11/8/09 1:59 PM← PART ONE: CONSTITUTIONAL AND STATUTORY LIMITS ON FED JUR← I. STANDING← A. Introduction← 1. Values served by limiting standing

Promotes separation of powers by restricting the availability of judicial review Judicial efficiency by preventing a flood of lawsuits by ideological stakeholder Improves judicial decision-making by ensuring that there is a specific

controversy before the court and that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter

← 2. Requirements for Standing π must allege that he suffered an injury or imminently will suffer an injury π must allege that the injury is fairly traceable to the ∆’s conduct π must allege that a favorable federal court decision is likely to redress the

injury Three Prudential Standing Requirements

o Party may generally assert only his own rights and cannot raise the claims of third parties not before the court

o Π may not sue as a TP who shares a grievance in common with other TPs

o Party must raise a claim within the zone of interests protected by the statute in question

← B. Injury GR: π must allege that he suffered an injury or imminently will suffer an injury

← 1. Requirement for a personally suffered injury Sierra Club – No Standing, special interest in conservation and maintenance

of park not enough, since there was no allegation that members had ever used park area

SCAP – Standing, Aesthetic and environmental injuries are sufficient for standing so long as π claims to suffer the harm personally

Lujan v NWF – No Standing, π not entitled to standing unless they could demonstrate that they used specific federal land that was being mined under the new federal regs

Hays – Depends, Only individuals residing within a district suffer an injury from how the lines for that district are drawn, π residing in racially gerrymandered district has standing, π residing outside does not

Friends of Earth – Standing, environmental πs adequately allege injury in fact when they aver that they use the affected area and are persons “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity

← 2. Application of Requirement for personally suffered injury City of LA v LYONS – π seeking injunctive or declaratory relief must show a

likelihood of future harm; though a suit for damages could have been brought Lujan v Def of Wildlife – No standing, πs could not show a sufficient likelihood

that they would be injured in the future by a destruction of the endangered species abroad

← 3. What injuries are sufficient Common law, constitutional, Statutory

← (a). Injuries to common law rights TN Electric v TVA – No standing, unless right invaded is a legal right such as

property, K, tortious invasion← (b). Injuries to constitutional rights

Person who claims discrimination or a violation of an individual liberty will have standing

Laird – Chilling of rights due to surveillance of domestic groups is not an adequate substitute for a claim of specific present objective harm

Beware of generalized grievances - Schlesinger← (c). Injuries to statutory rights – citizen suit provisions

Lujan v Def of Wildlife – No, Congress could not create standing by creating a provision in the Act that allowed any person to commence a civil suit to enjoin a violation

Friends of Earth – Yes, π’s had met the injury requirement b/c they had alleged that they used the area for recreational purposes and b/c the citizen-suit provision authorized litigation

← (d). Other injuries sufficient for standing

SCRAP – Yes, aesthetic or environmental harm is sufficient to constitute an injury

Lujan – Yes, desire to use or observe an animal species, even for purely aesthetic purposes is a cognizable interest

← C. Causation and Redressability← 1. Key Cases concerning causation and redressability

‘fairly traceable to the ∆’s allegedly unlawful conduct and likely to be redressed by the requested relief”

← (a) LINDA RS – lack of redressability Even an injunction commanding state prosecutions would not ensure that the

π’s woulc receive any additional child support money← (b) WARTH – lack of redressability

Even though there was injury, π’s could not show that appropriate housing would be constructed w/o exclusionary zoning ordinances, may not be able to afford housing or builders may choose not to build

← (c). SIMON – lack of causation and redressability Purely speculative that IRS RR was responsible for denial of medical services

and complaint suggests no substantial likelihood that victory in this suit would result in respondents’ receiving the hospital treatment they desire

← (d). DUKE POWER – causation and redressability met Since construction of a nuclear reactor in the π’s area subjected them to

many injuries, including exposure to radiation, but for the Act there would be no reactor

← (e). ALLEN – Lack of causation From perspective of the IRS the injury is highly indirect and results from the

independent action of some third party not before the court← D. Limitation on Third Party Standing

GR: π can only assert injuries that he suffered and cannot present the claims of 3rd parties who are not part of the suit

Exceptions x 3 N: Still must meet the Injury, Causation, Redressability requirements

← 1. Exception: Where the Third Party is unlikely to be able to sue IF there are substantial barriers to the 3rd party asserting his own rights and if

there is reason to believe that the advocate will effectively represent the interests of the 3rd party

Eisenstadt -

← 2. Exception: Close relationship between π and third party Singleton – doctors challenged laws limiting patients rights to abortion, court

considered doctor’s closeness with patient and intimate involvement with abortion decision

Craig – Vendors asserts rights of their customers; male underage law S; Each suffered an economic loss

← 3. Exception: The overbreadth doctrine Appears limited to 1stA cases, reflects a fear that an overbroad law will chill

protected speech← E. Prohibition against generalized grievances

IF π alleges a violation of no specific constitutional right, but instead claims an interest only as a taxpayer or a citizen in having the gov’t follow the law, standing is not allowed

← 1. Sequence of Decisions: Four sets of cases Frothingham – no standing b/c interests in treasury money was comparatively

minute and indeterminable Ex parte Levitt – π challenging SCOTUS appointment had no standing since

he had a mere general interest in common to all members of public BUT, Flast – Taxpayer standing to challenge federal subsidies to parochial

schools as violating the 1stA prohibition against establishment of religiono TP Standing requirements

Logical link between TP status and type of legislation enactment attacked

Nexus between TP status and precise nature of the constitutional infringement alleged

S: Need to show constitutional violation and not mere exceeding scope of powers

Schelsinger – TP failed to allege violation of specific constitutional right, injury was interest in having government follow the law, not enough

Valley Forge – TP sued only with interest in gov’t following the law in challenging an agency transferring property to religious group

← 2. Generalized grievance as a constitutional bar Lujan – generalized grievance claimed and Congress cannot by statute

authorize standing in such an instance

Citizen suits – Lujan suggests that these provisions in statutes are unconstitutional except in instances where π can otherwise demonstrate an injury sufficient for standing

