciary Act of 1789, federal courts could not hear cases where diversity was created by assignment. Sill contended that b/c Article III authorizes diversity jurisdiction and does not contain a limitation, this section of the Judiciary Act was unconstitutional. Held: Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers.a. Critique: Others claim that lower federal courts created by Congress must have the full

judicial power described in Article III, as the text states “the judicial power of the U.S. shall be vested in one Supreme Court and such inferior courts as Congress shall establish.” i. Congress had a choice regarding whether to establish lower federal courts, but once they

were created they were required to have the judicial power to decide all matters described in Article III. All attempts to restrict jurisdiction are unconstitutional.

b. Issue of bond & mortgage & if circuit Ct had jurisdiction. Judiciary Act precludes Ct from hearing cases involving a promissory note. Art. III—diversity jurisdiction. It is possible to argue that the judiciary act runs afoul to the constitution.

c. The Ct said “may” for jurisdiction Congress has discretion to limit structure of jurisdiction of cts. Judiciary Act doesn’t violate the Constitution; therefore, Circuit Ct doesn’t have jurisdiction.

4. Exclusive Jurisdiction Critique: In Martin v. Hunter’s Lessee, Justice Story urged that the full judicial power must be vested in some federal court, b/c the text of Article III states “shall be vested” and not “may be vested.” If then, it is the duty of Congress to vest the judicial power, it is the duty to vest the whole judicial power, and as a result, lower federal courts must exist and are exclusively vested with jurisdiction of cases over which the Supreme Court could not take original cognizance. (every claim has to have somewhere to be heard)i) Why we like fed courts:

a. Lifetime tenure, salary, more competentb. We don’t trust state courts, they’re elected, might resent federal regulation, etc

5. Diversity Jx and D.C.---Tidewater case: statute authorized federal district courts to hear suits between citizens of DC and citizens of other states (similar to diversity suits) even though no federal question was presented. Plurality upheld statute, holding that DC is not a state, but Article I confers power on legislature to set jurisdiction of lower courts. 7 justices voted to overrule old case that said DC doesn’t count for diversity jurisdiction.i) Concurrence: DC is a state, court should've overruled precedent, but Article III sets jurisdictional

bounds (agreed w/ upholding of statute). ii) Dissent 1: DC is NOT a state, and Article III sets jurisdictional bounds. Statute invalid.iii) Dissent 2: DC is NOT a state, and Article III sets jurisdictional bounds. Statute invalid.

B. CONGRESSIONAL RESTRICTION OF U.S. SUPREME COURT APPELLATE JURISDICTION: 1. “Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such

Exceptions, and under such Regulations as the Congress shall make.” i) Stripping is Rare: Because Congress rarely has attempted such jurisdiction stripping –

and never in a manner that has been interpreted as precluding all Supreme Court review – the constitutionality of jurisdiction stripping remains uncertain.

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2. Textual Reasoning in Favor of Stripping: The Framers of the Constitution intended this type of congressional control as a check on the judiciary’s power. Evidence of this intent is found in the fact that the first Congress did not vest the Supreme Court with appellate jurisdiction over all of the types of cases and controversies enumerated in Article III.

3. To be Constitutional, Supreme Court Must Retain Some Form of Appellate Review: Any continuing basis for Supreme Court review – no matter how unlikely – is sufficient to make a restriction on jurisdictional constitutional.

4. Ex Parte McCardle: Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction: Critic of reconstruction was arrested by feds, filed habeas petition. SCOTUS had app JX over state habeas petitions pursuant to 1867 law. But while the case was pending, Congress amended the law to strip SCOTUS of appellate jx over habeas petitions, w/ intent to remove McCardle case from docket. SCOTUS said this was permissible.i) Habeas petition. McCardle was an editor & was arrested by fed. military authorities.

appeals to S.C. & gets oral argument. Congress passes a bill that strips S.C.‘s power to hear habeas petitions. Ct says they don’t have jurisdiction to hear the appeal but preserve their power of original jurisdiction.

ii) Judge Story argued that Sheldon would be wrong if it ever came down.iii) Rebuttal: although SCOTUS lost app jx over habeas petitions, Court could have heard

original habeas petition. McCardle was also a federal prisoner, meaning Court could've heard claim under 1789 Judiciary Act.

iv) BUT see KLEIN, below (separation of powers)5. Habeas jurisdiction stripping constitutional b/c retained original jurisdiction over habeas

(Felker v. Turpin) (1996) : AEDPA prohibited prisoners from bringing successive habeas petitions unless pre-approved by a U.S. Court of Appeals. The Court emphasized that the law did not preclude all Supreme Court review because the law did not repeal the Court’s authority to entertain original habeas petitions (even though that’s SUPER unlikely)

(297) Statute was phrased very broadly. Some thought it presented the question of whether McCardle was still good law.

Ct found a way of reading the statute to say they didn’t have to confront the question of whether congress could strip judiciary of habeas power. What if Congress takes away all fed. jurisdiction (Sheldon power to the extreme & McCardle to the extreme).

6. Hamdan v. Rumsfeld (2006) (Supreme Court review of procedural issues in DTA, avoids jurisdiction stripping question): Involved jurisdiction-stripping provision in the Detainee Treatment Act of 2005. Although the majority found it unnecessary to reach the argument about whether jurisdiction was stripped, Justice Scalia – in dissent – argued that there could be no doubt the statute in question stripped jurisdiction as it gave the D.C. Circuit “exclusive” but limited jurisdiction to review final decisions of military tribunals with an opportunity for review of the decisions in the Supreme Court.

7. Troy Davis case: Court granted original jurisdiction on habeas claim (b/c no appellate jx available), then relegated the case to a district court, ordering it to examine Davis's claim of "actual innocence" based on new evidence.

C. CONGRESSIONAL POWER TO WITHDRAW ALL FEDERAL JURISDICTION: 1. At least when dealing with Indian Tribes, Congress does have the power to pass a federal

law which withdraws all federal jurisdiction and vests such jurisdiction in tribal courts.i) Santa Clara Pueblo v. Martinez (1978): The Supreme Court held that federal courts possess no

jurisdiction over suits to enforce the federal Indian Civil Rights Act, the express purpose of which is to “protect individual Indians from arbitrary and unjust actions of tribal governments” by

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imposing “limitations on an Indian tribe in the exercise of its powers of self-government.” Although the suits arise under federal law, enforcement actions can be filed only in tribal courts, and there is no possibility of Supreme Court review.

ii) U.S. v. Klein: Disguising Impermissible Separation of Powers Violation as Stripping: Congress passes law after Civil War that gave fed cts jurisdiction to hear Claims to give back property to people the President Pardons. Then pass law taking away jurisdiction. Really they were just using jurisdiction as a cover for the goal to do something unconstitutional, denying the President’s pardon power from its proper effect, which is a separation of power violation. Had to protect the “constitutional power of the Executive.

2. Professor Amar: distinguishes b/w “all cases” and “controversies”, Congress can limit jurisdiction over controversies. Congress has consistently limited federal jurisdiction (amt in controversy, defendants can’t remove if sued in their home state, requiring complete jurisdiction) Class Action Fairness Act: Congress used diversity jurisdiction, says in state removal bar doesn’t apply, only requires minimal diversity not complete. It’s not that convincing that stuff falling under cases is more pressing than the controversies stuff.

3. Professor Sagar: Constitution requires original or appellate federal jurisdiction of constitutional claims: where state judges are elected, there is a danger that populism will put someone on the bench that won’t protect Constitutional rights.

D. CONGRESSIONAL PRECLUSION OF BOTH STATE AND FEDERAL COURT JURISDICTION: 1. The Court will go out of its way to read statutes so that they do not foreclose all judicial

review. i) Due Process Requires Review: If a statute cannot be interpreted as such, the Court will

strike it down as an unconstitutional restriction preventing all courts from hearing claims. Due Process requires that some court – state or federal – must be available to hear claims.a. Battaglia v. General Motors Corp. (2d. Cir. 1948) (Congress cannot limit jurisdiction as a

means of violating Due Process): The Supreme Court had held that employees were allowed to consider as part of their work week time spent walking to their work stations, washing after work, and changing clothes. Congress responded by adopting a statute, the Portal-to-Portal Act, specifying that time spend on such activities did not could as part of the work week. Act also provided that “no court” in the United States, or any State, shall have jurisdiction to enforce liability for failure of the employer to pay for work time spent on such activities. Congress passed a bill that stripped cts of jurisdiction (fed & states) to enforce liabilities f a Fair Labor statute. 2nd Cir. Held: The Second Circuit indicated that Congress could not restrict jurisdiction in a manner that prevented all courts from hearing claims. While Congress has the ability to restrict jurisdiction, it may not do so as to deprive life, liberty, or property without due process of law or to take private property without just compensation. Ct. says the action of Congress was constitutional b/c of its Commerce Power.

b. Hart (310)—Congress won’t strip all remedies, there will always be something left. Congress never has & never can close all of the cts. At the end of the day, every citizen could manipulate (get arrested) have it tested by the S.C. (challenge all these things by habeas corpus).

c. Suspension Clause (314)—note 3 (315) St. Cyr Case—Congress’ suspension clause power allies under executive power.

d. Rusal v. Bush—does jurisdiction extend to Guantanamo? Yes b/c status of enclave & scope of American Legal system. Legislature then writes DTA & MCA—to try to remove Art. III review of an enemy combatant by a non-Art. III agent. Can’t get a review of the system that is doing the detaining (get executive review).

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e. Boumediene v. Bush: Suspension clause. Invalidate parts of the statue for infringing on some of their jurisdiction.

ii) Constitutional Avoidance: If one acceptable construction of a statute would raise serious constitutional problems – i.e. foreclose all federal and state judicial review – and if an alternative interpretation of the statute is fairly possible, the Court will construe the statute as to avoid such problems.a. Webster v. Doe (1988) (preclusion of constitutional claim review must be explicitly

provided): Fired CIA employee who alleged that his termination was the result of discrimination based on sexual orientation in violation of the Administrative Procedures Act & Const. Held: National Security Act precluded review under the APA. However, the Court held that the Act did not preclude review of constitutional claims (as opposed to the procedural claims). The Court reasoned that Congress should not be taken to have intended to preclude constitutional claims unless it has explicitly so provided.

b. Immigration and Naturalization Service v. St. Cyr (2001) (statutory jurisdiction preclusion did not bar habeas filing): The express statutory preclusion of judicial review of deportation proceedings did not bar a challenge from being brought through a writ of habeas corpus. Preclusion of direct judicial review of INS deportation orders ok but statute did not bar habeas corpus proceedings. Have to clearly state they are precluding review of a Constitutional Right to take away that jurisdiction.i. But See…Real ID of 2005: Took habeas jurisdiction away from federal courts as to

immigration cases but provided alternative limited review of removal decisions (remedial measures) including constitutional claims and questions of law.

c. Kucana v. Holder: congress said court can’t review stuff that’s up to the AG's discretion per the statute. Then AG passes regulation that gives him discretion. SCOTUS says the lack of jurisdiction is ok.

iii) Intersection of Sovereign Immunity:a. Post-payment remedy may be denied if pre-payment remedy available, and vice versab. Denial of recovery of taxes obtained through compulsion violates 14A – if promise a

post-deprivation remedy, due process requires the state to provide it (Reich v. Collins) must give taxpayer a remedy at some point.

c. May be out of court if seek the wrong remedy; as long as some remedy, may not matter if it’s not the remedy you want

E. CONGRESSIONAL APPORTIONMENT OF JURISDICTION AMONG FEDERAL COURTS: 1. Congress has unquestioned power to allocate jurisdiction over particular kinds of cases

among various federal courts. Furthermore, Congress may divide up the original and appellate jurisdiction of the inferior federal courts in whatever way it deems best.i) Specialized Courts

Emergency price control act of 1942—pushed things to the limit of federal jurisdiction. The Act involved price controls during WWII, & set prices (some are bound to be unhappy). A price administrator set the prices for the country & Congress set up Emergency Ct of Appeals (only ct ppl could go to after the claim was rejected by the administrator. Other than this ct, there was no other judicial review & no interlocutory relief.

ii) Lockerty v. Phillips (1943) (constitutional allocation of injunctive relief under Federal Price Control Act): During WWII, Congress created an Article III Emergency Court with exclusive power to provide injunctive relief against the enforcement of regulations promulgated under the Federal Price Control Act. The Supreme Court held that the Emergency Court had exclusive jurisdiction to grant injunctive relief to restrain enforcement of regulations under the Act or of the Act itself. Lockerty was a meat dealer & sued in district ct, the case was dismissed b/c of the Emergency Price Control Act. S.C. said it was allowed b/c it was not a constitutional violation limiting jurisdiction. The Ct affirmed the dismissal.

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iii) Yakas v. United States (1944) (constitutional allocation of a certain type of claim challenging the Federal Price Control Act to an Emergency Court): A criminal prosecution was brought in federal district court for violation of a price control regulation. The Price Control Act provided that the legality of a regulation could not be raised in the district court as a defense in a criminal prosecution. Held: The Court sustained this restriction on the district court’s jurisdiction on the ground that the defendant could have challenged the regulation by brining an earlier and separate suit in the Emergency Court. Having failed to avail himself of an adequate separate procedure, defendant may be barred from raising the issue as a defense in the district court criminal procedure.

If you are prosecuted under the Price Control Act, can you raise it as a defense that it’s unconstitutional?—No, you’re obligated to follow the rule, can’t violate the rule. 6th A rights are still present in a criminal case. You can challenge the Act.

Dissent—dispute as to whether Congress can provide jurisdiction in enforcement proceedings. Issue w/separation of powers.

iv) Falbo & Estep (violation of the Act is a crime resulting in incarceration). Falbo—doesn’t show up for the draft. Estep gets convicted for rejecting the decision of the draft bd. Hart said you go to jail & bring a habeas claim.

v) US v. Mendoza-Lopez Issue: whether is allowed to challenge the validity of a deportation order. Can

he re-litigate the defects of the order? Ct talks about Yakus against & says he was allowed to challenge the order

(unlike Yakus). It doesn’t overturn Yakus b/c it shouldn’t be read as a generative case b/c Yakus took place during the war.

F. Fed. Authority & State Ct Jurisdiction (383) Tafflin v. Levitt (384)

o Facts: After the failure of a savings and loan association and the collapse of a state-chartered nonprofit corporation created to insure the savings and loan accounts, petitioners brought a civil action against respondents in federal court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO).

o Issue: whether a state ct has jurisdiction over a civil RICO claimo The opinion gives the black letter law. How do we know if jurisdiction

is concurrent, exclusively state or exclusively fed.? States have concurrent jurisdiction to hear fed. claims unless

Congress says otherwise. Congress has the power to structure & target jurisdiction.

Evidence of intent of Congress to disturb concurrent jurisdiction: (1) explicit statutory directive; (2) legislative history; & (3) clear incompatibility b/w state ct jurisdiction & fed. interests.

o (1) Ct says mere grant of jurisdiction doesn’t say fed. jurisdiction, it does nothing to displace state jurisdiction.

o (2) Review legislative history—Congress never really discussed it. Petitioner said language in statute is from the Clayton Act which exclusively gave jurisdiction.

o Ct said language doesn’t mean anything. Not an unmistakable part of the legislative history.

o (3) Look to see how complex RICO claims are. S.C. said many RICO claims have state claims, state judges have the ability to handle these claims.

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o Holding: a RICO action could be instituted in a state court and that the state's comprehensive scheme for the rehabilitation and liquidation of insolvent state-chartered savings and loan associations provided a proper basis for the federal court to abstain. The Supreme Court held that state courts had concurrent jurisdiction over civil actions brought under RICO.

o Scalia & Kennedy Concurring—disputes state ct jurisdiction conferred by Congress. No one “confers” sovereignty on the states, the states just have it & have jurisdiction. Legislative history test is unreliable & shouldn’t be used. The real test should be clear legislative directive. The 3rd test has no foundation. #2 is on the books but ct never uses it.

Congressional Policy: possible choices that Congress may have: could exclude fed. cts; concurrent; concurrent but some right for to remove to fed. ct; & exclusive fed. jurisdiction.

Exclusive State Original Jurisdiction—no Art. III power. Concurrent Jurisdiction w/rights of removal: has the option Exclusive Fed. jurisdiction: what the RICO case was NOT about.

Tennessee v. Daviso Facts: The defendant was a deputy tax collector whose duties included

seizing illicit distilleries. While seizing one of the stills, the defendant was fired upon by several men. The defendant fired back and killed one of the men. The defendant was arrested and indicted for murder. The defendant sought to have his state criminal case removed to a federal court.

o Issue: whether the defendant’s case was transferable to the Supreme Ct.o Holding: Constitution authorized the removal of civil and criminal cases

from state court to federal courts, and that upon removal of a case from a state court to federal court, the federal court administered state laws to determine the outcome of the case.

Note of 396-97 IMPORTANT!!—Orients to removalo Mesa v. CA (398)—fed. official doesn’t automatically get case moved to

fed. forum. Need a fed. question, diversity jurisdiction or US being a party.

Tarble’s Case (398)o Facts: The soldier apparently enlisted in the United States Army under a

different name when he was under the age of 18. The soldier was being held in custody and confinement by an Army lieutenant under charges of desertion. The father filed a petition for habeas corpus. State Ct grants the writ.

o Holding: the commissioner lacked jurisdiction to issue the writ of habeas corpus because the soldier was held by an officer of the United States, under the authority of the United States. The Court found that within the territorial limits of each state, there were two spheres of government, the state government and the federal government. Both were separate and distinct, except that the United States was supreme when any conflict arose. There was no jurisdiction.

o Chief Justice Chase dissents—denying the states the right to issue writs would deny the right to protect the citizens by habeas corpus against arbitrary imprisonment.

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Testa v. Katt (408)o Facts: Respondent car dealer sold petitioner buyer an automobile at a

price above the ceiling price. Petitioner filed an action against respondent for violation of § 205(e) of the Emergency Price Control Act. The highest state ct said they didn’t have to enforce the Act.

o Justice’s Black’s response: US is NOT a foreign country as compared to the state & under sovereign immunity clause—it forces states to enforce the Act. When it’s concurrent it concurrent, but there could be pre-existing procedural things in a state that might need to be recognized by fed. as a departure (valid excuse doctrine).

Non-Discrimination Principle—have to take the fed w/the state. Fed. Civil Rights claims seem to have a more favorable status. Exception to non-discrimination—may have a valid excuse to decline jurisdiction (ex. if there is a valid state procedure). May encourage forum shopping b/c cases may be treated differently in state vs. fed. ct.

Herb v. Pitcairn—file fed. claim. 2 yr statute of limitation. Neutral application of transfer of venue. Statute expired & ct affirmed the dismissal.

o But see Haywood v. Drown (pg. 18 Supp.)--§1983 claim, it’s not a validly excused difference.

o Felder v. Casey--§1983 claim (public official committed a tort). Notice of claim requirement. Ct held it ‘s not a valid excuse.

Dice v. Akron, Canton & Youngstown—Fed. employee liability. 3rd point—disparity on how parts of a case are treated in OH system (would be treated differently in fed. system). Question of whether judge or jury should hear the case (it’s answered differently in fed. & OH state cts). Frankfurter ➝ black letter law. Can’t refuse fed. claims under this statute. But not obliged to treat it the same as would fed. system. Question of fraud must be answered by a jury. The issue was whether states may follow their procedural roles in entertaining fed. rights.

Johnson v. Fankell: §1983 case. Can you get an interlocutory appeal?—Fed. ct does, but does state have to?—NO.

Jinks v. Richland Country (429)—the statute of limitations expired. Congress passed a law tolling (extending the claim in state ct). Ct dismissed the claim but extends the state law. Ct used the necessary & proper clause to uphold the law.

NON-ARTICLE III TRIBUNALS (Ch 4 Sec. 2) A. Article III Court = subject matter authorized by Article III, independent judges, judgments are

final.

B. CONGRESSIONAL POWER TO CREATE LEGISLATIVE COURTS: Throughout history, Congress has created tribunals in which the judges do not have life tenure and protected salary to decide cases and controversies enumerated in Article III. These tribunals are termed “legislative courts” or “Article I courts.” 1. Reasoning: Congress might want to avoid establishing a large number of additional

judgeships to deal with the countless matters handled in administrative agencies and in specialized tribunals like bankruptcy courts. Congress might want to allow agencies that also possess rule-making and investigative powers to decide particular controversies within their expertise.

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i) Public Rights vs. Private Rights: public rights claims (which, at minimum, feature govt as one of the parties) can be assigned to non-art III judge. Wrt private rights claims, cong cannot wholly preclude judicial consideration

C. Current Law Summarized: there are four situations in which legislative courts are permissible…1. for United States possessions and territories; 2. for military matters 3. for civil disputes between the United States and private citizens (e.g. Court of Federal

Claims, Tax Court, Court of Veterans Affairs); and 4. Non-Article III Courts as Adjuncts in criminal matters or private disputes, where fed court

can review the legislative court’s decisions. To be an adjunct, can’t enforce its own judgment and there must be de novo review by Art. III courts.i) Mandatory (but Limited) Article III De Novo Review: Article III courts must be able

to decide de novo all questions of law, constitutional facts – those facts that are the basis for a claim of a constitutional violation – and jurisdictional facts – those facts that are the basis for the agency’s legal authority to hear the matter.a. Crowell v. Benson (1932) (private law disputes can be decided in non-Article III

courts only if there is de novo review by an Article III court): Claim under worker’s comp act Held: The Court held that in private law matters, ultimate decision-making authority must rest in Article III courts. Legislative courts, such as the Employees’ Compensation Commission, could resolve private law disputes only if there was substantial oversight by an Article III court. The Court said that Article III courts must be able to decide de novo all questions of law, constitutional facts, and jurisdictional facts. All may be re-litigated de novo in Article III ct.

Is the scope of or limitation on the powers of Congress to establish these cts (under their Art. I power). Crowell—deputy commissioner ordered Benson to pay Knudsen. Benson says some commissioner can’t tell him to pay; only ct can tell him to pay. Is Benson right?

Ct says due process can’t guarantee Art. III process from beginning to end. Pg 326—public rights vs. private rights: public rights involve interest of the

gov. & private rights involve going after another party. Congress’ ability to interfere w/Art. III rights is much more limited.

It’s not a public rights case. Ct says it’s okay for Congress to set up a scheme to go to a factfinder to determine liability. (Brennan says that’s not fair b/c he didn’t get a trial). Hughes says you don’t get a trial for liability but could get a trial if the employee worked for him (it’s a statutory question).

Brandeis dissents: he suggests Congress can displace Art. III power more than Hughes did. Congress should give more power to regulatory agencies.

ii) Pg. 332 note 4(a) &(b) Public Rights & Judicial Review: another route Benson could have used . In practice, there might be more options to Benson than the black letter suggests. 334-5: cts develop what is going to be a fact. Gradually reducing scope of Art. III power to these administrative agencies. Gradually reducing scope of judicial review. Pg. 342(4)(b)—basis for distinguishing the enforceability of judgments.

iii) Findings of Fact Conclusive: Administrative findings of non-constitutional and non-jurisdictional facts may be made conclusive upon the courts, if not infected with any error or law, as a basis for judicial enforcement of a money liability of one private person to another.

iv) Jurisdictional Fact Doctrine Abandoned: The jurisdictional fact doctrine is no longer followed and has seldom been mentioned since the Court’s decision in Crowell.

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Independent judicial fact-finding – rather than redetermination of facts on the administrative record – virtually never occurs.

v) Chevron Deference to Administrative Decisions of Law: A two-part analysis was born from the Chevron decision where a reviewing court determines (1) whether a statute permits or forbids an agency's interpretation, and (2) if a statute is not clear on step (1), then the court decides whether the agency's interpretation of a statute is reasonable or permissible. If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.

vi) Categorical Approach of Northern Pipeline: The only case invalidating congressional employment of legislative courts is Northern Pipeline, which struck down the jurisdiction vent to non-Article III federal bankruptcy judges after the Bankruptcy Act of 1978 which gave bankruptcy judges broad discretion to decide private civil disputes (a contract claim in this case). The Supreme Court held this authority violated Article III.a. Involved new bankruptcy rules, law set up a bankruptcy ct. Ct declares the law

unconstitutional (Burger helped draft the law). Brennan determines some aspects of bankruptcy as private rights (some have to come before an Art. III ct). The law took all power away from Art. III cts. Congress then redrafted the law. Brennan takes a hard-line approach.

b. Congressional Response: Following Northern Pipeline, Congress amended the Bankruptcy Act to make the bankruptcy courts adjuncts to Article III courts when they adjudicate state law matters.

c. There was a change in the ct’s makeup (pg. 357)—by the time you get to Thomas & Schor, ct comes around to a view different from Brennan’s ➝ the proper view is balancing test that comes to govern these things going forward.

D. Current Law – Balancing Approach: Where the benefits of using legislative court in terms of efficiency and expertise outweigh concerns about fairness to litigants and separation of powers, legislative courts may be constitutionally used.

i) Legislative Courts allowed when Private Law Disputes Closely Related to Government Regulatory Programs: (Thomas v. Union Carbide Agricultural Products (1985)) (private rights is created and integrated into a public regulatory scheme): In determining cost sharing for environmental study data, Congress shifted the task of valuation from EPA to a system of negotiations and binding arbitrations. Judicial review was limited to instances of fraud, misrepresentation, or misconduct. Held: The public nature of the regulatory scheme and the public interest served by the arbitration procedure was key. Matter handled by a government agency and was not a substitute for any existing common law proceeding. a. Reasoning: “Congress, may create a seemingly “private right” that is so closely

integrated into a public regulatory scheme as to be a matter appropriate for agency resolution.”

b. Appellate Review Avoided Separation of Powers Concerns: appellate review, albeit limited in scope, was provided and there was no indication that the arbitration system threatened Article III courts or implicated separation of powers concerns.

ii) Balancing in Favor of Non-Article III Court: a. Waiver to Proceedings and Fairness to Litigant: If a litigant consented to

proceedings of a non-Article III court as an alternative to federal court litigation, he cannot claim the adjudication is inherently fair.

b. Separation of Powers: The Court has declined to adopt formalistic and unbending rules; instead it focuses on several factors – none of which is likely to be determinative of constitutionality – including:

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i. The extent to which the essential attributes of judicial power are reserved to Article III courts, and conversely, the extent to which the Non-Article III forum EXERCISES the range of jurisdiction and POWERS NORMALLY VESTED only in ARTICLE III COURTS,

ii. The ORIGINS AND IMPORTANCE of the RIGHT TO BE ADJUDICATED, and

iii. The CONCERNS that drove Congress to DEPART from the requirement of ARTICLE III.

iii) Commodity Futures Trading Commission v. Schor (1986): Commission had the authority to provide reparations to individuals who are injured by fraudulent or illegally manipulative conduct by brokers. Commission promulgated regulations that enabled it to hear all counterclaims arising out of the same allegedly impermissible transactions. Held: The commission’s authority is quite similar to that traditionally exercised by agencies, except for the jurisdiction to hear counterclaims. Any intrusion on the Judicial Branch was de minimus.a. Because the commission could not enforce its own orders it served as an adjunct to

the federal court b. As to fairness, the Court said that the defendant had consented to the admin

proceedings as an alternative to federal court proceedings. E. Seventh Amendment Right to Jury Trial: A jury trial must be provided in a non-Article III

tribunal when the relief sought is of a legal nature, such as money damages, and the matter involves a private right. But, the Supreme Court has never addressed the question whether it violates Article III for Congress to authorize Article I courts to conduct jury trials. 1. Limitation – Equitable Relief: In NLRB v. Jones & Laughlin Steel (1937), the Court stated

that “the Seventh Amendment has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law.

