SOVEREIGN IMMUNITY & THE ELEVENTH AMENDMENT
§1: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior
courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a
compensation, which shall not be diminished during their continuance in office.
§2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the
laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases
affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--
to controversies to which the United States shall be a party;--to controversies between two or more states;--
between a state and citizens of another state;--between citizens of different states;--between citizens of the same
state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign
states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be
party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations
as the Congress shall make.
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.
(A) BASIS FOR SOVEREIGN IMMUNITY
Elections not lawsuits Unanticipated problems arise
$$$ - concern that states could be bankrupted No accountability = (1) constitutional violations
(remedy: Ex Parte Young); (2) imprisonment (remedy:
habeas corpus); (3) property seizure without due
process (remedy: Lee, Land)
**Compare to 10th Amendment: state immunity from regulation. When there is an 11th Amendment problem,
typically there has been regulation of the states. Sovereign immunity is about under what circumstances you
can sue the state to make them follow the regulations.
Chisholm v. Georgia (1793) overruled by 11th Amendment
Facts: South Carolina merchant sued to recover supplies furnished under a contract with the state of Georgia.
Held: Georgia could be sued, despite claim of sovereign immunity.
Analysis: Justices Blair & Cushing thought the suit was authorized by the language of Article III. Justice
Wilson added that state sovereign immunity would be incompatible with the ultimate sovereignty of the people.
**In the ratification debates of the Constitution, people did question whether Article III would take away
States’ rights to sovereign immunity. Some people argued it wouldn’t, simply because they wanted the
Constitution ratified. Others argued it would, either because they wanted accountability or else did not want the
Constitution ratified. Because of this confusion, immediately after the ratification citizens started suing other
states – federal question jurisdiction not enacted until 1875 so diversity jurisdiction required in federal court.
People rebelled against Chisholm v. Georgia. Constitutional amendments proposed immediately. One became
the basis for a resolution adopted by Congress and ultimately ratified as the Eleventh Amendment.
Eleventh Amendment (1798): “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. Immunity Interpretation (Hans v. Lousiana) – Eleventh Amendment re-established the state sovereign
immunity implicitly recognized by Article III and erroneously abrogated by Chisholm.
2. Diversity Interpretation: Eleventh Amendment is a restriction on the federal courts only when
jurisdiction is based on diversity of citizenship.
3. Separation of Powers Interpretation: Eleventh Amendments states a limitation on the federal courts
derived from principles of federalism and separation of powers. Limitation on the law-making capacity
of the federal courts in cases where the state or a state official is the defendant.
Hans v. Louisiana (1890) = immunity interpretation of the Eleventh Amendment
Held: states cannot be sued in federal court by their own citizens using federal question jurisdiction. Contrary
result would be “an absurdity on its face.” Despite the fact that Eleventh Amendment does not mention suits by
a state’s own citizens, the Hans Court reads the amendment as evidencing a comprehensive policy of state
sovereign immunity in the federal courts.
**Was Hans v. Louisiana an interpretation of the Constitution? Or federal common law? Fact that relied on
Iredell’s dissenting opinion in Chisholm (Congress could create statute for jurisdiction) possibly significant.
**Field’s idea: pay your taxes with the bonds – then the state will come after you for not paying your taxes.
The state will then be the plaintiff, trying to use the courts using the Constitution as a sword vs. shield.
Monaco v. Mississippi: state immunity applies in action by foreign country.
Sovereign immunity limits the judicial power where such a limitation is “inherent in the Constitutional
plan” in short, the Court decides on an ad hoc basis which categories of law suits are excluded.
“It cannot be supposed that it was the intention that a controversy growing out of the action of a State,
which involves a matter of national concern and which is said to affect injuriously the interests of a
foreign State, or a dispute arising from conflicting claim of a State of the Union and a foreign state as to
territorial boundaries, should be taken out of the sphere of international negotiations and adjustment
through a resort by the foreign State to a suit under the provisions of § 2 of Article III.
The Eleventh Amendment & Other Sovereign Immunity Doctrines by Martha Field
Eleventh Amendment merely restored sovereign immunity as a common law doctrine.
o Sovereign immunity for federal government is based on common law
o Explains omission of suits by a state’s own citizens from the language of the Eleventh
Amendment (Hans v. Louisiana) If all the Eleventh Amendment does is say that Article III
should not be read affirmatively to authorize the suits with which the amendment deals, there is
simply no need for a like provision for suits by a state’s own citizens, because there is no
language in Article III that could be read affirmatively to authorize those suits.
The cases the Eleventh Amendment enumerates would be outside the judicial power only in the sense
that the judicial power language of Article III does not compel that they be heard.
o Otherwise, anomaly of consent seemingly expanding the United States’ judicial power.
Is federal sovereign immunity constitutionally required? Does not make any difference – Congress can
overturn if it is not – but Congress can overturn it otherwise by consent to sue.
(B) WHEN IS A SUIT AGAINST THE STATE?
Ex parte Young (1908) Peckham – sue state officers for prospective relief
Held: a state can be sued in federal court for prospective relief by naming the appropriate state officer as the
defendant. The official is “stripped” of any “official or representative character” if the enforcement of state law
violates the federal Constitution, even though the official’s conduct is still regarded as “state action” under the
**Note: statute was written to be unchallengeable – no one could afford to violate it.
**Important case because allows individuals to use the Constitution as a sword, in addition to a shield.
**Objections: suit is, in effect, against the state of Minnesota. Suing an officer to change stat conduct.
Congressional reaction to Ex Parte Young:
1910: Congress limits availability of TROs & requires that applications for certain kinds of preliminary
injunctive relief against state officials be heard by special three-judge district courts, with direct review
by appeal to the United States Supreme Court. This requirement extended in 1925 to the issuance of
final injunctions against enforcement of unconstitutional state laws, and in 1937 for suits attacking the
constitutionality of federal legislation.
Today, outside of certain highly specific statutory cases, three-judge courts are required only “when an
action is filed challenging the constitutionality of the apportionment of congressional districts or the
apportionment of any statewide legislative body.” 28 U.S.C. § 2284.
o Direct appeals too time-consuming. SCT often gave summary affirmances without deliberation.
U.S. v. Lee (1882) – you can sue to get your own property back
Facts: Heirs of Robert E. Lee claimed they owned part of Arlington Cemetery. Lee sued U.S. officers who
were occupying the cemetery and asked for ejectment on the ground that the land rightfully belonged to him.
Held: suit allowed = right to get your own property back, even from the U.S. government.
Edelman v. Jordan (1974) Rehnquist – retroactive relief forbidden, prospective relief allowed
Facts: class action after Illinois officials failed to process Aid to the Aged, Blind, or Disabled Act (AABD)
applications within the time limits and failed to make the benefits retroactive, as required by federal regulations.
P wanted an injunction against future violations as well as a refund of wrongfully withheld past benefits.
Held: Prospective relief allowed (injunction against future violations) but retroactive relief of awarding
wrongfully withheld benefits disallowed.
**Equitable restitution is essentially damages (forbidden relief). “As in most areas of law, the difference
between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not
in many instances be that between day and night.”
**Attorneys fees allowed? Yes – litigation costs count as prospective.
**See also Milliken v. Bradley (1977) – school desegregation remedy upheld – although retrospective in the
sense that it identified past wrongs and used remedies to compensate (e.g. remedial education)
Land v. Dollar (1947) Douglas – discusses allowed/forbidden relief
Facts: Dollar got a loan from a U.S. Commission in exchange for giving stocks. When Dollar repaid its debts,
it asked the Commission for the return of its stocks. Commission refused. Dollar sued for return of stocks.
Held: suit allowed by alleging that the property is yours, you get to have a hearing to decide whether it is.
**OK relief: you can get your own property back; you can tell the government that they are acting
unconstitutionally and prevent that in the future (prospective relief – Ex Parte Young; also declaratory relief).
Forbidden relief: indirect attempt to collect a debt from the United States; attempts to get admittedly sovereign
property (where plaintiff admits government has title to the property, but wants them to do something with it);
attempts to get specific performance of a contract; raiding the public treasury.
Larson v. Domestic & Foreign Commerce Corp. (1949) Vinson – Tort/contract suits disallowed
Facts: War Assets Administration made a contract with company to sell surplus coal but then price of coal went
up and government declined to deliver the coal = violation of contract!
Held: Suit not allowed. Allegations of constitutional or federal statutory violations strip a federal officer of his
“officialness” so that he can be sued (Ex parte Young), but NOT allegations of torts or breach of contract.
**Note: government has consented to many tort/contract suits today to encourage business partnerships.
(C) OTHER 11TH AMENDMENT ISSUES
Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy (1993) – appealability of immunity denials
Held: denials of 11th Amendment sovereign immunity immediately appealable as collateral orders under Cohen.
Cohen: order must: (1) conclusively determine disputed question, (2) resolve an important issue separate
from the merits of the action, & (3) be effectively unreviewable on appeal from a final judgment.
**Note: denial is still reviewable on appeal from a final judgment = does not fit third Cohen requirement.
Response: value (time/money) of 11th Amendment immunity is largely lost as litigation proceeds.
Lincoln County v. Luning (1890): units of local government (e.g. counties, cities, school boards) are not
protected by the 11th Amendment.