BUT See, FEC v Akins – Congress by statute can create rights that would not otherwise exist and the alleged violation of those rights is sufficient for standing, even under broad citizen suit provision and even where the injury is widely shared in society

o Denial of right was concrete injury← F. Requirement that the π be within the Zone of Interests protected by statute← 1. Creation of the requirement

Applies when a person is challenging an administrative agency regulation that does not directly control a person’s actions

Π can sue if he can show that he is within the group intended to benefit from the statute, provided constitutional requirements met

Data Processing – π must allege that the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question

← G. Special Standing Problems: Organizations, government entities← 1. Organizational Standing

Sierra Club – Standing to sue only if members would be affected in a tangible way by the challenged action

Hunt – three part test; association has standing for its members wheno 1. Its members would otherwise have standing to sue in their own righto 2. The interests it seeks to protect are germane to the organization’s

purpose ANDo 3. Neither the claim asserted nor the relief requested requires the

participation in the lawsuit of the individual members← 2. Suits by government entities

Wy v Ok – WY had standing to sue OK when OK passed a law requiring OK utilities to buy OK coal, WY had direct injury – loss of tax revenue

← 3. No such suits against the federal government ← H. Related Doctrines – Mootness← 1. Wrongs capable of repetition yet evading review – Two requirements ← (a). Injury must be the type likely to happen to the π again

← (b). Injury must be the type of injury inherently of limited duration so that it is likely to always become moot before federal court litigation is completed← 2. Exception: Voluntary cessation

Friends of Earth - ∆’s voluntary cessation not enough, must be absolutely clear that the allegedly wrongful behavior could not reasonably be expected to reoccur

← 3. Statutory Change Mesquite – City’s repeal of the objectionable language would not preclude it

from reenacting precisely the same provision ← 4. Exception: Class Actions ←← II. LIMITS ON FEDERAL COURT JURISDICTION – FEDERAL QUESTION ← A. Meaning of “arising under” federal law for purposes of Article III← 1. Osborn v Bank of US

GR: Under the Constitution, a case arises under federal law whenever federal law form an ingredient of the original cause

o Even though other questions of fact or law may be involved H: Since the Bank of the US was created by federal law, any action brought

by it arose under federal law← 2. Protective Jurisdiction – Lincoln Mills

Congress may authorize federal court jurisdiction where it believes that federal court availability is necessary to protect important federal interests

S: Broad definition of arising under adopted in Osborn means that most matters will fit within the scope of Article III’s authorization for jurisdiction

← B. Meaning of “arising under” federal law for purposes of the federal question jurisdiction statute← 1. Principles for determining if a case arises under federal law

28 USC § 1331 provides that the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US

R: §1331 has much narrower meaning than Art III GR: A case arises under federal law if it is apparent from the face of the

complaint either that the π’s cause of action was created by federal law OR if the π’s cause of action is based on state law, a federal law that creates a cause of action or that reflects an important national interest is an essential component of the π’s claim

←

← III. FEDERAL COMMON LAW← A. Introduction

Fed C/L – legally binding federal law by the federal courts in the absence of directly controlling constitutional or statutory provisions

← B. The Development of Federal Common Law to Protect Federal Interests← 1. Introduction – Two part test

Court considers whether the matter justifies creating federal law IF federal law is to be developed, the Court decides its content

← 2. Federal C/L to protect federal proprietary interests in suits involving the US or its officers

Clearfield Trust – Federal courts may develop federal common law to protect the proprietary interests of the US

Little Lake Misere – State law may not be used to abrogate federal government Ks that acquire land for public uses; Two step inquiry used

o Matter was one that should be governed by federal law; federal interests needed to be protected

o Federal C/L principles should not be borrowed from state law when specific state provisions run counter to federal law

Yazell – State law applied to prevent recovery by US Small Business Administration on a loan it had issued, not a nation wide act of the gov’t but a specific tailor made action

FDIC – State law applies when FDIC sues in the shoes of an insolvent S/L← 3. Federal C/L to protect federal interests in suits between private parties ← (a). Refusal to create federal C/L

Don’t apply Fed C/L unless applying state law frustrates federal interests BoA v Parnell – state law should be used to decide the ability of private

parties to recover for conversion of a bond issued by the US, presence of federal commercial interests not sufficient to create federal C/L

Wallis v Pan Am Petro – State law should be applied unless there is a significant conflict between some federal policy/interest and use of state law

o Gap in statutory structure alone, not enough Miree – strong federal interest in aviation safety not enough McVeigh – use state law to determine issues concerning the obligations for

the insured to reimburse insurance company out of tort recoveries← (b) Federal C/L in cases involving private parties

Boyle – Federal C/L should determine the liability of a contractor providing military equipment to the federal gov’t

I: Whether a contractor should be liable under state tort law for injuries cause by design defects in products supplied to the military

H: 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

R: Contractor is not liable where the US approved precise specifications for the equipment, the equipment met those specifications, and the supplier warned the US about dangers in the use of the equipment known to the supplier but not the US

← C. Development of Federal C/L to effectuate Congressional Intent← 1. Introduction

SC creates Federal C/L when it believes it necessary to effectuate the intent behind a federal statute

← 2. Congressional authorization for federal courts to create a body of C/L Rules Lincoln Mills – Court upheld federal jurisdiction on the ground that Congress

intended for the federal courts to develop a body of C/L; statute gave federal jurisdiction w/o any substantive federal provisions

← 3. Private rights of Action When federal courts may create private COA to enforce federal laws that do

not contain them← (a). Reluctance to create private rights of action

In some instances, the court has created COAs in the absence of express statutory authorization

COA for violation of constitutional rightso Court has inferred a COA for money damages against federal officers

from: 4thA – Bivens 5thA – Davis v Passman 8thA - Carlson v Green

← (b). Statues w/o private rights of action Canon/JI Case – Court will create COAs under federal statutes where it is

necessary to effectuate Congress’s intent← (c). Approaches in creating private rights of action