MILITARY TRIBUNALS (Ch 4 Sec. 2) A. Military Tribunals Generally: Distinct from the courts-martial employed to try members of the

U.S. military are military tribunals or “commissions” that have been constituted from time to time by the Executive Branch, typically pursuant to express or tacit congressional authorization, to deal with exigencies associated with war. 1. The judges of military tribunals are typically military officers. 2. Where military commissions are permitted, the full safeguards of the Fourth, Fifth, and

Sixth Amendments apparently do not apply of their own force. 3. Typically Used Abroad: Though most used abroad – in connection with military

occupations of foreign territory – military commissions have sometimes been used domestically as well.

4. Authority for Military Tribunals: Supreme Court precedent clearly establishes that the Constitution permits use of military tribunals, under at least some circumstances, to conduct trials for alleged violations of the law of war and for offenses in territory under military occupation or subject to martial law.

5. Determining Enemy Combatant Status: Military commissions have also been used for the distinct, non-criminal purpose of ascertaining whether a detainee is an enemy combatant in a war against the United States who, under the laws of war, may be lawfully detained until cessation of hostilities

B. Congress Can Prevent Pres from using military tribunals: Although it is not clear to what extent the constitutional basis for employing military tribunals resided in the President’s Article II commander-in-chief power and to what extent in the conjunction of that power with congressional powers under Article I

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1. Court has held squarely that the President may not employ military tribunals in the face of an express or implied congressional prohibition (see Hamdan v. Rumsfeld (2006)).

2. Military Tribunals in the United States: The leading decision involving the constitutionally permissible use of military tribunals in the United States are not easily reconciled.

C. Can’t try private citizens: Ex Parte Milligan (1866) (military commissions lacked jurisdiction to try a U.S. citizen): The Court stressed that military tribunals couldn’t try private citizen because federal courts were “always open to hear criminal accusations and redress grievances Military authorities in Ind. Wanted to lock ppl (confederates) up for making trouble. The Ct upheld the decision that a military tribunal lacked jurisdiction to try a US citizen.

D. Can try unlawful combatants: Ex Parte Quirin (1942) (military commissions used in U.S.; distinction between lawful and unlawful combatants): Eight German saboteurs came on shore, took off their uniforms, tried by military commission. Held: The Court noted that Congress – by statute – and the President – by proclamation – had authorized the use of military tribunals. Constitutional b/c the Court drew a distinction between lawful and unlawful combatants. 1. Lawful combatants are subject to capture and detention as prisoners of war, but unlawful combatants

can be subjected to trial and punishment by military tribunals for acts which render their belligerency unlawful

2. German service members spying (w/o uniforms) were picked up & tried before military tribunal & S.C. upheld the military tribunal’s decision. Ct distinguished Milligan b/c petitioner (claimed American citizenship) the law of war can never be applied to citizens of the state which have upheld the authority of gov. where cts are open & their process unobstructed.

3. In times of war, the law is silent.

E. U.S. citizens are not immune from enemy combatant designation and therefore trial before a military tribunal, but some due process applies (Hamdi).

i) Hamdi v. Rumsfeld (2004) (U.S. citizens enjoy no greater immunity than foreigners if captured as an enemy combatants): Quirin postdated and clarified Milligan by establishing that an American citizen enjoys no immunity from punishment or detention as an enemy combatant that would otherwise be permissible under the laws and usages of war.

US citizen on US soil being held as an enemy combatant. Ct’s narrow holding—an American citizen enjoys no immunity from punishment or detention as an enemy combatant that would otherwise be permissible under laws & usages of war.

Question if he was properly put into that matter is an Art. III matter. Scalia & Stevens dissent thinking the case was like Milligan.

F. Military Tribunals Abroad to Try Defendants Abroad: Military tribunals were used abroad, especially during WWII. The use of such tribunals appears to have been predicated on one of two bases: 1. (1) an occupying power could use military tribunals to try ordinary criminal offenses until

domestic civil government was restored; or 2. (2) military tribunals were appropriate to try alleged violations of laws of wars, even after

termination of hostilities.G. Judicial Review and Habeas Corpus Relief of Military Commissions: Historically, Article III

courts have not typically had statutory jurisdiction to engage in appellate review of the decisions of military tribunals. 1. However, the federal courts, in the exercise of their habeas corpus jurisdiction, have been

able to inquire whether the Constitution or laws of the United States withhold authority to proceed with a trial.i) U.S. Citizen w/in United States: Insofar as a petitioner – whether a citizen or a non-

citizen – seeks to challenge the use of a military tribunal within the United States, habeas corpus review is protected by the Constitution itself. a. The President lacks unilateral authority to suspend habeas corpus w/in the United

States.

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ii) Foreign Citizens on Foreign Soil: When military tribunals are used on foreign soil to try foreign citizens who are not subsequently imprisoned in the United States, there is no guarantee of habeas corpus relief as the federal courts lack jurisdiction. However, the D.C. Circuit court does have jurisdiction where the prisoner or custodian is on foreign soil which is the “plenary and exclusive jurisdiction” of the U.S.a. Prisoner or Custodian Jurisdiction Required: The statutory grant of the habeas

statute gives judges the power to issue writs “within their respective jurisdictions.” The Court has understood this to mean that habeas relief is limited to either where a prisoner or his custodian is within the jurisdiction of the court.

b. Braden v. 30th Judicial Circuit (1973): Held that a court cannot exercise habeas jurisdiction without territorial jurisdiction over the petitioner. However, the habeas statute requires only jurisdiction over the custodian. i. E.g. The Court has assumed that federal courts in the District of Columbia may inquire

into foreign detention and trials by court martial of U.S. service members based on their jurisdiction over the Defense Department officials within the District.

a. But See Rasul v. Bush (2004): The Court upheld the jurisdiction of the district court for the District of Columbia to consider challenges to the legality of the detention of foreign nationals captured abroad and held for a protracted period of time at the United States Naval Base in Guantanamo Bay, Cuba, over which the United States Exercises “plenary and exclusive” jurisdiction, but not “ultimate sovereignty.”

H. Military Commissions and the War on Terror: In Hamdan, the Supreme Court ruled that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Military Justice and the four Geneva Conventions. 1. Hamdan v. Rumsfeld (2006): Hamdan designated him an enemy combatant. A few months later, the

district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. Held: The military commission convened to try Hamdan lacks power to proceed because of its structure and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions. i) Neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution

expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore illegal.

ii) Jurisdiction and the DTA: The Court said that the Detainee Treatment Act of 2005 – which gave the DC Circuit “exclusive” jurisdiction to review decision of cases being tried before military commissions – did not preclude its jurisdiction. This is because the “effective date” of the DTA did not apply to pending cases (they punted here).

iii) Authority for Commissions: Court didn’t decide whether President had Constitutional power to convene military commissions like the ones create to try Hamdan b/c Congress had given authority under various laws. These laws acknowledge that the President has the power to convene military commissions for the exigencies of war, but such tribunals must operate within the laws of war including UCMJ and Geneva Convention.

iv) Violation of Laws Applied: The Court found that the procedures of the military commissions violated the laws of both the UCMJ (e.g. defendant was forbidden from viewing certain evidence; evidence with any probative value admitted regardless whether hearsay) and the Geneva Conventions (not a “regularly constituted court”).

2. Military Commissions Act of 2006: After Hamdan, MCA established procedures governing the use of military commissions to try alien enemy combatants for violations of the law of

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war and other offenses triable by military commission. There was controversy whether it effects habeas corpus for United States citizens.i) Procedures: MCA provides some due process rights – e.g. right to be present – but it had

procedures that differed from traditional criminal due process – e.g. admissibility of hearsay evidence, confidential security information, degree of guilt, etc.

ii) Limited Application of Geneva Conventions: MCA limits an enemy combatant’s ability to invoke Geneva Conventions – i.e. “no alien unlawful enemy combatant … may invoke the Geneva Conventions as a source of rights.” Also, the MCA states explicitly that a military commission is a regularly constituted court as required by Geneva Convention Common Article 3. Finally, the Act gives the President broader discretion to determine and/or interpret the United States’ obligations under various treaties.

iii) Very Narrow and Limited Appellate Review: DC Circuit had exclusive appellate jurisdiction only to review whether the final decision was consistent with the standards and procedures of the MCA or, to the extent applicable, the Constitution and laws of the United States. Also, combatant status is foreclosed issues of fact.

3. Boumediene: Held that the MCA was an Unconstitutional Suspension of the writ, aliens held at Guantanamo still get habeas as it was defined in 1789, and Guantanamo is de facto U.S. territory where U.S. law still applies, don’t want the executive to avoid Habeas just by moving bases around.

Law Applied in District Courts

539-547—historical info 557-565 Federal courts lack power to make federal law in the absence of explicit or implicit

authorization by Congress or the Constitution. In Erie v. Tompkins, the US Supreme Court held that federal common law can exist in areas governed by the federal constitution or by acts of Congress. In other areas, though, Congress should not displace state law because that would encourage forum shopping.

o The Erie holding overturned Swift v. Tyson which held that there was a “transcendental omnipresence” common-law scheme where the federal courts could displace state common law (except where the state had a statute or a “local” (property) law).

In Swift—fed. cts when exercising jurisdiction in diversity cases, cts don’t have to look to high state ct, can apply general principles of law to create law. Ct look at general principles. This creates forum shopping concerns.

o The Erie holding was based on the ideas that: (1) there was a new interpretation of Section 34 of the Judiciary Act of 1789; (2) this would create greater uniformity than Swift; (3) this would ensure equality between citizens and non-citizens (in terms of removal rights); (4) this would equalize the differences between plaintiffs and defendants.

o It is the current law. The theory is that fed. cts are becoming hostile to state law, Brandies has a political agenda (right time to overturn Swift). It was a personal injury case for a RR accident. S.C. said Swift was wrong & unconstitutional. Congress establishes the laws but not substantive riles, common law of states applicable (cts can create substantive law, they must look at applicable state law had the case been brought in the state). Also can have manipulation of forum shopping, no uniformity, Swift was based on a poor reading of the statute.

STATUTORY LIMITATIONS ON FEDERAL COURT JURISDICTION

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A. CONGRESS CAN STATUTORILY REGULATE LIMITATIONS ON FEDERAL JURISDICTION: 1. Congress has broad powers to determine the authority of the federal courts, especially in

relation to state judiciaries. It would violate separation of powers for the courts to disregard the statutes unless they were unconstitutional.i) Federal Courts:

a. May enjoin proceedings in another federal courtb. May sometimes enjoin proceedings in a state court. But, possible hurdles include:

i. Anti-Injunction Actii. Tax Injunction Act (re taxes under state law)iii. Johnson Activ. Abstention Doctrines

ii) A state courta. May enjoin proceedings in another state court (no fed statute preventing it)b. May not enjoin proceedings in a federal court (except under the res exception)

B. THE ANTI-INJUNCTION ACT – 28 U.S.C. § 2283: 1. Anti-Injunction Act (“AIA”) provides that “A court of the United States may NOT grant an

injunction to stay proceedings in a State court EXCEPT as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”i) Purpose: “prevent conflict between federal and state courts.” The underlying idea is

that a federal injunction of ongoing state proceedings is likely to breed resentment and hostility in the state judiciaries and even risk disobedience of the federal court’s order.

ii) Prohibits Federal Injunctions: The AIA prohibits federal courts from enjoining state proceedings:a. directly by enjoining state courts or b. indirectly by enjoining the parties from proceeding with litigation in state courts.

2. Proceedings Requirement: i) AIA only applies if there are proceedings actually pending in state courts; ii) Does not prevent federal courts from issuing injunctions in the absence of ongoing state

court litigation. iii) The Meaning of “Proceedings”: The AIA is not applicable if state proceedings have yet

to be instituted. For example, in Lynch v. Household Finance (1972), the Court held that a prejudgment garnishment was not a “proceeding” in state court and hence could be enjoined by a federal court, even though the garnishment might be necessary to obtain satisfaction of any subsequent judgment obtained by the creditor.

iv) Prentis v. Atlantic Coast Line (1908) (AIA does not apply to injunctions against state nonjudicial proceedings): Federal circuit court enjoined enforcement of a rate order of the Virginia State Corporation Commission. Applicants argued that under state law the commission had the characteristics and powers of a court and that the Anti-Injunction Act forbade a federal injunction. Held: The Court held that whatever the status of the commission in other types of proceedings, the establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind, to which the AIA did not apply.

C. Younger Adds a Hurdle: To get an Injunction, case must fit under an AIA exception AND an exception to the Younger Doctrine : The importance of the AIA has been substantially lessened by the Supreme Court’s creation of a parallel abstention doctrine – Younger Abstention – based on concerns for equity and comity. Although in Younger the Court held that federal courts may not enjoin pending state court criminal prosecutions, this has been extended to a variety of other situations.

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D. Exceptions to Anti-Injunction Act : The exceptions contained in the AIA are exclusive, and the Court may not create additional situations in which injunctions may be issued. REMEMBER AN EXCEPTION TO YOUNGER IS ALSO NECESSARY TO GET AN INJUNCTION!!1. Injunctions “Expressly Authorized by Statute” (1983 Claims): Because Congress

created the bar against injunctions contained in the Anti-Injunction Act, Congress may override its own limitations and expressly authorize stays of state court proceedings. i) No Need for Specific Authorization: To be an express authorization of an injunction, a

statute does not have to specifically state that it constitutes an exception to § 2283. a. “No prescribed formula is required; an authorization need not expressly refer to §

2283.”b. Test: A statute need not even mention the possibility of injunctions of state

proceedings if the PURPOSES OF THE STATUTE would be FRUSTRATED if injunctions were not allowed.

ii) Section 1983 comes within expressly authorized exception, thus allows injunctions Other Statutory Exceptions: Injunctions under Bankruptcy Laws, Removal, Admiralty limitation of liability, federal interpleader, habeas.

iii) (Clayton Act DOES NOT come within expressly authorized exception) (Vendo Co. v. Lektro-Vend Corp.(1977)) : There was no indication that Congress was concerned with the possibility that state court proceedings would be used to violate the Clayton Acts. To rule otherwise would eviscerate § 2238 since the logic of that position could mean that virtually all federal statutes authorizing injunctive relief are exceptions under § 2283.

2. Injunctions “Necessary In Aid of Federal Court’s Jurisdiction”: Two circumstances: Removal and Res.i) Removal Exception: Case is removed from state court to federal court; and

a. If a case is removed to federal court and the state court does not relinquish jurisdiction, the federal court may enjoin further state judicial proceedings.i. However, there was little need for a separate exception for removal cases because

the Court has always regarded the removal statute as an express authorization for staying state proceedings.

ii) In Rem Jurisdiction: Res Exception: Federal court first acquires jurisdiction over a case involving the disposition of real property.a. Whichever court first gains jurisdiction in a case concerning the disposition of

property has exclusive jurisdiction to decide claims to that property. Thus, whatever court initially acquires in rem or quasi in rem jurisdiction over a matter involving property can enjoin all other courts from hearing the matter.

3. Injunctions to Prevent Relitigation of an Issue: when injunctions are necessary to protect or effectuate an earlier judgment by a federal court. i) When a federal court decides an issue, it can prevent that same issue from being

relitigated in state court.a. Prevents harassment of federal court litigants by repetitive state court proceedings

and ensures finality of the federal courts’ proceedings.ii) Earlier Federal Decision Must have been on the Merits: A federal court may not

enjoin state court proceedings under the relitigation exception if the earlier federal court ruling was based on federal court procedures and not on the merits of the case.

E. Other Anti-Injunction Act Coverage Issues: 1. AIA is NOT Applicable to Strangers to Original Lawsuit: In County of Imperial v. Munoz

(1980), the Supreme Court held that unless the AIA was not applicable to federal plaintiffs who were “strangers” to the original proceeding.

2. Declaratory Judgments / State Permits: If the state suit is likely to turn on a question of federal law with which a federal court is likely to be more familiar and experienced than the

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state court, and if the state court abstains from ruling pending federal decision on that question, the Third Circuit has held that 2283 does not preclude the federal court from issuing a declaratory judgment on the common federal question. (Thiokol Chemical v. Burlington Industries)

3. US a party: The AIA does not apply when the US is a party. This means that Administrative Agencies aren’t blocked by the AIA from getting injunctions, watch out for Younger though.

FEDERAL AUTHORITY AND STATE-COURT JURISDICTIONA. Art III structure premised on the existence of state cts & assumption that they would be first-line

interpreters of fed law (Art VI Supremacy cl.) States have the right and obligation to hear fed law. Fed cts play role in policing state cts.1. State courts also lack Art III protections.2. Raises issues of parity and beliefs about competency of state vs. fed cts.

B. Federalist 82: states should retain all existing auth, unless expressly taken away or incompatible to have jx in both. 1. Const leaves in place power of states as it existed before const, but can be changed.2. Federal and state are part of whole, not right for state to regard fed as foreign3. Natl asspt at time: courts hear claims that walk in door, doesn’t matter if under law of diff

sov

C. Generally – State Courts Have Concurrent Jurisdiction: Deeply-rooted presumption in favor of concurrent state court jurisdiction. 1. Therefore, state courts have the authority to hear all cases – including ones arising under

federal law or even foreign law Unless Congress has vested exclusive jurisdiction in the federal courts over a matter.

a. Reasoning: Concurrent jurisdiction offers the benefit of convenience when it is easier for litigants to appear in a state than in a federal court and a relatively free choice of forum. Finally, any erroneous decisions could be appealed through the state court decision and then ultimately resolved by the U.S. Supreme Court.

D. Exclusive State Court Jurisdiction: State jurisdiction is exclusive in cases not within the jurisdictional headings of Article III, as it is in cases in which Congress has not seen fit to confer federal jurisdiction.1. But, No Concurrent Jurisdiction for Indian Tribal Courts: Tribal Courts are not afforded

the same presumption of concurrent jurisdiction as state courts. i) Nevada v. Hicks (2001): Tribal courts, unlike state courts, are not courts of general jurisdiction;

rather a tribes inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction.

E. Congressional Exclusion of State Court Jurisdiction Allowed: Congress is free to exclude certain cases from state courts and vest exclusive jurisdiction in Article III courts. This is usually done when legal issues are technically difficult or when Congress distrusts state judges and wants to avoid their interference or bias.1. Tafflin v. Levitt (1990) (no exclusion of RICO claims from state courts; establishes test):

Concurrent state court jurisdiction over civil RICO claims would be denied only by “an explicit statutory directive, by unmistakable implication from legislative history, or by clear incompatibility between state-court jurisdiction and federal interests. Here, nothing in the language, structure, legislative history, or underlying policies of RICO precluded state court jurisdiction.

a. Concur (Scalia): Congress must take away jurisdiction explicitly – not merely by implication or legislation history

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F. Concurrent Jurisdiction Presumed Unless TEST: State courts have concurrent jurisdiction over federal claims, unless it is denied …1. By an EXPLICIT STATUTORY DIRECTIVE, 2. By UNMISTAKABLE IMPLICATION from LEGISLATIVE HISTORY,

i) Congressional Silence is Evidence of Concurrent Jurisdiction: Omission of any express provision making federal jurisdiction exclusive is “strong and arguably sufficient evidence that Congress had no such intent.”a. Yellow Freight System v. Donnelly (1990) (omission of jurisdiction-stripping language is

evidence of concurrent jurisdiction for state courts): The Court concluded that Title VII contains no language that expressly confines jurisdiction to the federal courts or ousts state courts of presumptive jurisdiction. The omission of any such provision is strong, and arguably sufficient, evidence that Congress had no such intent.

3. By clear INCOMPATIBILITY between state-court jurisdiction and FEDERAL INTERESTSi) Incompatible if either field preemption or undermine congressional intent in passing

statute]

G. Obligation of State Courts to Enforce Federal Law: Congress has the power not merely to authorize – but to require – state courts to hear cases based on federal causes of action. (Based on Madisonian compromised which anticipated concurrent jurisdiction) Also, State courts may not discriminate against rights arising under federal laws.

1. State Courts May Decline to Hear Federal Law Claims IF they have a VALID excuse: Refusal to hear a federal case may not be based on a hostility to federal law.i) TEST: A state court may not deny a federal right – when the parties and controversy are

properly before it – in the absence of VALID EXCUSE. A valid excuse does not include a state’s DISAGREEMENT with the content of a federal law or REFUSAL to recognize the superior authority of its source. Rather, it must be a NEUTRAL state rule regarding the ADMINISTRATION of the COURTS.a. Testa v. Katt (1947) (state courts must not refuse to enforce federal rights where similar

state claims could be heard): b. Successful Refusals to Hear Federal Cases: It is important to note that their refusal

was based on grounds equally applicable to state and federal cases.i. Sovereign Immunity: If a sovereign immunity defense would preclude a case

from being brought in federal court, a state court may dismiss the case under similar grounds in its own courts. (Alden v. Maine)

1. Limitation – No Sovereign Immunity Defense if Not Available in Federal Court: A state court cannot allow a sovereign immunity defense in state court if that defense would not be available in federal court.i. Howlett v. Rose (1990) (state court could not apply state sovereign

immunity defense to defeat a federal claim): Illegal Search claim against school brought in state court under § 1983. State court said suit was barred by state law sovereign immunity. SCOTUS reversed, because state law sovereign immunity could not be used by a state court to deny recovery

under § 1983. A state court must not deny a federal right, when the parties and controversy are properly before it, in absence of a valid excuse.

ii. State Court of Limited Jurisdiction: A municipal court of limited jurisdiction can decline jurisdiction over a claim under the Federal Employers Liability Act when under state law it is without jurisdiction over this kind of law suit (see Herb v. Pitcairn (1945)).

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iii. Forum Non Conveniens: A state court may dismiss a suit brought under the Federal Employer Liability Act because of the doctrine of forum non conveniens, provided that the doctrine is applied as a general local practice to all causes of action begun in its courts (see Southern Railway v. Mayfield (1950)).

H. Procedure: State Courts May have to Follow Federal Procedures: State courts generally need not follow federal procedures when hearing federal law claims. However state courts must do so if …

i) Congress SPECIFIES the procedure for a particular matter ORii) The application of state procedures would be OUTCOME DETERMINATIVE or

SIGNIFICANTLY BURDEN the exercise of federal rights.

I. Forbidden State Court Proceedings Against Federal Officials: Even though state courts are obliged to follow federal law, they have limited power to enter orders directly against federal officers. The underlying reasoning for these limitations is that when the state and federal governments come into conflict, the Supremacy Clause says that the federal government reigns supreme.1. No Habeas Corpus: State courts do not have the power to grant writes of habeas corpus

against federal officers alleged to be holding prisoners in violation of federal law.i) Tarble’s Case (1872) (state courts cannot issue writs of habeas corpus for people held by the

federal government): Tarble enlisted in the Army during Civil War, although he was allegedly a minor and had failed to obtain his father’s consent to enlist. A state court has no jurisdiction to issue a writ of habeas corpus releasing a person held by the United States or one of its officers. a. State and local government conflict in some spheres, but the Constitution provides that when

jurisdictional confrontations occur, it is the federal government that reigns supreme. The federal government has plenary authority to maintain and regulate the military, and if state judicial officers had the power to secure the release of soldiers, the effectiveness of the Army would be drastically undermined. Furthermore, the federal government equally protects individual rights as states do.

2. No Injunction Against Federal Judicial Proceedings: State courts cannot enjoin federal court proceedings, even to prevent relitigation of matters already fully decided by the state court. (see Donovan v. City of Dallas (1964)).i) Except: In rem: in cases where jurisdiction is based on possession of a res

3. No Writs of Mandamus: State courts cannot grant mandamus against federal officers compelling performance (McClung v. Silliman (1821)).

4. Damages allowed: against fed officers, but removal and immunity will usually prevent it.

SUPREME COURT REVIEW OF STATE COURT DECISIONSA. Authority for Supreme Court Review of State Court Decisions: Article III

provides that the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make. Section 25 of the Judiciary Act of 1789 then explicitly provided for Supreme Court review of state court judgments where the state court had decided against a claimed federal right.1. Mandatory v. Certiorari: Before 1988, the Supreme Court’s appellate jurisdiction over state

court decisions was divided between mandatory appeals and discretionary writs of certiorari. i) However, 28 U.S.C. § 1257 eliminated appeals as of right and made all state court

judgments reviewable only by writ of certiorari. 2. Two Key Cases Establishing Boundaries of Supreme Court Review: Martin affirmed the

Court’s power to review federal issues decided in state court, while Murdock established limits on the Court’s power to review non-federal issues decided in state court.

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i) Congress has the power to authorize the Supreme Court to exercise appellate jurisdiction over questions of federal law decided in state courts: (Martin v. Hunter’s Lessee) (1816) a. Textual Reasoning: The language of Article III extends judicial power to cases and

not to courts. It is plain that the Framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might – but would – arise in the state courts, in the exercising of their original jurisdiction. This view can be seen by the wording of the Supremacy Clause which makes the Constitution, treaties, and laws of the United States applicable in every state.

ii) Supreme Court’s power to review state courts is limited to decisions about to federal questions, A state’s highest court is the authoritative interpreter of state law. (Murdock v. City of Memphis) (1875): The Supreme Court held that the issue presented did not involve federal law, but instead was a state law matter concerning whether Murdock retained a reversionary interest based on the original conveyance instrument. The Court held that it lacked any authority to review state court rulings as to state law, based on Congress’s unmistakable intent in revising the Judiciary Act of 1789 and the assumption that its jurisdiction was limited to the correction of errors relating solely to federal law and its role of protecting the Constitution and federal laws did not extend to reviewing other questions not of federal character. a. Congressional Intent and Judiciary Act of 1789 vs. 1867: Judiciary Act of 1789

explicitly prevented the Supreme Court review of sate court decision on state law questions. Although the revision of the Judiciary Act of 1867 omitted this provision, the Court concluded that Congress’s unmistakable intent was to prevent Supreme Court review of state court interpretations of state law, stating that the Congress would have used plain, unmistakable language if it meant to grant such broad jurisdiction to the court.

3. After Review, Remanded for State Adjudication: When reversing a state court judgment, the Court will then remand the case for proceedings “not inconsistent” with the Court’s opinion. Thus, the state court is free to resolve any undecided questions or even to alter its determination of underlying state law. The reversal may not, therefore, be decisive of the final judgment.

4. Remember that SCOTUS can’t review state law in an appeal from state court. It can review state law in an appeal from lower fed courts (where there was supplemental jx over state claims)

B. Independent and Adequate State Grounds Doctrine : If state’s highest court’s decision is supported by a state law rationale that is independent of federal law and adequate to sustain the result, SCOTUS won’t hear the appeal b/c reversal of the state court’s federal law ruling will not change the outcome of the case.1. Independent: To be “independent,” a decision must be based on state law that is independent

of whatever federal law might require. If state law is interpreted to make it consistent with the supposed command of federal law, or if state law incorporations federal law, the state law is not independent.

2. Adequate: An adequate state law ground exists where the state law basis for the decision is sufficient by itself to support the judgment, regardless of whether the Supreme Court would affirm or reverse the federal issue.

a. Rationales: No advisory opinions. Avoid unnecessary constitutional rulings, promotes harmony between the federal and state systems by minimizing review, and conserves judicial resources to cases most deserving of federal attention. In addition to creating consistency in the doctrine, the Court wanted to avoid examining state laws with which it was unfamiliar and from making potentially advisory opinions.

b. Criticisms: The doctrine permits inconsistent and incorrect interpretations of federal law unreviewed. A state court decision wrongly interpreting federal law will remain on the books, potentially influencing other courts around the country, if there is an

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independent and adequate state ground. Also, it invites state courts to try to immunize their decision from Supreme Court review by manufacturing a state basis for the decision.