**Note: local government, although not itself entitled to claim 11th Amendment immunity, may be shielded by
state sovereign immunity if an award of damages against it would operate directly against the state treasury.
Nevada v. Hall (1979) Stevens – suits against one state in the courts of another allowed
Facts: California residents injured when their car was struck by a vehicle being driven on official business by
an employee of the state of Nevada. The accident occurred in California. The plaintiffs sued in California state
court, naming as defendants the Nevada employee’s estate and the state.
Held: Suit allowed. California was not bound by federal law to respect Nevada’s sovereign immunity. The
Eleventh Amendment applied only in federal courts, and neither the Full Faith and Credit Clause nor the overall
scheme of the Constitution prohibited California from following its own law.
(D) PENNHURST AND PENDENT JURISDICTION AGAINST STATES
Pennhurst (1984) – federal courts cannot enjoin state officials on the basis of state law
Procedural History: First time up, the Court of Appeals comes out in favor of Pennhurst – saying that the
program violates federal law. Cases goes to SCT. SCT says: why are you deciding this under federal law?
Case remanded to be decided under state law. Court of Appeals decides that under State Constitution,
Pennhurst is not being treated correctly and enjoins the state. Case goes again to SCT. Injunction invalidated
on 11th Amendment grounds – SCT essentially says you shouldn’t have decided this case under state law.
Held: Federal court cannot enjoin a state official on the basis of state law (11th Amendment rule).
**“A federal court’s grant of relief against state officials on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority of federal law. On the contrary, 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 directly with the principles of federalism that underline the
Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on
the basis of state law.” Ex parte Young doctrine is an exception from the 11th Amendment because of the
importance of securing compliance with federal law.
**Pennhurst arguably applies only to injunctions. May get around by seeking only a declaratory judgment.
(1) Bring both federal & state claims in state court federal forum lost;
(2) Bring federal claims in federal court and state claims in state court risk having federal claims barred
by res judicata if state decides first;
(3) Bring federal claims in federal court first, if lose bring state claims in state court best option
**Criticism: If officers who act illegally are stripped of state authority, shouldn’t that also apply when violation
is of state as compared to federal law?
(E) INTERRELATIONSHIP WITH THE TENTH AMENDMENT
TENTH AMENDMENT: “The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.”
Printz v. United States with New York v. United States, establishes a principle against the federal government
“commandeering” the state executive and legislative branches into the national bureaucracy.
Arguments against federal government using state executive/legislative officers to do federal functions:
(1) accountability; (2) $$ (if federal government wants things done, it ought to pay for it); (3) state
dignity (state executive officers being told what to do by federal government = undignified?)
Contrast: state judicial officers can be made to perform federal business.
Reno v. Condon (2000): Federal government may forbid state governments from selling databases of personal
info collected by their DMV (Driver’s Privacy Protection Act), despite the anti-commandeering principle
articulated in New York and Printz. Distinction between prohibitions vs. telling states to do something?
(F) STATE CONSENT AND CONGRESSIONAL ABROGATION
**Consent (although apparently revocable during the course of litigation) may be given by the state’s legal
representative or by statute. Such statutes, however, will be narrowly construed, and the state is free to consent
to suit only in its own courts.
**Extent to which Congress may lift state immunity depends upon whether it is constitutionally required. If not
a constitutional right, Congress should be able to pass a statute within its Congressional powers to abrogate. If
it is a constitutional right, Congress must amend the Constitution to abrogate.
Parden (1964) Brennan – waiver even w/o clear statement – overruled by Welch
Held: SCT permits FELA action: (1) states had “surrendered a portion of their sovereignty when they granted
Congress the power to regulate commerce”; (2) Alabama had begun operation of the RR some 20 years after
enactment of FELA, which conditioned the right to operate a RR in interstate commerce upon amenability to
suit in federal court as provided by FELA = state had thereby consented to suit (implied).
**All justices agreed Congress has the power to abrogate immunity – dissent only wanted a clearer statement.
Employees of Missouri (1973) Douglas – consent/abrogation must be clear
Held: every employer shall be liable in damages… state is an employer” = not clear consent to suit.
**See also Atascadero (1985): very strict about clear statement requirement. A general authorization for suit in
federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.
**Welch (1987): waiver found only if Congress clearly and unequivocally expresses its intent to make states
liable resolved the Parden/Atascadero split in favor of Atascadero.
Fitzpatrick v. Bitzer (1976) Rehnquist – 14th Amendment, §5 is a limit on the 11th Amendment
**Previous law was that Congress could allow individuals to sue states under any provision. Maybe no clear
statement in this case? Other theory: Rehnquist trying to limit abrogation to the 14th Amendment this case
does lay foundation for Seminole 20 years later.
Union Gas (1989) – overruled by Seminole Tribe
Held: Congress has the power to abrogate the 11th Amendment immunity under its Commerce Clause powers.
**Four Justices (Brennan) held Eleventh Amendment was nothing more than a reflection of common law
sovereignty that could be swept aside by Congress; Justice White wrote a separate opinion holding that
Congress had such power, but stating his disagreement with Brennan's opinion (but not his own rationale).
**Plurality: constructive waiver argument – to the extent that the states gave Congress the authority to regulate
commerce, they also relinquished their immunity where Congress found it necessary.
Seminole Tribe (1996) Rehnquist – Congress can impose private suits against states only under §5 of 14th Am.
Facts: Indian Gaming Regulatory Act required that states negotiate with Indian tribes to form compacts to allow
gambling on Native American land. The Act specifically authorized suits against states in federal court as an
Held: Congress can impose private suits against states only when acting under § 5 of the 14th Amendment.
**Majority claims that §5 is different because it was meant as a limit on states. 14th Amendment modifies the
previously enacted 11th Amendment
**This could have been decided on 10th Amendment grounds for commandeering state officials.
**Sovereign immunity is a constitutional right.
Central Virginia Community College v. Katz (2006) – bankruptcy exception
Held: states cannot assert sovereign immunity against actions by trustees in bankruptcy.
**Reasoning contradictory with Seminole Tribe and theory of constructive waiver. O’Connor makes this
opinion possible by joining group that normally dissents.
**Court interpreted Congress' power under the Bankruptcy Clause to make "uniform laws on the subject of
bankruptcies" to include the power to abrogate state sovereign immunity.
**Other possible exceptions: war powers
STATE SOVEREIGN IMMUNITY THEORIES:
(1) State sovereign immunity is constitutionally required Seminole Tribe
(2) State sovereign immunity is a constitutional right only in non-citizen suits (follows the wording of the
11th Amendment) No one accepts this interpretation anymore.
(3) State sovereign immunity is not constitutionally required at all. This is Field’s argument. Chisholm
decided Article III took away state sovereign immunity. 11th Amendment overturns Chisholm results
and sends us back to Article III w/o Chisholm interpretation sovereign immunity is a common law
right of states, nothing in the Constitution took it away but nothing in the Constitution requires either.
After Seminole, how can Congress make states liable for following federal laws?
(1) Lee/Land – sue to get your own property back
(2) Sue in state court NOT ALLOWED after Alden v. Maine
(3) Abrogate states’ immunity under 14th Am §5
(4) Bankruptcy exception (Katz)
(5) Use spending power to compel state compliance
(6) Bring Ex parte Young actions
(7) Use federal law as a shield rather than a sword
(8) Get other states, federal government to sue
(9) State consent to suit
(10) Sue municipalities and other units of local government
(G) THE ELEVENTH AMENDMENT IN STATE COURTS AND AGENCIES
Alden v. Maine (1999) Kennedy
Facts: State employees suing state for violation of FLSA in state court.
Held: suit not allowed. “The powers delegated to Congress under Art. I do not include the power to subject
non-consenting states to private suits for damages in state courts.”
**“The constitutional privilege of a state to assert its sovereign immunity in its own courts does not confer upon
the state a concomitant right to disregard the Constitution or valid federal law.” Supreme Court relies on the
good faith of the states to follow federal laws.
Federal Maritime Comm’n v. S.C. State Ports Auth. (2002) – sovereign immunity extended to federal agencies
(H) FOURTEENTH AMENDMENT AND CONGRESSIONAL ABROGATION
City of Boerne v. Flores (1997) Kennedy – explains Congress’ power under 14th Am, §5
**Fourteenth Amendment laws must be narrowly tailored to eliminate identified constitutional violations: law
must reflect “congruence” and “proportionality.” This means Congress must identify specific constitutional
violations that laws remedy and Congress must carefully tailor the laws to remedy the violations identified.”
**Must be evidence of a pattern of state violations justifying federal interventions.
After City of Boerne many cases considering which laws can be used to sue state governments
Within §5 The Statute Why the statute was (not) within §5
Florida NO Patent laws authorized suits against state Not proportionate – no pattern of
Prepaid government for patent infringement patent infringement by states, let
alone constitutional violations
Kimel NO ADEA prohibited age discrimination by Overbroad, not proportionate – no
states (& authorized suit against states) history of purposeful discrimination;
gets only rational basis review
Garrett NO ADA (Tit. I) prohibited employment Disability discrimination gets only
**likely to discrimination against disabled (& rational basis review; no history of
overturn authorized suit against states) purposeful discrimination
Hibbs YES FMLA required employers to provide Intended to prevent gender
employees w/ unpaid leave time for discrimination (heightened scrutiny);
family and medical care narrowly targeted
Tennessee YES ADA (Tit. II) prohibits government Well-established fundamental right
v. Lane discrimination against disabled in of access to courts; good evidence of
programs/services persistent discrimination
(I) WHITHER EX PARTE YOUNG?