JI Case – Court would create private COA where it would help effectuate the purpose for a statute and if no legislative history mitigated against authorizing such a remedy

Cort v Ash – four part test o Is the π one of the class for whose benefit the statute was enactedo Indication of legislative intent either to create/deny such a remedyo Consistent with the underlying purposes of the legislative scheme to

imply such a remedy for the πo Is the COA traditionally relegated to state law, in an area of concern for

state, so that a inferred federal COA is inappropriateo Canon – used four part test to find private COA for Title IX violation

Touche Ross – must have affirmative evidence of Congress’s intent to create a private right of action

Alexander v Sandoval – No private right of action to enforce Title VI regs H: Scalia writes that for a private right of action to exist there must be rights

creating language in the statute;o The only right created in Title VI is the right to sue for discriminatory

purpose - no language for disparate impact; “Courts cannot conjure up causes of action that have not been

authorized by Congress”; “congress makes the law” and federal agencies cannot expand the rights given by a statute

←← PART TWO: FED COURT RELIEF AGAINST GOV’TS AND OFFICERS← IV. FED COURT RELIEF LOCAL GOV’TS & S/L GOV’T OFFICIALS – 42 USC §1983← A. Introduction

P: Function of federal courts is to provide relief against governments and government officers for their violations of the Constitution and laws of the US

§1983 – basis of most suits in federal courts against local gov’ts and state and local gov’t officers to redress violations of federal law

§1983 creates a COA against any person who, acting under color of state law, abridges rights created by the Constitution and laws of the US

← 1. Jurisdiction §1983 does not create jurisdiction, only state a COA

Jurisdiction is under §1331← 2. Rooker-Feldman Doctrine – No Appellate Review of State Decisions

Federal courts do not have jurisdiction pursuant to §1983 to review the judgments and decisions of state courts

← B. Historical Background of §1983 Litigation §1983 was meant to give broad remedy for violations of federally protected

civil rights; alters the relationship between the states and FG← C. The Meaning of “Under Color of State Law”← 1. Monroe v Pape – What is a state action

I: Whether the actions of city police officers could be deemed to have occurred under color of law b/c the conduct clearly was not authorized by the government

H: Actions taken by an officer in his official capacity are deemed under color of law even if they are not in pursuance of any official state policy and even if they violate the law

S: Government officer acts under color of law for all actions taken as an official that violate the Constitution and the laws of the US

← 2. “Under Color of Law” satisfied if there is a State Action The two are one and the same

← 3. Problems in defining “under color of law” WEST – Public EE acts under color of state law while acting in his official

capacity or while exercising his responsibility pursuant to state law← 4. Public EEs with independent duties to clients

Doctors are acting under color of state law in Estelle and West Public defenders employed by the state to represent indigent ∆s are not

o Polk County v Dodson← D. Exhaustion of State Remedies in NOT required for §1983 litigation

1. State judicial remedies need not be exhausted 2. State administrative remedies need not be exhausted – Patsy

3. Federal courts do not have exclusive jurisdiction over §1983 –Thibodout← E. Who is a “Person” for purposes of §1983 Liability? Municipal Governments← 1. Are municipalities “persons” and, if so, when are they liable? ← (a). Monroe – No Municipal Liability← (b). Monell – Municipal Liability

H: Local gov’t cannot be sued under §1983 for an injury inflicted solely by its EEs or agents

H: When execution of a gov’ts policy/custom, whether made by lawmakers OR whose edicts/acts may fairly be said to represent official policy, inflicts the injury that the gov’t as an entity is responsible under §1983

R: No good faith immunity for municipalities under §1983 since such immunity would frustrate the objectives of deterrence and risk spreading - OWEN

← 2. How is the existence of an official municipal policy proven? R: Cities are liable only for constitutional violations resulting from their official

policies and customs← (a). Actions of Municipal legislative bodies – five ways

Actions by the municipal legislative body constitute official policieso R: Single decision by a properly constituted legislative body constitutes

an act of official government policyo Owen – city council firing a gov’t official w/o providing procedural DP

Agencies exercising delegated authorityo R: When there are actions taken by municipal agencies/boards that

exercise authority delegated by the municipal legislative bodyo Monell – π challenged reg’s from Dept of Social Services

Individuals with final decision-making authorityo R: Actions by those with final authority for making a decision in the

municipality constitute official policyo Pembaur – order by a prosecutor to break down a doctor’s door

T: Officer must be responsible for establishing final government policy in order for municipal liability to attach

o Praprotnik – determination of whether a person has final decision-making authority in a particular area is a question of state law for the judge to decide

McMillian – In AL, county sheriff works for state not local gov’t Policy of inadequate training or supervision

o OKC v Tuttle – One instance is an insufficient basis for inferring the existence of a policy

o City of Canton – Policy of inadequate training requires proof of deliberative indifference by the local government

Failure to train in light of foreseeable serious consequences that could result from the lack of instruction

Failure to respond to repeated complaints of constitutional violations of its officers

Customo IF neither state law or city charter specifies who has final policy making

authority, the court can look to custom or usage - Jett← 3. Municipal Immunities← (a) No Qualified Immunity for Local Governments

Owen – local governments are liable even when their constitutional violations are a result of actions taken in good faith

← (b) No punitive damages though← F. Who is a “Person” for Purposes of §1983 Liability? Liability of Individual Officers← 1. Introduction to individual officers’ immunities

All officers possess some degree of immunity from liability← 2. Absolute immunity – focus on function performed rather than title

Judicial – absolute against monetary damage suitso Stump – no immunity if judge acts in clear absence of all jurisdictiono Forrester – no immunity for administrative functions

Legislative – absolute against money damages and injunctions

o Tenney Prosecutorial – absolute against money damages

o Imbler – knowingly using perjury testimony Cops serving as witnesses

← 3. Qualified immunity Good faith immunity for money damage suits; denial of which is immediately

appealable Scheur – In determining whether an act is in good faith

o It is the existence of reasonable grounds for belief formed at the time and in light of all the circumstances, coupled with GF belief that affords a basis for qualified immunity of executive officers