3. Ambiguous or Unclear Reliance on Federal Law: The Supreme Court will PRESUME that there is NOT an independent and adequate state law basis for a decision UNLESS the state’s highest court provides a CLEAR STATEMENT that its decision was grounded on state law. i) Presumption of Federal Law Reliance: When a state court decision 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 Court assumes the state court decided the case because it believed that federal law required it to do so

4. Procedural Bars As an Independent and Adequate State Ground: Failure to comply with valid state or federal procedural requirement for raising an issue will prevent a litigant from presenting a federal issue to the Supreme Court on appeal. However, the Supreme Court will scrutinize the asserted state procedural bar to ensure that it has been appropriately invoked.i) Test: when procedural ground, ask whether it is adequate. Inadequate if:

a. State law violates fed due process (ex: can’t ask D to object to composition of jury prior to being indicted, where D isn’t even assigned atty until indictment. Reese v. GA)

b. State law ground is novel or inconsistently applied (some overlap with d/p concept)c. State rule discriminates against federally-protected rightsd. State rule unduly burdens the federal right (state court can’t have lengthy rules on the

type of paper to use or call your brief too long if it’s only 2 pages, etc. See Staub v. City of Baxley)

e. “Stupid judge tricks”5. Unconstitutional State Laws are Inadequate: State law obviously is not adequate to

support the result when there is a clam that the state law itself violates the United States Constitution. An unconstitutional state law cannot support the state court’s holding.i) Staub v. City of Baxley (1958) (unconstitutional state law is not an adequate state ground to

deny appeal): A city law made it an offense to solicit membership in any organization without a permit. The Court held that the state law was not adequate to support he judgment because it was unconstitutional.

6. Due Process Violations Create Independent Federal Issue for Review: The validity of the state procedural rule under the Due Process Clause raises an independent federal question that the Court has jurisdiction to review apart from any other federal issues in the case.

7. Federal Claims MUST be Raised in State Court: Federal constitutional issues must be raised and decided in the state court before the federal courts may rule on the issue. This is based both on statutory – 28 U.S.C. § 1257 – grounds as well as prudential reasoning.i) Cardinale v. Louisiana (1969): Fed question had never been raised, preserved, or passed upon in

state courts. The record is likely to be inadequate and the state should be given the first opportunity to consider the applicability of state statutes to determine whether they can be interpreted in order to save constitutionality or whether they establish an adequate and independent state ground for the decision – thereby blocking appellate review. Furthermore, the Court highlighted the fact that there is an alternative remedy – habeas – if there is no state procedure available to raise the issue.

8. New Arguments Allowed – If a federal claim was properly raised in state court, a party can raise before any argument in support of that claim before SCOTUS, even if the argument was not raised in state court (see Yee v. City of Escondido (1992)).i) Must be Very Specific in Invocation: The Court held that a litigant who had

complained in a state court custody suit about a failure to give “full faith and credit” to a prior judgment, but who had not mentioned the Full Faith and Credit Clause in particular,

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had presented only a state law issue under, and thus could not raise the federal constitutional issue in Supreme Court (see Webb v. Webb (1981)).

ii) But, Wood v. Georgia: Employee’s lawyer was conflicted (employee suing employer was represented by lawyer paid for by employer). Didn’t raise due process objection below, but SCOTUS still reviewed b/c it’s not that the lawyer just screwed up below, it’s the lawyer himself that the party is complaining about (the lawyer wasn’t going to attack himself below). This is an extremely narrow situation.

C. Final Judgments That Aren’t Final and the Highest State Court1. The Supreme Court can only review state court decisions that are “final judgments or

decrees”i) A final judgment “terminates the litigation btw the parties on the merits of the case” and

nothing remains to be done but require the lower court to enter the judgment. (dismissal = final)

2. Cox Relaxed the final judgment rule: Cox Broadcasting v. Cohn: At least 4 categories of cases in which Court has treated decision on fed issue as a original judgment for s. 1257 purposes w/o awaiting completion of additional proceedings anticipated in lower state courts.i) Practical Finality: state’s highest court may remand to lower court, but it is clear that the

federal issue is conclusive or outcome of further proceedings is preordained. ii) Federal Issue will survive: Federal issue, finally decided by state highest court, will survive

and will require decision regardless of the outcome of future state court proceedings.iii) Federal Issue will not survive: Federal claim has been finally decided, with further

proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case (like where party seeking interim review ultimately prevails, fed issue mooted; or if he were to lose, state law would prohibit him from again presenting his federal claims for review.

iv) Serious Erosion of federal policy: federal issue finally decided in state courts w/ further proceedings pending in which party seeking review might prevail on merits on nonfederal grounds, thus rendering unnecessary review of the fed issue by SCOTUS, and where reversal of state court on fed issue would be preclusive of any further litigation on relevant cause of action rather than merely controlling nature and character of, or determining admissibility of evidence in, state proceedings still to come. If refusal to immediately review state ct decision might seriously erode fed policy, Court may take Jx.a. Ex: Could win on 1st Amendment, but might win on something else after losing valid 1st

Amendment claim. Court may take case to make sure the 1st Amendment is protected.

FEDERAL QUESTION JURISDICTION OF THE DISTRICT COURTSA. Federal Question Jurisdiction Generally: Federal question jurisdiction is authorized

by Article III and is specifically conferred on the district courts by statute in §1331. The scope of the constitutionally authorized federal question jurisdiction is broader than that conferred by statute. There is a fed. question jurisdiction statute that’s also an Art. III provision. “Arising-under” comes to mean 2 things: (1) constitutional language and (2) statutory language. Until 1980, there had been 2 separate jurisdiction provisions pertaining to §1331 (amt in controversy did not apply to civil rights cases). Now no amt is necessary so no exception & you don’t have to figure out civil rights matters.1. Article III: Article III of the Constitution states that the judicial power of the United States

“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.”

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2. Statute: As now codified in 18 U.S.C. §1331, (first passed in 1875, removed amt in controversy req in 1981) the law provides that “[t]he district courts hall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

3. We don’t trust state judges: b/c they’re elected, might discriminate against federal law, we trust Art. III judges, we want a uniform system of federal law.

B. “Arising Under” Federal Law for Article III Jurisdiction (Broad): Under the Court’s broad definition, most matters will fit within the within the scope of Article III’s authorization of jurisdiction.1. Federal Law is an “Ingredient of the Original Cause”: Under the Constitution (Article

III), a case arises under federal law whenever federal law forms an ingredient of the original cause even though other questions of fact or law may be involved in it. i) Osborn v. Bank of the United States (1824) (federal governments creation of national bank

created ingredient of federal law to grant federal jurisdiction): Ohio Unconstitutionally levied taxes on each branch of the United States Bank in the state. Because the Bank of the United States was created by federal law, any legal action brought by in arose under federal law. Notion that the judicial power must be co-extensive with the legislative power.

Facts: OH w/holding funds under state law. Bank sues under general jurisdiction. Osborn’s objection is a pure state law claim being adjudicated, it should be adjudicated in state ct. Bank says that the statute says it can be heard in a fed. forum.

Marshall looks at the statute—pure jurisdiction grant. Now the question is whether this case ARISES UNDER the law of the US? (750)

(751)—if you understood arising under in every aspect, there won’t be anything to arise there. Talks about S.C.’s jurisdiction under Art. III (original jurisdiction could exist in fed. cts/S.C. where it is not precluded). Congress has the power to grant Cir. Cts. original jurisdiction.

The real issue (751)—can the ct address this specific issue (look at the charter of Bank of US).

If you have cases when there’s a mixture, it is precluded unless just fed., can ct only hear parts that are just fed?—NO, state issues don’t disable the fed. judiciary. Ct can take ANY CASE so long as it is deemed to be arising under the Constitution.

So long as any case where fed. law is an ingredient, Congress can act w/o exceeding power to grant original jurisdiction.

Marshall—scope of “arising under” power under Art. III—if fed. judicial power (752) is an ingredient of original clause, it’s power of Congress to give Cir. Cts jurisdiction of that cause.

In cases involving a bank, there is always the potential for fed. issues. Justice Johnson’s dissent—giving jurisdiction in a case like this will create a

landslide effect, won’t be able to keep anything out. It becomes a gigantic flood gates issue.

ii) 2 Qs to be answered: Does the statute grant federal court jurisdiction, and is the statute constitutional?

2. Expansive Jurisdictional Grant: The Constitution permits Congress to create federal court jurisdiction whenever federal law is a potential ingredient of a case. Not only does this jurisdiction extend beyond situations where there are federal causes of action, but also it includes instances where a case might turn on/be a dispute about a question of federal law, no matter how unlikely it is that federal law will be a basis for the decision.i) Protective Jurisdiction: Scholars argue that the decision in Osborn can be best

understood as authorizing Congress to create “protective jurisdiction” – that is, Congress

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may authorize federal court jurisdiction where it believes that that federal court availability is necessary to protect important federal interests. By this view, in Osborn, Congress created federal court jurisdiction, even as to state law claims litigated by the Bank of the United States, to protect the bank from potential state court hostility.a. Textile Workers Union v. Lincoln Mills (1957) (protective jurisdiction creating federal

question jurisdiction debated): A labor union brought suit under § 301(a) of the Taft-Hartley Act, which confers jurisdiction on the federal courts over actions for violation of labor-management contracts in industries affecting commerce. Held: Majority held federal court jurisdiction was appropriate because Congress intended for the federal courts to create a federal common law of labor-management contracts. i. Congress sets up fed. collective bargaining agreements. S.C. says the right way to

understand Congress is for someone to set up a fed. law to look at how to read K law/interpretation.

ii. Concur: Justices Harlan and Burton concurred in the result; they disagreed that federal law was to be applied, but argued that jurisdiction was appropriate based on the theory of protective jurisdiction. They contended that state law was to be applied in contract cases brought to federal court under the THA. However, they argued that courts should take jurisdiction out of a desire to protect the federal interest in labor cases when Congress has authority to make a rule to govern the disposition of the controversy. Court has never adopted protective jurisdiction. (just a theory)

iii. Dissent: Justice Frankfurter dissented and strongly argued against the concept of protective jurisdiction. He concluded that it could not be justified under any allowable view of the scope of Article III and that the theory must have as its sole justification a belief in the inadequacy of state tribunals in determining state law. However, the Constitution reflects such a belief in the specific situation within which the diversity clause was confined, thus the problem was already fixed. Congress doesn’t enact fed. substantive law. If premise is case doesn’t arise under fed/ law is it consistent w/Congress’ Art. I & III powers to establish cts? Frankfurter’s position is against the notion of protective jurisdiction (if Congress could have power to proscribe fed. rules (substantive law bit has elected not to) but w/o doing so enacts a jurisdictional statute). Something deeply disturbing about this federally. You can strip a state law of collective bargaining power. Won’t do this unless you don’t trust states. He thinks there should be substantive law & “protective jurisdiction” ➝ doesn’t trust the states. He’s in profound disagreement w/everyone. Bankruptcy—authority is fed. & everything happens in 1 circumstance (includes state claims).

iv. Pg 762—even if there were a situation in which to change forum to fed. would still need a palpable substantive question. Note 2 on 763—complication b/w original & appellate jurisdiction . If case is decided in state Ct w/o a question of fed law ever decided, can a fed. ct. hear the case?

b. Verlinden v. Central Bank (test case)—is it rightfully decided?—FSIA confers fed. forum for any issue involving a foreign country. State law case but can be a fed. case b/c whether they’re immune or not is always an “ingredient.” There’s a fed. substantive law here (sovereign immunity is a major interest that other countries have to know).

c. Footnote 8 (770)—detailed & obscure. Case if filed in state ct. Question of certification of AG question of scope of employment. Ct says even if certification were set aside, the fed. ct would still have subject matter jurisdiction.

d. Pg. 772—Diplomatic Relations Act—Diplomats were immune from suits, which make it fed. forum, parallel to Verlinden—diplomats need to know what the rules are even though auto cases are state law.

e. Clean Air Act—fed. statute allows standards to be set by states incorporated into fed. law. Fed. law delegated to states.

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f. Air Transportation Safety after 9/11—gave jurisdiction of claims to fed. districts in S.D.N.Y. Substantive law—liability cap.

C. “Arising Under” Federal Law for 28 U.S.C. § 1331 Jurisdiction (Limited) The Court has held that § 1331 is much narrower in its jurisdictional grant than the corresponding language in Article III.1. Test: A case arises under federal law if it is APPARENT from the FACE of the plaintiff’s

COMPLAINT if either Cause of Action created by Fed. Law or Fed Law creates cause of action essential to state law claim (broader than old test that only allowed federal causes of action):i) The plaintiff’s CAUSE OF ACTION was CREATED by FEDERAL LAW;

a. Cause of Action Created by Federal Law: A case arises under federal law if P states a claim under a federal law that provides a legal entitlement to a remedy. This is so even when the only dispute between the parties is about the facts, and regardless whether the claim is explicitly created, is implied by statute or the Constitution, or is federal common law.i. American Well Works Co. v. Layne & Bowler Co. (1916) (cause of action arising

from federal law grants federal question jurisdiction): A suit for damages caused to one’s business by a threat to sue for patent infringement is not a suit under the patent laws, and therefore may not be maintained in federal court.

ii. 2 companies manufacture pumps. 1 said the other made bad pumps & #2 sued. Π claimed that libel involved some question of who holds the patent (fed. question). Holmes said you have to look at the central claim of the entire suit (in this case it’s libel which is a state issue, the patent issue is only a small issue of the suit).

He gives further defn. of arising under—what do you look for in the Π’s side of the picture? ➝ Look for where injury came from. Here, it is libel (& the cause of action is state law).

Holmes’ rule: look only at Π’s side of the complaint then look at the law that creates the cause of action.

iii. Must be non-frivolous claim (Amer. Well Works Co. v. Layne & Bowler Co, 1916)

iv. Whether a complaint states a COA on which relief could be granted must be decided after court has assumed jx. If no, dismissal on merits, not jxal. (Bell v. Hood, 1946).

1. But when fed claim is clearly immaterial and solely for purpose of obtaining jx, can dismiss on jurisdictional grounds.

v. Even if federal claim is not meritorious but also not insubstantial (under Bell v. Hood), it could support supp jx over the state law claim even if dismissed on the merits under Rule 12(b)(6). Must pass the “raised eyebrow” test to be not frivolous, can lose on claim and still get jx. May want to raise that claim so that jx can be maintained throughout appeals. Also, if there are supplemental state law claims, the fed. ct could keep the state law claims

In Bell v. Hood, the Ct was generating law for cases involving causes of action generating from the Constitution. Rehnquist read the case as a frivolous claim & falls outside & requires a 3 tiered analysis.

ii) OR If a federal law creates a cause of action that is an ESSENTIAL COMPONENT of the plaintiff’s STATE LAW cause of action a. Federal Questions as Essential Components of State Causes of Action: Even if P

does not allege a cause of action based on federal law, there is a federal question if it

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is clear from the face of the plaintiff’s complaint that a federal law creates a cause of action that is an essential component of plaintiff’s state claim.i. Smith v. Kansas City Title & Trust (1921) (general rule for federal jurisdiction of

state law claims): Where it appears from P’s complaint that the right to relief depends upon the construction or application of the Constitution or Federal Law, and Fed. claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdiction under the provision.

Think of paradigm situation. It was a shareholder’s suit. The basis of the complaint was Π is raising a constitutional argument but it’s a state cause of action. The Bank is investing in invalid bonds—state law cause of action.

The general disposition turns on fed. question of whether this law is valid or not. The case remains in fed. ct b/c if cause arises under state law but if the right to

relief is determinative on Fed. Law, stay on the fed. side. In what kind of procedural types of cases does this arise: (1) Π sues in fed. ct.

for a state claim and (2) Π wants to be in state ct & wants to remove to fed. ct (could Π’s case been brought in fed. ct?—If yes, then it is removal).

b. Current Balancing Test: The Grable Test: Court set forth its most recent test for federal question jurisdiction in suits based on state causes of action. Court will ask three questions…i. Is there an ESSENTIAL ELEMENT of the state law claim that involves a

question of federal law? If yes…1. Grable brought a state law claim that involved, as an essential element, a

question of federal law (asserted violation of a federal scheme), to which there is no private right of action. Under the reasoning of Merrell, therefore, because there was no private right of action then there should be no federal jurisdiction here either.

ii. Is it a SUBSTANTIAL and DISPUTED QUESTION OF FEDERAL LAW? If yes…

1. In Grable, whether service by mail had been proper under federal law or not would determine the outcome of the case.

iii. Would recognizing federal question jurisdiction over this claim DISTURB the CONTEMPLATED BALANCE OF WORKLOAD between the federal and state courts?

1. However, the Court viewed the question of federal law (the legitimacy of the IRS sales) was an important one because of the vast magnitude of property sold from IRS seizures. i. But, having federal jurisdiction here would not upset the balance

between the federal and state courts. Unlike in Merrell Dow where the case would implicate thousands of state law tort cases flooding the federal courts, most quiet title actions don’t involve this type of disputed federal law.

2. Grable & Sons Metal Products v. Darue Engineering (2005) (established balancing test): The IRS seized property owned by Grable and gave Grable notice by certified mail (instead of personal service as required by fed law) before selling the property to Darue. The issue was whether a case involving the interpretation of federal tax law belongs in federal court and not the state court where it was filed. Held: Federal jurisdiction was upheld. The Court held that the case involved a federal question and could thus be removed to federal court. Federal-questions jurisdiction, the Court reasoned, lay over some state-law claims that implicated significant federal issues. In this case, the national interest in providing a federal forum for federal tax litigation warranted moving the case to federal court

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Grable owned back taxed & IRS sent letter to seize the property & did. Grable claims that Darue’s title is a bad b/c seizure was illegal (defect in how he was served—not personal service).

Cause of action: quiet title claim, which is a state law claim. Souter—classic ex. is Smith v. Kansas City. Case warrants fed.

jurisdiction b/c whether notice was given w/in the meaning of fed. statute (it’s an essential element of quiet title claim, & meaning of fed. statute is actually in dispute).

The only real issue in this case is a fed. issue. It is also a purely legal issue, fed. gov has a fed. issue. It’s an issue that gets resolved & will know whether mail service is adequate & then state law cases will go forward. In (B), he explains Merrell Dow—it made perfect sense, must be read as a whole & is consistent w/what he just did. Merrell Dow didn’t adopt a bright-line test. This case is completely different from Merrell Dow.

Thomas concurs: jurisdictional rules should be clear. If American Well Words rule works in 90% of cases, then it should be used.

iv. Empire Health v. McVeigh (798) The case tells what Grable said. It involved a fed. employee, healthcare for the

fed. employee—gov. had an interest. Insurance Co. trying to get $ from estate of enrollee for tort claim. Estate had a tort action against someone & insurance Co. was trying to get some of that settlement. Insurance Co wants it in fed. ct b/c everyone is fed. They were arguing that Grable allows the case in fed. ct.

Ct categorized Grable, Grable was a pure question of law, and this case involves questions of fact & is distinguishable.

v. Net Effect – Gives Federal Courts Power to Decide Their Own Jurisdiction: By giving the federal courts this power under Grable, it gives the federal courts the power to determine whether they have the power to hear a particular case (or string of cases) or not. Is this a good thing? Should a federal court have the discretion to shape the limits of its jurisdiction? Is it even worth the trouble to minimally expand the jurisdiction?

c. Old Test – Federal Statute Must Itself Create a Cause of Action: It is not enough for a federal law to be an essential component of a state law cause of action; federal question jurisdiction exists only if the federal law itself creates a cause of action, albeit not one relied by the plaintiff. i. Merrell Dow Pharmaceuticals v. Thompson (1986) (no federal jurisdiction unless

independent federal cause of action) : Birth defects allegedly caused by its drug. Violated federal law by failing to include proper warnings on the labels. This violation of federal law, if proved, would have constituted a presumption of negligence under state law. Held: No federal question jurisdiction. B/c Congress has determined that there should be no independent private federal cause of action for the violation, does not state a claim “arising under” federal law.

Tort case. Under OH law, a violation under a fed. statute created negligence. State cause of action (negligence), but compliance is under fed. law. Merrell tries to remove it to fed. ct.

Justice Stevens: wants to analyze under congressional intent. Upon examining the legislative history, Stevens concludes it doesn’t matter if there’s a conflict.

Brennan’s dissent: if Holmes isn’t stating the rule then Ct wouldn’t go through analysis, what other factors are necessary to examine. Ct is setting up ad hoc jurisdictional test.

Majority says—fed. interest isn’t that great, you don’t know how many cases you would be opening the door to. It would federalize all tort claims & ct will not do that.

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ii. Shoshone (weird exception, rarely going to win on it): Federal law grants mining patents, to be determined based state law, court says no fed jx cuz it’s just a factual Q. Maybe just wanted to keep all these cases out of fed court.

B. Well-Pleaded Complaint Rule: It must be clear from the face of the plaintiff’s complaint that there is a federal question. Federal court jurisdiction cannot be based on a federal law defense or on the plaintiff’s anticipation of a federal law defense. 1. Louisville & Nashville R.R. Co. v. Mottley (1908) (well pleaded complaint rule): Mottleys were

injured in trains crash, agreed to release the railroad from liability in exchange for free passes. Congress then precluded common carriers from granting free transportation. They sued railroad in federal court alleging that their property was deprived without due process of law. A federal court may not exercise jurisdiction over a case merely because an anticipated defense or the response thereto will involve a federal question. The plaintiffs’ complaint presented a state law claim for breach of contract. The federal issue arose only from the plaintiff’s anticipation of a defense based on the federal statute.

Settlement agreement b/w RR & couple for free passes for life. Law passed & no more free passes. Couple sues RR for specific performance.

S.C. says you need original jurisdiction under §1331 to be part of the well-pleaded complaint rule (for Π). Need to file in state ct. If fed. piece is there for Π’s sign under the statute, then fed. jurisdiction (abides by well-pleaded complaint rule). Constrains day-to-day fed. jurisdiction.

2. If you are a or almost—if you know you can’t get a fed. forum, don’t be the , be the Π (it’s your complaint) & you can get control of it. Have to establish justiciablity. Note 4 (780)—even compulsory fed. counterclaim doesn’t establish “arising under” jurisidciton.

Vaden v. Discover Bank (5-4) pg. 39 Supp.—1 party files claim to compel arbitration. District Ct lacked jurisdiction. Case turns on statutory interpretation.

3. Federal questions cannot be frivolous. To be a fed Q, just has to be non-frivolous, doesn’t necessarily have to be a winner.

4. Cases going from state court directly to SCOTUS: don’t have to pass test b/c the inherently already did b/c the federal Q must have been decided on the merits in state court in order to get SCOTUS review.

C. Also cannot use DJ action to use defense to get Fed Jurisdiction (Skelly Oil): prevents plaintiffs from gaining federal question jurisdiction despite the well-pleaded complaint rule by pleading an anticipated federal defense as a declaratory judgment claim1. Court will look to see what the claim would look like if it was asking for damages or

injunctive relief instead of just a DJ. If the federal Q would only be available as a defense, it fails the well pleaded complaint rule.

a. Company was trying to build pipelines across state lines. To do this, you need a certificate & need to contract w/another co. If fed. certificate is not granted, seller can terminate K. After the party tries to pull out, they try to sue under the Declaratory Judgment Act. Skelly makes a K w/ Phillips & tried to get out but Phillips sued in fed. district ct for a declaration that the certificates are valid under the Act.

b. Ct doesn’t make the declaration b/c no jurisdiction over a case like this (analogy to Mottley)—Phillips is making a pre-emptive suit. It’s a state law case for anticipation of a breach. The real complaint is Phillips ought to be suing for specific performance which is a state claim.

c. You have to be aware of the artful pleading & figure out what the real situation is. Fed. cts obligation extends to determine whether either party would have a state claim (making it exceedingly difficult to go forward).

d. If you put Kansas City back into the picture (mixed state & fed. issues) & must reconstruct to determine if it should have been brought in fed. ct.

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e. Lower cts have held that if either party has a fed. action & uses the Declaratory Judgment Act, cts can see if anyone has a claim under §1331 original jurisdiction.

f. Can you enjoin state laws?—The answer is all over the place. What if there’s a statute that doesn’t mention a cause of action?—Supremacy Clause (can sue to enjoin the operation of state law by virtue of pre-emption).

2. Franchise Tax Board (can’t use claim of fed preemption to remove DJ action from state court): Dispute brought in state court. Trust doesn’t want to do what tax board says, claims ERISA preempts state law and it doesn’t have to pay taxes to board. State sues for state DJ. Trust tries to remove to fed court saying ERISA DJ Q is a fed question. Two claims by state tax board in state DJ action:i) enforcement for damages for failing to comply with tax laws, and

a. no fed q jx (state law claim with federal defense – see motley)ii) state DJ action to say that ERISA doesn’t apply.

a. ERISA is one of 3 statutory schemes with complete preemption. But court says Avco doesn’t apply, ERISA preemption doesn’t extend this far.

b. Court says state DJ actions treated the same was as fed dj actions. Don’t want ppl making end run around Skelly Oil rule. (it’d be like allowing an anticipated defense in, which is not allowed under well pleaded complaint rule)

c. Issue: whether ct can move forward in making a fed. judgment action from a state declaratory action?—NO

d. If state couldn’t have brought it in fed. ct, then no fed. jurisdiction & D can’t remove to fed. ct. ERISA’s statutory provisions show Congress wanted to allow some parties to bring fed. action.

§1983 Creates a cause of action. But what is the bearing of injunctions on declaratory judgments ➝ if you can’t meet the bar of getting an injunction you still may be able to get a declaratory judgment (if you could have a fed. injunction, you could elect to have a fed. declaratory judgment.

Federal Question Removal: §1441: where there’s a fed. officer involved. What is the question raised (pg 812(2-4)). Nature of fed. act is so that it displaces/obliterates the state cause of action. It has preempted substantive matter. Under statutes, there is no state law to apply. Until 2003, it’s unclear what fed. statute has to say. Pg. 819—another provision §1443—Civil Rights Removal. 1960s cases opened the door to widespread renewal (Georgia v. Rachel), the door was closed quickly( City of Greenwood v. Peacock).

Peacock: seeing floodgates (1443 & Civil rights Act) suggested that it federalized all civil rights cases. State prosecution must be based upon a state law that on its face violates civil rights. State law itself would have to be a violation of fed. statute. Other options: (1) get an injunction, (2) sue for damages, or (3) fed. habeas).