Seminole Tribe: why didn’t they just use Ex parte Young solution to require governor to comply with federal
law? Possible commandeering problem if injunction to make state executive official to comply with federal
law. Specific performance of a contract is also forbidden relief.
“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 upon Ex parte Young.”
Idaho v. Coeur d’Alene Tribe (1997) Kennedy – obvious discrimination against Native Americans; blip case
Facts: There was a dispute over whether the tribe’s ownership of lands extends to the banks and submerged
lands of Lake Coeur d’Alene or is vested in the State of Idaho.
Held: Suit not allowed – Eleventh Amendment bars because really a suit for quiet title.
**Kennedy, in a part of the opinion joined only by Rehnquist, attempts to narrow Ex parte Young by having it
apply only if: (1) no other forum; or (2) showing of particular need for federal court interpretation &
enforcement of federal law.
**Alden – tribe will not be allowed relief in state court either!
**U.S. v. Lee – should have applied. Obvious discrimination against Native Americans in ignoring.
Verizon Maryland, Inc. v. Public Service Commission (2002) Scalia – re-affirms Ex parte Young
Facts: Verizon sough injunction & declaratory relief, alleging MD Commission’s order pre-empted by FCC.
Held: reaffirms Ex parte Young – suit allowed.
**“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a “straightforward inquiry into whether the complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospective.”
Frew v. Hawkins (2004) Kennedy – re-affirms Ex parte Young
Facts: TX state officials sued for their failure to comply with requirements of federal Medicaid law. The suit
was settled with a consent decree. When the TX officials breached this agreement, plaintiffs sued again.
Held: state officials can be sued to enforce the terms of a consent decree (under Young).
**Pennhurst was distinguished on the ground that it involved only violations of state law. Here the consent
decree was entered into by state officers in order to comply with federal law.
CONSTITUTIONAL LIMITS ON THE ALLOCATION OF JURISDICTION
(A) THE SCOPE OF CONGRESSIONAL AUTHORITY TO DEFINE FEDERAL JURISDICTION
Section 1 of Article III vests the “judicial power of the United States” in one Supreme Court. Section 2 seems
to give the Supreme Court jurisdiction over all matters within the judicial power. It identifies the subjects to
which the judicial power extends and then says that the Supreme Court “shall have original jurisdiction” of
certain cases and “shall have appellate jurisdiction” over the rest. The appellate jurisdiction, however, is
conferred “with such exceptions, and under such regulations as the Congress shall make.” The question raised
by this language is whether the power to make exceptions is plenary or whether it is limited – by Article III
itself, by other provisions of the Constitution, or by inferences drawn from the constitutional structure.
1) Traditional View: congressional discretion to decide federal court jurisdiction (checks & balances) but
Supremacy Clause forbids Congress from depriving state courts of jurisdiction to decide constitutional
questions that come before them in the ordinary course of litigation authorized by state law.
a. Sheldon v. Sill: Congress may limit jurisdiction of lower federal courts
b. McCardle: Congress may limit appellate jurisdiction of Supreme Court (but see U.S. v. Klein)
2) Essential Functions Thesis: uniformity & conformity watchdog
a. Henry Hart: “exceptions” presuppose a rule and cannot be so broad as to engulf the rule itself:
“The exceptions must not be such as will destroy the essential role of the Supreme Court in the
b. Leonard Ratner: defined the “essential functions” of the SCT as: (i) ultimately to resolve
inconsistent or conflicting interpretations of federal law, and particularly of the Constitution, by
state and federal courts; (ii) to maintain the supremacy of federal law, and particularly the
Constitution, when it conflicts with state law or is challenged by state authority “an avenue
must remain open to permit ultimate resolution by the Supreme Court of persistent conflicts
between the Constitution and state law or in the interpretation of federal law by lower courts.”
c. Lawrence Sager: “supervision of state conduct to ensure general compliance with the
Constitution is an essential function of the Supreme Court”
d. Theodore Eisenberg: Congress may exclude cases from federal jurisdiction for “neutral” policy
reasons, such as to avoid case overloads or to promote the efficiency of federal justice.
Otherwise, use of lower federal courts is required because we cannot expect SCT to give
meaningful review to cases coming from state courts.
3) Justice Story (Martin v. Hunter’s Lessee): “the whole judicial power of the United States should be, at
all times, vested either in an original or appellate form, in some courts created under its authority.”
Story may have thought this obligation was “moral” and not a legally enforceable obligation.
a. Akil Amar twist: focuses on the word “all” in Article III Article III requires that “all” cases
arising under federal law, “all” cases affecting ambassadors, and “all” cases of admiralty or
maritime jurisdiction must be vested, either as an original or an appellate matter, in some federal
court. The remaining controversies – since Article III does not say that they must “all” be vested
in a federal court – may be excluded from the federal courts in Congress’ discretion.
4) Independent Unconstitutionality: jurisdiction-stripping legislation would almost always be
unconstitutional if its object were to remove a particular class of constitutional litigants from the federal
a. E.g. – it would be unconstitutional for Congress to exclude jurisdiction over a particular litigant
by name, or to exclude all cases brought by members of a disfavored race
b. Argument that congressional exclusion of particular classes of litigation from SCT jurisdiction
should be subject to strict scrutiny
5) Clean Hands (Wechsler): Courts may not hear just part of a case, because this may force them to act
unconstitutionally. Constitution may serve as a shield; but not as a sword. If Congress strips
jurisdiction in an area it didn’t like (e.g. school prayer), it is stuck with the precedents that are already
there; no way to get rid of old precedents.
6) Due process – Access to Courts: due process sometimes requires judicial process. Are state courts
enough? Some say no because state judges do not have the Article III salary & tenure protections.
Marbury v. Madison (1803): original jurisdiction listed in Article III is the maximum original jurisdiction of
SCT (but not the minimum).
Sheldon v. Sill (1850) – Congress can make exceptions to the jurisdiction of lower courts
Article III, §2 gives the maximum/limit of judicial power.
o “The Constitution has defined the limits of the judicial power of the United States, but has not
prescribed how much of it shall be exercised by the circuit court; consequently, the statute which
does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it
confers powers not enumerated therein.”
Article III, §1 – judicial power vested in one Supreme Court “and in such inferior Courts as the
Congress may from time to time ordain and establish.”
o Rule: since Congress can create lower federal courts or not, it is up to them to decide what to put
in the lower federal courts.
“having a right to prescribe, Congress may withhold from any court of its creation
jurisdiction of any of the enumerated controversies.”
Ex Parte McCardle (1868)
Held: Exceptions clause of Article III gives Congress the authority to create exceptions to SCT’s appellate
jurisdiction (even in the midst of a case); SCT not free to question Congress’ motives.
**Narrower reading: last ¶ suggests Congress has the authority to foreclose only one of two avenues for SCT
review. Here, there were other ways for petitioner to get habeas corpus issue to SCT.
On this reading, SCT ducked a sensitive constitutional problem, avoided a confrontation with Congress,
and preserved its authority to adjudicate future cases.
“Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole
appellate power of the Court, in cases of habeas corpus, is denied. But this is an error. The act of 1868
does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867.
It does not affect the jurisdiction which was previously exercised.”
United States v. Klein (1871)
Interpretation 1: held unconstitutional an effort by Congress to force SCT resolve a case on its merits in
an unconstitutional manner. Read this way, Klein is an unremarkable application of Marbury v.
Interpretation 2: held unconstitutional an “exceptions” statute because Congress was trying to remove a
class of constitutional litigation from the jurisdiction of the SCT.
**Klein is exceedingly complex and probably best regarded as a relic of little modern persuasive force.
Sheldon describes the power of Congress to control the jurisdiction of the lower federal courts in seemingly
unlimited terms. It says that Congress “may withhold from any court of its creation jurisdiction of any of the
enumerated controversies,” that no federal court can exercise jurisdiction “withheld from all” federal courts, and
that a statute prescribing limits on lower federal court jurisdiction “cannot be in conflict with the Constitution,
unless it confers powers not enumerated therein.” Are there indeed no limits on the power of Congress to
exclude controversies from litigation in the lower federal courts? On its facts, Sheldon was an easy case.
Surely Congress has the authority to protect the integrity of the diversity jurisdiction by preventing collusion. A
more difficult question would arise if the lower federal courts were foreclosed from enforcing federal rights.
SCT has not defined the authority of Congress in this respect. Its typical response when presented with
apparently jurisdiction-stripping legislation has been to read the statute to permit the case. See Webster v. Doe.
Webster v. Doe (1988) – SCT tries to read jurisdiction-stripping statutes as permitting constitutional claims
Facts: John Doe was employed by the CIA as a covert electronics technician. He had consistently been rated
excellent or outstanding until he voluntarily told a security officer that he was gay. He was placed on
administrative leave and then fired because his “homosexuality presented a security threat.” He sued the CIA
on statutory and constitutional claims.
50 U.S.C. §403(c): “The Director of Central Intelligence may, in his discretion, terminate the
employment of any officer or employee of the Agency whenever he shall deem such termination
necessary or advisable in the interests of the United States.”