Wood – liability exists against an individual officer either by demonstrating that the officer acted unreasonably or with impermissible intent

Harlow – Gov’t officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known

o 1. Whether a constitutional right has been violatedo 2. Whether it is a clearly established right that a reasonable officer

should know← (a). Clearly established right

Hope - There need not be a prior decision on point in order for the π to show the existence of clearly established law

Brosseau – Court used the absence of clearly established law← G. Who is a “Person” for Purposes of §1983 Liability? State Governments & Territories

WILL – State governments are not persons under §1983 and thus may not be sued in state court; state officials cannot be sued in their official capacity in state court

← H. What Federal Laws may be enforced via §1983 Actions? Maine v Thiboutot - §1983 suits are available whenever any federal law has

been allegedly violated, creating a COA for violations of all federal statutes by those acting under color of state law

Sea Clammers - §1983 suits may not be used to enforce statutes that explicitly or implicitly preclude §1983 litigation

o Comprehensive enforcement mechanisms contained in these statutes demonstrated congressional intent to preclude the remedy of suits under §1983

← I. Atty’s Fees Available in §1983 litigation← 1. Statutes

1988(b) – Court in its discretion may allow a prevailing party attorney’s fees litigation. It goes to prevailing party not the lawyer

28 USC 2412(b) – Equal Access to Justice Acto Any prevailing party in any civil action brought against US or any

agency or official acting in his or her official capacity the court may award attorney’s fees

o E: 2412(d) – unless court finds the position of the US was substantially justified or special circumnstances make an award unjust you don’t get attorney’s fees

← 2. Lodestar Hensly guidelines for calculating a reasonable attorney’s fee under §1988(b)

o 1. Calculate the lodestar – number of hours reasonably expended on litigation multiplied by reasonable hourly rate

o 2. Consider factors that may raise or lower lodestar

← 3. Limited Success: Texas State Teachers Assoc v Garland Independent School District

Fees should be awarded where π succeeds on any significant issue in the litigation and achieves some benefit sought in bringing suit; purely technical or de minimus success does not count

S: if you prevail on significant issue, you win← 4. Nominal Success: Farrar v Hobby

When a π recovers only nominal damages b/c of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all

Compare with TRU/Tranny case – $1 award but there was an established public interest that is an exception to Farrar, tranny’s are to be protected

← 5. Survival of the Contingent Fee Venegas - §1983 controls what the losing ∆ must pay not what the prevailing

π must pay his lawyer

Π’s agreement of contingent-fee arrangement does not limit the recovery of atty fees from the ∆

Blanchard – π’s agreement to a contingent fee arrangement does not limit the recovery of atty fees from the ∆

← 6. Expert Witnesses WV Univ Hosp – no fee recovery for experts

← 7. Fee Awards for Time Spent in Administrative Proceedings Webb – Award of fees for work done while in state admin proceedings may

be awarded IF a discrete portion of work done in admin proceedings were both useful and of a type ordinarily necessary to advance civil rights litigation

← 8. Fee Awards for Disputes Settled prior to litigation I: Can a civil rights claimant whose dispute is settled w/o litigation sue for atty

fees? NC DOT – No, §1988(b) authorized fees only in an action or proceeding to

enforce the listed civil rights laws, there was no judicial complaint filed in underlying civil rights claim

S: make sure you file suit← 9. Notes on Attorneys Fees and Settlement Negotiations ← (a). Attorney’s Fees upon Settlement

Maher – Relief given in a consent decree based on a negotiated settlement in which the ∆’s did not concede the illegality of past practice; Court upheld award of fees

o R: A settlement that does not include atty fees leaves the ∆’s total exposure unsettled

← (b). Settlement Offers and Rule 68: Marek v Chesny Offers of Settlement – IF final judgment obtained by offeree is not more

favorable than the offer, the offeree must pay the costs incurred after the making of the offer

← (c). Settlement Conditioned on Waiver of Fees: Evans v Jeff D I: Whether the judge had a duty to reject the proposed settlement b/c it

included a waiver of fees H: Court found no such obligation in 1988(b)

←← V. FEDERAL COURT RELIEF AGAINST FEDERAL OFFICERS AND THE FG← A. Suits Against Federal Officer← 1. Introduction

← (a). Authority for Suits against Federal Officers – no federal statute authorizes federal courts to hear suits or give relief against federal officers who violate the Constitution

N: §1983 has NO application against federal officers There is prospective injunctive relief allowed – LARSON BIVENS – SC would infer a COA for damages directly from constitutional

provisions← (b). Limitations on Recovery

BIVENS only states that a COA is available Immunities may still apply Since Bivens suits are for constitutional violations, constitutional limits may

still apply← 2. The COA against federal officers for Monetary Relief

BIVENS - COA for money damages directly under constitutional provisions against federal government officers who violate federal rights

← (a). Law prior to Bivens πs could not sue federal officers for money damages only for injunctive relief

← (b). Facts and Holding In Bivens H: A federal law COA for money damages could be inferred directly from 4thA

← (c). Exception Recognized in Bivens No COA if there are special factors counseling hesitation in the absence of

affirmative action by Congress No COA if Congress has specified an alternative mechanism that Congress

believes provides an equally effective substitute← (d). Harlan’s Concurrence

Federal courts long have devised remedies for violations of federal law← (e). Dissent

Congress knows how to create a damages remedy See §1983

← (f). Expansion of Bivens Suits availability Bivens – 4thA Violation Davis v Passman – 5thA Carlson v Green – 8thA Bus v Lucas -1stA, not in this case but its possible

← (g). Does Bivens offend separation of powers does court exceed its proper role in creating a COA

← (h). Current Court’s attitude to Bivens suits Court has consistently refused to extend Bivens liability to any new context or

category of ∆s← 3. Exceptions: Situations where BIVENS suits are NOT allowed

Special factors counseling hesitation AND specified alternative mechanism Chilicky – Design of gov’t program suggests that Congress has provided what

it considers adequate remedial mechanisms for constitutional violations that may occur in the course of administration, no Bivens suit