D. Supplemental (Pendent Jurisdiction) United Mine Workers of America v. Gibbs

o Facts: The employee was awarded compensatory and punitive damages in an action against petitioner union for alleged violations of federal law governing unfair labor practices. The employee brought his action in federal court in connection with a state court action for unlawful conspiracy and unlawful boycott. The suit stemmed from the conduct of union members, who, through violent means, forcibly prevented the opening of a mine operation supervised by the employee.

o Ct explains supplemental jurisdiction—facts support both fed. & state claims & doesn’t make sense to break them up.

o NEW TEST: if state & fed. claims arise from the same nucleus of fact, if P’s claims are such that he would have them heard in a fed. ct, then decide them both. Power to do it doesn’t mean it’s recommended & shouldn’t be used in every case. Can go

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forward assuming if it’s fair, convenient, even if the fed. claims drops from the case. After fed claim has dropped out then must question the convenience, time, economy, etc. It the fed. claims fall out before trial, it is a major fact to sent to state ct.

o Holding: even assuming pendent jurisdiction was proper in the case; reversal was required due to the employee's failure to meet special proof requirements imposed by federal law, which required proof that the union ratified the acts of its members. The Court held that while the union members acted in a way that was reprehensible, there was no proof that the union approved of the violent methods. The mere fact of continued picketing at the mine site was not properly relied upon to show ratification. Actual proof existed that the union put a stop to it as soon as it became aware.

o Pg. 829—think constitutional avoidance. What if you have novel fed. issue?—Try to avoid & resolve case in state ct or fed statutory. Siler v. Louisville & Nashville RR—reach out & ignore fed constitutional question

Finley v. US: ct rejected pendent party jurisdiction. Ct articulates some boundaries. There’s no ancillary jurisdiction over a P’s claim against a non-diverse 3rd party.

o After Finley, Congress acted. In 1990, Congress enacts §1367: Supplemental jurisdiction. It replaces Finley. Under 1367, district cts have supplemental jurisdiction over all claims that are so related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Art. III.

o May decline to hear cases if they fall under 1 of the 4 subsections (this codifies Gibbs’ factors).

Jinks v. Richland Country: questioned whether tolling was valid (is it fed overreaching). Congress can adjust jurisdiction under Art. III & 1367 is an ex. of that power. Ct said it’s ok b/c it is necessary & proper part of Congress’ power to establish inferior cts in a fair & efficient manner.

Raygor v. Regents (834): decided the yr before Jinks. 1367(d)’s tolling provision doesn’t extend to fed ct suits against non-consenting state.

E. Similar Rules for Removal (D cannot remove if P didn’t raise Fed Claim): A defendant may not remove a case from state to federal court unless it is clear from the face of the plaintiff’s complaint that there is a federal question. Also, if a plaintiff chooses not to present a federal claim, even though one is potentially available, the defendant may not remove the case form state to federal court.1. However, a plaintiff may not defeat removal by omitting to plead necessary federal questions

in a complaint.

F. Counterclaims: A federal counterclaim, even when compulsory, does not establish “arising under” jurisdiction. A contrary rule would (i) permit the defendant to defeat the plaintiff’s forum choice by raising federal counterclaims, (ii) radically expand the class of removable cases, and (iii) undermine administrative simplicity by making jurisdictional determinations depend on the content not only of the complaint but also of responsive pleadings (see Homes Group v. Vornado Air Circulation Sys (2002)) 1. .

G. PREEMPTION: Only defense that would allow for removal is when federal law provides for complete preemption of state law claims and provides an exclusive federal right of action. Court will be hesitant to find federal preemption of state law without a clear statutory prescription, a direct conflict between federal and state law, or uniquely federal interests (see Boyle v. UT)1. Presumption against finding preemption in area of tradl state concern – could interfere with

state’s expertise and work, federalism concerns. Ex: property, inheritance, family, tort2. Two Circumstances where courts will find preemption:

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i) When Congress intends federal law to “occupy the field” (field preemption) orii) When state law conflicts with a federal statute (would undermine purposes of fed law or

impossible to fully comply with state and fed law, conflict preemption) (Crosby v. Nat’l Foreign Trade Council, 2000)

i. may want to lead with conflict preemption because field preemption can be more narrowly applied

ii. Federal law generally permits parallel or supplemental state law to co-exist (CA v. ARC America); State law will not be superseded unless Congress made this purpose very clear

3. 3 cases where SCOTUS has found complete preemption:i) Avco: bringing state law breach of K claim, but claim was covered by Taft Hartley Act.

They were just disguising a federal claim as a pure state law claim, no artful pleading allowed.

ii) Met Life: Erisa preemptioniii) Beneficial National Life: court says in cases where complete preemption has been

found, these are situations where federal law not only preempts state law, but also provides a substitute remedy. Congress probably intended this to be the exclusive remedy. When that’s the case, Fed jx will be found (obvi).

4. Examples of Counterclaims Rule’s effect:i) Discover Bank (must look through claim to see if there is fed jurisdiction): Discover

sues cardholder under state law, cardholder counterclaims, Discover sues in fed court under fed law to compel arbitration of counterclaims. Discover’s claim doesn’t arise under federal law, it’s like a defense to the state law claim. Court “looked thru” the arbitration act to see what it arose under.

ii) Examples: A state law claim against B, B counterclaims w/ fed claim: no fed jxa. B can just bring claim separately. But this raises compulsory counterclaim problems.

If the federal claim was a compulsory counterclaim, failure to assert it in first case (A v. B) will preempt B’s later federal claim.

b. A state law & fed law claim against B….fed Q jx depending on importance of fed claim

c. Parties may use declaratory judgments if they think they are going to be sued in state court, but no artful pleading (Skelly Oil)i. a plaintiff may not use a declaratory judgment action to gain federal question

jurisdiction over an action that would not otherwise create § 1331 jurisdiction because of the well-pleaded complaint rule. Frankfurter's view in Skelly Oil is supported by the text of § 2201, which allows courts to grant relief to "actual controversies within (their) jurisdiction." For declaratory judgments, federal jurisdiction lies if either party could get federal jurisdiction over some underlying coercive action.

D. Provokes Race to the Courthouse: This test often provokes a “race to the courthouse” because if one party files (or fails to file) first, then a federal cause of action could be created or be precluded. E.g. filing a federal counterclaim of patent infringement does not create federal jurisdiction, while originally filing for patent infringement would create federal question jurisdiction.

Suits Challenging Official Action (Ch 9)

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Section 1. Suits Challenging Fed Official Action: Congress straightens out suits challenging fed official action. Notion of sovereign immunity goes back to the king (the kind couldn’t violate the laws—the cts worked for the king). Comes over to America in some fashion. Notion of petitions of right. Notion of habeas corpus comes into play. Immunity is not though to extend to every officer (Marbury—against an officer for an action). 858—in some ways sovereign immunity is abstract. A gov can’t insist on immunity all the time (b/c no one would do business w/you w/o having the right to sue). Can sue gov under APA, statues, Tucker Act, Contractual Actions, fed. torts claims. What if the gov sues you & you have an argument that they owe you $ too?—Ability to assert counter-claims that you would end up w/$ in your pocket vs. claims to offset claim (gov doesn’t write you a check, you either pay the difference or it’s a wash).Section 2: Suits Challenging State Official Action: if you have 2 sovereigns how does everything sort out? Fed. & State sovereignty

A. Sovereign Immunity Generally: Eleventh Amendment: “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. Modern Interpretation of Eleventh Amendment: The Eleventh Amendment is a

jurisdictional bar to unconsented suits by all private citizens against a state in either federal or state court. B/c it is jurisdictional, the defense can be raised at any time (so state could lose on the merits, then raise SI defense on appeal, so long as they never waived SI)i) Three exceptions to this general rule:

a. Suits against state officers under the Ex parte Young doctrine; b. Suits pursuant to federal laws enacted under §5 of the Fourteenth Amendment; andc. Waiver or consent by a state.

B. Competing Theories of Sovereign Immunity: 1. Majority – Restriction of Subject Matter Jurisdiction: A current majority of the Supreme

Court interprets the Eleventh Amendment as a restriction of the subject matter jurisdiction of the federal courts that bars ALL suits against state governments.

2. Minority – Only Limits Diversity Suits: A minority of the Supreme Court interprets the Eleventh Amendment as restricting only the diversity jurisdiction of the federal courts. These judges rely on the specific language of the Amendment, “against one of the United States by Citizens of another State,” and the purpose of the enactment of the Amendment in the first place – i.e. in response to Chisholm.i) Chisholm v. Georgia (1793): Involved an attempt by a South Carolina citizen to recover money

owed to him by the state of Georgia. The state did not appear to argue the case, believing that federal courts had no jurisdiction over it unless it consented to be sued. Held: The Court held that there was subject matter jurisdiction. Article III authorized the federal courts to hear suits against a state by citizens of another state. The State-Citizen Diversity Clause conferred jurisdiction, and the state sovereign immunity was abrogated in suits brought under that clause. This led to the 11th Amendment’s adoption.

State claimed sovereign immunity. Ct had jurisdiction to hear the case. Allowed a citizen of 1 state to sue another state. There was an uproar after the case & Congress passed the 11th A (invalidated Chisholm), Amendment didn’t allow a citizen of 1 state to sue another state. Jay had a good constitutional claim (his Art. III argument),

ii) Hans v. Louisiana (1890) (bars suit against state by state citizen): Hans, a citizen of Louisiana, sued LA in federal court b/c legislature amended the state constitution to keep state from making interest payments on the bonds he had bought. Under the Eleventh Amendment, the judicial authority of the federal court does not extend to a suit against a state by one of its citizens. States may only be sued with their consent and LA did not consent. Would seem to violate intent of amendment otherwise.

not covered by 11th A. Hans was suing state over bonds

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Issue: whether a citizen can sue his own state?—NO! The ct also noted that a state can’t be sued by a citizen of another state. Although 11th A

doesn’t mention a citizen not being permitted to sue their own state, you have to go back to the time it was enacted. Way to understand 11th A was to correct some ambiguity in Art. III. Ct said they don’t have to explain it b/c it’s what it is. Ct says that what Marshall said in Cohens v. VA was dicta.

Diversity theory of 11th A—Brennan says that 11th A should be understood as textual. Read it as having to do w/diversity jurisdiction only (Hans was decided incorrectly).

Note 6 (882)—possibility of waiver & partial waiver, constructive waiver. Difficult how to conceptualize what sovereign immunity is. States can waive it. Is it better to think about sovereign immunity as jurisdictional or a defense.

C. Application of the Eleventh Amendment: What’s Barred and What’s Allowed:1. Suits Barred: The Eleventh Amendment precludes:

i) suits against a state government by citizens of another state or foreign country (see language of the Amendment).

ii) suits against an unconsenting state by its own citizens (see Hans); iii) suits in admiralty by private citizens; iv) suits by foreign nations or Native American tribes (see Seminole Tribe); v) suits against the in state court (see Alden); vi) suits in federal administrative agency proceedings (see Federal Maritime Commission); vii) or statewide agencies.

2. Suits Allowed: The Eleventh Amendment does not bar: i) Suits Against State Officers (Ex-Parte Young): b/c it’s technically against the officer,

not the stateii) Suits allowed by Congress under Section 5 of 14th Amendmentiii) Suits against municipalities or political subdivisions of a state (e.g. schools, fire/police,

sanitation, etc.). a. Exception: where there is so much state involvement in the municipalities’ action

that the relief, in essence, runs against the state (see Pennhurst). iv) Appellate Jurisdiction Always Allowed: The Eleventh Amendment does not prevent

the United States Supreme Court from hearing claims against the state as part of its appellate jurisdiction. a. 11A does not apply to SC’s app jx historically, writ of error was not a “suit” under

11A (Cohens v. VA, 1821; McKesson Corp v. Division of ABT, 1990))v) Suits by US/State against an unconsenting state

D. Ex Part Young Suits Against State Officers for Injunctive Relief 1. Injunctions Only: The Eleventh Amendment does not preclude suits against STATE

OFFICERS for INJUNCTIVE RELIEF, even when the remedy will enjoin the implementation of an official state policy. i) State officers have no authority to violate the Constitution and the laws of the United

States.ii) Therefore, their illegal actions are stripped of state authority, and SI is not an issue.

a. Ex Parte Young (1908): On the merits, the Court ruled that the legislation was facially unconstitutional. As a result, the Court also held that there was no Eleventh Amendment sovereign immunity defense. If an act that a state attorney general seeks to enforce is a violation of the federal Constitution, the officer, in proceeding under the act, comes into conflict with the superior authority of the Constitution and is stripped of his official character and is subject, in his personal capacity, to the consequences of his individual conduct.

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b. Derivative action in fed. cts alleging that state legislation regulating RR rates was confiscatory & violated 14th A. Prosecution said test the rates to see if they are illegal. Like a modern test case but no one would want to challenge it b/c penalties are too harsh (it almost has a chilling effect). If no challenge to it then everyone will comply w/an illegal law.

c. Ct said if it is unconstitutional, it will be deemed as AG Young’s idea. He’s divested of being on the state to get around 11th A & Hans, but acting under “color of the law.”—14th A.

d. Fed. cts can’t interfere in a case where proceedings were already pending. Habeas is brought forward. An absolute constitutional barrier (there must be some exception to it).

e. Can sue an officer for injunctive relief on grounds that the law violates the constitution.2. NO Suits Against State Officers for Damages/Monetary Relief: Concern about federal

court relief that had the effect of forcing state governments to pay money damages. Eleventh Amendment prevents an award of monetary relief even when the individual officer is named defendant in the lawsuit.i) Costly Prospective Compliance Permitted: Expensive injunctions are ok. (see Milliken

II, which held that a state paying half the costs of a school integration program was prospective-compliance rather than retrospective relief).

3. Attorneys Fees Allowed: b/c they are ancillary to the injunctive relief ordered (Hutto v. Finney).

4. Form of the Action is equitable Edelman v. Jordan: an equitable action is brought for state to comply w/the law (ex parte

Young) & wanted restitution NOT damages. Ct doesn’t believe that monetary damages would be from Edelman, it would be from the state & that’s not allowed. Complying w/injunction can cost $ but is doesn’t go to Ps, it is prospective injunction.

Note 7 (896)—state has to pay P’s attorney’s fees pursuant to Sec. 1988. Purpose of statute is to ensure that the law/right will get enforced. It’s ancillary to injunctive remedy. It’s a basic civil right & shouldn’t have to sue to get it enforced—why attorney’s fees are allowed.

Note 5 (894)—appears that theory of ex Parte Young might be weakened. A very narrow exception by 5 justices (sovereign control of submerged lands). But in 2002, Verizon case upheld ex parte Young.

5. Exceptions to Ex parte Young Doctrine: No injunctive relief in 3 cases…i) Ex Parte Young legal fiction applies only to Federal Laws, not State Law: The

Eleventh Amendment bars federal courts from enjoining state officers from violating state laws. No suits against state officers on supplemental state law claims in federal court.a. Pennhurst State School v. Halderman (1984) (no ex parte young suits in state courts): 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 state law. Such a result conflicts with the principles of federalism that underlie Eleventh Amendment.

b. Implications note (899)—if you have a fed. & state claim—what do you do?—Can bring 2 cases but can get conflicting rulings, if 1 moves faster, it can tangle the case. No one has an answer to this.

ii) Congressional power to Abrogate State Immunity from Suit Parden v. Terminal Ry: looks as though constructive waiver will have some substance

to it. Fitzpatrick v. Bitzer: there can be lines when times when an act of Congress can simply

abrogate state’s immunity. Congress deemed to have the power to abrogate state’s sovereign immunity (under Sec. 5 of 14th A). 11th A did not par an award of retroactive retirement benefits.

What was the basis on sovereign immunity under Hans? (see footnote 11 on 927). In the Welsh case in 1987, 4 votes that Hans was wrongly decided, 4 said it was constitutionally correct & Scalia wasn’t ready to make a decision & overrule Hans. By 1989, in PA v. Union Gas, 5 votes that Hans was incorrect.

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iii) No Suits Enforcing Federal Laws with Comprehensive Enforcement: State officers cannot be sued to enforce federal statutes that contain comprehensive enforcement mechanisms such as complex remedial schemes because Young relief make Congress’s scheme redundant and possibly subject officers to increased liability for noncompliance (e.g. contempt orders).a. Seminole Tribe v. Florida (1996) (statute created comprehensive enforcement relief which

precluded ex parte young remedy): The Indian Gaming Regulatory Act contained a detailed remedial scheme in that it provided for court ordered negotiations and the submission of claims to a mediator. Held: Young relief would make the remedial scheme under the Act superfluous, for it is difficult to see why an Indian tribe would suffer through an intricate scheme when more immediate relief could be available. Further, the fact that congress chose to impose upon the State a liability which is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under the Act.

Indian Gaming Act that compels that state to act in good faith w/the tribes. Gov. refuses to negotiate in good faith, & says immune from s suit under 11th A. This is an injunction case. If the state is named (even if injunction) there is another interest—the indignity of subjecting a state to coercive process of judicial tribunals. Union Gas mistakenly relied on Fitzpatrick.

Where an Art. I complaint would be put to rest. 11th A prevents congressional authorization of suits of private parties against

unconsenting states. What should Indian Tribe do now?—use Ex Parte Young b/c it’s a pure injunction. In III, the ct holds Ex Parte Young is inapplicable & the suit is barred by the 11th A. The statute is unconstitutional, but since Congress passed it, it is valid

Justice Stevens’ dissent: 14th A is an illegal exception of statutes enacted pursuant to the Enforcement Clause. Thinks Hans should not be overturned (other way to read Hans is Contracts Clause—force states to pay their debts)—he disagrees w/this.

Souter, Ginsburg & Breyer’s dissent—he treats 11th A like legislation as if it has legislative history. Says Hans was a bad decision & should be overruled (b/c it was a misreading of the 11th A). Sovereign law immunity was common law immunity & not subject to statutes. States waived some sovereignty by joining the Union. Pg. 916—he accuses the ct of being like Lochner. In V, even w/o Ex Parte Young, he would follow Union Gas.

iv) Quiet Title to Submerged Lands: State officers cannot be sued to quiet title to submerged lands. This is because the suit would diminish, even extinguish, the state’s control over its lands and waters, and this would be as intrusive as almost any retroactive levy upon funds of the treasury (see Coeur d’Alene Tribe). It’d be like suing the sovereign.

E. Abrogation: Suits Against States Pursuant to §5 of the Fourteenth Amendment: Congress may authorize suits against state governments only when it is acting pursuant to §5 of the FOURTEENTH AMENDMENT. Congress may not override the Eleventh Amendment when acting under any other constitutional authority.1. Reasoning – Fourteenth Amendment Changed Federalism Balance: The Fourteenth

Amendment specifically was intended to limit state sovereignty, so legislation under it can authorize suits directly against the states in federal court.i) Fitzpatrick v. Bitzer (1976) (14th Amendment limited state sovereignty): Title VII federal court

action alleging that the Connecticut’s retirement plan discriminated against male employees. Not barred by 11th Amendment b/c the 14th Amendment was intended to limit state sovereignty and therefore congressional legislation under the 14th Amendment can authorize suits directly against the states in federal court.

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2. Test: Intent to Abrogate – The “Clear Statement” Rule: To override state sovereignty pursuant to §5 of the Fourteenth Amendment, the federal law must “explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States.” i) Abrogation Test: In Seminole Tribe, the Court set forth the following test for when a

federal statute purports to abrogate state sovereign immunity: Ask whether…a. Congress has UNEQUIVOCALLY EXPRESSED its INTENT to abrogate the

immunity?; i. Just b/c statute is passed under 14th amendment is not enough.

b. ANDc. Congress has acted PURSUANT to a VALID EXERCISE OF POWER?

i. Adopted Under Other Congressional Powers Do NOT Abrogate Sovereign Immunity: The Supreme Court has ruled that Congress may abrogate the Eleventh Amendment only when acting under its §5 powers and not under any other constitutional authority.

ii. E.g., No Abrogation of Sovereign Immunity via § 1983 – in Quern v. Jordan (1979), the Court found that in §1983 there was insufficient indication of an express congressional desire to make state governments liable under that statute. (can still sue state officers and municipalities though)

iii. Seminole Tribe v. Florida (1996) (interstate commerce clause did not abrogate sovereign immunity, overrules Union Gas): Indian Gaming Regulatory Act provided that an Indian tribe may conduct certain gaming activities as long as they conformed with a valid compact between the tribe and its resident state. State had to negotiate in good faith. Tribe could sue state in federal court. Held: No abrogation.

F. Abrogation Limited Now, Sufficient Record Necessary: City of Borne Limitations: In City of Borne, the Court sharply limited the scope of Congress’s power under §5 of the Fourteenth Amendment. 1. Pursuant to §5, Congress may act only to prevent or remedy rights recognized by the courts

and that Congress may not create new rights or expand the scope of rights. Any law must be narrowly tailored to solving constitutional violations; it must be “congruent and proportional” to preventing and remedy the constitutional violations.i) Congress Must Create a Sufficient Record: The court ruled that for Congress to invoke

§5, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions and must tailor its legislative scheme to remedying or preventing such conduct. Thus, for §5 legislation to withstand judicial scrutiny, there must be a sufficient record of constitutional violations.

i. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Sav. Bank (1999) (insufficient record of patent infringement by states): A bank sued FL for patent infringement relying on the Patent Remedy Act, which included “any State” and specifically abrogated any Eleventh Amendment or other sovereign immunity defenses in such actions. Held: There was no evidence that unremedied patent infringement by States had become a problem of national importance, and thus the §5 remedy was not properly tailored.

ii. Kimel v. Florida Bd. of Regents (2000) (insufficient record of age discrimination): A group of librarians and professors at two FL state universities sued the state alleging that the schools’ salary decisions disadvantaged older employees in violation of the Age Discrimination in Employment Act. Held: Under the congruence and proportionality test from Borne, there was no patterned of age discrimination in the state in public entities to extend §5 as a prophylactic legislative remedy.

iii. Board of Trustees of the University of AL v. Garrett (2001) (insufficient record for violations of ADA): Congress’ abrogation of state immunity from damages actions for violation of the Americans with Disabilities Act could not be sustained as an exercise of power under §5. Record was not strong enough to support legislation under §5.

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ii) Abrogation Found Where Heightened Scrutiny: In cases where the Court has utilized heightened scrutiny, e.g. quasi-suspect classes or due process claims, abrogation of state sovereign immunity has withstood judicial review.

i. Nevada Dept of Humans Resources v. Hibbs (2003) (gender discrimination): Court upheld the abrogation of state sovereign immunity in Family and Medical Leave Act of 1993. The Court held that Congress had met its burden under §5 as it had sufficient evidence of a pattern of constitutional violations on the part of States (gender discrimination) and the provisions were congruent and proportional to the targeted violations.

ii. Tennessee v. Lane (2004) (due process right to access to courts): Sovereign Immunity abrogated when state courthouses didn’t give equal to the disabled. Congress had plainly intended to abrogate immunity in this case, and had the authority to abrogate immunity and provide for a prophylactic remedy under §5 where there was ample evidence of pervasive unequal treatment of the disabled where the claims were due-process “access to the courts” allegations.

G. Bankruptcy Exception under Article I: The Court carved out an exception to the general rule of Seminole Tribe by holding that the Bankruptcy Clause was intended not just as a grant of legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in the bankruptcy arena. 1. Central Va. Community College v. Katz (2006) (limited abrogation of sovereign immunity in

bankruptcy): Katz, the supervisor of a bookstore that declared bankruptcy, filed a suit to collect debts owed to the bookstore by Central Virginia Community College and several other schools operated by the state of Virginia. The issue concerned whether the Bankruptcy Clause of the U.S. Constitution (Article I Section 8), waived the states' sovereign immunity? Held: Yes. The Court ruled that states cannot invoke sovereign immunity as a defense in bankruptcy proceedings. Rather than ruling on the power of Congress under the Bankruptcy Clause to waive states' immunity, as the bankruptcy court did, the Court held that ratification of the Clause itself involved a subordination of state sovereign immunity. Court relied on the history and intent of Bankruptcy Clause, which indicated that "the power to enact bankruptcy legislation was understood to carry with it the power to subordinate state sovereignty, albeit within a limited sphere."

It was a fed. bankruptcy case states can be brought in b/c it’s inside bankruptcy power (included the power to preempt what the states were doing). Bankruptcy Clause was intended to grant legislative authority to Congress, but also to authorize limited subordination of state sovereign immunity in bankruptcy arena.

H. Congress May NOT Abrogate State Sovereign Immunity in State Courts: The powers delegated to Congress under Article I of the United States Constitution do not include the power to subject unconsenting states to private suits for damages in state courts. The states’ sovereign immunity derives not from the Eleventh Amendment, but rather from the structure of the original Constitution itself. Thus, the fact that the Eleventh Amendment is silent on the matter signifies that none of the Founders contemplated that the Constitution might strip the States of that immunity.1. Alden v. Maine (1999) (no abrogation of state sovereign immunity in state court): Probation officers

sued Maine, alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act. Following the Court's decision in Seminole Tribe v. Florida, the probation officers' suit was dismissed in federal district court. The officers then sued Maine again for violating the Fair Labor Standards Act, this time in state court. The state trial court and the state supreme court both held that Maine had sovereign immunity and could not be sued by private parties in their own court. Held: Congress may not use its Article I powers to abrogate the states' sovereign immunity.

Pg. 928—started off in fed. ct & goes to state ct after Seminole b/c Union Gas is no longer good law. When they get to state ct, Maine comes in & claims sovereign immunity & that Congress can’t force them to get sued. S.C. upholds it 5-4.

Kennedy’s theory is the 11th A doesn’t grant sovereign immunity from suit. Pg 931: deeply offensive to sovereign dignity to subject them involuntary to suit. Isolate from

suit. 11th A is to be understood as an illustration. Pg. 933—all the places where it doesn’t

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apply. Ex Parte Young is not displaced, §5 abrogation is still allowed, doesn’t say anything about fed. gov. suing to enforce Congress’ laws (ex. Solicitor General can sue).

It isn’t constitutional, it’s natural law. Ct decided Seminole wrong. Multiple sovereigns at play& subordinate sovereign will not be immune where the source of the right of action is the sovereign that is dominant. He attacks the basic rationale that the majority gave.

2. Sovereignty & Dignity Rationale Has a lot of potential for growth. It is extra-textual. The next big case is FMC v. South

Carolina State Ports Authority: FMC is an Art. I agency. Claim came up against a state agency & Ct sad it would

harm the state’s agency. But it’s not a ct—not sovereign, so 11th A doesn’t apply. It is a substantive departure of sovereign immunity.

Dissent takes issue w/difference b/w state agency & ct. It’s meant to protect the states (the adjudicatory function allows states to prove that the rule doesn’t apply) don’t offend the dignity.

Majority says indignity is not diminished b/c Art. I agency instead of Art. III Ct. Pg 940—how do you reconcile holding in Alden w/Testa? Sovereign immunity is a valid

excuse. Note 955—claims were made that S.C. needed to cut down on §1983 suits. Note suggests it

never was a big deal that ppl opposing 1983 made it seem Barney v. NY (945): ct held if they violated state law TOO, it proves it’s not a state action. Home Telephone v. City of LA

If claim is that it’s violating 14th A, then it’s violating state law. S.C. to go along w/LA’s argument would paralyze cts. If fed. cts had to wait until

state cts decided (could not move forward w/any action). Either way, taking away fed power, it becomes subsidiary to the state action or not at all.

945—Ct says 14th A applies to state action. (A state officer can’t on 1 hand, as a means of doing a wrong forbidden by the amendment, proceed upon the assumption of possession of state power & at the same time, for the purpose of avoiding application of the amendment, deny the power & accomplish the wrong. The Barney case succumbs to Home Telephone.

3. Inherent in the Nature of a Sovereign: Although the immunity of one sovereign (e.g. a state) in the courts of another (e.g. the United States) has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. For example, the United States has sovereign immunity in both federal and state courts; why should it be, then, that a state can be sued in its own court.i) Federal Government Cannot Commandeer the State Courts: Congress cannot abrogate the

States’ sovereign immunity in federal court (see Seminole Tribe); were the rule to be different here, the National Government would wield greater power in the state courts than in its own judicial instrumentalities.

ii) Other Reasons for Sovereign Immunity: Private suits against unconsenting states – especially suits for money damages – may threaten the financial integrity of the States. Furthermore, States retain a level of dignity, which would be particularly offended if they could be dragged into their own courts by an individual.

iii) No State Sovereign Immunity in Another State’s Courts: In Nevada v. Hall, the Court held that since the Constitution did not reflect an agreement between the States to respect the sovereign immunity of one another, one state is free to determine whether it will respect another state’s sovereignty as a matter of comity.

iv) Limits to State Sovereign Immunity in State Courts: Sovereign immunity does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity, including (1) consent to a suit in a state’s own courts, (2) suits pursuant to the plan of the Constitution and certain Amendments; and (3) suits pursuant to statutes passed under §5 of the Fourteenth Amendment.