Held: §403(c) precludes review of all statutory, but NOT constitutional claims. “[W]here Congress intends to
preclude judicial review of constitutional claims its intent to do so must be clear.”
“We require this heightened showing in part to avoid the “serious constitutional question” that would
arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.”
Dissent (O’Connor): “The authority of the Director of Central Intelligence to control access to sensitive
national security information by discharging employees deemed to be untrustworthy flows primarily from this
constitutional power of the President, and Congress may surely provide that the inferior federal courts are not
used to infringe on the President’s constitutional authority. Section 403(c) plainly indicates that Congress has
done exactly that…”
Dissent (Scalia): no “serious constitutional question.” There is not always a remedy where there’s a right.
“What could possibly be the basis for this fear? Surely not some general principle that all constitutional
violations must be remediable in the courts. The very text of the Constitution refutes that principle,
since it provides that “each House shall be the Judge of the elections, returns, and qualifications of its
own Members”… Even apart from the strict text of the Constitution, we have found some constitutional
claims to be beyond judicial review because they involve “political questions”… [S]overeign
immunity… is a monument to the principle that some constitutional claims can go unheard.”
“In sum, it is simply untenable that there must be a judicial remedy for every constitutional violation.
Members of Congress and the supervising officers of the executive branch take the same oath to uphold
the Constitution that we do, and sometimes they are left to perform that oath unreviewed, as we always
Hamdan v. Rumsfeld (2006) Stevens
Facts: Hamdan was imprisoned at Guantanamo Bay after having been captured during hostilities in
Afghanistan. He filed a petition for habeas corpus challenging the intention of the government to try him before
a military tribunal. Certiorari was granted by the Supreme Court. Subsequently, Congress passed a statute that
arguably stripped the Court of jurisdiction.
Held: SCT upheld its jurisdiction to proceed by applying “ordinary principles of statutory construction,”
including the negative inference that, since part of the statute was explicit about applying to pending cases, the
rest – and in particular its jurisdiction-stripping feature – did not. It was therefore unnecessary to reach
Hamdan’s arguments that the amendment violated the Exceptions and/or the Suspension Clause.
Dissent (Scalia): jurisdiction-stripping language “unambiguously” applicable, and the Court’s contrary
conclusion “patently erroneous.” No violation of the Exceptions or Suspension Clause because Congress had
provided an alternative remedy (exclusive-review by District of Columbia Circuit Court).
(B) ARTICLE I COURTS: THE EXAMPLE OF MILITARY COURTS
Four situations in which they are permissible:
(1) U.S. possession in territories
(2) Military matters
(3) Civil dispute between U.S. and private citizens (sovereign immunity = can dictate where suit allowed)
(4) Review of Article III court
(C) THE POWER AND DUTY OF STATE COURTS TO HEAR FEDERAL QUESTIONS
Can Congress put things in the state courts?
Can Congress take things out of the state courts? Yes – Congress may take away from state courts by saying
there is exclusive jurisdiction in the federal courts (e.g. copyrights & patents).
Gulf Offshore (1981) & Tafflin v. Levitt (1990) – confirmed power of state courts to hear federal questions
There is a “deeply rooted presumption in favor of concurrent state court jurisdiction” unless rebutted by
(1) explicit statutory directive; (2) unmistakable implication from legislative history; or (3) clear
incompatibility between state-court jurisdiction and federal interests.
Note: once a state court assumes jurisdiction over a federal claim, the Supremacy Clause requires it to
resolve the claim consistently with federal law.
Dissent (Scalia – Tafflin): wants an even stricter test than Gulf Offshore. “What is needed to oust the states of
jurisdiction is congressional action (i.e., a provision of law), not merely congressional discussion.”
Testa v. Katt (1947) Black
Facts: Plaintiff sued in state court, but RI Supreme Court said the case could not be heard because the treble-
damages provision of the Federal Price Control Act was “penal” in nature and that Rhode Island courts were not
open to enforce the penal laws of a government that was foreign in the private international sense.
Held: State courts cannot refuse to hear federal claims, at least in circumstances where similar state law claims
would be heard by state courts.
“It is conceded that this same type of claim arising under Rhode Island law would be enforced by that
In this decision on it’s way out? Printz / New York v. U.S. – anti-commandeering principle = “The federal
government may not compel the states to enact or administer a federal regulatory program.” but here
compelling judicial branch rather than executive or legislative.
Mondou (1912): Connecticut courts declined jurisdiction over FELA action on the grounds that “the
policy manifested by FELA is not in accord with the policy of the state.” SCT says duty to hear the
case. “We conclude that rights arising under the act in question may be enforced, as of right, in the
courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.”
Douglas (1929): NY properly exercised discretion not to hear FELA suit based on local law re: non-
resident suits against foreign corporations. “[T]here is nothing in the act of Congress that purports to
force a duty upon such courts as against an otherwise valid excuse.”
McKnett (1934): “While Congress has not attempted to compel states to provide courts for the
enforcement of the [FELA], the federal Constitution prohibits state courts of general jurisdiction from
refusing to do so solely because the suit is brought under federal law.” “A state may not discriminate
against rights arising under federal laws.”
Herb (1945): SCT upheld the authority of an Illinois city court to dismiss FELA action because its
jurisdiction was limited to causes of action arising in the city.
Mayfield (1950): SCT upheld the authority of a state court to apply forum non conveniens to dismiss
FELA suit brought by nonresident against a foreign corporation based on an out-of-state cause of action.
What is the source of the obligation of state courts to hear federal claims?
Supremacy Clause (Justice Black in Testa)
Critique: Terrence Sandalow suggests that if state courts are to have an obligation to hear federal
statutory claims, it should come from Congress, not the SCT.
Haywood v. Drown (2009) Stevens
Facts: NY’s Correction Law § 24 divests NY courts of jurisdiction over § 1983 suits that seek money damages
from correction officers jurisdictional rule
Held: § 24 violates the Supremacy Clause
“[A]lthough States retain substantial leeway to establish the contours of their judicial systems, they lack
authority to nullify a federal right or cause of action they believe is inconsistent with their local
“A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it
“Our holding addresses only the unique scheme adopted by the State of New York – a law designed to
shield a particular class of defendants (correction officers) from a particular type of liability (damages)
brought by a particular class of plaintiffs (prisoners).
Dissent (Thomas): neither the Constitution nor our precedent requires NY to open its courts to § 1983 actions.
Tarble’s Case (1872) – no state habeas against a federal officer
Facts: Habeas petition for underage army recruit before state court commissioner.
Held: state court cannot discharge a person from federal custody, even if it is following federal law in doing so.
Cf Pennhurst: federal court decided controversy invalid under state law – SCT says you are not allowed
to enjoin state officer under state law.
McClung v. Silliman (1821) – no state mandamus against a federal officer
Facts: McClung claimed an interest in land owned by the federal government and sought to compel Silliman,
the federal officer in charge of the local land office, to make a formal conveyance. Silliman refused.
Held: State courts lack the authority to issue a writ of mandamus against a federal officer.
Can a state issue an injunction against a federal officer?
Richard Arnold: Yes. Presumption of concurrent jurisdiction. Any fears that state courts will not follow
federal law adequately resolved by: (1) SCT review; (2) removal; (3) federal habeas; (4) specification by
Congress that the jurisdiction of the federal courts in a particular respect is exclusive.
Problem: Suing a Military Officer
Facts: Students denied entry to military base to distribute leaflets. Students brought action against the base
commander in a federal district court. They asked for an injunction requiring that they be allowed on the base.
They claimed denial of first amendment rights and violation of the defendant’s own established rules.
They based jurisdiction on 28 U.S.C. §§1331, 1343(4), 1361, and 1651. When the defendant moves to
dismiss for lack of subject matter jurisdiction, how should the district court rule? DISMISS.
- §1331: At the time, jurisdictional amount requirement of $10K. The student plaintiffs alleged “the
matter in controversy exceeds $10,000 because the constitutional rights infringed by the defendant in
this case are priceless.” This argument would not work.
- §1343(4): will not work jurisdictional statute for §1983 claims. Court says if it is a property right
you are claiming, you must meet jurisdictional amount of §1331. If it is a personal right (e.g. First
Amendment), no need to meet §1331. BUT, here they are suing federal – not state actors.
- §1361 (mandamus); §1651 (writs) – McClung, Tarble’s Case
Alternative: take action to state court.
- State courts have general jurisdiction and they must enforce federal law. State court will have to
decide whether Tarble’s Case extends to injunctions. If state court throws you out because they read
Tarble’s Case to say they cannot give an injunction, you could go back to federal court. Claim it is
unconstitutional not to give remedy for constitutional right. See also Boumediene.
APPELLATE REVIEW OF STATE COURT DECISIONS
SCT can review state court decisions (Martin), but it can only review questions of federal law (Murdock).
Exception: SCT can review questions of state law to protect federal rights (Brand).
Exception: SCT can review state decisions to prevent cheating (NAACP cases).
State courts must provide constitutionally adequate remedies (McKesson).
AISG Doctrine: SCT will not review state decisions that rest on adequate & independent state grounds.
SCT will presume dependence absent clear statement by state court to the contrary (Michigan v. Long).