← (a) Suits arising from military service Chappell – special nature of the military was a factor counseling hesitation Stanley – no Bivens remedy is available for injuries that arise out of or are in

the course of activity incident to service← 4. BIVENS suits against government and private entities ← (a). Federal agency not subject to liability for damages under Bivens

FDIC v Meyer← (b). 11thA bars Bivens suits against state governments← (c). Bivens suits against local governments

After MONELL held that municipalities could be sued under §1983, Bivens actions against local gov’ts less important

← (d). No Bivens suits against private entities FDIC v Meyer extended in Malesko

← B. Suits against the FG← 1. The principle of sovereign immunity

GR: Federal Government cannot be sued w/o its consent← (a) Statutes creating Federal Government liabiltity

FTCA Admin Procedures Act

← 2. Injunctive relief against the US ← (a). Injunctive relief allowed against federal officers

Larson v Domestic – Way around sovereign immunityo H: IF you sue a govt official and allege that he is acting in excess of

authority and its unconstitutional THEN govt official is not being sued as part of US because he has no authority to act unconstitutionally.

← 3. FTCA ← (a). FTCA creates government liability← (b). Westfall Act limits suits against government officials

Westfall Act is exclusive remedy for any tort claim resulting from the act or omission of a government EE acting w/in the scope of employment

o Exception: Bivens action for constitutional tort claims R: Torts suits against individual government EEs, for acts within the scope of

employment are barred if the AG certifies that the individual was acting within the scope of his employment. Remedy is against US in FTCA action

o Does not apply to Bivens constitutional tort cases← (c). Exceptions to FTCA liability

Intentional torts committed by EEs

Discretionary function exception Injuries arising from military service – Feres Doctrine

o Government is not liable for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service

←← VI. SUITS AGAINST STATE GOV’TS: THE 11TH A AND SOVEREIGN IMMUNITY← A. Introduction

11thA prohibits suits in federal courts against state governments in law/equity/admiralty by a state’s own citizens, by citizens of another state, or citizens of foreign countries

Sovereign immunity bars suits against state governments in state court without their consent – Alden v Maine

← B. History of the Ratification of the 11thA 11thA ratified to overrule Chisholm v GA Chisholm – Art III authorized suits against a state by citizens of another state

← C. The Application of the 11thA and Sovereign Immunity: What’s Barred and Allowed← 1. Suits Barred

Seminole Tribe – 11thA bars Indian Tribes from suing state governments in federal court without their consent

Hans v LA – 11thA bars suit by a citizen against his own state Alden v Maine – State governments cannot be sued in their own state courts

without their consent, based on sovereign immunity Federal Maritime Comm’sn – States cannot be named as ∆s in federal admin

agency proceedings, barred by sovereign immunity← 2. Suits Allowed

US Government v State State v State Bankruptcy proceedings – 11thA and sovereign immunity does not apply

o Central VA CC v Katz← 3. Suits against Cities

R: 11thA does NOT bar suits against municipalities or political subdivisions of a state

E: 11thA immunity does extend to local governments when there is so much state involvement in the municipalities’ actions that the relief in essence runs out against the state - Pennhurst

← 4. Immunity of State Agencies R: An agency of state government, such as department of health or treasury,

is a part of the state for purposes of the 11thA Vogt test for whether agency is state or local (5th emph’d first 4)

o How does state law characterized ∆o What is the ∆’s source of fundso How much local autonomy does ∆ haveo Is entity concerned more with local or state wide issueso Does entity have authority to sue in its own nameo Does entity have right to hold property on its own

← 5. Suits against local officials deemed to be state officer McMillian – county sheriff deemed to be a state officer

← 6. Denial of 11thA Immunity immediately appealable P.R. Aqueduct & Sewer Authority – 11thA creates a constitutional immunity

and not an affirmative defense and is thus immediately appealable← D. Ways Around the 11thA

11thA precludes suits against a state only when the state is actually named as the ∆ in the litigation – OSBORN

11thA prohibits federal court pendent jurisdiction over state law claims against state officers - PENNHURST

← 1. Suits against State Officers

← (a). Suits against state officers for injunctive relief – EX PARTE YOUNG EX PARTE YOUNG – 11thA does not preclude suits against state officers for

injunctive relief, even when the remedy will enjoin the implementation of an official state policy

o State officers are stripped of authority if they violate federal laws S: IF a state government is acting in violation of federal law, pursuant to an

unconstitutional statute or otherwise, suit to enjoin the impermissible behavior may be brought in federal court by naming the state officer as ∆

Home T&T v Los Angeles – individual conduct not entitled to 11thA immunity is nonetheless state action for purpose of the 14thA

← (b). Suits against state officers for monetary relief Ford Motor Co. – 11thA prevents an award of monetary relief from the state

treasury even when the individual officer is the named ∆ in the lawsuit R: 11thA does NOT prevent suits against state officers for money damages to

be paid out of the officers’ own pockets, even when the damages are retrospective compensation for past harms

← (c). Prospective v Retroactive relief 11thA does NOT prohibit a federal court from giving injunctive relief against a

state officer even though compliance with the injunction will cost the state a great deal of money in the future

Edelman – π sued for prospective injunction and back payo H: No injunction ordering back pay, even though officer named, the

funds would come from the state Milliken – upheld a school desegregation order requiring the expenditure of

state funds for educational aspects of a desegregation plan, including several remedial and compensatory education programs

WILL – Official v individual capacity suitso H: Suits against state governments, even in state courts, are not

permitted under §1983 and that suits against state officers in their official capacity are barred under this rule.

o S: State is never a person under 1983 Hafer – when is a suit against officer in official or individual capacity

o Official capacity suits are an attempt to sue the government entity by naming the officer as a ∆

o Individual capacity suits seek to impose individual liability upon a government officer for actions taken under color of law

o N: Acting in official capacity is not the determinative point← (d). Exception to EX PARTE YOUNG x 3