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SUITS AGAINST STATE OFFICIALS: FEDERAL STATUTORY PROTECTION AGAINST STATE OFFICIAL ACTION – 42 U.S.C. § 1983

A. 42 U.S.C. § 1983 Generally: Section 1983 creates a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution and laws of the United States. In other words, §1983 establishes a federal remedy, cognizable in federal court, against state officials for violation of federal statutory rights. 1. State Judicial Remedies Need Not be Exhausted: As § 1983 is supplementary to any state

remedies, a plaintiff may bring a § 1983 suit to federal court even if the state provides remedies that appear adequate to redress the injuries (see Monroe v. Pape). This does not preclude plaintiffs from presenting their claims in state tribunals, however, as federal courts do not have exclusive jurisdiction over § 1983 claims.i) Monroe v. Pape (1961) (1983 claims are supplementary to any possible state law claims)

Monroe sued Pape, who represented Chicago, under § 1983 after thirteen police officers invaded his home, searched and arrested him without a warrant. Pape argued that the suit was improper because “under color of” state authority excludes acts of an official or policeman who can show no authority under state law. They also argued that the police violated the laws of IL, that a simple remedy is offered for that violation, and that, thus, IL courts are available to give Monroe full redress. Held: An action under § 1983 is supplementary to a state remedy, and the state remedy need not be first sought and refused before the federal one is invoked. It is clear that one main reason that §1983 was passed was to afford a right in federal courts because, by reason of prejudice, passion, neglect, intolerance, or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Here, it is no answer that a state has a law that, if enforced, would give relief.

ii) In Monroe, officers investigating a murder & ransacked the home, brought them to the station & they were released w/o charges. They sued the city of Chicago & the officers & there was no arrest. D officers claim as to why they can’t be held liable here—b/c what we did was so outrageous, fed. law doesn’t apply, not under color of law under 1983. The ct responds by saying a violation of 4th , can drag them into fed. ct. Ct looks at why 1983 was passed. Ct goes back to

congressional debates. Under color of & under claim of are essentially the same. Part III—complaint against City was properly dismissed (b/c 1983 never addressed municipal corps as “persons”) but reversed dismissal of complaint against officers. Frankfurter’s dissent—P’s have been denied due process & state ct will hear the case, so it shouldn’t be in fed law. Overreaching on the part of fed gov. He gives legislative history of 1983. Harlan & Stewart concur—look at legislative history also. The record is unclear but the Frankfurter opinion is less clear than the majority. Neither majority nor Frankfurter’s opinion is dispositive.

iii) Who is a person?—a State is NOT a person (Will v. Michigan Dept of State Police—963). Talking about individuals like the cops in Monroe (they are potentially the subject of damage actions). It’s most likely that these type of ppl will be reimbursed by the town/county under color of law (& collective bargaining agreements).

iv) Pg. 958 (note 4)—In Monroe, Ct held municipality is not a person. This issue was brought up again in Monell v. Dept of Soc. Services held that ct misread legislative history of 1983 & that Congress did intend to include local gov’s among “persons” it rendered liable (state’s & Indian tribes still not persons under 1983). After Monell, you could sue a city. Look at state law to determine what is & is not part of the state. If a city can be a person, what does it mean to be subjected or causes to be subjected mean? Causation part has some substance (ex. Buffalo officer uses badge & does bad things. Officer is liable but PD is not). Not automatically attributable to

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the municipality. The city would have to have caused it to be liable (ex. City passes ordinance & causes violation of ppl’s rights).

2. Usually No Suits Against Federal Officers: Although § 1983 generally does not create liability for federal officers – this type of claim is properly a Bivens action instead – the lower federal courts have held that officials may be sued under § 1983 when they are engaged in a conspiracy with state officials to deprive constitutional rights.

3. States and State Agencies Cannot Be Defendants in §1983 BUT can be used against a State Official for Prospective Relief using Ex parte Young: Neither a state nor a state official acting in official capacity is a “person” within the meaning of §1983, at least when sued for retrospective relief (Querin v. Jordan). However, if sue a state official for prospective relief, then under Ex parte Young, they are a person (Will v. Michigan)

B. Prerequisites for 1983 Claim: A plaintiff must show BOTH: 1. DEPRIVATION of CONSTITUTIONAL OR FEDERAL STATUTORY RIGHT caused

by the exercise of a rule of conduct imposed by the State or by a person for whom the state is responsible

2. AND that the party charged with the deprivation is a person who may FAIRLY be SAID TO BE A STATE ACTOR (American Manufacturers v. Sullivan)

C. Proving Violation of a Federal Statutory Right: §1983 creates a cause of action for violations of all federal statutes that create private rights, but may not be used to enforce

statutes that explicitly or implicitly preclude §1983 litigation. TEST: The courts must ask two specific, interrelated questions…1. Has the federal statute in question CREATED A PRIVATE RIGHT within the meaning of

§ 1983?i) A plaintiff in a § 1983 case must show Congressional intent to create a private right under

the federal statute. Anything short of an UNAMBIGUOUSLY CONFERRED RIGHT to support a § 1983 cause of action is not sufficient.a. Gonzaga University v. Doe (2002) (no private right unambiguously created when enacted

under federal spending power): Plaintiff brought § 1983 suit claiming defendants had disclosed records in violation of his rights under Family Educational Rights and Privacy Act. Held: There was no private right created under FERPA. The Act had been enacted under the federal spending power, and that the sole remedy prescribed by FERPA was the withholding of federal funds. Issue: whether a statute provides a cause of action.

b. Congress creates a right & conditions for that right: this is where an analogy to Seminole comes in (Rehnquist pointed out procedure was very complicated. Could file Ex Parte Young cause of action). Even if notion would be a statute that creates rights (& if statute ended there, you would have a 1983 right). If Congress creates a remedial apparatus Congress defines the substantive right.

c. 972—Relationship b/w common law torts & constitutional torts in actions against state & local officials: (1) what does P’s case have to look like; (2) Baker v. McCollan:8days before he was released (it was his brother). No one was malicious (no mens rea to violate rights). He did not suffer a deprivation of liberty under 14th A.

d. Parratt v. Taylor If warden was purposely w/holding mail then it would be a 1983 violation. But what

if they truck breaks down (no mens rea). Marshall asks what if they mail truck breaks down every day (what about subjective intent).

Inmate orders hobby materials in the mail. He was in solitary& someone else signs for it & it gets lost. He sues under 1983 for being deprived of his mail.

Note on 972: there is a question of state of mind requirement under 1983. There was no intentionality in depriving D of his mail. The Ct on pg 974 notes that the state has laws for tortuous losses at the hand of the state.

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974 (part II): 1983 doesn’t limit itself to purely intentional act. D claimed he had a right to his property, someone acting under color of law deprived him of this right—it violated his due process.

Justice Powell—“deprivation” under Baker different rights may have different intentionality requirements. Deprivation connotes intent.

Rehnquist’s majority opinion—goes to talk about whether the state has an adequate remedy. Not every deprivation is a constitutional problem. The question is whether the state violated due process (violate due process if STATE does not provide a remedy). Remedies state has created are adequate & there is no violation.

2. 982--Hudson v. Palmer: if intentional deprivation by unauthorized prison action—might be a procedural right. Daniels v. Williams: completely negligent behavior. Ct. said no constitutional violation b/c mere lack of due care by a state officer can’t constitute a deprivation of liberty or property under 14th A.

3. Zinermon—signed himself into mental hospital & when released, sued the hospital—1983 action b/c he was deprived of liberty w/o due process. He claimed D’s should have known he was incompetent to give consent. 3 ways to think of due process protections: (1) substantive rights—goes to incorporated bill of rights claims; (2) substantive rights (ex. Roe v. Wade) no procedures that can fix it. Bona fide due process claim; (3) guarantee of fair procedure. The Ct held petitioners couldn’t escape 1983 liability by characterizing their conduct in “random, unauthorized” violation of FL law. Pg 996—in the real world, is all of this a fairytale?—Most of what we’re talking about is theoretical. 998—there are some officers that have absolute immunity (ex. Judges)—b/c if judges can be sued, they’ll be sued all the time.

4. Has the SCHEME of REMEDIES created by Congress in the federal statute EXPLICITLY or IMPLICITLY PRECLUDED a private remedy under § 1983?i) Rebuttable Presumption Test: An elaborate enforcement provision or an express,

private means of redress under a statute indicates that Congress did not intend to allow for the more expansive remedy of § 1983. However, presumption can be overcome by textual indication, express or implied, that remedy is meant to complement rather than supplement action under § 1983.a. Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n (1981)

(comprehensive enforcement provision precluded 1983 remedy): §1983 action brought by commercial fishermen under the statute containing “elaborate enforcement provisions.” Held: Congress intended, in providing comprehensive enforcement mechanisms, not only to foreclose implied private actions, but also to supplant any remedy that would be available under § 1983.

b. City of Rancho Palos Verdes v. Abrams (2005) (provision of private remedy precluded 1983 action): Involved an attempt to use § 1983 as a means of enforcing Telecommunications Act. Act authorized a private remedy for violation. Held: Private remedy superseded any remedy under § 1983. Provision of express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983. This inference can be overcome only by textual indication, express or implied, that the remedy is meant to complement, rather than supplant §1983.

D. The Meaning of “Under Color of State Law”: 1. Actions taken by an officer in his or her official capacity are deemed to have occurred “under

color of state law” even if they violate state law. Includes actions “under color of any statute, ordinance, regulation, custom, or usage of any state or territory. .i) Reasoning: if definition was narrower and only covered actions pursuant to official

policies, states could immunize their officers from § 1983 liability simply by enacting general statutes prohibiting officers from violating the Constitution or federal law..

2. Monroe v. Pape (1961): Defense argued that § 1983 suit wasn't proper b/c “under color of” state authority excludes acts of an official or policeman who can show no authority under state law. Defense also argued that availability of state remedy preclude §1983 suit. Court (1) rejected defendant's narrow interpretation of "under color of" and (2) said § 1983 action is

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supplementary to a state remedy, and the state remedy need not be first sought and refused before the federal one is invoked.

3. State Action Test: The test for determining whether someone is acting “under color of state law” is virtually identical to evaluating whether there is state action. Thus, when evaluating whether an official acted under color of state law, look at the following: i) On or off duty? ii) Clothing/badge? iii) Use of weapon/car provided by government? iv) Purpose of action? v) Statements asserting governmental authority?

a. Could be a private person if actions were under color of state law (or conspiring with state)

b. So long as act is done while cloaked with authority of gov’t, it is under color of state law, even if the action violates state law. (Monroe v. Pape)

4. Private persons can be sued under § 1983 if acting under color of state law. Questions included whether the government was involved enough and whether government provided a mantle of authority that enhanced the actor's power. Things to look for:i. Conspiracy w/ gov't official to do the act

ii. State delegated authorityiii. State delegated public functioniv. Gov't is entwined in the actor's management/control

E. Official Immunity: Section 1983 is written in absolute terms: it creates liability for any person, acting under the color of state law, who violates the Constitution and laws of the United States. No exceptions are mentioned in the statute. However, Supreme Court has held that all officers possess some degree of immunity from liability.1. Justification: Need to strike a balance between providing sufficient liability to ensure

compensation and deterrence, while according immunities adequate to encourage government employees to perform their duties.

F. Absolute Immunity: Those performing judicial, legislative, and prosecutorial functions have absolute immunity from liability under § 1983. The Court has also determined that police officers serving as witnesses and the President of the United States also possess absolute immunity. But only in those functions, so not in administrative functions for example.1. Functional Test: Focus is on the function performed, rather than the title possessed. .2. Judicial Immunity: Judges have absolute immunity to suits for monetary damages for their

judicial acts, even when there are allegations that the judges have acted maliciously. i) Limitations: No absolute immunity when a judge was acting “in the clear absence of all

jurisdiction” or was not performing a “judicial act.” (administrative function = no immunity)a. Stump v. Sparkman (1978) (judge of general jurisdiction decision was covered by absolute

immunity): Judge had approved ex parte a petition filed by parents of a fifteen year-old girl to have her sterilized without her knowledge. The Court ruled that the judge was absolutely immune since he presided over a court of general jurisdiction, he had not acted outside his jurisdiction, and he did not lose his immunity simply because no state statute specifically authorized his conduct. Held judge was immune. Judge did not act wholly outside his jurisdiction. Prosecutors have immunity similar to judges (but there is a limitation). Absolute immunity of legislators. Speech & Debate Clause (pre-1st A protection for legislators).

b. Gravel v. US—Gravel was a senator from Alaska. Gravel got his hands on Pentagon Papers & holds a hearing & releases the papers while newspapers are enjoined from releasing them. He gets sued & he claims speech & debate clause. Ct extends this immunity to his aides.

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c. Forrester v. White (1988) (judge’s firing of employee was not covered by absolute immunity b/c administrative act): A state judge was sued by a probation officer who alleged that the judge had dismissed her on account of her sex, in violation of the Fourteenth Amendment. Held: The Supreme Court ruled that the judge was acting in an administrative rather than a judicial capacity, and hence was not entitled to absolute immunity.

3. Legislative Immunity: Members of the United States Congress, and their aides, have absolute immunity to suits for damages and prospective relief because of the “Speech and Debate Clause” of Article I, § 6. The Supreme Court has accorded state and local legislators similar absolute immunity, both to suits for money damages and equitable remedies (see Tenney v. Brandhove (1951)).

4. Prosecutorial Immunity: The prosecutorial function is accorded absolute immunity from suits for monetary damages. Anything less than absolute immunity would lead to harassment by unfounded litigation that would deflect prosecutor’s energies from his public duties and may shade his decisions instead of exercising the independence of judgment required by his public trusts.i) Limitations: Absolute immunity does not protect administrative functions or

investigations.a. Mitchell v. Forsyth (1985) (wiretapping was not part of attorney general’s prosecutorial

function): A former Attorney General could claim only qualified, good faith immunity for his decision to wiretap. Such conduct was not prosecutorial in nature.

b. Burns v. Reed (1991) (advice to police was not prosecutorial function): Plaintiff was arrested by police and then was forced to spend four months in a psychiatric ward & undergo lots of hypnosis. Held: Prosecutors have absolute immunity for their in-court behavior, but not for their advice to police officers. Thus, the prosecutor, Reed, had absolute immunity for statements at the probable cause hearing. However, he only had qualified immunity for approving the hypnosis by the police officers.

5. President of the United States: The President of the United States has absolute immunity to suits for money damages for acts done while carrying out the presidency. This is because the president’s unique status under the Constitution and the singular importance of his duties justify such protection.

6. Public Defenders don’t have immunity because they can’t be sued under 1983 (they are not acting under color of state law)

G. Qualified Immunity: If officers are not performing a function accorded absolute immunity, they are entitled to good faith immunity, aka “qualified immunity.” Most executive branch and administrative officials can claim only good faith immunity.1. Objective “Good Faith” Standard: Government officials performing discretionary

functions are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.i) Harlow v. Fitzgerald (1982) (qualified immunity for aids, objective standard): Fitzgerald was

terminated from his federal job and claimed it was due to whistle-blowing and sued presidential aides. Good faith immunity is an affirmative defense for governmental officials, but qualified immunity is not available if the official knew or should have known that his actions were illegal. This reliance on an objective element – rather than a subjective test – should avoid excessive disruption of government and permit the resolution of many claims on summary judgment. Fitzgerald is a civilian employee of the air force & is a well-known whistleblower. Nixon wants him fired, Harlow fires him & Fitzgerald sues for 1st A violation.

Qualified immunity—if acting outside official capacity, you can be sued. Presidential aides argue if legislative aides get immunity & president gets absolute

immunity then they should get absolute immunity. Ct doesn’t agree b/c it could extend to all members of the cabinet. Ct says they have qualified immunity.

Subjective or objective standards would keep P’s claim going & would defeat qualified immunity & holds officials performing discretionary functions, generally are shielded

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from liability for civil damages as their conduct does not violate clearly established statutory or constitutional rights or which a reasonable person would have known.

Concurrence: structure raises questions of its own. Burger’s dissent—thought case should have gone the same way as Gravel. It’s unfair

that legislative aides get more protection than president’s aides. What does clearly established law mean?

Next, litigate to determine if something is clearly established. Wilson v. Layne—tells what it can’t be. How precise does the holding have to be?—Contours of the right must be sufficiently clear that a reasonable official would understand that he is doing violates that right. Apply a 2 step process.

2. Two Part Test: (Wilson v. Layne):i) Whether the plaintiff’s CONSTITUTIONAL/FEDERAL RIGHTS have been

VIOLATED. If Yes…ii) Whether it was a CLEARLY ESTABLISHED RIGHT that a REASONABLE

OFFICER should have known.a. The purpose of qualified immunity is to give fair warning to government officials, it

need not be shown that the action in question had previously been held unlawful so long as in the light of preexisting law the unlawfulness was apparent.

b. United States v. Lanier (1997) (clearly established law even in absence of Supreme Court decision): State judge was prosecuted for sexually assaulting women while serving as a judge. Sixth Circuit held that there was no clearly held constitutional right to not be sexually assaulted by a judge. Held: Court reversed, stating that it is possible for a right to be “clearly established” even in the absence of a Supreme Court decision so holding, as disparate decisions in the lower courts might well preclude such a determination from ever being presented.

c. Wilson v. Layne (1999) (no clearly established law without any controlling or persuasive authority): A right had not been clearly established when plaintiffs had shown neither controlling authority in the jurisdiction where the conduct occurred nor a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.

d. Anderson v. Creighton (1987) (contours of right must be sufficiently clear that officers knows personal conduct violates): The legal rule that was allegedly violated was at too high of a level of generality. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

e. Hope v. Pelzer (2002) (clearly established if officers given fair warning): Prisoner handcuffed to a hitching post for disruptive conduct. Don’t need prior decision on point to show clearly established law. Officers can be held liable so long as they had “fair warning” that their conduct was impermissible. In this case, the clarity of the violation was established by a related Eighth Amendment holding by the Supreme Court, two of the Eleventh Circuit’s own cases relating to hitching prisoners, a state regulation prohibiting the action, and a U.S. DOJ report advising state department of corrections to stop using the practice.

1. But there are instances where it’s not completely objective. E.g. in Iqbal, intent is required for a discrimination claim. Another example: cruel and unusual punishment in prison: (must be malicious and for the purpose of causing harm) This can be subject to qualified immunity defense because intent is an element. What if official received a memo from superior saying the activity is perfectly ok (even if memo is not a colorable interpretation of the Constitution?)

f. Saucier v. Katz: if there is a right (decided 1st) then decided no right, haven’t you violated Ashwander. (If not a clearly established right, then case goes away). Ct concludes there was a right but not a clearly established right.

g. Pearson v. Callahan: ct thought there should be a better way to do this.

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H. Municipal Governments Sued under 1983: Municipal governments may be sued for their unconstitutional or illegal policies. However, they may not be sued for the acts of employees under respondeat superior theory.1. Monell v. Department of Soc. Servs. (1978) (local governments may be sued under section 1983, no

respondeat superior): The Court held that Monroe v. Pape had misread the legislative history of §1983 and that Congress did intend to include local governments among the “persons” it rendered liable. In the view of the Court, rejection of the Sherman Amendment could not justify an inference that Congress sought to exclude municipal liability for the conduct of officials.

2. Proving an Official Municipal Policy: After Monell, there are at least five possible ways to establish the existence of a policy or custom sufficient to impose § 1983 liability on a municipal government…i) Actions of Municipal Legislative Bodies: Actions taken by the municipal’s legislative

body, even a single decision, constitute official government policies. a. E.g. a city council’s firing of a governmental official without providing procedural due

process and a city council’s cancellation of a concert in violation of the First Amendment were properly the basis for § 1983 liability.

ii) Agencies Exercising Delegated Authority: Official policy exists when there are actions by municipal agencies or boards that exercise authority delegated by the municipal legislative body.a. E.g. In Monell, the plaintiffs challenged regulations adopted by the Department of Social

Services and the Board of Education requiring pregnant employees to take unpaid leaves of absence. The Court found that actions of these agencies “unquestionably involve official policy.”

iii) Individuals with Final Decision-Making Authority: Actions by officials with final authority for making a decision in the municipality constitute official policy for the purposes of § 1983. Whether or not the official is responsible for establishing final governmental policy is a question of state law, as such authority can be granted legislatively or delegated from higher officials.a. Pembaur v. City of Cincinnati (1986) (prosecutor had final decision authority under state

law): To serve subpoenas the county prosecutor issued instructions to “go in and get the witnesses.” The police chopped down the door with an ax. Held: Based on the relevant Ohio law, the Court concluded that the prosecutor had authority for making the final decision, and hence, his decision constituted the City’s official policy. Pg 961—single decision of high official, who had authority under state law to decide whether officers should enter & whose decision may fairly be said to represent official policy was an adequate basis for imposing gov. liability under 1983.

b. McMillian v. Monroe County (1997) (sheriff is not final decisionmaker under state law): Under Alabama law, a county sheriff is a state official, not a local official, and thus is not a final decision-maker for the local government.

c. City of St. Louis v. Praprotnik (1988) (authority is a question of state law, not fact): The determination of whether a person has final decision-making authority in a particular area is a question of law for the judge to decide, not a question of fact for the jury to resolve.

iv) Policy of Inadequate Training, Supervision, or Screening: A government policy of inadequate training, supervision, or screening is also a way of demonstrating an official policy. However, only where a failure to train, supervise, or screen reflects deliberate or conscious indifference to the fact that a violation of federal rights is a highly predictable consequence of the failure will a municipality be liable.a. City of Canton v. Harris (1989) (failure to train must amount to deliberate indifference):

Police failed to treat medical ailment b/c of poor training. Held: The inadequacy of police training may serve as the basis for section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of person with whom the police come into contact.

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Presents the possibility of solving O’Shea problem by a newly conceived cause of action. Duty to run dept/system systematically. Must adequately trained/failure to supervise or train can provide cause of action against entity & supervisor.

b. Connick v. Thompson (not in the book)—whether you can prove a case of deliberate indifference by showing 1 particular egregious action. DA w/held exculpatory evidence & D sued (1983 action). Majority says a cause of action hasn’t been established b/c it was a single instance. Can’t make a deliberate indifference case based on 1 instance.

c. Board of County Commissioners v. Brown (1997) (a single hiring decision is not official policy): The plaintiff sued county, b/c deputy arrested her with excessive force and county hired the deputy without adequate review of his background, which included a conviction for assault and battery. Held: A single instance of inadequate screening was not sufficient to prove that the municipality caused the injuries. The plaintiff must establish deliberate indifference on the part of the policymaking representative of the municipality, not merely to the risk of any constitutional injury but of the particular injury suffered by the plaintiff.

P must establish deliberate indifference (how to show they knew about it & didn’t change. Ex file complaints & nothing is done). Have to be on notice of particular/specific issue.

v) Custom: Municipal governments can be sued for their customs that cause constitutional violations, even though such a custom has not received formal approval from the official legislative body. a. Unlike a policy, which comes into the existence because of the top-down affirmative

decision of a policymaker, a custom develops from the bottom-up. Thus, the liability of the municipality for customary constitution violations derives not from its creation of the custom, but from its tolerance or acquiescence of it.

3. No Qualified Immunity for Municipalities: There is no qualified immunity for local governments, and as a result, municipalities will be liable under § 1983 even when their constitutional violations are a result of actions taken in good faith. i) Owen v. City of Independence (1980) (no qualified immunity for local government): A city

council fired the police chief without providing him any procedural due process protections. The city claimed immunity because its actions were done in good faith. Held: The fact that the city officials acted in good faith did not protect the municipal government from liability under § 1983. This is so even if the officials would themselves be entitled to such an immunity in a § 1983 action against them in their personal capacity.

For individual D’s—should they have known actions would violate citizens’ rights Get some immunity in gray areas. Not chilled. Held a municipality sued under Monell for violations committed by its officials does not

have a qualified immunity from damages liability under 1983, even if it can show that the officials would themselves be entitled to such an immunity in a 1983 action against them in their personal capacity.

4. Hard cases: determining what is attributable to the entity. When pattern & practice is so unconstitutional for so long attribute to entity—difficult to determine.

5. No Punitive Damages against Municipalities: Municipal governments have immunity to claims for punitive damages. There was an absence of municipal liability for punitive damages at common law when § 1983 was adopted. Also, punitives exist to punish and it’s unfair to punish city’s taxpayers because of an official’s wrongdoing.

Suits vs. Officials – Personal Capacity:The official, not the govt pays:

JudgmentAtty fees

So state sovereign immunity does not apply –Even tho, in practice, govt may indemnify

But official immunity doctrines limit relief

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Qualified ImmunityComplete Immunity

Supervisory liability (suind a supervisor for misdeeds of underling) Does it survivor after Iqbal?

Circuit Courts said if you put policy in place that show you were deliberately indifferent to violation of Const, you can be held liable for supervisory liability.

But, in Iqbal, guy claimed he was being discriminated against based on religion, but the officials being sued were fed officials, so case is under Bivens, not 1983. Court says supervisory liability doesn’t exist since there is no respondeat superior liability for Bivens or 1983 claims. Officials can only be liable for THEIR OWN conduct, not the conduct of others.

But does this eliminate supervisory liability? Supervisory liability involves actions by the supervisor which play a role in the constitutional violation of the lower official.

Effects: maybe just cutting back on Bivens since SCOTUS doesn’t like extending it, but Court analyses 1983 and Bivens claims under same standards.

Could read “causes to be subjected” in 1983 to mean there is supervisory liability. But SL wasn’t briefed by parties. Also, discrimination charge required intent, so maybe that was a problem for finding SL.

Damages award would come from gov’tThe rules re suits against gov’t applyBut P can get equitable relief vs state employee in official capacityUnder Young

I. State Waiver or Consent: A state can waive its immunity and consent to be sued in federal court. 1. Explicit Waiver by Statute: To be effective, a state must expressly to agree to be sued in

federal court. i) A state’s consent to be sued in its own state courts is not sufficient to constitute a waiver

of its Eleventh Amendment sovereign immunity (see Smith v. Reeves). ii) A general waiver of a state’s sovereign immunity is not enough. iii) Present in field regulated by Congress not enough: FL Prepaid Postsecondary Expense

Bd.: Florida Prepaid, a state agency, copied College Bank’s patented system. College Bank sued for patent infringement. Held: The state did not constructively waive its sovereign immunity b/c consent cannot be based upon the state’s mere presence in a field subject to congressional regulation (e.g. patent law).

2. Constructive Waivers for accepting Federal Funds Usually NOT Allowed: Based the state’s acceptance of federal funds for a particular purpose, on its engaging in federally-regulated activity, or on its conduct in ongoing litigation. However, after some years of uncertainty in the law, it appears that constructive waivers are disfavored and will rarely be found.

3. Constructive Waiver When State Voluntarily Chooses to Enter Field where Congress has abrogated sovereign immunity: i) If constructive waiver ever will exist, it will be in a situation in which Congress indicates

a clear intent to make state liable in federal court if they engage in a particular activity, and a. The congressional desire to make states liable must be in “unmistakable language in

the statute itself” and i. The state voluntarily chooses to engage in that conduct.

a. It must be in an area where the state realistically could choose not to engage in the activity.