(A) SUPREME COURT REVIEW OF FEDERAL QUESTIONS:
Martin v. Hunter’s Lessee (1816) Story – SCT has authority to review state court decisions
Issue: whether land had escheated to Virginia prior to treaties which prevented state governments from
interfering with the normal rights of British subjects to land in the United States?
Held: SCT has authority to review state court decisions. SCT examined common law precedents and the
Virginia statutes in deciding the escheat had not occurred before the treaties came into effect.
Article III extends judicial power to “all cases” “It is the case, then, and not the court, that gives the
jurisdiction… If some of these cases might be entertained by state tribunals, and no appellate
jurisdiction as to them should exist, then the appellate power would not extend to all, but to some,
cases…” Story says that if you buy Virginia’s argument, there are things that cannot be in the federal
judicial power – and that surely would be wrong.
“It is an historical fact, that this exposition of the Constitution, extending its appellate power to state
courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its
Policy: (1) “The Constitution has presumed… that state attachments, state prejudices, state jealousies, and state
interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration
of justice…; (2) “importance, and even necessity of uniformity of decisions throughout the whole United States,
upon all subjects within the purview of the Constitution”
Murdock (1875) – SCT may only review questions of federal law in state court decisions
Re-look at Martin: Story tells Virginia what Virginia law means. How do we justify? Story reasons – if
he didn’t decide the state law issue, Virginia would be allowed to cheat and win. Message: SCT can
review state law to the extent necessary to satisfy itself that the state law has been honestly applied,
rather than applied to defeat a federal right.
(B) WHAT IS A FEDERAL QUESTION?
Brand (1938) – SCT can review state court decisions re: state law to ensure the protection of federal rights
Facts: Schoolteacher in Indiana threatened with termination. State had created teacher tenure law creating a
contract between the teacher and the state. Statute repealed. State said the contract never existed.
Held: SCT decides whether a contract was made (i.e. violation of Contract Clause).
Reality that sometimes states will want to cheat so federal courts have to oversee to some extent… but
do not want federal law of contracts.
“On such a question, one primarily of state law, we accord respectful consideration and great weight to
the views of the state’s highest court but, in order that the constitutional mandate may not become a
dead letter, we are bound to decide for ourselves whether a contract was made, what are its terms and
conditions, and whether the state has, by later legislation, impaired its obligation.”
**Trick here is that because we are dealing with the Contract Clause and a contract made at a prior date
= question is whether there was a contract at prior time? State court not an impeachable authority on
what it says state law WAS… in comparison to what it says state law IS.
Ward v. Love County (1920)
Facts: Members of the Choctaw Indian tribe held lands in Oklahoma allotted to them by act of Congress. The
statute provided that the lands were exempt from local taxation. Congress later repeals the exemption. Love
County then imposed a tax on the lands. A number of suits were filed to enjoin collection of the taxes, resulting
in SCT decision that the original statutory exemption was a vested property right protected against legislative
repeal by the 5th Amendment. In the meantime, Love County collected taxes (about $8000) from Ward et al by
threatening to sell their land unless the taxes were paid. After the SCT decision upholding their right not to be
taxed, Ward and the others sued in state court to get their money back. Oklahoma Supreme Court says Indians
should not get refund because (1) paid taxes voluntarily (this is fact cheating); (2) taxes collected by county but
turned over to the state no avenue for return (matter of state law).
Holding: Indians entitled to a refund.
This case famous for how the hell can you tell whether they are talking state or federal law – talking
general jurisprudence. They are supposed to be following state law. Demonstrates intermix.
“As the payment was not voluntary, but made under compulsion, no statutory authority was essential to
enable or require the county to refund the money.”
“The county had no right to collect the money, and it took the same with notice that the rights of all who
were to share in the taxes were disputed by these claimants and were being contested in the pending
suits. In these circumstances it could not lessen its liability by paying over a portion of the money to
others whose rights it knew were disputed and were no better than its own.”
Bush v. Gore (2000): was Supreme Court of Florida cheating? Or was the SCT cheating in refusing to follow
law as Florida pronounced it?
(C) THE ADEQUATE AND INDEPENDENT STATE GROUND DOCTRINE
Adequate+Independent State Ground Doctrine: if state court decision rests on a proposition of state law that
is adequate to support the judgment + independent of federal law, SCT will hold it lacks jurisdiction to review.
Problem: Supreme Court Review
The defendant in a state criminal prosecution contends that the confession the state has introduced against him
is involuntary under both the State Constitution and the U.S. Constitution.
Hypo 1: The State Supreme Court upholds the defendant’s position on both state and federal grounds.
Does the U.S. Supreme Court have jurisdiction to review the case? NO.
Hypo 2: If the state judiciary upholds the defendant’s contention on state law grounds only, can the
Supreme Court review? NO. Does it make any difference whether the state judiciary held against the
defendant’s federal contention or simply didn’t reach it? NO.
Hypo 3: If the state judiciary rules against the defendant on both state and federal grounds, can the
Supreme Court review? YES.
Hypo 4: If the state judiciary rules against the defendant on the state ground but in his favor on the
federal ground, can the Supreme Court review? YES.
Hypo 5: Could the Court review if the state judiciary had ruled in the defendant’s favor on the federal
ground without deciding the state law issue? YES. If so, and if the U.S. Supreme Court reversed, could
the state courts on remand rule in the defendant’s favor on the state issue? YES. Should we require
state courts to decide state issues before they decide federal? Problem that really interfering with
judicial decision-making. Often there are two issues in a case – one easy, one hard. If you know the
answer to federal law, but state law question is complicated – why waste time figuring out state law.
If you want to come out in favor of gay marriage, and do not want SCT review – decide on state law! If you
want SCT review, try federal law only because you have the safety net of reviewing on state law if they reverse.
Does it make any sense for state courts to be able to choose whether or not to have Supreme Court review?
Dependent State Grounds: if state decision dependent on federal grounds = SCT can review
Standard Oil (1942) Black
Facts: California Motor Vehicle Fuel License Tax Act says not to tax “motor vehicle fuel sold to the
government of the United States or any department thereof.”
Issue: whether United States Army Post Exchanges qualify for this exemption?
State question meaning of state statute. California Supreme Court held Post Exchanges do not
qualify for the exemption.
Held: SCT reverses – reinterprets California statute, which it says looks to federal law
“If the court’s construction of §10 of the act had been based purely on local law, this construction would
have been conclusive, and we should have to determine whether the statute so construed and applied is
repugnant to the federal Constitution. But in deciding that post exchanges were not “the government of
the United States or any department thereof,” the court did not rely upon the law of California. On the
contrary, it relied upon its determination concerning the relationship between post exchanges and the
government of the United States, a relationship which is controlled by federal law.”
Last ¶: makes it sound like an advisory opinion – SCT says here is the relationship between post
exchanges and the governments – do what you want with it! SCT does not say whether post exchanges
qualify for exemption in California, only says that post exchanges do qualify as government.
Appellant had actually argued that not giving the exemption was unconstitutional – SCT does not
answer this question. If they had said it was unconstitutional, they would reverse and remand for
proceedings not inconsistent. Then California would have reinterpreted the statute to have it apply
exemption to post exchanges. Black thinks he’s avoiding friction with California – instead of holding
statute unconstitutional if they persist in interpretation, he tells them to change interpretation.
Dependent state grounds (aka “state incorporation of federal law) are considered federal law for review
purposes, because Murdock says SCT can only review federal law.
Should these issues be considered federal questions for purposes of original federal jurisdiction in
federal district courts? NO – Field sees a big problem with this. The reason dependent state law is
reviewable by SCT is that SCT can say no. But if there is original jurisdiction, the district court cannot
select not to take the case. You wouldn’t want the state by saying it is going to follow the federal
income tax code to shift all of its tax cases into the federal district court. The other thing, you cannot tell
whether case will turn on federal law at that point.
- Moore: RR employee injured while working in intrastate commerce. Kentucky had copied
federal RR law to apply for injuries in the state. Held: the standards of the Federal Safety
Appliance Acts, as incorporated elements of state law, did not support original “arising under”
jurisdiction but did present a federal question subject to appellate review by the SCT.
Bigger question: how do know what is dependent? How do you know if the state tried to incorporate
federal law? Minnesota National Tea: asking the state will not give you the right answer.
Michigan v. Long (1983) O’Connor – SCT will presume dependence on federal law
Held: SCT will presume a state law ground is dependent on federal law unless the state Supreme Court makes a
clear statement to the contrary.
“If the state court decision indicates clearly and expressly that it is alternatively based on bona fide
separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”
“[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be
interwoven with the federal law, and when the adequacy and independence of any possible state law
ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that
the state court decided the case the way it did because it believed that federal law required it to do so.”
Policy: SCT wants to be able to review these things; SCT doesn’t like criminal winning; SCT doesn’t like states
over-enforcing federal law; important need for uniformity when a decision rests primarily on federal grounds.
“[I]t cannot be doubted that there is an important need for uniformity in federal law, and that this need
goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where
the independence of an alleged state ground is not apparent from the four corners of the opinion.”
Dissent (Stevens): wants opposite presumption (in favor of independent state grounds).
(D) REVIEW OF FACTUAL ISSUES:
Ward v. Love County (see supra) – SCT reviews fact cheating
State court cheats on the facts to cut off federal rights – says payment of tax was voluntary
SCT says there is no evidence behind finding that payment was voluntary. Murdock violation? SCT
interferes with state factual findings! What if there is some evidence for state’s fact finding?