State officers may not be sued o On pendent state law claims

Pennhurst – federal courts are barred by 11thA from enjoining state officers from violating state law; though federal courts may hear federal claims against state officers

o To enforce federal statutes that contain a comprehensive enforcement mechanism

Seminole Tribe – Where Congress has prescribed a detailed remedial scheme for the enforcement against a state of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based on Ex parte Young

o To quiet title to submerged lands Coeur D’Alene – narrow holding that may show trend to

extending exceptions under EX PARTE YOUNGo Verizon – 11thA does NOT bar suits against federal officers when it is

alleged that there is a violation of federal laws← 2. Waiver

Atascadero – If a State waives its immunity and consents to suit in federal court, the 11thA does not bar the action; receipt of federal funds is not a waiever

Edelman – a state will have been declared to have waived its immunity only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction

College Savings – No constructive waiver of 11thA Lapides – State’s choice to remove a case from state to federal court is a

waiver of its sovereign immunity, narrow holding thougho H: Waiver when there are state law claims and the state has waived its

immunity as to these claims in state court← 3. Suits pursuant to Federal laws ← (a). Statutes adopted under §5 of the 14thA

Fitzpatrick – 14thA specifically was intended to limit state sovereignty and therefore congressional legislation under the 14thA can authorize suits directly against the states in federal court

Quern – though §1983 was adopted pursuant to §5 of the 14thA there was insufficient indication of an express congressional desire to make state governments liable under the statute

← (b). Statutes adopted under other congressional powers Seminole Tribe – Congress may abrogate the 11thA only when acting under

its §5 powers and not under any other constitutional authorityo Overruled Penn v Union Gas – Congress could override the 11thA

pursuant to any of its constitutional powers, so long as the law was explicit in its text in authorizing suits against state governments

← (c). Which statutes were validly enacted under §5 of the 14thA? City of Boerne I: Whether a statute was a proper exercise of Congress’s power under §5 Boerne – 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

o Any law must be narrowly tailored to solving constitutional violations; it must be proportionate and congruent to preventing and remedying constitutional violations

(d). The Intersection of Seminole Tribe and City of Boerne Federal laws that were not a valid exercise of power under §5 of the 14thA

and could not be used to sue state governmentso FL Prepaid Post-Secondary Education Expense – Patent Remedy Act

was not valid under §5 b/c the legislative record suggested that the Act does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress faced in enacting §5

o Kimel – ADEA is not a valid exercise of Congress’s power under §5, age discrimination is a rational basis review and not the kind with a history of purposeful discrimination

o Univ of Al v Garret – Title I of ADA is not a valid exercise, and not proportional or congruent to preventing and remedying constitutional violations

Federal laws within the scope of Congress’ power under §5 b/c they dealt with fundamental rights and types of discrimination that receive heightened scrutiny

o Nev Dept of HR v Hibbs – FMLA fits within scope of §5, protects right to be free of gender based discrimination in the work place; has more than a rational basis for review

o TN v Lane – Title II of ADA; Congress has greater latitude to legislate under §5 when dealing with a claim that receives heightened judicial scrutiny, whether b/c it is a fundamental right or a type of discrimination that receives heightened scrutiny

o US v GA – violation of C/UP rights of inmate, also had heightened scrutiny

o S: Must allege a constitutional violation←

← PART THREE: FED COURT REVIEW OF STATE COURT JUDGMENTS/PROCEEDINGS ← VII. ABSTENTION TO AVOID DUPLICATIVE LITIGATION← A. The Problem of Duplicative Litigation

I: What a federal court should do when an action filed in federal court essentially duplicates litigation simultaneously occurring in state court

← B. When Should Federal Courts Abstain b/c of Duplicative litigation in state courts← 1. No General Rule for Abstention

Kline v Burke Construction – there is no issue in running two suits at the same time in state court and federal court

← 2. Real property exception Donovan v Dallas - In actions concerning real property, whichever court has

jurisdiction first is entitled to exclusive jurisdiction over the matter Exception to Anti-Injunction Act – Federal court can enjoin other courts from

hearing the case Col River – The court that acquires jurisdiction can decide and prevent

duplicative proceedings in cases involving real property← 3. No preclusion of Concurrent jurisdiction in other areas

ATL Coast Line – Injunctions on state court proceedings are not allowed Donovan – State courts may never enjoin federal courts in in personam cases R: Frequently the same matter involving the same parties is simultaneously

litigated in federal and state courts at a great expenditure of additional resources

← 4. Federal courts need not abstain to avoid duplication

Brillhart – Circumstances where federal court deference to pending state proceedings might be appropriate

o H: Appropriate for the federal court to abstain if it was convinced that the controversy would be adequately settled by the state court proceeding

Rolled back in Col River and Moses Cone← 5. Colorado River Absention

I: Fed court stayed proceedings b/c of existence of parallel state proceedings R: Circumstances permit dismissal of a federal suit due to presence of a

concurrent state proceeding for reasons of wise judicial administration which are considerably more limited than circumstances appropriate for abstention

T: Factors to consider when determining whether the interests of wise judicial administration and comprehensive disposition > duty to exercise jurisdiction

o Problems that occur when a state and federal court assume jurisdiction over the same res

o Relative inconvenience of the federal forumo Need to avoid piecemeal litigationo The order in which the proceedings were filedo If more extensive proceedings had occurred in the district court prior to

dismissal H: McCarran A showed Congressional intent to avoid piecemeal litigation S: As a general rule federal courts have a duty to exercise jurisdiction and

they should refuse to exercise jurisdiction in exceptional circumstanceso COL RIV only applies when the issues and the parties are the same in

federal and state court← 6. Will v Calvert Fire – Divided Opinion

H: District court is under no compulsion to exercise that jurisdiction where the controversy

S: Many court thought they had increased authority to abstain ← 7. Moses Cone – Federal court may abstain only in exceptional circumstances

Another factor added: Whether a federal question is present (heavily)← 8. Declaratory judgments

Declaratory relief is discretionary and one reason for withholding such relief might be that the same issues were already pending in another court