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4. Removal/Appearance Waiver: Waiver by Participation in Judicial Proceedings: Although it remains unsettled whether, generally, a state’s choice to remove a case to federal court constitutions a waiver, the Court has ruled that a state’s choice to remove a case from state court to federal court constitutions a waiver when there are state law claims and the state had explicitly waived its immunity as to those claims in state court.i) Lapides v. Board of Regents (2002) (waiver by participating in judicial proceedings in federal

court): Suit by a professor in GA state university filed in state court against university and its officials. GA waived sovereign immunity for this type of claim in state court, so the state removed the case from state to federal court and then moved to dismiss based on the Eleventh Amendment. Held: The Court ruled that the state’s choice to remove the case to federal court was a waiver of its sovereign immunity. It would seem anomalous or inconsistent for a state both (1) to invoke federal jurisdiction, thereby contending that the judicial power of the United States extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the judicial power of the United States extends to the case at hand.

5. Counterclaims: circuit splits on whether state immunity holds up if state sues you and you have counterclaims.i) Compulsory counterclaims: seems like state shouldn’t be able to bring suit that would

compel a counterclaim and be immune to that counterclaim

Judicial Federalism A. The Anti-Injunction Act: A fed. ct can’t stop a proceeding in state ct unless the fed ct is (1) expressly

authorized by fed. statute; (2) necessarily trying to aid the district ct’s jurisdiction; or (3) this injunction is necessary to protect & effectuate the district ct’s judgment.

B. In Atlantic Coast Line Railroad Co. v. Brotherhood, the Supreme Court noted that the anti-injunction statute is an absolute prohibition against enjoining state court proceedings unless the injunction falls within one of the three statutory exceptions to § 2283. 1. It was a labor dispute. It went to fed. ct to get injunction, but it was denied, so they went to state ct &

nothing happened. Another suit was brought to S.C. & Ct allowed picketing. Under the new precedent, they went back to state Ct to remove injunction, they wouldn’t, district ct enjoined the state’s injunction & case gets to S.C. Ct looks to see if district ct applied an exception (either order is not clearly expressed the 1st district ct determine it didn’t have power to issue an injunction in labor dispute b/c of Norris LaGuardia Act.

2. 1st prong of argument: b/c district ct dismissed the 1st case—it was in aid of its jurisdiction3. 2nd prong—once the decision in Jacksonville Terminal was announced, district ct was free to enjoin the

state ct. Claim that the ct was in aid of its jurisdiction. But ct says there was no judgment to protect b/c there was no judgment.

4. Justice Brennan dissented and argued that the federal rule of labor management relations would be displaced if there was no ability of the federal courts to enjoin state courts. In 1967 case, the district ct said that it was a judgment on the merits & had right to picket.

C. Mitchum v. Foster (1025): The very purpose of § 1983 was to interpose the federal courts between the states and the people, as guardians of the people’s federal rights. Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing “suit in equity” as one of the means of redress. The Court has held that the test for determining whether something is an express exception to the Anti-Injunction Act is “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.” This amounts to two requirements: (1) a federal right in equity and (2) this right or remedy must be frustrated if a federal court were not empowered to enjoin a state court proceeding. §2283 subject to practical concerns. Notwithstanding the language of the statute, the statute is deemed to be exceptions have been discovered/relied upon—removal, interpleader, habeas, etc. Mitchum authorizes P to go to fed ct if they feel they’re getting the raw end of the deal.

D. Think of in rem as in aid of it jurisdiction to enjoin a state ct. Could re-litigate instate ct to enjoin. Superior gov interest—whether §1983 expressly authorizes exception of the anti-injunction act?—YES!

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E. Expressly authorized doesn’t mean: (1) fed law doesn’t have to contain express reference to the statute; (2) fed law doesn’t have to expressly authorize an injunction of a state ct proceeding in order to qualify as an exception & (3) in order to qualify as an “expressly authorized” exception to the anti-injunction statute, an Act of Congress must have created a specific & uniquely fed right or remedy, enforceable in fed ct of equity. §1983 is expressly authorized b/c of its nature & history. Legislative history—what it was meant to do, is deemed to expressly authorized.

F. Notes: Removal & in rem are easy parts of “in aid of its jurisdiction.” If it’s removed to fed ct & pending review can put injunction on state case. Relitigation exception (1037): permits a fed ct to enjoin a state ct to respect preclusive effect of a fed. judgment.

G. Chick Kam Choo v. Exxon Corp. (1988) (claim must have been decided on merits in federal court): A federal district court in Texas had dismissed plaintiff’s wrongful death action. P filed in state court, asserting claims under Texas law and under Singapore law. Held: The Court ruled that § 2283 did not preclude the injunction insofar as it barred relitigation of the Texas law claim, which the federal court had previously held to lack merit when it held that Singapore law applied. But the Court overturned the injunction insofar as it barred state court litigation of the claim based on the law of Singapore: because federal and state forum non conveniens might differ, and it had not been decided in state court. District ct dismissed P’s wrongful death action (should apply case in Singapore). They file in state ct & Ds go to district ct to enjoin state at action. S.C. relitigation exception did not apply to everything. Seem to be 2 sets of claims: Texas & Singapore claims. Okay to enjoin state cts from deciding state claims but not Singapore claims.

i) Timing Limitation – Need to Get Injunction Before State Rules on Res Judicata: Can only use relitigation exception when state court has not ruled on res judicata. Once the res judicata issue is raised in state court and decided, then the federal court must accept the state’s determination that there is no preclusion.a. Parsons Steel v. First Alabama Bank (1986) (injunction must be issued before state court

rules on res judicata): Federal court decided first, ruling in favor of defendant. Plaintiff then pursued state court suit. Defendant raised res judicata as defense, but state court held that earlier federal court decision did not preclude state proceedings. Held: Federal court could not enjoin state court. Because the state court had already ruled on the merits of the res judicata issue. Once the state court has finally rejected a claim of res judicata, federal courts must turn to state law to determine the preclusive effect of the state court’s decision.

b. Parsons (1037)—fed action comes to judgment 1st & bank wins. Bank asserts res judicata defenses in state ct it was rejected & 4 mil verdict against the bank. Bank goes to fed ct to get an injunction against state ct. S.C. using the full faith & credit clause. Overturned the injunction b/c relitigation exception was limited to those situations in which the state ct has not yet ruled on the merits of the res judicata issue. Must make appropriate motions in state ct before you go running to fed ct.

c. Increases Amount of Federal Court Injunctions: This rule creates a strong incentive to not litigate the preclusion issue in state court. Rather, many litigants will immediately seek federal court injunctions even in many instances where the state court would have dismissed the case anyway on preclusion grounds.i. Criticism: This seems inconsistent with the Supreme Court’s general preference

that matters be litigated in state courts where possible and its general desire to avoid injunctions of state judicial proceedings.

ii. Declaratory judgments (1039): it’s not that you’re asking to enjoin state proceedings. But think of artful pleading (like an injunction).

H. Judicially-Developed Limitations on Federal Court’s Jurisdiction: Doctrines of Equity, Comity & Federalism. When is it appropriate to issue an injunction (injunctions are discretionary no in equity). Though they have power to do something, they don’t (abstention). Question (1050)—when should fed cts defer to the state system? When does a P have to go to the state system (also like what is seen in ripeness) but now it is exhaustion. From ct’s perspective, it looks like ripeness. Have to exhaust state administrative remedies.

Patsy Case: §1983—gender & race discrimination. She went to fed ct. Don’t have to exhaust state remedies for a §1983 claim b/c states are potential evil-doers in eyes of Congress that

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enacted §1983 (this is based on legislative history). Exceptions to the Patsy Rule: (1) actions by prisoners & (2) plain, adequate & complete tax remedies (Real Estate Ass’n v. McNary).

ABSTENTION & JUDICIALLY-DEVELOPED LIMITATIONS ON FEDERAL JURISDICTIONA. Generally: The central issue of this section is whether, and if so in what circumstances, it is

appropriate for federal courts to abstain from entertaining actions that fall within the literal terms of congressional grants of jurisdiction. 1. Reasoning For: Desires to avoid premature constitutional determinations (if state court can

make decision w/o implicating Constitution), to defer to state tribunals on questions of state law, to avoid duplicative proceedings, and to interfere as little as possible with state proceedings. i) Against: Competing impulses are to uphold a litigant’s choice of a federal forum, to

respect the policies of the jurisdictional grants, and to vindicate federal rights without undue delay.

B. Exhaustion of Nonjudicial Remedies: Federal courts will normally abstain from hearing federal claims if the plaintiff has not exhausted legislative and/or administrative state or federal remedies. 1. Must Exhaust Administrative Remedies: A federal court will not entertain an action

against a state officer if the plaintiff has failed to exhaust remedies before a state administrative agency. i) This is meant to avoid premature interruption of agency procedures, to permit proper

factual development, to take advantage of the agency’s expertise, to give the agency the chance to correct its own errors, and to promote efficiency in both the courts and admin.a. Exception – Section 1983 Claims: The Supreme Court has ruled that the exhaustion

of state administrative remedies is not required in actions under § 1983 (1983 was meant to put the federal courts btw the people and the state court in order to protect their federal rights)i. Limitation – Actions by Prisoners: The Prison Litigation Reform Act of 1995

requires the exhaustion of such administrative remedies as are available prisoner to the filing of federal suits by prisoners challenging prison conditions under § 1983 or any other Federal law.

ii. Limitation – Tax Remedies: Federal courts are required to decline jurisdiction in suits seeking damages remedy for state taxation whenever the state provides a plain, adequate, and complete remedy (Real Estate Assn v. McNary (1981).

C. Abstention When a Post-deprivation Remedy: Adequate post-deprivation judicial remedies can sometimes provide all the process that is constitutionally due, and thus eliminate the basis for a federal suit under the Due Process clause (Parratt v. Taylor)

D. Younger Abstention: Equitable Restraint from Enjoining State Criminal Prosecutions (now extended to more situations) – : Federal courts are generally prohibited from interfering with pending state criminal prosecutions, even if there is an allegation of a constitutional violation and even though all jurisdictional and justiciability requirements are met. Equitable principle based on comity (respect for state court proceedings) and Federalism (protect federal rights but in ways that don’t unduly interfere w/ state activities) Doesn’t prevent the race to the courthouse (get injunction before proceedings begin), P must also exhaust appeals b/c the proceedings are still pending.1. Normally, to get an injunction against state court proceeding, party must show: great

and immediate IRREPARABLE INJURY and LACK OF ADEQUATE REMEDY: Normally Fed Courts will not enjoin state court proceedings.

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i) When D can raise Constitutional/federal/etc defense, that’s an adequate remedy, no injunction: Younger v. Harris (1971) The plaintiff got injunction against state criminal prosecution on the grounds that the Act he was prosecuted under violated the First and Fourteenth Amendments. The Supreme Court reversed b/c federal courts cannot enjoin pending state court proceedings except under special circumstances. The defendant could raise his constitutional claims as a defense to the state court prosecution. Hence, there was a preexisting remedy that made the injunction unnecessary, and out of commiserations of equity and comity, the injunction was denied.a. State courts are presumed to be as competent as federal courts in deciding federal

claims or defenses.b. There is little reason to grant the federal injunction if the state proceeding is actually

pending, since the federal defense can be presented to the state court with reasonable promptness (i.e. federal defense will be decided timely by a competent forum).

2. Exceptions to Younger: Three exceptions to Younger, whereby a federal court CAN issue an INJUNCTION to cease pending state criminal proceedings…i) Bad Faith Harassment: If the state prosecution is brought in bad faith or for the

purposes of harassment. The definition of a bad faith prosecution is when “a prosecution has been brought without reasonable expectation of obtaining a valid conviction.”a. Dombrowski v. Pfister (1965) : If prosecutors repeatedly arrest and indict, but dismiss

charges before trial for harassment purposes, the individual has no opportunity to assert his or her constitutional claims. So it’s an exception to Younger.

ii) Flagrantly and Patently Unconstitutional Statute: Injunctions would be appropriate if there was a statute that is flagrantly and patently violative of express constitutional provisions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it. There is not a single instance where the Court has applied this.

iii) Other Unusual Circumstances – i.e. Bias of State Tribunal: The Court has held that where the state tribunal before which the federal claim or defense would be asserted is biased, a federal court may issue an injunction to block the criminal prosecution (Gibson v. Berryhill (1973)).

3. Declaratory Judgments are Generally Prohibited just like Injunctions: In Samuels v. Mackell (1971), the Court held that the Younger doctrine applies not only to injunctive but also to declaratory relief against a pending state criminal proceedings. This is because a declaratory judgment would result in precisely the same interference with state proceedings as an injunction because a declaratory judgment could be enforced, if necessary, with a subsequent injunction. i) If the proceedings aren’t pending, could be allowed.

E. Pullman & Related Doctrines: substantive area of law made up of judge-made (S.C. made) doctrines as a matter of deference, they are ordered.

F. Railroad Commissioner of Texas v. Pullman1. the railroad commission enacted a law saying that no sleeping car could be operated unless it was

continuously in the charge of an employee having the rank and position of a Pullman conductor. There are three requirements here: (1) unclear state law, (2) federal constitutional question; and (3) adequate state remedy (today, you can just use a declaratory judgment action. Pullman abstention is usually not discretionary. Once these three factors are met, the federal court should Pullman abstain. Usually, Pullman abstention cases involve injunctions against state officers. Frankfurter’s opinion points to the idea that Pullman is just about equity cases.

2. RR Comm. was making an order—if you have a train w/only 1 sleeping car, the position of overseeing that car must be a conductor (a white person) & there’s a 14th A challenge to it, commerce clause issue, question if commission had power under Texas Law to give order.

3. Ct says the Texas law is genuinely unclear (whether commissioner has such authority). If ct were to decide if commissioner has authority the equal protection claim will go away. Lower ct should stay

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proceeding until state supreme ct has made a ruling about Texas state law (stay of fed equal protection question).

4. It flies in the face of Marshall in Cohens v. VA (abdications of judicial duty. Not authorized not to decide something). All equitable judgments are discretionary (Frankfurter in Pullman).

a. Costs of going forward in Frankfurter’s generic friction b/w fed &state law. If fed ct decides what state law is & when state ct decides the issue differently, state interpretation will stand.

b. Note 7 (1068)—problem of delay—b/c state issue have to defer adjudication of the claim. Pullman is inconsistent w/Siler.

c. Abstention is a live doctrine. Abstention got extended from equitable cases to damages cases. Statute of limitations is1 reason you would prefer a stay instead of dismissal or remand. Would extending Pullman to diversity jurisdiction be good or reasonable? (1065).—No, still will have the same problem b/c have to decide state law in a diversity case. Under Warren Ct, there was a decline in abstention.

d. Fed. ct doesn’t have discretion NOT to decide fed statutory question, don’t wait for the states.e. 1 requirement is that state law is unclear, but question of how unclear is unclear. Novelty of

state law is a factor. It would really make constitutional question go away. Remember, it’s equity discretion (1069 n 8). Pg 1072 n5—in modern times, thanks to ALI, all states except Missouri & N.C. permitted fed cts to certify uncertain state law issues to state supreme ct for authoritative resolution. It’s easier to stay the case. Certification cases—certification offers a more expeditious method of obtaining state ct resolution of state issues than would classic Pullman Abstention.

5. Frankfurter: unclear question of Texas Law (about commissioner’s power) & high ct of Texas should decide. If it is decided that commissioner overstepped law, state could dispose of the case w/o discrimination issue (fed constitutional law)

G. A Pullman abstained Plaintiff, though, Can Still Have his Day in Federal Court by Instructing the State Court Not to Rule on the Federal Issues:1. England v. Louisiana (1071).

a. the Court held that abstention merely postpones federal court rulings on constitutional issues; it does not abdicate the federal court’s role, though. The decision in England is a non-parity decision. The Court is saying that there is a primacy of the federal judiciary in deciding questions of federal law. Thus, there is something special about federal court vindication of federal rights.

b. England procedure is well entrenched in Pullman doctrine. A party is bound by state ct determination ONLY if the party did in fact elect to seek a complete & final adjudication.

H. Pullman abstention also applies in § 1983 cases, even though § 1983 does not have a state exhaustion principle: In Wisconsin v. Constantineau, the Court held that a § 1983 case can be abstained when there is an unclear state law issue. 1. Here, the majority, though, decided not to abstain since there was no unclear state law issue. 2. Justice Burger dissented and argued that state courts should be accorded the opportunity to address the

constitutionality of a state statute, whether the claim is either state or federal. 3. The important thing about this case is that the plaintiff could have raised a state constitutional claim,

but didn’t. As such, someone cannot be abstained on an issue he did not raise. I. When a Plaintiff is Pullman abstained, the District Court Usually Retains Jurisdiction Until the State

Court Decides the Unclear State Law Issue: However, in Harris County Commissioners v. Moore, the Supreme Court held that a district court should dismiss jurisdiction, so that a Texas court could hear the case (since Texas had a statute saying that a Texas court could not hear the case if a federal court had concurrent jurisdiction). 1. The holding in Moore very much disrespects states’ rights. There is no regard for those rights, because

the Court is just side-stepping the Texas statute. J. Sometimes the Court abstains, even when no one argues this issue and when the district court fails to

recognize the issue. In Kaiser Steel Corp. v. W.S. Ranch. Co., for example, the Court held that abstention in a water right suit was appropriate, even though the Court never mentions what type of abstention this is. The motivating factors were that the state had a pending action and water right usage was so novel at the time in New Mexico.

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K. Why We Don’t Have Many Pullman Abstention Cases Now: (1) The unclear state issues are certified to state courts; (2) there are justiciability problems; (3) Lots of the cases are subsumed under the Younger doctrine; (4) The Eleventh Amendment forbids the federal courts from enjoining a state officer for violations of state law.

L. Why Pullman Abstention is Good: (1) Avoids unnecessary tentative constitutional holdings; (2) Respect for federalism and letting state courts decide state issues (this isn’t the thrust of Frankfurter’s opinion in Pullman, though); (3) avoids unnecessary holdings that are overruled by the state court; (4) Friction between the states and the federal government might result; (5) Congress has never curbed judicial abstention practices; (6) Abstention can be likened to certiorari, which the court grants or denies; (7) Abstention is also like standing where sometimes, for prudential reasons, the Court will either grant or deny standing

M. Why Pullman Abstention is Bad: (1) Lets courts decide when they will abstain on issues, rather than Congress – this might implicate a separation of powers problem; (2) This doesn’t necessarily guarantee that the highest state court will give an answer (the state Supreme Court could deny cert on this issue, for example); (3) Really discourages people from going to federal court, since a trial involving both state and federal claims will likely be abstained; (4) If we want to respect states’ rights, just use certification (it’s quicker and you get a definitive answer from the State Supreme Court); (5) Court shouldn’t be able to duck the hard issues

N. 2 more kinds of abstention1. Thibodaux: how is this a diversity case? It’s a Florida corporation. As pleaded, the case included no

fed question. Sees as if it has something to do w/diversity of eminent domain. When there is an unclear state law and interference with an important state policy (such as eminent domain), the Court might abstain.

a. In Louisiana Power & Light Co. v. City of Thibodeaux, the Court abstained from hearing an eminent domain case since the case would have involved the “hazards of serious disruption by federal courts of state government.” It is possible that Thibodeaux abstention only applies to eminent domain cases (but this was not the logic in Allegheny County v. Frank Mashuda, another eminent domain case where there was no abstention – but there was also no unclear state law). Thibodeaux abstention has not been widely applied, so there is little to make of this case. However, when a plaintiff is Thibodeaux abstained, he can return to the federal court after the state law decides the unclear state law.i. In Quackenbush v. Allstate, a majority of the Court held that when someone is abstained,

the district court stays the proceedings, but does not dismiss the case. Furthermore, abstention is not appropriate in damage actions (it is appropriate only in equitable cases).

2. Burford: decided in 1943, it was applied in 1951 & disappears from view until it is mentioned in 1989 in NOPSI case. What is it? See pg 1078. A lot of precedent for its unavailability. The lower cts that have used it haven’t used it very much. When the state has a complex administrative scheme with review concentrated in one court and state agency action is implicated, the district court should abstain. Most people think that Burford requires some unclear state law. Burford can occur in either a diversity case or a federal question case

a. In Burford v. Sun Oil Co., the Sun Oil Company wanted an injunction in federal court that would prevent the railroad commission from granting a drilling permit. The Court holds that abstention is appropriate since questions of regulation “so clearly [involve] basic problems of Texas policy that equitable discretion should be exercised to give Texas courts the first opportunity to consider them.” In Burford abstained cases, you never get back into federal court for review of federal issues – the state administrative scheme is the sole source of review.

O. Parallel Proceedings1. Colorado River Water Conservation District v. US

a. Facts: McCarren Amendment doesn’t talk about fora. Colorado divides water into 7different districts. 1st, US brought suit in district ct in Colorado, but that ct was 300 miles from Division 7 (all of the Ds). Gov. asserts its rights & rights on Indian tribes. One of the Ds wants to join US & files suit in state ct. There was a motion to stay fed proceedings (district ct allowed the stay but 10th Cir ruled that there was no doctrine of abstention to allow the stay & dissolves the stay. This is what goes up to the S.C.

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b. Issue: whether the case can go forward in fed ct, if district ct had the power to allow the stay.c. It’s not plainly a Pullman abstention (Pullman is not available). Ct said it doesn’t fall into

Burford or Thubodaux. Part C: sound judicial administration. Different b/c concurrent jurisdiction & fed jurisdiction are important. Cts have an ordinary duty (Art. III) to decide cases, but when things come up, the ct abstains (pg 1134 footnote6—in rem jurisdiction, haven’t had sufficient proceedings on the fed case).

2. Moses Cone (1136): district ct stays the suit. Ct of appeals tells the district ct to go forward. The district ct thought they were following Colorado River & the S.C. told them to go forward.

3. Wilton v. Seven Falls (1138): all that had been asked for was a declaratory judgment.P. Basic doctrine of EQUITABLE RESTRAINT: equity—not enjoining a criminal prosecution.

1. Dombrowski v. Pfistera. the Court held that a district court can enjoin a statute that banned subversive activities and

Communist Propaganda. This was because the state forum was inadequate to hear whether the statute was permissible since the statute was overly broad and vague. The Court was skeptical of whether the “state’s criminal prosecution will … assure adequate vindication of constitutional rights.” This, in Justice Brennan’s idea, was an exception to the general premise that state criminal statutes must be challenged in state court. Even when the Court strikes down a statute as being overbroad, the state gets the chance to narrow the construction of the statute and can apply the newly construed statute in a narrow fashion as long as there were no problems with adequate notice

b. The ct issued an injunction . The statutes were being misapplied. The Ct held that abstention doctrine is inappropriate for cases like this where statutes are justifiably attacked on their fact abridging free expression, or as applied for purpose of discouraging protected activities.

Q. Younger v. Harris1. Some ppl are being prosecuted for being a progressive labor party (Syndicalism Act). 2 of the ppl

were not indicted (standing, ripeness issue), but Harris was indicted. Harris wants to enjoin the state from applying the statute against him. Harris has standing /c he’s being prosecuted.

2. Black says that there’s no proof if Harris goes through state ct proceedings that he will be irreparably harmed. Fed. cts should not enjoin state criminal proceedings (deferred b/c of comity & federalism).

3. The critique is that Younger undermines civil rights4. But then there’s this problem—Dombrowski, which was decided 6 yrs ago. The Ct highlights the facts

(bad-faith prosecutions) of Dombrowski & limits it to unusual situations (bad-faith or harassment).a. Samuels v. Mackell (a district court can’t grant a declaratory judgment since “the same

equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment.”)

b. Younger Abstention Only applies to Pending State Criminal Prosecutionsi. In Steffel v. Thompson, a man was threatened with prosecution for distribution of

handbills, although the state never charged him. The man was able to bring this declaratory judgment challenge to the statute in federal court since there was no pending state criminal proceeding. The one man that was arrested & the other petitioner wanted to bring a suit pursuant to §1983 claiming officers infringed on their 1st A rights. The demonstrator satisfies the justiciablility requirements. The petitioner wanted a declaratory judgment under 1st & 14th A.

ii. Justice Brennan (majority): says that this is NOT Younger (ongoing state proceedings). Here, petitioner was not charged, there was no state proceeding; therefore, considerations of equity, comity & federalism have little vitality.

iii. The Ct holds that even though there’s no state proceeding, declaratory judgment is NOT precluded. This is why the declaratory judgment act was enacted.

iv. 1105—regardless of whether injunctive relief may be appropriate, fed. declaratory relief is not precluded when no state prosecution is pending & a fed P demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.

c. Younger abstention was applied to a non-criminal nuisance proceeding in Huffman v. Pursue (1113). Justice Rehnquist wrote that a public nuisance case was very similar to a criminal

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proceeding (even though there was no habeas review in a nuisance case). Justice Brennan dissented again, arguing against Younger extension to non-criminal cases. It’s a state CIVIL proceeding & Younger applies to civil proceedings.

d. Hicks v. Miranda: seize the theater & ppl sue the officials to get their movies. Like Steffel (no criminal charges when ppl file fed charges against officials). A 3 judge ct convenes. The criminal complaint is amended & ppl are added as Ds in state criminal proceedings. The Ct held where state criminal proceedings have begun against federal Ps after fed complaint was filed but before any proceedings of substance on the merits have taken place in the fed ct, the principles of Younger should apply in full force. Justice Stewart dissents: this does not eliminate the race to the ct house, it allows the state to take a short-cut& make it to the finish line 1st.i. The Hicks rule was extended in Doran v. Salem Inn (1118), where the Court held that the

plaintiff’s quickness to the federal court was irrelevant since the federal court proceeding was still “in an embryonic stage and no contested matter had been decided.” In Doran, the Court did affirm the practice of a district court granting a “preliminary injunction” (an injunction where the plaintiff will suffer irreparable injury and is likely to prevail on the merits.

ii. A suit is still pending in state court even if the final judgment of the trial court was entered, but the state appellate proceedings were not complete. Huffman v. Pursue (1121). Thus, there must be an exhaustion of state remedies before you can get to federal court. It begins to cross the line—the line b/w civil & criminal is not as clear.

iii. However, if you go to federal court to seek injunctive relief against future state prosecutions, you can seemingly bring a constitutional challenge to the statute. See Wooley v. Maynard. There, a man challenged the constitutionality of a license plate statute and sought to only enjoin future criminal enforcement, not his past prosecution.

5. Younger Abstention Also Applies in Some Civil Proceedings: Federal Courts will abstain in enforcement proceedings (i.e., where the federal plaintiff is pushed into a state defensive posture

a. In Trainor v. Hernandez, the Supreme Court held that the Younger doctrine applies to both criminal and quasi-criminal proceedings. Here, the Illinois Department of Public Aid brought a civil enforcement action against the Hernandez family seeking return of fraudulently concealed assets. Though this was not a criminal prosecution, the state defendant could not avail himself of federal declaratory judgment relief. Justice Brennan’s dissent argued that there should be no Younger abstention in non-criminal proceedings. Furthermore, he argued that this was a flagrant and patent violation of express constitutional prohibitions, such that it should qualify as a Younger abstention.

6. Cases where the state is not a partya. Pennzoil (1124)—Younger is applied b/c it’s a contempt issue

7. In certain kinds of administrative proceedings (attorney discipline, etc) neither are cts, but grows out of Pennzoil & involves state adjudicative functions.

8. NOPSI case—there was a backing off some of the later stuff (trying to back off wholesale abstention if the state is a party).