Cox v. Louisiana (1965) – statute overbroad if it prohibits constitutionally protected conduct
Facts: Louisiana state court held that a civil rights demonstration violated the state’s breach of the peace statute.
Can SCT review? Argument against: Demonstration violated Louisiana’s breach of the peace law.
What this law means is totally up to the Louisiana Supreme Court.
Held: SCT held itself duty bound to independently examine the record. Upon doing so, it found no conduct the
state constitutionally could prohibit as breach of the peace.
Note: there was a video of the demonstration – making review of the facts easy.
Why isn’t this a Murdock violation? If the conduct is protected by the First Amendment, then the
statute is unconstitutionally overbroad as applied in this case. Overbreadth of the statute means that it
prohibits constitutionally protected conduct. SCT passing on constitutionality on the statute.
SCT claims right to review facts so state court will not undercut them – but really they cannot do this.
They are just an appellate court on review. The only time they can really review the facts is if the facts
can be presented to them – e.g. movie of demonstration. They can also review dirty books – obscenity.
- FN 8: “Because a claim of constitutionally protected right is involved, it “remains our duty in a
case such as this to make an independent examination of the whole record.” In the area of First
Amendment freedoms as well as areas involving other constitutionally protected rights, we
cannot avoid our responsibilities by permitting ourselves to be ‘completely bound by state court
determination of any issue essential to decision of a claim of federal right, else federal law could
be frustrated by distorted fact finding.’”
Doesn’t the need for federal input in the fact-finding process make a case for original jurisdiction in the
lower federal courts?
Thompson—No evidence rule
Facts: Man convicted of breach of the peace for dancing alone with a broom.
Not constitutionally protected conduct, but SCT feels it should be not be punished. This is an
interpretation of Kentucky law – how can SCT overrule? Highest state court has said that dancing alone
with a broom is a violation.
Held: SCT says there is no evidence that Thompson disturbing the peace (“no evidence rule”). Kentucky
disturbing the peace statute void for vagueness as applied.
(E) CONSTITUTIONALLY-REQUIRED REMEDIES IN STATE COURT:
McKesson Corp. (1990) Brennan
Facts: McKesson sued in state court successfully alleging that Florida’s liquor excise tax violated the
Commerce Clause. The state Supreme Court enjoined the state from enforcing those provisions in the future,
but refused to provide petitioner a refund or any other form of relief for taxes it had already paid.
State has two excuses for not allowing the refund: (1) statute good faith; (2) company would get a
windfall since it already passed on increased tax to its customers.
Held: The Due Process Clause requires the state to afford a constitutionally adequate remedy. They can
provide any adequate remedy that they want (issue a refund or tax those who did not receive the break).
Why isn’t this like Edelman (injunction & declaratory judgment, but no retroactive benefits allowed)?
Here, they are suing to get their own property back!! Lee & Land. Due process requires refund remedy.
This suggests that state cannot transgress a federal right without giving an adequate remedy.
Note: 11th Amendment does not apply to SCT appellate review of state court decisions.
“[I]t is “inherent in the constitutional plan,” that when a state court takes cognizance of a case, the state
assents to appellate review by this Court of the federal issues raised in the case “whoever may be the
parties to the original suit, whether private persons, or the state itself.”
Would McKesson be barred in the 11th Amendment if brought in federal court? Cannot be right because
Alden says if barred in federal court because of 11th Amendment, barred in state court. Why would
McKesson not be barred in federal court? This is Lee and Land – getting your own property back! But
see Ford Motor Co (SCT held taxpayers suit in federal court for a refund of state taxes due to violation
of Commerce Clause barred by Eleventh Amendment Field thinks this is a bad opinion).
Reich v. Collins (1994)
Sequel to McKesson. “[D]ue Process requires a “clear and certain” remedy for taxes collected in
violation of a federal law. A state has the flexibility to provide that remedy before the disputed taxes are
paid (pre-deprivation), after they are paid (post-deprivation), or both. But what it may not do, and what
the state did in this case, is hold out what plainly appears to be a “clear and certain” post-deprivation
remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.”
Concern about state changing its scheme unfairly in mid-stream. See NAACP v. Patterson (Court
ignored Alabama procedural rule implemented mid-stream to preclude review of the federal claim).
Jackson v. Denno (1964) – SCT requires a specific federal procedure
Held: New York was required to hold an independent hearing, out of the presence of the trial jury, at which the
voluntariness of a confession would be determined.
(F) ADEQUATE AND INDEPENDENT STATE PROCEDURAL GROUNDS
1. DO STATES HAVE A “RIGHT” TO USE THEIR OWN PROCEDURES?
Federal Procedures in State Courts:
Johnson v. Fankell (1997) – states may apply their own procedural rules if not “outcome determinative”
Held: federal procedures do not preempt a state’s consistent application of its own neutral procedural rules
when those rules are not “outcome determinative.”
The interlocutory appeal would have been allowed in federal court. The state and federal appeals
statutes have the same language, but the state court doesn’t have to interpret “final decision” the same
way the federal court does. We have to balance competing federal/state interests here.
Felder v. Casey (1988) Brennan – state procedural rules must not significantly burden federal rights
Facts: Plaintiffs filed a §1983 action in state court but failed to comply with a state notice-of-claim statute that
required written notice of a claim against a government subdivision or its officers w/in 120 days of the incident
giving rise to such claim. The state supreme court dismissed the suit.
Held: notice provision invalid – “application of the notice requirement burdens the exercise of the federal right”
in a manner “inconsistent in both design and effect with the compensatory aims of the federal civil rights laws.”
“[E[nforcement of the notice-of-claim statute in §1983 actions brought in state court so interferes with
and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to
the federal interest…”
“Federal law takes state courts as it finds them only insofar as those courts employ rules that do not
“impose unnecessary burdens upon rights of recovery authorized by federal laws.”
See also Engel v. Davenport (1926): seaman’s claim against a shipowner under the Merchant Marine Act of
1920, a federal statute that incorporated by reference many provisions of the FELA, including its two-year
statute of limitations. A California state court dismissed the claim as barred by the state’s one-year statute of
limitations for personal injury actions, but the Supreme Court reversed, holding that the two-year limitations
period was part of the “substantive right, setting a limit to the existence of the obligation which the act creates.”
Dice v. Akron, Canton & Youngstown RR Co. (1952): FELA expressly provided for jury trials, and thus pre-
empted a state rule denying a right to a jury trial.
“[T]he right to trial by jury is too substantial a part of the rights accorded by the act to permit it to be
classified as a mere “local rule of procedure” for denial in the manner that Ohio has here used.”
Brown v. Western RR Co. of Alabama (1949): Local practice construed FELA complaint “most strongly
against the pleader”; but this local practice should not be allowed to defeat the guaranteed federal rights.
Federal Claims Raised by Defendants in Criminal Cases:
Jackson v. Denno (1964) – Due Process requires hearing outside the presence of the jury to determine
voluntariness of a confession.
Chapman v. California (1967) Black – federal constitutional errors require reversal unless “harmless beyond a
Facts: Prosecutor commented on the defendant’s failure to take the stand, and the jury was charged that it could
take such comments into account. Subsequently, the SCT held such comments unconstitutional.
Held: SCT says federal law governs. Federal constitutional errors require reversal unless “harmless beyond a
reasonable doubt.” Applying that standard, SCT reverses the conviction.
Dissent (Harlan): so long as state’s harmless-error rule is not itself unconstitutional, SCT should not override.
2. STRINGENT APPLICATIONS OF STATE PROCEDURAL RULES
Example: State procedure that constitutional objections must be submitted to court 24 hours before the trial
begins. What if you violate the rule? Two days into the trial you want to object to confession as involuntary.
If state procedural rule is unconstitutional, of course it cannot block SCT review.
In situations where state procedural rules seem to harsh, SCT finds ways around (e.g. cheating cases
NAACP v. Flowers: state court cheats by refusing to consider constitutional claims based on small error
in brief; NAACP v. Patterson: state court cheats by refusing to consider constitutional claim because
NAACP had sought review by certiorari rather than mandamus).
If court has ever not required rule in the past, or has any discretion to depart from procedural rule under
state law = may not block SCT review.
Henry v. Mississippi (1965) Brennan
Held: State procedural rule will not block SCT review of a federal right unless (1) state had an interest in
insisting on applying the rule in the particular case; or (2) defendant or his attorney had deliberately bypassed
the state procedural requirement for strategic reasons.
Because (1) difficult to meet in most situations, SCT found a way to protect defendants from having to
serve prison time for their lawyer’s mistakes, laziness, or lack of resources, when a federal constitutional
violation was responsible for the conviction.
Henry may be seen as simply complement to Fay v. Noia, for SCT review. Questions re: definition of
deliberate bypass – whether Henry’s definition replaces Fay or whether there are different definitions.