Wilton – In DJ suits federal courts have discretion whether to defer to duplicative state proceedings; court may abstain under Federal DJ Act

← 9. Summary Claim for injunction or damages – Apply COL RIVER and Factors Claim for DJ – Apply Brillhart/Wilton

o 5th Ckt – NE Insurance - H: Any time a case couples DJ and injunction go to Colorado river, when its just a DJ go to Brillhart (pure discretion)

←← VIII. ABSTENTION BECAUSE OF UNCLEAR STATE LAW← A. When is Abstention b/c of Unclear State Law appropriate← 1. PULLMAN: Abstention to avoid federal court constitutional rulings:

Federal court abstention is required when state law is uncertain and a state court’s clarification of state law might make a federal court’s constitutional ruling unnecessary

H: Federal court should not have ruled on constitutional challenge to state regulation since it was unclear whether the comm’n had the authority to issue the regulation, court should abstain until state court has had an opportunity to resolve the uncertainty as to state law

← (a). Prerequisites for Pullman abstention There must be substantial uncertainty as to the meaning of the state law AND There must be a reasonable possibility that the state court’s clarification of

state law might obviate the need for a federal constitutional ruling← (b). Siler v Louisville - Federal district court should have decided a case on state law grounds, thereby avoiding the constitutional questions← (c). Zwickler v Koota – undesirability of delaying adjudication of freedom of speech claims b/c of fear that speech will be chilled while the matter is pending in state courts

Where a state criminal statute was attacked on grounds of unconstitutional overbreadth and no state prosecution was pending against the federal π

o A federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction

H: Abstention not proper b/c ← (d). Reetz – Federal abstention is justified if there is a unique state constitutional provision and a state court interpretation of it could make a federal constitutional decision unnecessary← (e). England Certificate

What if state courts deal with federal issue

IF federal court abstains under Pullman, file a certificate that reserves the federal question for federal review and not permitted in state court

← 2. THIBODAUX: Abstention b/c of unclear state law in diversity cases Meredith – Federal court is not free to abstain in a diversity case simply b/c of

the difficulty or novelty of questions of state law

← 3. BURFORD : Abstention to defer to complex state admin proceedings Abstention b/c of unclear questions of state law and need for centralized

administrationo Danger of federal review disrupting admin uniformity

AL Public Serv Comm’n - Justified b/c of important local interest and existence of a state regulatory structure

← (a). Quackenbush – Relies on Burford Deference to complex state administrative procedures under Burford

o BURFORD abstention is not appropriate in suits for money damages, only for DJ and injunction

o DJ coupled with any other course of relief such as injunction or money damages, follow Colorado River, do not follow Brillhart

5th Ckt – only used when money damages are filed against insurance company in receivership; these are highly regulated schemes

←← IX. ABSTENTION TO AVOID INTERFERENCE W/ PENDING STATE PROCEEDINGS← A. Introduction

YOUNGER – federal courts may not enjoin pending state court criminal proceedings (Samuels); expanded to state civil and admin proceedings; perhaps even limit review of state/local executive agencies (RIZO)

← 1. Rooker-Feldman doctrine (no apply to criminal case and writ of habeas) Expressly bars federal district courts from reviewing state court decisions Losing party in state court is barred from seeking what in substance would be

an appellate review of the state judgment in federal court based on the losing party’s claim that the state judgment itself violates the loser’s federal rights

Lance – R-F doctrine does not bar actions by nonparties to the earlier state court judgment simply b/c for purposes of preclusion law, they could be considered in Privity with a party to the judgment

Compare with 1738 – cannot relitigate in federal court what a state court has decided

← B. YOUNGER← 1. Pre-YOUNGER

Douglas – dismissal of injunction against threatened prosecution of ordinanceo H: Courts of equity in their discretionary powers should refuse to

interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent

But see, Dombrowksi – federal court injunction of state proceeding okayo H: The need for federal court action to enjoin the enforcement of

overbroad statutes that might chill the exercise of 1stA rights← 2. Younger holding

H: Federal courts barred from enjoining pending state court criminal prosecutions

R: Federal court should not enjoin a state criminal prosecution begun prior to the institution of the federal suit except in very unusual circumstances, where necessary to prevent immediate irreparable injury or in bad faith

← (a). Based on principles of equity, comity, and federalism Distinguished DOMBROWSKI, threats of prosecution were in that case

intended to harass rather than secure valid criminal convictiono Also statutes being overbreadth are not enough

Single prosecution under an unconstitutional statute is NOT bad faith Irreparable injury under YOUNGER is different from regular injunction

showing, S: A federal injunction against state criminal proceeding under a bad faith

prosecution, and only other extraordinary circumstances (every line and word of provision in unconstitutional) (extremely high burden)

← (b). Perez v Ledesma H: Criminal proceeding and evidence is submitted that violates 4thA, federal

injunction to enjoin entry of evidence. This is still subject to YOUNGER, and cannot be allowed

← 3. Relationship to Anti-Injunction Act AJA prohibits federal courts from enjoining state court proceedings unless

one of three exceptions is met

o Mitchum – Exception met (expressly authorized by statute); §1983 was an express authorization for injunctions since its purpose was to interpose federal courts between the state’s and the people

o I: But, Younger was a §1983 case Younger is a separate and independent barrier to federal court injunction S: In order for π to obtain an injunction where Younger applies, he must find

an exception to Younger and AJA← C. Extension of YOUNGER← 1. Declaratory and monetary relief when there are pending state court proceedings← (a). Declaratory Judgment suits

Samuels – federal courts may not issue DJ when federal π is subject to a pending state criminal prosecution

o There might be exceptional situations in which the injunctive remedy seemed particularly intrusive or offensive but DJs would be permissible

← (b). Monetary Relief Unclear, lower courts split; Quackenbush – federal courts should not abstain

from deciding damages claims but staying may be appropriate← (c). Grand jury is good enough for a state proceeding - Earle← 2. Federal court declaratory and injunctive relief in the absence of pending state proceedings← (a). Steffel – DJ is okay when there is no ongoing state prosecution