FEDERAL COMMON LAW & IMPLIED RIGHTS OF ACTION/SUITS AGAINST FEDERAL OFFICIALSA. Presumption Against Federal Common Law: There has been a strong

presumption against the federal courts fashioning common law to decide cases. The Rules of Decision Act, part of the Judiciary Act of 1789 and which remains largely unchanged today, by its very terms seems to deny the existence of federal common laws and indicates that in the absence of positive federal law, federal courts must apply state law.1. In overruling Swift, the Court in Erie flatly declared that there is “no federal general common law.”

B. Limited Scope of Federal Common Law: Despite these declarations, federal courts have fashioned common law in limited circumstances.

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1. Can be Overruled by Federal Statute: Almost all federal common law can be overruled by federal statute. Federal common law is judge-made, developed in the absence of clear legislative command, and is generally non-constitutional in nature. i) But, when common law is inferred from the Constitution, it cannot be overruled by

federal statute – See Bivens v. Six Unknown Named Federal Narcotics Agents2. Developed out of Necessity: Federal common law has developed out of necessity. In some

instances, there are gaps in the law; the application of statutory and constitutional provision often requires the development of legal rules.

C. Federal Common Law to Protect Federal Interests: In many instances, federal common law has been created to protect the federal government’s interests. Two-part inquiry in deciding whether to create federal law to safeguard federal interests… 1. First, the Court considers whether a federal interest JUSTIFIES creating federal common

law. i) No clear criteria exist to guide this determination. The Court often looks to whether the

underlying purpose of a constitutional or statutory provision warrants the development of federal common law. a. Clearfield Trust Co. v. United States (1943) (uniformity interests of regulating U.S.

currency warrants development of federal common law): The question was whether the federal government’s delay in notifying Clearfield Trust of the theft and forgery of the first check (issued by the govt) precluded the government from recovering. The lower court applied PA law and ruled against the U.S. Held: The Supreme Court held that the federal court should have fashioned federal common law. All the rights and duties of the United States concerning commercial power which it issues are governed by federal law in no way dependant on the laws of PA or any other state. Uniformity interests require federal law, and thus in 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.

2. Second, if federal law is developed, the Court decides its CONTENT; specifically, the Court determines whether to copy existing state law principles or to formulate new rules.i) The court can base the federal law on already existing state law principles – i.e.

incorporating or borrowing state law as the federal rule of decision – or it can create a new legal rule to serve the federal government’s interests.

D. Balancing Test: In deciding whether to incorporate state law or to fashion new federal law, the Court balances the need for federal uniformity (whether state law would frustrate objectives of federal program) and/or a need for special rules to protect federal interests against the disruption that will come from creating new legal rules.1. Kimbell Foods (1979) (no need for uniformity thus state law could be adopted): The issue in the case

was whether the federal government’s liens take priority over private liens when the federal government seeks recovery on defaulted federal loans. Because there was no need of uniformity, the prudent course was to adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.

2. Federal Law for Tort Claims Involving the Federal Government: In tort cases, the Court has developed federal common law to protect the interests of the United States.

a. United States v. Standard Oil (1947) (developed federal common law to preclude state tort law): After a Standard Oil truck injured a solder, the government sued the company. The issue came down in final consequence to a question of federal fiscal policy. Whatever the merits of the policy, its conversion into law is a proper subject not for the court but rather for Congress.

3. Federal Common Law in Cases Involving Private Parties: In some instances, the Court has been wiling to develop a federal common law defense in suits between private parties in order to protect federal interests. i) Boyle v. United Technologies Corp. (1988) (created common law shielding contractors from

liability to protect federal interest in obtaining equipment for the military (military contractor

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defense)): The issue was whether a contractor could be held liable under state tort law for injuries caused by design defects in products supplied to the military. Held: There is a uniquely federal interest in obtaining equipment for the military and that the application of state tort law would impair this federal activity. Thus, the Court chose to fashion federal common law and declared that a contractor is not liable where the United States approved precise specifications for the equipment, the equipment met those specifications, and the supplier warned the United States bout the dangers in the use of the equipment known to supplier but not to the United States.

4. Will preclude state law if following federal law forces person to break state law (W-DAY): Radio station sued for libel after political candidate responded to opponent on air (station was required by federal law to carry the response). Court said it would be improper to hold them libel under state law for conduct that was required by federal law, it’d be too perverse.

5. Foreign Relations: Federal common law can govern questions of foreign relations when there is no applicable federal statute. It is obvious that the need for a single federal rule is particularly great when the foreign relations of the United States are at stake.i) Banco Nacional de Cuba v. Sabbatino (1964) (act of state doctrine decided by federal common

law): An assignee of contract rights held by the Cuban government sued on the contract in the United States. The Supreme Court held that the contours of the “act of state” doctrine, which governed the case, were to be determined by federal common law.

6. Other Interests: Federal common law has also been formulated to protect other interest such as when the United States is a party to the lawsuit (see Clearfield Trust), interstate disputes (e.g. allocation of water or interstate pollution), regulation of banking, and admiralty.

E. Federal Common Law Inferred from Federal Statutory Provisions: If necessary to effectuate the intent behind a federal statute. 1. Lawmaking Authority Implied From a Statutory Grant of Jurisdiction: Congress

sometimes intends the federal courts to develop a body of federal common law rules under grants of jurisdiction. In such a case, Congress will provide a broad jurisdictional grant with the expectation that the federal judiciary will develop specific standards to effectuate the purpose of the statute.i) Textile Workers Union v. Lincoln Mills of America (1957) (federal substantive law developed

from broad statutory grant under Taft-Hartley Act): An employer sued a union for an injunction to enforce an arbitration agreement. Taft-Hartley Act grants the federal courts jurisdiction to decide disputes under labor-management contracts in industries that affect interstate commerce but didn’t enact any substantive principles for the federal courts to use in deciding such cases. Held: Federal jurisdiction was upheld on the grounds that Congress intended for the federal courts to develop a body of common law principles to resolve labor-management disputes.

2. Other Statutes Interpreted as Authorizing Federal Common Law: The Supreme Court has also approved the development of federal common law under other various statutes. However, the federal judiciary will formulate a body of common law rules only pursuant to clear congressional intent for such action (see Texas Industries v. Radcliff Materials).i) E.g. Employee Retirement and Income Security Act (ERISA); Sherman Antitrust Act; and the

Alien Tort Claims Act.

FEDERAL COMMON LAW RIGHTS OF ACTION

A. Implied Private Rights of Action under Statutes: Although it is generally reluctant to do so, the Court has created a limited number substantive causes of action in the absence of express statutory authorization. The Court has only created such private rights of action, though, where was necessary to effectuate Congress’s intent.1. Reasoning for Reluctance: Both separation of powers and federalism concerns. Separations

of powers is implicated because of the Court’s conviction that the legislature, not the judiciary, should authorize recovery. The absence of federal legislation also means that the

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conduct is controlled by state law; the creation of federal common law means that the states no longer have exclusive authority in the area.

B. Current Affirmative Creation Test – “Alexander v. Sandoval” Approach: Under its new, more restrictive approach, the Court asks whether Congress affirmatively created a private right of action under a statute. The Court will PRESUME that NO SUCH PRIVATE RIGHT exists unless there is evidence to suggest to the contrary. Two propositions:1. A private right of action must be based on LEGISLATIVE INTENT, and legal context

matters only to the extent that it CLARIFIES THE TEXT of the statute2. The EXPRESS PROVISION of one method of ENFORCING a substantive rule suggests

that Congress intended to PRECLUDE OTHER METHODS, such as an implied private right of action.i) Alexander v. Sandoval (2001) (no private right of action where alternative method of

enforcement provided in the statute): Concerned whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. The plaintiff brought a class action to enjoin the Alabama Dept. of Public Safety’s policy – adopted after an amendment to the AL Constitution declared English the “official language of the state” – of administering driver’s license examinations only in English. Held: The Court found no private right of action. The Court said that neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated pursuant to it. Furthermore, the statute provided methods for its enforcement, such as fund cut-offs for noncompliance. As a result, the express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude other.

C. “Cort v. Ash” Denial Test – This is No Longer really Used: Traditionally, the Court relied on a four-part test for determining whether private rights of action should be created under federal statutes. Under this approach, it was not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such a cause of action would be controlling. 1. Test: In determining whether a private remedy is implicit in a statute not expressly providing

one, the Court would ask...i) First, the threshold question is whether the statute was enacted for the benefit of a special class of

which the plaintiff is a member. That question is answered by looking to the language of the statute itself.

ii) Second, the analysis requires consideration of legislative history. Legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question. Therefore, in a situation in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such a cause of action would be controlling.

iii) Third, a private remedy should not be implied if it would frustrate the underlying purpose of the legislative scheme. However, when that remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute.

iv) Fourth, the final inquiry is whether implying a federal remedy is inappropriate because the subject matter involves an area basically of concern to the states.

BIVENS: SUITS AGAINST FEDERAL OFFICERS FOR CONSTITUTIONAL VIOLATIONS

A. Bivens: Implied Rights of Action Under the Constitution and Suits against Federal Officers: No federal statute authorizes federal courts to hear suits or give relief against federal officers who violate the Constitution of the United States, as there is no analogous statute to 42 U.S.C. § 1983 pertaining to violations of federal law by federal officials.

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B. Inferred from Constitution: Supreme Court held that it would infer a cause of action for damages directly from constitutional provisions.

C. Injunctive/Exclusionary Relief Only in Past: Prior to the Court’s decision in Bivens, although courts protected constitutional rights through injunctive relief and doctrines such as the exclusionary rule, plaintiffs were not allowed to sue federal officers for monetary remedies in federal court. Plaintiffs seeking such compensation were relegated to state tort law causes of action.

i) Const generally does not expressly create remedya. Remedies under Constitution: Takings & Habeas

D. Monetary Relief Now Available via Bivens Claim: Money Damages available when NO OTHER FEDERAL REMEDY is provided for the vindication of a Constitutional right. 1. Bivens (1971) The Court determined there must be a remedy for every wrong, and laid down the rule

that it would imply a private right of action for monetary damages where no other federal remedy is provided for the vindication of a Constitutional right. The Court stated that the presumption is that where there is a violation of a constitutional right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has specifically curtailed that right of recovery.

E. Exceptions to Bivens : NO Bivens cause of action if…1. There are SPECIAL FACTORS counseling hesitation and precluding Bivens remedies, or…

i) Suits from Military Service: the Supreme Court has refused to permit Bivens suits arising from military service. The Court’s reasoning for this is based on the rationale that there is a need to preserve the military hierarchy

i. Chappell v. Wallace (1983: Discriminatory practices by superior officers. The special nature of the military was a factor counseling hesitation against Bivens claims.

ii. United States v. Stanley (1987) Given LSD without his knowledge in an Army experiment. Bivens remedy is not available for injures that arise out of military service.

2. Congress has specified an ALTERNATIVE REMEDY that court believes provides an EQUALLY EFFECTIVE SUBSTITUTE.i) Bush v. Lucas (1983) (existence of comprehensive civil service remedies precluded Bivens

claim): An aerospace engineer employed by NASA claimed that he was demoted because of his public statements, which were critical of the agency. No Bivens claim allowed. The Court found that the existence of comprehensive civil service remedies prevented Bush from brining a cause of action directly under the First Amendment. Congress could indicate its intent to prevent judicial remedies by providing a statutory remedy itself. Here, the separate remedy was adequate.

ii) Schweiker v. Chilicky (1988) (social security system remedies precluded Bivens claim): The Court against refused to permit a Bivens action for alleged due process violation stressing that the Social Security Act provided an elaborate administrative and judicial remedy.

iii) BUT see, Carlson (next pg), Bivens is a counterpart to remedies under FTCA.

F. Immunity: Even if a cause of action is recognized, the defendant can still raise immunity as a defense. The rules for immunities of federal officials are identical to those that have been recognized for state and local officials under § 1983.

G. Criticism Of Bivens: Legislative action is required before suits for money damages can be brought in federal court for violations of constitutional rights because state law tort remedies exist, and Congress must act if federal law is to provide an independent remedy. Separation of powers is violated when the Court replicates through judicial action what § 1983 provides against state and local officers.1. Rebuttal: Judicial role is to provide a remedy of violation of rights. Courts traditionally have

fashioned remedies in the absence of legislative action, including the exclusionary rule and damage remedies under federal statutes. Protection of federal rights should not depend on the varies of state law, and rather, federal court must safeguard and enforce constitutional rights.

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H. Amendments Protected by Bivens: In Bivens cause of action for damages against federal officers only for violation of the Fourth Amendment, 1. Now: SCOTUS recognizes cause of action for First, Fourth, Fifth, and Eighth Amendments.

i) Lower federal courts have recognized Bivens suits for violations of the Ninth and Fourteenth Amendments as well.

I. Bivens may still be available where certain statutes exclude liability : 1. In Davis, Congress exempted its members from federal employment discrimination

legislation . i) Bivens was still allowed b/c the Court narrowly construed the exemption as solely

removing them from liability under Title VIII and not precluding all suits for employment discrimination. Davis v. Passman (1979) (narrow interpretation of immunity in statute): A congressman fired his administrative assistance because he wanted the position to be filled by a male. The Court concluded that Congress did not mean to foreclose other remedies not included in Title VII. Federal officers could be sued for money damages for violations of the Fifth Amendment.

2. Bivens is a Counterpart to Alternative Remedies under FTCA only (limited elsewhere): The Court held that Bivens suits (recovery from officers) were a “counterpart” of the alternative remedy of the Federal Torts Claim Act (FTCA) – allowing recovery from the government – and thus Congress did not intend the federal statute to preempt the possibility of Bivens suits.i) Carlson v. Green (1980) (possibility of recovery under FTCA did not preclude recovery under

Bivens as well) : A mother sued federal prison officials on behalf of her deceased son, claiming that he was the victim of gross inadequacies of medical facilities and staff, which caused his death and constituted cruel and unusual punishment. A remedy was available under the FTCA, but no indication that Congress intended for the FTCA to preempt Bivens suits b/c one was directed at governmental liability and the other was directed at individual liability. Furthermore, remedies available under the FTCA were not as effective as a Bivens suit, for damages against individual officers would serve as a more effective deterrent to constitutional violations.

J. Recent Limitation of Bivens Claims by the Supreme Court: In the last two decades, however, the Supreme Court has consistently refused to expand, and indeed has substantially limited, the availability of Bivens suits.1. No Bivens Claim Allowed if Alternative Remedies: Congress can indicate its intent to

prevent judicial remedies by statutory language, clear legislative history, or even providing the statutory remedy itself. Where such a remedy is already provided, no Bivens claims are permissible.

2. No Bivens Suits Against Federal Agencies: In FDIC v. Meyer (1994), the Court held that the Bivens remedy is available only against government officials, not against government agencies. The Court rationalized this decision by focusing on the deterrence rationale for Bivens actions. If litigants could bypass officers and sue federal agencies directly, the deterrent effects of the Bivens remedy would be lost.

3. Eleventh Amendment Bars Bivens Suits Against State Governments: Generally, Bivens suits against state governments are not allowed because the Eleventh Amendment precludes states from being sued in federal court. The only exceptions would be consent or a suit brought under § 5 of the Fourteenth Amendment.

4. Bivens Suits Against Local Governments: Because Monell’s limitation on respondeat superior liability is based on the Court’s understanding of § 1983’s legislative history, no inherent reason exists for precluding Bivens liability in suits brought directly under the Constitution.

5. No Bivens Suits Against Private Entities: The Court has held that a private entity which operates a prison cannot be sued in a Bivens action. This is because state tort law typically provides adequate remedies.

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i) Correctional Services Corp. v. Malesko (2001) (no Bivens claims against private company contracted to provided services for the federal government) Private company operating a half-way house under a contract with the Federal Bureau of Prisons. An inmate suffered a heart attack b/c facility refusal to allow him to use an elevator despite a serious heart condition. Held: Private companies may not be sued under Bivens. Bivens suits are available only against individual federal officers, not against government or private entities. Only twice has the Court expanded Bivens’ holding: once in Davis (when no other remedy was available) and once in Carlson (when no other remedy against the defendant officials was available). Here, the case is neither, and there are alternative remedies including state tort law.

6. Floodgates/difficulty in defining COAi) Wilkie v. Robbins (2007): Chain of events where govt harassed P to get easement. Held:

No Bivens available. First looked at alt remedies: Patchwork of alternative remedies. Then looked at SFCH: difficulty in defining a workable COA. Would open floodgates. Efforts to induce Robbins to grant easement were perfectly legitimate. But maybe they could use this COA as a defense in a suit?

7. Iqbal: selectively confining certain prisoners to harsher conditions after 9/11. Not part of actual ruling, but court said it would hesitate to find a Bivens First Amendment free exercise claim if it had occasion to reach that claim. But it was decided on pleading grounds. No supervisory liability anymore under Bivens. Q to class: what business did the court have in addressing these Qs at all? Iqbal sues a bunch of high level federal defendants, lower courts say the claim can go forward. Can’t be supervisory liability for the chief. Only liable for his or her misconduct.

SOVEREGN IMMUNITY AND §1983 CLAIMS:

State; State agency; Arm of State

State official in official capacity

Local gov't Local official in official capacity

Fed, state, or local official in personal capacity

Damages Sovereign immunity

None,Sovereign immunity

To state claim, must satisfy Monell, etc. No qualified immunity. No sovereign immunity (unless arm of state).

Same as for damages claim vs. local gov't

Absolute immunity if available. Otherwise, qualified immunity.

Prospective Relief

Sovereign immunity

Ex parte Young. Re: judges, see § 1983. Absolute

Available unless it's an arm of state.

If arm of state, use ex parte Young. Re: judges, see § 1983.

No qualified immunity.

Re: judges, see § 1983.

Absolute

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immunity for legislators

Absolute immunity for legislators.

immunity for legislators.

FEDERAL HABEAS CORPUS & THE WAR ON TERRORA. Habeas Corpus Generally: Habeas corpus is provided for in Article I, §9, cl.2 of the Federal

Constitution. In addition, the writ was also provided in the First Judiciary Act, allowing the justices of the Supreme Court as well as judges of district courts the power to grant writs; however this only applied to prisoners in federal – rather than state – custody. Federal prisoners apply under 2255 (so that can be suspended?)

U.S. Citizen = Normal Habeas Statute AppliesForeign citizen in U.S. Territory = Can Avail of Habeas Statute, see RasulEnemy Combatant in U.S. Territory = Habeas (Boumediene)

B. Can’t hold U.S. Citizen deemed enemy combatant indefinitely w/o DP: : The Executive Branch does not have the power to hold a U.S. citizen indefinitely – even if deemed an enemy combatant – on American soil without basic due process protections enforceable through judicial review. 1. Meaningful Opportunity to Contest Factual Basis for Detention: Plurality of SCOTUS

says Fifth Amendment due process guarantees that an American citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.i) Hamdi v. Rumsfeld (2004) Hamdi, an American citizen, was arrested by the U.S. military in

Afghanistan, declared an "enemy combatant," and transferred to a military prison in Virginia. He wanted to show that there wasn’t a factual basis for his enemy combatant status. Under the Mathews v. Eldridge balancing test, Congress’s authorization of military force authorizes holding Hamdi, but citizen detainee gets limited due process including notice of the charges, opportunity to be heard, and some sort of legal counsel. However, the Court did not require normal procedural protections such as placing burdens on the government or a ban on hearsay evidence. So some due process, but not as much as in a usual civil proceeding. Might have to permit hearsay to allow gov’t to show he’s an enemy combatant, just let prisoner challenge the allegations. Just want to make sure tourists etc don’t get swept up as Enemy Combatants. a. In dissent, Scalia thought Milligan meant he should be tried in State Criminal court. But then

Ex-Parte Quirin (military tribunal tried/ executed US citizen as unlawful combatant). Scalia said that wasn’t court’s finest hour, distinguished it b/c they didn’t dispute that they were enemy combatants.

C. Non-Citizen Detainees have same rights: Although by its terms, the holding was limited to “citizen-detainees,” the last sentence of the plurality relies on the Geneva Convention and states that habeas corpus should be available to an alleged enemy combatant. Based on that language and the Court’s holding in Rasul – that U.S. courts have jurisdiction to hear habeas petitions filed by non-citizen Guantanamo detainees – there are likely some limited due process rights owed to non-citizens which can be fulfilled by habeas or other federal statute.

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1. Textual Support in Habeas Statute: § 2241 – does not distinguish citizens from aliens, there is very little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship (see Rasul).

2. Argument for Suspension of Writ: In an opinion by Scalia joined by Stevens, the justices asserted that the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only during times of invasion or rebellion), which hadn’t happened; or Hamdi must be tried under normal criminal laws entitled to other U.S. Citizens.

D. Military Commissions Act of 2006 Ruled Unconstitutional Suspension of the Writ: MCA now prevented detainees in Guantanamo Bay from challenging their detention in U.S. courts. The DC Cir thought that there was no constitutional problem because the petitioners have no constitutional rights being aliens held outside of the United States. Overruled by Boumediene.1. Military Commissions Act of 2006 (MCA) § 7: "(e)(1) No court . . . shall have jx to hear . . . an

appl for . . . habeas corpus filed by. . . an alien detained by the US who has been determined by the US to have been properly detained as an EC or is awaiting such determination.” – "(2) Except as provided in Ps (2) & (3) of section 1005(e) of the [DTA], no court . . . shall have jx to hear . . . any other action against the US or its agents [wrt] any aspect of the detention, transfer, tx, trial, or conds of confinement of an alien who is or was detained by the US & has been determined by the US to have been properly detained as an enemy combatant or is awaiting such determination."

E. Boumediene v. Bush (2008): Aliens held at Guantanemo who have been designated Enemy Combatants by CSRT hearings, are entitled to habeas review. MCA § 7, modified habeas statute, stripped jurisdiction & review of CSRT, so only review would be limited review in DC Cir. Court ruled that is an Unconstitutional suspension of the writ (Suspension Clause). Cong did not provide adequate alternative in DTA/MCA. . Also, there has been enough delay here to allow for review. US has de facto sovereignty over guantanamo. Q of adequacy of procedure and nature of CSRT proc – look @ history of habeas (always had it), de facto sov in Guant, adversarial process didn’t really exist here (no advocate, limited ability to rebut/enter later-

discovered evidence or be present, only a few claims could be raised). Don’t really say how much review must be provided – balance btwn original process and subseq review that follows (habeas can be narrowed if initial review is more thorough)1. Separation of Powers/Susp. CL: Under DTA DC Cir could decide whether CSRT

determinations were correct procedurally, review questions of law to extent laws/constitution were applicable to CSRT proceedings.i) Don’t want Congress/President to say what the law is and determine court’s jurisdiction

by being able to move bases around strategically in order to avoid U.S. law.(shouldn’t allow legislature/executive to switch the right on and off) Suspension Cl has a separation of powers fn – to protect people from detention by exec.

2. Talked about history of habeas. At minimum, Sup Cl provides floor that protects writ as it existed in 1789 (don’t answer Q whether Sup Cl has expanded along with Habeas over time)i) DCA violated the minimum b/c there has been no trial, and yet the executive is confining

these people.ii) Alienage didn’t bar habeas relief in the past. Also, haven’t seen situations like

Guantanemo where US has pseudo sovereignty, but Cuba maintains ultimate sovereignty. Had to take functional approach, not formalistic that would depend on who has sovereignty.

iii) Particular type of evidence that wouldn’t be available to detainee under DTA: evidence that wasn’t available at CSRT hearing, but was found later. That makes the statute way too limited.a. To be allowable, relief needed would: opportunity for release if the govt can’t

establish that CSRT was rendered in compliance with applicable legal standards.

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o Nature of CSRT procedure: actual procedure is lacking, detainee can’t challenge evidence, doesn’t get adequate counsel.

Due process reqs fair notice, opp to dispute charges, neutral decision maker, few others, but things like hearsay might be ok (from Hamdi, need to help out govt a little)

Hamdi left 2231 intact, didn’t concern suspension clause, here Congress has actually suspended the writ.

Facts on the ground, that same flexible review they required in Hamdi might not apply anymore, 2 justices switched sides b/c detainees might not actually be getting proper review on the ground, so they might have to give more prophylactic protections.

Even if the review is broadened, there would still be instances where it wouldn’t be enough (later exculpatory evidence) This is the big reason they overturned the statute.

So, statute could be valid in some applications (like where there was no after discovered evidence), so why not say let those go, and when there is new evidence, allow habeas. Court says that would add another layer of complexity. Easier to just invalidate the jurisdiction stripping and say the CSRT procedures are inadequate.

o Chief Justice says that they jumped the gun, didn’t have to invalidate everything. Maybe Congress wanted to centralize review in DC Cir. May need special accommodations for classified info.

o Scalia’s dissent: habeas review never for aliens held abroad. Majority takes separation of powers into effect when evaluating suspension clause (sep of powers requires some kind of habeas review, even tho never find anything exactly on point, it’s a structural Q and courts need to protect liberty). Scalia says shouldn’t use sep or powers to expand scope of suspension clause, only applies to specific powers, should extrapolate to lots of other issues.

Thinks this will lead more Americans being killed.o How does this relate to Alden (state sovereign immunity): states wouldn’t have

ratified Const if they didn’t get sovereign immunity, probably didn’t care about extra-territorial habeas review for aliens.

o They didn’t say habeas expanded over time, just that at it’s core, Sup Cl was all about protection from detention by executive (sep of powers)

o Detainee cases are an extended view of the court’s view on the judiciary’s role. Congress essentially forced the courts to decide whether habeas reached aliens held at Guantanamo, and court says yes.

Suspension Cl raises questions about whether fed habeas jx is required and whether it limits cong’s auth to withdraw habeas jx – Ex parte Bollman (1807): habeas is not inherent but must be conferred by statute. INS v. St. Cyr (2001): Suspension Cl restricts cong’s power to preclude review of the legality of federal executive detentions – at abs minimum, Suspension Cl protects writ as it existed in 1789Boumediene v. Bush (2008): congressional preclusion of review invalid b/c it violated the right to habeas (or an adequate substitute) guaranteed by the Suspension Cl.

F. Territorial Jurisdiction in Habeas: § 2241(a) – vests authority to grant the writ in the Supreme Court and district courts, but only within their respective jurisdictions.

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1. Custodian Jurisdiction Rule (Issuing Court must have jurisdiction over custodian): The Court now only requires that the issuing court have jurisdiction over the custodian (used to be over petitioner)i) Johnson v. Eisentrager (1950): Held that district courts lack jurisdiction to issue a writ of habeas

corpus on the applications of foreign citizens held abroad. (foreign war criminals held abroad) Unclear if decided on the merits or saying court didn’t have jx.

ii) Braden v. 30th Judicial Cir. Ct. (1973) (established custodial jurisdiction rule): recognized the territorial jurisdiction of a district court to entertain a petition from a prisoner physically confined in another state. The Supreme Court concluded that 2241(a) requires only that the court have jurisdiction over the custodian.

2. If Petitioner is Located at Military Base in a Foreign Country: Normal Habeas if U. S. exercises “complete control” over a military brig located on foreign soil, it is irrelevant that the ultimate sovereignty remained foreign.

a. Rasul v. Bush (2004) (non-citizen aliens detained at the U.S. Naval Base at Guantanamo Bay, Cuba, may avail themselves – at the time – of the writ of habeas corpus) The Court found that the degree of control exercised by the United States over the Guantanamo Bay base was sufficient to trigger the application of habeas corpus rights. Further, the Court wrote that the right to habeas corpus is not dependent on citizenship status.