FEDERAL HABEAS CORPUS
Warren Court Burger/Rehnquist Court AEDPA
Law Brown: YES X 4th Amendment Stone: Terry Williams v. Taylor / §2254(d)(1):
foreclosed if opportunity for grant relief only if state court decision
full & fair litigation of 4th contrary to or unreasonable application of
Amendment claim federal law
Teague: anti-retroactivity Stone, Teague
rule for new law
Foreclosure Fay: no foreclosure X 4th Amendment Stone: Lee v. Kemna: No foreclosure if state
unless DB + foreclosed if opportunity for procedural ground not adequate
discretion full & fair litigation of 4th
Amendment claim Wainwright: C&P
Teague: anti-retroactivity Schlup: Actual innocence exception to
rule for new law C+P (but see: Herrera)
unless cause & prejudice +
Facts Townsend v. Sain: X 4th Amendment Stone: Litigated: §2254(d)(2): re-hearing on
yes factual hearing foreclosed if opportunity for facts only if state decision based on
unless discretion + full & fair litigation of 4th “unreasonable determination of the facts”;
full & fair hearing Amendment claim §2254(e)(1): litigated facts presumed
or DB correct
Keeney: no factual hearing
unless cause & prejudice Unlitigated:
Failure §2254(e)(2): hearing on
unlitigated facts only if claim relies on
new rule or a factual predicate that could
not previously been discovered AND but
for no reasonable factfinder would have
found the applicant guilty.
Due Diligence Michael Wayne
Williams v. Taylor : hearing allowed if
due diligence / C&P
Repeats Sanders: yes new McCleskey: no new §2255/§2244(b): repeats not allowed
petitions unless petitions unless cause & unless new ground + (A) new rule made
same ground or DB prejudice retroactive by SCT or (B) factual predicate
+ discretion that could not previously been discovered
AND but for no reasonable factfinder
would have found the applicant guilty.
Must get permission for repeats from
Court of Appeals.
Statute of None None One year for non-capital cases
180 days for capital cases
Originally, habeas only given to federal prisoners. Significant because Constitution says it is
unconstitutional to suspend habeas, but this may only apply to federal prisoners.
Habeas was originally aimed at executive detentions, not detentions after judicial process. Extended,
but in the beginning you could only challenge whether the court lacked jurisdiction. In the 1920s, cases
said no court has jurisdiction to commit constitutional errors. This is the way it evolved.
(B) HABEAS CORPUS PROBLEMS
Habeas During the Fay v. Noia Regime:
(1) In a habeas proceeding, petitioner claims that when she was convicted three years ago, an illegally
obtained confession was introduced at her trial. She objected then but lost. The state admits that no
Miranda warnings were given to the petitioner but claims that none were required in the circumstances,
a claim that the petitioner denies.
a. What is the proper course for the district judge, once she has determined that state remedies have
been exhausted? Brown v. Allen – re-litigate the issue.
b. Would the analysis change if the state’s position was that the Miranda warnings were given, and
the petitioner’s claim was that they were not? Townsend v. Sain – re-determine litigated facts.
Look whether there was full and fair litigation before. If there was, can defer to full & fair
litigation and not hear the facts again. A relitigation of facts is much harder to do than law.
Federal judge has to give full hearing if no deliberate bypass, full and fair facts before. Even if
there was deliberate bypass or full & fair hearing of facts – judge still has to discretion to hear
the claim and facts.
(2) X is convicted of rape. At his state trial he raised both a double jeopardy claim and an involuntary
confession claim and lost on both of them. He has exhausted state remedies on both claims. He then
brought a federal habeas proceeding on the double jeopardy claim and lost.
a. Can he now obtain a decision on the merits if he seeks habeas on his involuntary confession
claim? Sanders v. United States: Court says he can re-litigate absent a deliberate bypass as long
as it is another ground. If it is the same ground, he cannot re-litigate.
b. If he does and loses, can he then obtain a determination on the merits of his confession claim by
filing again for habeas?
State Post Conviction Relief, Exhaustion, and How Habeas Works
(1) X, an indigent, is convicted of larceny in Illinois without being afforded a right to counsel. After his
conviction is final, the Supreme Court decides Gideon v. Wainwright. Can X come to federal court to
take advantage of the decision despite the availability of state post-conviction relief? NO.
(2) A is convicted of burglary in state courts. At his trial he objects that his confession introduced against
him is involuntary, and he repeats the argument before the intermediate state appellate court and the
state supreme court. The U.S. Supreme Court denies certiorari. A wishes to continue to question the
voluntariness of his confession. Can he go immediately to federal court to do so or must he first utilize
any available state post-conviction remedy? Argument that going to state post-conviction would be an
exercise in futility. Where you know that the state will rule against you, you probably do not have to go
through the motions to exhaust state relief. Practical issue: ask whether there is any chance that state
supreme court would come out differently? (e.g. change in justices, change in law, time passed).
(3) Same as the above example except no state post-conviction remedy existed and A did not petition for
certiorari but immediately upon denial of his claim by the state Supreme Court filed for habeas in
federal district court. Should the district court entertain his claim? After Fay, SCT says you do not have
petition for certiorari before habeas.
(4) B is in prison having been convicted of obtaining property by false pretenses. A confession was
introduced against B at his trial over his objection that it was involuntary. B did not appeal his
conviction, however, because he could not afford to purchase a transcript and state law required a
transcript in order to appeal. Two years later, B files for federal habeas corpus. No state post-
conviction remedies are available. How should the district judge rule on the petition?
Impact of Stone and Wainwright
(1) Petitioner in federal district court claims for the first time that his statement, used against him at his state
trial for burglary, was involuntarily obtained and that he did not raise the claim before because his
lawyer did not advise him concerning it.
a. What result?
b. Would the result differ if his claim pertained to an illegal search and seizure?
Is Innocence Relevant?
(1) X is serving a life sentence for first degree murder when Y confesses to the crime. Can X be released on
habeas? The answer may be no – Herrera.
(C) THE MODEL OF EVER-AVAILABLE HABEAS: THE WARREN COURT
Fay v. Noia (1963) Brennan – Habeas not foreclosed by state procedures unless deliberate bypass discretion
Facts: Noia and two other defendants convicted of felony murder. The only evidence against them was their
signed confessions. The convictions of the other two defendants were affirmed on appeal, but they later won
habeas relief on the ground that their confessions had been coerced. As the state had no other evidence against
them, they were not retried. Noia’s confession was also coerced. But Noia had not appealed his original
conviction because he did not want to risk being given the death penalty.
28 U.S.C. § 2254: “An application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the state.”
Held: Forfeiture of a state remedy does NOT foreclose habeas review unless there's a currently available state
remedy or the prisoner deliberately bypassed state procedures.
Test for deliberate bypass: If a habeas applicant, after consultation with competent counsel or otherwise,
understandingly and knowingly foregoes the privilege of seeking to vindicate his federal claims in state
courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate
by-passing of state procedures. A choice made by counsel not participated in by the petitioner does not
automatically bar relief.
Oddities in definition of deliberate bypass. Here, no deliberate bypass even though defendant
deliberately chose not to pursue appeal due to risk of death penalty. Court’s definition of deliberate
bypass also requires the decision to be made by the defendant, and not the lawyer.
- Compare Henry: attorney’s strategic decisions counts as deliberate bypass. Is there a different
standard for appeal vs. habeas? Field thinks Henry should be read as modifying Fay.
Dissent (Harlan): huge imposition on state courts and state laws. Brennan thinks this is justified. Brennan
balances interests – federal interest is to make sure Constitution/federal law upheld; Defendant interested in
freedom – being able to litigate unconstitutionality; state interested in holding the defendant if he is guilty and
having its procedures followed.
For Harlan, where there is an adequate state ground on appeal – that is also an adequate state ground on
habeas = you should not go forward. You can call this waiver/foreclosure of a federal right. Brennan
says adequate state ground has nothing to do with habeas. Habeas is a suit by the detained person
against the officer or whoever is detaining them saying they have a constitutional right to their release.
When you let someone out on habeas, you say the detention has been unconstitutional – you are not
passing on the judgment.
- Is it true that judgment of habeas does not affect the judgment? No – this can’t be right. If you
get out and there is a rule that convicted felons cannot vote – you should be able to vote despite
Brown v. Allen (1953) Frankfurter – habeas reviews de novo legal questions
Held: Federal courts may reconsider de novo the merits of federal constitutional claims already heard and
decided in state courts.
Principles of finality, normally expressed in doctrines associated with res judicata, did not apply.
Subsequent cases (e.g. Townsend v. Sain) held that federal habeas courts also had considerable
discretion to hold a new hearing and redetermine the facts.
Note: Before this, habeas had largely been limited to challenges to the jurisdiction of the sentencing court. E.g.,
in Frank v. Mangum (1915), habeas was denied because there was no question concerning jurisdiction, and
defendant’s claim of a mob-dominated trial was fully and fairly heard by a competent and unbiased tribunal.
Daniels v. Allen (1953) – overruled by Fay v. Noia
Held: State Supreme Court rejected Daniels’ claims of racial discrimination in jury selection and admission
coerced confession without consideration of the merits because Daniels’ lawyer failed to perfect an appeal
within the allotted time. On review of Daniels’ federal habeas petition, the SCT held that his claims were
foreclosed by that procedural default.
Three theories: (1) foreclosure might be required by the failure to exhaust state remedies; (2) untimely
appeal was a waiver of the claim; (3) procedural default provided an adequate and independent state
ground for the judgment of conviction
Result: if the state courts relied on the failure to follow reasonable procedures as the basis for failing to
consider the merits of federal claims, federal habeas review was foreclosed.