H: Regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal π 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

S: federal courts may issue DJ if state criminal proceedings are threatened but not pending

← (b). Hicks – federal courts may not provide DJ if a state prosecution is commenced before the federal court procedures are substantially completed

H: Where state criminal proceedings are begun after the federal π after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, YOUNGER applies

H2: Derivative preclusion will apply against parties with common interest

← (c). Doran - Federal courts may issue injunctions in absence of ongoing state proceedings

When there is no pending state court proceeding, individuals may receive a prelim injunction b/c it does not disrupt the state courts and b/c there is no available forum in which to raise the constitutional claims

This may not necessarily extend to permanent injunctions← (d). Wooley – upheld permanent injunction in absence of state court proceedings

R: injunctions are appropriate in exceptional circumstances upon a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights

F: Evidence of bad faith prosecutions← 3. Application of YOUNGER abstention to pending state civil proceedings ← (a). Huffman – Federal court should abstain when state court commenced nuisance suit

H: State nuisance proceeding was more akin to a criminal prosecution than most civil cases, state was a party to the civil nuisance proceeding which was in aid of and closely related to criminal statutes

← (b). Trainor – YOUNGER applies even though state court suit was wholly civil H: YOUNGER abstention should apply even though the proceeding was civil,

since the State was a party to the suit in its role of administering its public assistance programs

N: There was a high state interest and an opportunity to present a constitutional defense in the state court proceeding

← (c). Juidice – YOUNGER can apply even in state proceedings between private litigants

H: There was an important state interest present in state court contempt proceedings

← (d). Penzoil – Federal π brought suit to prevent state court π from enforcing a bond requirement, Federal court issued injunction

H: There is a high state interest in the court system’s bond requirement, abstention required; apply high state interest from JUIDICE

← (d). NOPSI – YOUNGER may not apply to all civil proceedings I: Whether Younger applies in all civil cases or only those w/high state interest H: Rate setting conducted by City Council was a legislative function and

YOUNGER did not apply to matters of review other than judicial proceedings← 4. Application of YOUNGER abstention to pending state admin proceedings

← (a). Middlesex County – Bar disciplinary proceedings w/in state judicial system H: YOUNGER applies, Quasi-judicial, high state interest, coercive in nature

and fits in YOUNGERo Could not air constitutional issues through admin proceeding but you

could through the state court system, that is enough to stay with YOUNGER

← (b). Ohio Civil Rights Comm’n – YOUNGER applies H: Once administrative action are initiated, federal court interference is

impermissible if important state interests are at stakeo Availability of state judicial review allowed adequate opportunity to

raise constitutional issue KIM – Patsy – No requirement to exhaust admin remedy before §1983 suit FN 2 – Remedial v Coercive

(c). Tn v Ellis – Res judicata H: Same preclusive effect for findings of fact in admin proceeding as would a

state proceeding← (d). But See, Harper

H: There was a significant state interest, but the overriding interest is the commerce clause, no YOUNGER applied, there is a high interest in commerce clause violation

← 5. Application of YOUNGER abstention to prevent federal court injunctive and declaratory relief against the executive branches of state and local gov’ts

Rizo v Goode← D. Exceptions to YOUNGER

Bad Faith Prosecutions Patently unconstitutional laws Unavailability of an adequate state forum Waiver

← E. Derivative Preclusion and §1738 Common interest between parties can lead to derivative preclusion, such as

economic or political←← X. THE ANTI-INJUNCTION ACT← A. Overview

BP: Federal statute barring federal courts from enjoining pending state court proceedings

28 USC § 2283 The Anti-Injunction Act – federal law that prevents federal courts from enjoining pending state court proceedings unless the case fits into a specific exception contained in the Act

← B. Injunctions expressly authorized by statute← 1. Mitchum v Foster – express authority to enjoin state court proceedings despite §2283

H: §1983 is an express exception to §2283; to qualify a statute need not contain an express reference to that statute

o Legislative history showed that state court’s could be enjoined T: To qualify as an expressly authorized exception to the anti-injunction

statute, an act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, which could be frustrated if the federal court were not empowered to enjoin a state court proceeding

← 2. Vendo - I: Whether §16 of the Clayton Act was an express exception to §2283 Plurality – NO, §16 was not an express authorization of injunctions, also a

lack of mistrust in state court proceeding over §16 litigation where there is w/§1983

o Lack of legislative history showing that state courts could be enjoined← C. Injunctions in aid of jurisdiction – used in removal cases and property cases

Toucey – Whichever court first gains jurisdiction in a case concerning the disposition of property has exclusive jurisdiction to decide claims to that property and may enforce its jurisdiction with injunctions if necessary

← D. Injunctions to promote or effectuate a federal court’s jurisdiction← 1. Injunctions to prevent relitigation

Provides that when a federal court decides an issue it can prevent that same issue from being relitigated in state court where principles of preclusion should bind the state court

← 2. Was the prior decision a ruling on the merits If judgment was on the merits then its decision should be upheld by an

injunction, if federal court dismisses on procedural grounds then the court should be free to hear the matter

Atlantic Coast Line – Federal court dismissed case for lack of jurisdiction and had not ruled on the merits, federal court was not allowed to issue injunction

← 3. Earlier federal court ruling must have been on the merits

H: For relitgiation exception, the federal court can only enjoin state proceedings issues that were actually litigated and decided.

o Dismissal from federal court for forum non-conveniens is no good← 4. Timing for seeking injunctions

I: Timing for when the parties must request a federal court injunction in order to successfully obtain a stay of state judicial proceedings

Parsons Steel – Federal court ∆ wins, state court π wins latero CF: State court ruled on res judicata issue against π’s favoro I: Intersection between §2283 and §1738 (FFC given to state courts)o H: The Relitigation exception to §2283 is limited to those situations in

which the state court has not yet been ruled on the merits of the res judicata issue; once the state court has decided the issue after res judicata has been raised then federal court must honor it

← 5. Imperial County – If federal plaintiff is a stranger to state court proceedings then AJA no apply

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