G. The Proper Respondent: Habeas can only be filed against the person directly responsible for a prisoner's confinement or, put another way, the person with the power to bring the prisoner to court. Usually the warden of the prison where the petitioner is incarcerated.1. Rumsfeld v. Padilla (2004) (proper respondent is warden or brig commander where being held):

Lawyer filed a habeas petition against President Bush, Secretary Rumsfeld, Melanie Marr, Commander of the Naval Brig where Padilla was being held in S.C. The proper respondent was the commander of the military brig in which Padilla was held. Case had to be refilled

H. US citizen can file against any high ranking military official (proper respondent rule doesn’t apply)?I. Immediate custodian rule is like venue/personal jurisdiction, so it can be waived. Also exceptions can be

made (don’t want gov’t to just move prisoners around to avoid jurisdiction)

HABEAS CORPUS & STATE PRISONERS GENERALLYA. Habeas Corpus Generally: The federal court may order the release of a state prisoner

who is held by the state in violation of the Constitution or Federal law.1. U.S. Const. Art. I, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or invasion the public Safety may require it."2. (Collateral Review): Separate Civil Lawsuit; Not Direct Review: Technically, federal

court consideration of the habeas corpus petition is not considered direct review of the state court decision; rather, the petitioner constitutes a separate civil suit filed in federal court and termed collateral relief.

3. Can be Utilized In Variety of Situations: Habeas is available whenever a person is in government custody. In addition to challenging a criminal conviction, it may be used by to challenge confinement in an institution, a deportation order, an extradition order, executive detention, conviction in military court, or denial of parole.

B. Types of Claims in Habeas That Were Already Raised in State Court 1. Most Questions of Constitutional Law Can be Relitigated: Federal habeas courts can

relitigate questions of federal constitutional law that were fully and fairly litigated in state court.i) Examples: Proof of guilt beyond reasonable doubt, jury of peers (racial composition),

ineffective counsel, confessions admitted against Miranda.

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2. Exception – Fourth Amendment Exclusionary Rule Challenges NOT ALLOWED if Full and Fair Hearing: i) Claims that a state court improperly failed to exclude evidence as being the product of an

illegal search or seizure cannot be relitigated on habeas corpus if the state court provided a full and fair hearing.a. Stone v. Powell (1976) No habeas on the ground that the evidence obtained in an

unconstitutional search or seizure was introduced at his trial. i. Not guilt related: Exclusionary rule claims do not relate to the accuracy of the fact-

finding process. ii. Exclusionary rule exists to deter illegal police practices. This deterrence would only be

increased marginally – if at all – if allowed on habeas, while there would be substantial costs for society in permitting guilty defendants to go free and in undermining respect for criminal justice system.

1. But see…Rose v. Mitchell (if racial discrim); Kimmelman v. Morrison (if given no fair opportunity in state court)

3. No New Rules, See AEDPA and Teague4. Habeas prisoners cannot complain about state law.5. Guilt or Innocence Not Determinative: Traditionally, the availability of habeas review did

not depend upon a claim that the prisoner was innocent of the crime. Justice Brennan worried – in dissent – that Stone would limit habeas corpus to matters relating to guilt or innocence. Despite his fears, decisions since Stone have not adopted that rule, and habeas is not limited to claims of innocence. However, true innocence – without more – is likely not sufficient for habeas review either (see “extraordinarily high threshold” in Herrera).i) Jackson v. VA – d/p concerns (no reasonable juror would have found guilt BRD) allowed

innocence claim d/p violation can be const claimii) Herrera v. Collins (1993) (actual innocence does not guarantee habeas relief, need Const.

violation): The function of habeas review was to redress constitutional violations, not to correct factual efforts. Review of freestanding innocence claims would disrupt the strong state interest in finality. a. But see…We may assume, for the sake of argument, that in a capital case a truly persuasive

demonstration of actual innocence would warrant habeas relief if there were no state avenue open to process such a claim. However, the petitioner’s showing in this case fell far short of the extraordinarily high threshold for such an assumed right.

PREREQUISITES FOR FEDERAL HABEAS CORPUS A. The Custody Doctrine: Petitioners who wish to file federal petitioners pursuant to §§ 2241

and 2254 must allege that they are in “custody” in violation of federal law. 1. Does not demand actual incarceration, but can be satisfied by constructive restraints on

liberty. i) In criminal prosecutions, it is enough if petitioners are subject to bail or parole

conditions. ii) If just a fine, no habeas claim allowed. iii) Not Moot: If you file before getting released claiming that the conviction was erroneous,

the claim doesn’t become moot..a. But, if you are only attacking the sentence, claim become moots on release.

B. The Exhaustion Doctrine: 28 U.S.C. § 2254 (b)-(c): prisoners MUST EXHAUST ALL STATE JUDICIAL OPPORTUNITIES to litigate federal claims before presenting those claims to federal courts in habeas petitions. Rule rests on “comity:” respect for state court decisions by fed. Jud.

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1. Rationale: (1) to avoid federal interference with state processes and (2) to preserve the state courts’ role in the making and enforcement of federal law.

2. Exhaustion Requirement: Prisoners must identify the substance of their federal claims for consideration in state court and present the courts with the facts on which the claims may exist. i) A prisoner cannot present the state courts with one claim and then advance a different

claim in federal court. ii) Nor is it enough merely to identify a legal claim in the abstract.iii) Exception: Civil Rights Claims: Exhaustion under 1983 not required. Often a Q of

whether claim is properly a habeas or 1983 claim. But if complaining about prison conditions, must exhaust administrative remedies.

3. Must Exhaust Direct AND Collateral Claims: Prisoners must also exhaust in any available state post-conviction procedures aimed to correct fundamental errors not corrected at trial or on direct review. This includes any and all discretionary avenues of review.i) §2254(c): An applicant shall not be deemed to have exhausted his state remedies “if he

has the right under the law of the state to raise, by an available procedure, the questions present.”

ii) O’Sullivan v. Boerckel (1999): The Court held that prisoners ordinarily must seek discretionary review in the highest state court in order to satisfy the exhaustion doctrine and keep their claims available for federal habeas.

iii) State Habeas Review Usually Not Required: Except when the federal claim could only be raised on habeas in the state system (ineffective assistance of counsel, original counsel wouldn’t raise it at trial, will come up for the first time during habeas)

4. Claim Must have been Raised and Decided on the Merits: Pursuant to 28 U.S.C. 2264(a), a federal court entertaining a habeas corpus petition from a prisoner on death row can consider only claims that were previously “raised and decided on the merits” in state court.

5. No Ruling on Claim Required: A prisoner cannot force a state court to actually address the merits of a claim. Thus, it is enough if the highest state court has a fair opportunity to reach the merits, even if the court declines do so on procedural grounds or overlooks or disregards the claim without explanation.

6. Dismiss Without Prejudice: When a petition fails to satisfy the exhaustion requirement, the premature petition is usually dismissed without prejudice (or “put on hold” so to speak) in order that a renewed writ, filed when no state court avenues for litigation remain open, may be filed in the future.

7. “Mixed Petitions” Should Be Dismissed in Entirety: Prisoners sometimes file habeas corpus petitions containing multiple claims, some of which are ready for federal adjudication and some of which are not. These “mixed petitions” will be dismissed by the federal district courts in their entirety.i) Two Options Post-Dismissal: A prisoner who has submitted a mixed petition which was

dismissed in its entirety has two options: a. PURSUE AVAILABLE STATE COURT LITIGATION opportunities for the

claims that are premature and then return to federal court when exhaustion doctrine is satisfied with all claims.

b. ABANDON ANY CLAIMS that are NOT YET EXHAUSTED and proceed with the claims the state courts have already had an opportunity to address.

ii) Alternative – Habeas Court Ignores Failure and Denies Relief on the Merits: Pursuant to § 2254 (b)(2), a federal district court “may” ignore a prisoner’s failure to exhaust, provided the court denies relief “on the merits.” This is sensible only when the claims are so frivolous that there is no chance that a state court would sustain them – i.e. federal court should only leapfrog the exhaustion requirement and deny relief on the

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merits when it is “convinced” that a claim has “no merit” and that it would be useless to send prisoner to state court.

i. Allows Federal Court to Decide Meritorious Claims: (Judicial efficiency)iii) Alternative – Express Waiver by State: Under §2254(b)(3), a state may choose to

overlook a prisoner’s failure to satisfy the exhaustion doctrine, however this waiver must be done expressly. States’ attorneys cannot forfeit or waive the exhaustion requirement through inattention or failure to raise an objection.

iv) Alternative – Habeas Statute Says No Exhaustion Doctrine for Death Row Inmates: Under §2264(a), a district court entertaining an application from a death row prisoner must determine at the threshold whether federal adjudication if foreclosed because a claim was not presented in state court. If the court determines that a claim is not barred because of procedural default, §2264(b) instructs the court to consider the claims “properly before it” in light of paragraphs (a), (d) and (e) of §2254. Accordingly, paragraphs (b)-(c) – i.e. the exhaustion doctrine – are not mentioned. a. One available inference is that §2264 jettisons the exhaustion requirement in the

interest of speeding capital cases through the federal courts. If this is what §2264 means, district courts in capital cases controlled by §2264 cannot enforce the exhaustion doctrine even if the respondent asks that the state courts be given the chance to consider the prisoner’s claim.

C. STATUTE OF LIMITATIONS ISSUES1. Normal Filing Deadline: Under §2244(d)(1), a prisoner in state custody must be in

federal court within one year after the latest of four dates:i) JUDGMENT BECAME FINAL by the conclusion of direct review or the expiration of

the time for seeking such review;ii) IMPEDIMENT TO FILING an application created by State action in violation of the

Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

iii) CONSTITUTIONAL RIGHT ASSERTED was INITIALLY RECOGNIZED by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

iv) FACTUAL PREDICATE of the claim or claims presented COULD HAVE BEEN DISCOVERED through the exercise of due diligence.

2. Time Limit Tolled During State Post-Conviction Review (like state habeas): §2244(d)(2), the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation

3. Death Penalty Cases: Under §2263(a), must be filed not later than 180 DAYS AFTER FINAL STATE COURT AFFIRMANCE of the conviction and sentence on direct review or the expiration of the time for seeking such review.i) Tolling Rules for Death Penalty Cases: Under §2263(b), the time requirements

established by subsection (a) shall be tolled—a. From the date that a petition for CERTIORARI IS FILED IN THE SUPREME

COURT until the date of final disposition of the petition if a State prisoner files the petition to secure review by the Supreme Court of the affirmance of a capital sentence on direct review by the court of last resort of the State or other final State court decision on direct review;

b. From the date on which the first PETITION FOR POST-CONVICTION REVIEW or other collateral relief is filed until the final State court disposition of such petition; and

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c. During an ADDITIONAL PERIOD not to exceed 30 DAYS, if -- (A) a motion for an extension of time is filed in the Federal district court that would have jurisdiction over the case upon the filing of a habeas corpus application under section 2254; and (B) a showing of good cause is made for the failure to file the habeas corpus application within the time period established by this section.

PROCEDURAL DEFAULTS IN HABEAS CASES A. Procedural Defaults Generally: If petitioner failed to present a federal defense in state court

because of a procedural default in that court, he will be precluded from asserting that defense on federal habeas review.1. Examples: failure to take timely appeal of state conviction, failure to make contemporaneous

objection to introduction of evidence, failure to timely challenge racial composition of jury.2. Rationale: Enforces the exhaustion doctrine. If prisoners could routinely commit

procedural default in state court without suffering any consequences, they might do so deliberately, thus satisfying the exhaustion requirement simply by eliminating any current state court avenue for vindicating their federal claims.i) Historical Approach – The “Deliberate-Bypass” Standard: In Fay v. Noia, the Court

stated that federal habeas courts should decline to entertain claims that prisoners intentionally withheld from state courts for strategic, tactical, or any other reasons that could fairly be described as the deliberate by-passing of state procedures.

B. Modern Doctrine: Procedural default in state court forecloses federal habeas corpus, 1. Except in cases in which there is a good reason for excusing a failure to comply with state

procedural rules.i) Wainwright v. Sykes (1977) (failure to make a timely objection under the state

contemporaneous objection rule bars federal habeas corpus review of the admitted inculpatory evidence): a. Rationale: The deliberate-bypass standard failed to accord sufficient respect to the

state interests served by contemporaneous objection rules, invited petitioners and their lawyers to sandbag state courts, and generally treated state criminal trials as a tryout on the road to federal habeas corpus rather than as the main event for the adjudication of all issues pertaining to a criminal case.

C. New Procedural Default Standard…1. There must be a state procedural rule requiring a prisoner to raise a federal claim in a

particular way or at a particular time. 2. The prisoner must have failed to comply with that rule, and for that reason, the state courts

must be unwilling to consider the claim.3. The federal district court must determine whether the state courts’ procedural disposition of

the claim would constitute an adequate and independent state ground of decision that would defeat jurisdiction in the supreme court if on direct review. If the state courts’ procedural ground would cut off direct supreme court review, the district court typically will refuse to entertain the claim.

4. BUT, a district court CAN consider a claim on the merits DESPITE an ADEQUATE STATE PROCEDURAL GROUND for rejecting it if Cause & Prejudice, Actual Innocence, or Novel Constitutional Claimi) Cause & Prejudice : The prisoner shows both CAUSE for having failed to raise the

claim properly in state court AND ACTUAL PREJUDICE resulting from the default OR 1. Cause : Show that some objective factor EXTERNAL to the defense

impeded counsel’s efforts to comply with a state’s procedural rule. Thus, cause can be shown…

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i. If, at the time counsel might have advanced a claim in state court, the factual or legal basis for the claim was NOT REASONABLY AVAILABLE – however, defense attorneys have no cause for withholding a claim simply because the existing precedents suggest that it is unlikely to succeed.

ii. If STATE AUTHORITIES INTERFERED with counsel’s ability to comply with a rule, making compliance with the procedural rule “impracticable”;

iii. It is unlikely that counsel will say they are themselves ineffective, so Defendant’s should be able to get relief for ineffective counsel: If counsel’s failure to follow a procedural rule was so fundamentally incompetent and prejudicial as to constitute INEFFECTIVE ASSISTANCE OF COUNSEL in violation of the Fourteenth and Sixth Amendments – however, this ineffectiveness must be at the trial or appellate stages, as there is no constitutional right to counsel for prisoners seeking state post-conviction relief. Will require filing state habeas first.o Novelty and/or Futility Does Not Constitute Cause: The Court has held

that futility of raising an objection at trial (Engle v. Isaac (1982)) and the novelty of a constitutional claim (Reed v. Ross (1984)) do not constitute cause for the Sykes standard.

o Ineffective Assistance of Counsel is Cause: Although ineffective assistance of counsel may serve as cause for the Sykes standard (Edwards v. Carpenter (2000)), the right to counsel does not extend to postconviction proceedings and a petitioner cannot claim constitutionally ineffective assistance in such hearings (Coleman v. Thompson (1991)). Requires filing state habeas.

o External Impediment/Government Interference as Cause: Where the government’s withholding of information is purposeful for racist reasons (Amadeo v. Zant (1988)) or inadvertent but the attorney relied on an official policy (Strickler v. Green (1999)), this external impediment constitutes cause for Sykes.

b. Prejudice : A prisoner must also show “prejudice” by proving that the federal error complained of so infected the entire trial that the resulting conviction was unconstitutional (United States v. Frady (1982)) (might not have been convicted)

ii) Actual Innocence : The prisoner demonstrates that the federal error that went uncorrected in state court “probably resulted in the CONVICTION OF ONE WHO IS ACTUALLY INNOCENT.” ORa. ACTUAL INNOCENCE TEST: In extraordinary cases, where a constitutional

violation has probably resulted in the conviction of one who is actually innocent, a federal court can address the merits of a claim even in the absence of a showing of cause (Schlup v. Delo (1995); House v. Bell (2006)). i. Standard: A prisoner who hopes to satisfy the probable innocence standard

must…1. Support his allegations of constitutional error with NEW RELIABLE

EVIDENCE – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was NOT PRESENTED AT TRIAL. AND

2. On the basis of that new evidence, the prisoner must show that it is MORE LIKELY THAN NOT that NO REASONABLE JUROR WOULD HAVE CONVICTED HIM in light of the new evidence.

iii) Novel Constitutional Claim , but not very useful, b/c there is only a narrow gap here when considering Teague (no collateral review of novel laws). So if it’s novel constitutional claim, they are out of luck under Teague unless it falls under one of the Teague exceptions.

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5. §1983 cannot be used by prisoner to get out of prison w/o using proper habeas procedures. Can use it to like improve prison conditions (get meds, etc), but have to follow procedure otherwise to get out.

PRIOR STATE COURT DECISIONS OF LAW & FACT-FINDING A. Section 2254(d) & Prior State Court Decisions: § 2254(d) becomes applicable to a habeas

corpus petition if a state court previously “adjudicated” a claim “on the merits” and that adjudication “resulted” in a “decision” that was also “on the merits.” Therefore, §2254(d) is only implicated if a state court previously investigated whether a claim had sufficient factual and legal support to establish a violation of federal law and decided the claim did not.

B. No Habeas if claim was adjudicated on merits unless Contrary to/unreasonable application of clearly est. fed law or unreasonable determination of the facts1. §2254(d): No habeas for any claim that was ADJUDICATED on the MERITS in State court

proceedingsi) UNLESS the adjudication of the claim resulted in a decision that was

a. CONTRARY TO, or b. INVOLVED AN UNREASONABLE APPLICATION OF,

i. …CLEARLY ESTABLISHED Federal LAW, as determined by Supreme Court of the United States;

c. OR Resulted in a decision that was based on an UNREASONABLE DETERMINATION of the FACTS in light of the evidence presented in the State court proceeding.

C. Clearly Established Federal Law?: Law must be established by the U.S. Supreme Court at the time his state-court conviction became final. If a federal habeas court concludes that a state court decision rejecting a prisoner’s claim was correct in light of the Court’s holdings at that time, that decision is dispositive and the claim must be dismissed.

D. Contrary To: if the state court arrives at a conclusion OPPOSITE to that reached by SCOTUS on a question of law OR (ii) if state court decides a case differently than this Court has on a set of MATERIALLY INDISTINGUISHABLE FACTS.

E. Unreasonable Application: A state-court decision involves an unreasonable application of the Court’s precedent if…1. The state court identifies the correct governing legal rule from this Court’s cases but

UNREASONABLY APPLIES to the facts of the particular state prisoner’s case; or2. The state court either UNREASONABLY EXTENDS a legal principle from our precedent

to a new context where it should not apply OR unreasonably REFUSES TO EXTEND that principle to a new context where it should apply.i) Objective – Not Subjective – Determination: The “unreasonable application” clause is

not concerned unreasonable judges; rather it is concerned with “objectively unreasonable state court decisions.”

ii) Erroneous Not Enough, Must be Unreasonable Determination: §2254(d)(2) permits habeas relief only if a state court’s decision was anchored in a determination of the facts that was not only wrong, but was also unreasonable.

F. Unreasonable Determination of the Facts: Fact Finding In State Court Presumed Correct, Section 2254(e) :

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1. Burden on applicant to rebut: §2254(e)(1), State court factual determinations presumed to be correct.i) The applicant can rebut the presumption of correctness by clear and convincing

evidence. 2. Usually No Evidentiary Hearing If Failed to Develop Facts, §2254(e)(2):

i) Failed To Develop: If the prisoner was himself responsible for inadequate fact-finding in state court.a. If the prisoner is not at fault, he gets an evidentiary hearing.

ii) Lack of Diligence Standard: A failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel. This diligence depends on whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court. It does not depend upon whether those efforts could have been successful.a. Michael Williams v. Taylor (2000) (§2254(e)’s “failure to develop” requirement means a

lack of diligence or some greater fault attributable to the prisoner or his counsel): The statute does not bar the evidentiary hearing petitioner seeks on his juror bias and prosecutorial misconduct claims. The defense counsel had no reason to know what was going on and he could not be faulted for failing to visit the hall of records and learning the truth of the history of the conflicted juror. i. Davis: Cop sentenced to death, bringing up new evidence, SCOTUS refers petition to

D.Ct for fact finding.3. Exception: If the applicant FAILED TO DEVELOP THE FACTUAL BASIS of a claim

in State court the court may hold an evidentiary hearing on the claim IF: i) The claim relies on—

a. A NEW RULE OF CONSTITUTIONAL LAW, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

b. A FACTUAL PREDICATE that could NOT have been PREVIOUSLY DISCOVERED through the exercise of due diligence; AND

c. Innocent: The facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, NO REASONABLE FACTFINDER would have found the applicant GUILTY of the underlying offense.

THE TEAGUE RETROACTIVITY DOCTRINE A. Retroactivity Doctrine in Habeas Corpus:

1. Teague v. Lane (1988) The case that defendant relied upon only held that the Sixth Amendment requires that jury venire be drawn from a fair cross section of the community – not that the juries actually chosen must mirror the community and reflect various groups in the population. Accordingly, the rule urged by the defendant would be a new constitutional rule. Further, because the absence of a fair cross section of the jury venire does not undermine the fundamental fairness that must underlie a conviction, the exceptions are not applicable.

2. Basically redundant anyways, since under AEDPA, can only get relief for decisions contrary to clearly established federal review.

B. RETROACTIVITY RULE: In Habeas cases federal courts apply the rule of law that prevailed when the prisoner’s conviction became final on direct review. it does not apply the rule of law – including new rules – that prevails when the prisoner appears in federal court. 1. EXCEPTIONS :

i) Not Illegal Anymore: New rules that place certain kinds of PRIMARY, PRIVATE INDIVIDUAL CONDUCT beyond the power of the criminal law-making authority to proscribe – i.e. the new substantive rule makes the conduct no longer criminal or prohibits the death penalty in cases such as this.

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a. Changes in Substantive Law: This is meant primarily to cover cases in which federal substantive law develops to insulate citizens from criminal punishment at all – e.g. finding a law which made it a crime for married people to use contraceptives violative of due process (Griswold v. Connecticut); i. Penry v. Lynaugh (1989): The only decision finding the first exception, and presented the

claim that execution of a prisoner with the mental capacity of a seven-year-old violated the Eighth Amendment.

ii) Fundamental Fairness: New rules without which the LIKELIHOOD OF AN ACCURATE CONVICTION is SERIOUSLY DIMINISHED – i.e. “watershed rules” of criminal procedure changing “bedrock procedural elements” and which are necessary for the fundamental fairness of the criminal proceeding.a. Changes in Procedural Law: A new rule must not only “seriously diminish the likelihood of

obtaining an accurate conviction” and it must also “alter the court’s understanding of the bedrock procedural elements essential to the fairness of a proceeding.” To date, the Court has never recognized a new rule that fit the second exception!

C. DEFINING A NEW RULE: A case announces a new rule when it breaks new ground or imposes a new obligation on the government. In subsequent cases, the Court has been clear that clear breaks from precedent are not necessary, but rather gradual developments in the law over which reasonable jurists may disagree can also produce entirely new rules.

i) Evidence of a New Rule: a “new rule” can be evidenced…a. Breaks New Ground: or imposes new obligation on States or Fed Govt.b. Lack of Cited Precedent in “New Rule” Case: If a holding does not rely or cite any

precedent, this is good evidence that the decision constitutes a “new rule.” Precedent is not cited if a case merely uses the citation “c.f.” indicating authority supporting in only dictum or analogy.

c. Reasonable Jurist Reaching Different Result: If a reasonable jurist could have reached a different result than the decision in the case, the decision likely constitutes a “new rule.” (Butler)

D. Determining the Old Law: a habeas court should survey the legal landscape as it existed on the date conviction became final to determine whether a state court considering the claim would have felt “COMPELLED BY EXISTING PRECEDENT” to conclude that the rule the defendant seeks was constitutionally required.

E. Refusing to Announce a New Rule Unless Retroactive: If no exceptions implicating fundamental fairness concerns, the Supreme Court generally refuses to announce new rules unless the rule would be applied retroactively to the defendant and all others similarly situated. Accordingly, when reviewing a habeas petition, the Court will not announce a new rule unless it fits in one of the exceptions.1. Can’t expect a state court to have followed a rule that didn’t exist at time of trial.

F. State courts not bound by Teague: States can give further remedies that fed courts would not themselves afford and could consider new rule that would not be applied retroactively on habeas (Danforth v. Minn)

G. Notable Timing Situations1. One-Year Statute of Limitation to file Habeas Petition under a “New Rule”: Under

§2255, “a 1-year period of limitation shall apply to a [habeas petition] under this section . . . from . . . (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

2. New Rule When Cert. is Pending (fed court will consider new rule) (Direct Review by Cert): If the Supreme Court handed down a decision announcing a new rule after the date on which the state’s highest court affirmed a prisoner’s conviction and sentence but before the time for seeking cert runs out or the Supreme Court denies a petition for certiorari review, the prisoner is entitled to the benefit of

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the new rule in federal court, even though the state court of last resort had no opportunity to consider it on direct review.

3. New Rule When Case in State Court Post-Conviction (state gets to review): If the Supreme Court announces a new rule after a prisoner’s conviction and sentence became final on direct appeal, but before the highest state court considers a claim based on the new rule in state post-conviction proceedings, the state court does have an opportunity to apply the new rule but may decline.

H. Finality: When state court appellate proceedings ended or when SCOTUS cert was denied.1. Criticism: The major criticism of the retroactivity doctrine is that the date of “finality” is an

arbitrary cutoff. A prisoner may be benefited by slow trial or direct appeals process. This is especially problematic with co-defendants convicted of the same crime.

SECOND OR SUCCESSIVE PETITIONS – “ABUSE OF THE WRIT”A. Historical Approach – Deliberate Bypass Standard: In the Warren Court era, the Supreme

Court generously allowed multiple federal habeas petitions. The prisoner’s new claim could only be dismissed if he had abused the habeas corpus remedy by deliberately bypassing the opportunity to raise the claim in the initial application.1. Sanders v. United States (1963): Held: A federal court may give “controlling weight” to denial of a

prior application for collateral review only if that application had rejected the present claim on the merits and if the ends of justice would not be served by reaching the merits of the subsequent application.i) But See McCleskey v. Zant (1991): Held: The failure to raise a claim in an earlier federal habeas

petition will be excused only by showing that (i) cause and prejudice, or (ii) that a fundamental miscarriage of justice would result from a failure to entertain the claim.

B. Claims Previously Presented Will be Dismissed: 1. Under §2244(b)(1), a claim that was presented in a previous §2254 habeas petition “shall be

dismissed.” i) Does Not Apply to Dismissals on Technical Grounds: If, for example, a claim was

dismissed on a prior occasion because the prisoner failed to exhaust state opportunities for litigating the claim, when the prisoner satisfies the exhaustion doctrine §2244(b)(1) permits another petition.

C. Claims Not Previously Presented: Under §2244(b)(2), a claim raised for the first time in a second or successive habeas petition may be considered, IF:1. New Constitutional Basis: The applicant shows that the claim relies on a NEW RULE OF

CONSTITUTIONAL LAW, made retroactive to cases on collateral review by Supreme Court, that was PREVIOUSLY UNAVAILABLE; OR

2. Both: i) New Facts: The FACTUAL PREDICATE for the claim could NOT HAVE BEEN

DISCOVERED previously through the exercise of due diligence; ANDii) Innocence: The facts, if proven and viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that, but for constitutional error, NO REASONABLE FACTFINDER would have found applicant GUILTY of the underlying offense.

D. Original Habeas Jurisdiction of Supreme Court Not Barred by Successive Petitions: Section 2244(b) instructs for the grant or denial of authorization by the court of appeals. In Felker v. Turpin (1996), the Court ruled that the statute did not preclude a prisoner from filing a petition in the Supreme Court seeking original writ of habeas corpus.

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