Dissent (Black): doubted “the soundness of a philosophy which prompts this Court to grant a second review
where the state has granted one but to deny at all where the state has granted none.”
Ex parte Royall (1886) – exhaustion requirement
Held: absent special circumstances, federal courts should not intervene until the state trial and appellate courts
have had an opportunity to rule on constitutional claims.
Exhaustion of state remedies also required resort to available state post-conviction procedures – state
analogs to federal habeas – for claims that had not been raised at trial and direct review.
Exception: Defendants need not go through the motions if it is completely clear that there is no available
remedy under state law.
Sanders v. United States (1963) – repetitive applications allowed unless discretion + same ground or abuse
Held: relief could be denied on the ground of repetitive applications only if: (1) the same ground presented in
the subsequent application was determined adversely to the applicant on the prior application; (2) the prior
determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the
A petition alleging new grounds for relief could be denied because of a prior petition only if an “abuse”
of the writ had occurred.
(D) NARROWING AVAILABILITY: THE BURGER AND REHNQUIST COURTS
Stone v. Powell (1976) Powell – No habeas of 4th Amendment claims if had opportunity for full & fair litigation
Facts: Defendants were convicted of criminal offenses in state courts. The prosecution relied on evidence from
searches and seizures alleged by the defendants to be unlawful. The state courts had rejected the search and
seizure claims. Defendants then sought relief in federal court by filing a petition for habeas.
Held: Where the state has provided an opportunity for full and fair litigation of a 4th Amendment claim, a state
prisoner may not be granted federal habeas relief on that claim (alleging violation of exclusionary rule).
Purpose of 4th amendment is to deter police actions – does not go toward guilt or innocence of the
defendant. Is purpose of habeas to find innocence?
Note: as scope of habeas corpus gets narrower, scope of state review gets narrower as well.
Dissent (Brennan): “It is simply inconceivable that that constitutional deprivation suddenly vanishes after the
appellate process has been exhausted.” Dissent (White): “I cannot distinguish between the Fourth Amendmnet
and other constitutional issues.”
This rule was not extended to other claims:
Rose v. Mitchell (1979): allowed habeas review of a claim of racial discrimination in grand jury
selection even though a properly constituted petit jury had returned a conviction.
Withrow v. Williams (1993): Miranda claims are open to habeas review.
Kimmelman v. Morrison (1986): Sixth Amendment ineffective assistance claim was cognizable on
habeas even though based on the failure to raise a Fourth Amendment claim at trial.
Non-Constitutional Claims: generally not-allowed unless amount to “a fundamental defect”
Hill v. United States (1962): non-constitutional claims usually cannot be raised on habeas corpus, but
Court recognizes a small window of opportunity for errors amount to “a fundamental defect which
inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the
rudimentary demands of fair procedure.” Reed v. Farley (1994): extended Hill standard to state
prisoners seeking federal habeas relief.
Harmless Error: stricter standard on habeas than direct review
Chapman v. California held that constitutional errors occurring in a state prosecution require reversal on
direct review unless they were “harmless beyond a reasonable doubt.” In Brecht v. Abrahamson (1993),
the Court held that a different standard governed on collateral review – requires actual prejudice: test is
whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.”
Wainwright v. Sykes (1977) Rehnquist – procedural foreclosure unless C & P
Facts: Sykes was convicted in state court of third degree murder. He made incriminating statements that were
admitted into evidence but to which his counsel did not object. Sykes subsequently sought to raise a Miranda
complaint about the statements, but was foreclosed from doing so in the state courts by the state’s requirement
of contemporaneous objection. On federal habeas, issue was whether Sykes could raise the claim on the merits
despite the procedural default.
Held: No federal habeas review absent showing of “cause and prejudice” attendant to a state procedural waiver.
Definition of prejudice? Harmless error. Here they said overwhelming evidence of guilt so no
prejudice. But we do not know what the court convicted the defendant on!
Definition of cause? Murray v. Carrier (1986): attorney oversight or inadvertence did not constitute
“cause.” “Cause” turns on whether some “objective factor external to the defense impeded counsel’s
efforts to comply with the state’s procedural rule.”
- Examples: Brady violation (prosecution suppressed evidence favorable to you); jury bribed.
- Escape valve: “In appropriate cases the principles of comity and finality that inform the concepts
of cause and prejudice “must yield to the imperative of correcting a fundamentally unjust
incarceration” – e.g. actual innocence.
Rationale of this case: danger of sandbagging under Fay. But this is not a move that smart lawyers
would make – better to have two bites of the apple + avoid risk of being seen as DB. Plus, habeas
comes many years later = big delay + petitioner has burden of proof + petitioner has no right to counsel
= not advantageous to wait. Field doesn’t think argument of sandbagging is true at all.
Massaro v. United States (2003) Kennedy – ineffective assistance of counsel claims not procedurally foreclosed
Held: ineffective assistance of counsel claims are not procedurally foreclosed in a §2255 proceeding if not
raised on direct appeal.
Test for ineffective counsel: Must show that counsel’s actions were not supported by a reasonable
strategy and that the error was prejudicial. Strickland v. Washington.
Keeney v. Tamayo-Reyes (1992) – C&P standard for re-hearing of facts
Held: A factual hearing is permissible for matters not raised at the state trial only if the habeas petitioner can
show “cause and prejudice.”
McCleskey v. Zant (1991) Kennedy – C&P standard for repeats
Facts: McCleskey presented in a second federal habeas proceeding a claim that he had failed to include in his
first federal habeas proceeding.
Held: This was an “abuse” of the writ. The “cause and prejudice” standard applies.
Teague (1989) O’Connor – anti-retroactivity rule for new law – exclusive reliance on “clearly established law”
Held: federal habeas courts must deny relief that is contingent upon a rule of law not “clearly established” at the
time the state conviction became final.
Rule: “[N]ew constitutional rules of criminal procedures will not be applicable to those cases which have
become final before the new rules are announced.”
Test: “[A] case announces a new rule if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.”
- Lambrix (1997): “[T]he Teague inquiry… asks whether [the decision] was dictated by precedent
– i.e., whether no other interpretation was reasonable.”
- Problem: everything counts as a new rule! It covers all legal developments.
Exceptions: (1) a new rule is available on collateral review it places “certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe”; (2) a new rule is
available if “without which the likelihood of an accurate conviction is seriously diminished.”
(1): e.g. First Amendment holding that previously unprotected speech could no longer be punished
would be applied retroactively D in jail for flag burning and SCT decides flag burning not criminal.
(2): e.g. Gideon (right to counsel). This exception is very narrowly read “Because we operate from
the premise that such procedures would be… central to an accurate determination of innocence or guilt,
we believe it unlikely that many such components of basic due process have yet to emerge.” Crawford
(right to cross-examine witnesses) found to be a new rule that did not apply retroactively! See Danforth.
**This means that developments in the law will not occur on federal habeas corpus = developments in the law
will occur on state criminal convictions only if SCT gives direct review.
**Horn v. Banks: Teague survives AEDPA. The exceptions are also probably still the law.
Danforth v. Minnesota (2008) – Teague does not restrain state courts
Held: Teague does not restrain the ability of state courts to give broader effect to new rules of criminal
procedure than is allowed in a federal habeas corpus proceeding.
(E) AEDPA’S MODIFICATIONS: THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY
ACT OF 1996
Habeas corpus is a civil action by the detained person against the person holding him claiming that his detention
is unconstitutional. Problem: too many cases in states with federal prisons. §2255 switches the place of venue
to the court that imposed the sentence rather than the court where imprisoned. Court says §2255 is not a
suspension of habeas corpus; it is only a change of venue provision.
Holes in AEDPA. To fix, incorporate decisions of Burger/Rehnquist Court (e.g. Stone v. Powell, Teague).
1. SCOPE OF REVIEW OF LEGAL ISSUES -- §2254(D)(1):
Terry Williams v. Taylor (2000) O’Connor – explains §2254(d)(1)
§2254(d)(1): federal habeas only if state-court decision: (1) “was contrary to… clearly established Federal law,
as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of…
clearly established Federal law, as determined by the Supreme Court of the United States.”
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a
conclusion opposition to that reached by this Court on a question of law or if the state court decides a
case differently than this Court has on a set of materially indistinguishable facts.
- “determined by the Supreme Court” = must be a holding, NOT dicta
Under the “reasonable application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
- “[A] federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable…”
Application must be objectively unreasonable
Stevens (4 votes): a federal court decides the law – Marbury v. Madison. States either have it right or not.
Cannot defer to reasonable but erroneous applications. Field agrees with Stevens.
Bell v. Cone (2002) Rehnquist – re-affirms test of Terry Williams
Unreasonable application of Strickland? NO: “[I]t is not enough to convince a federal habeas court that,
in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must
show that the Tennessee Court of Appeals applied Strickland to the facts of his case in an objectively
unreasonable manner. This, we conclude, he cannot do.”
See also Renico v. Lett (2010) Roberts: “[T]he Michigan Supreme Court’s decision upholding the trial judge’s
exercise of discretion – while not necessarily correct – was not objectively unreasonable… The Court of
Appeals also erred [in relying] upon one of its own decisions…”
Lee v. Kemna (2002) Ginsburg – no foreclosure if NO adequate state ground
Facts: In a murder trial in state court, Lee asked for an overnight continuance when key witnesses were not
present in the courtroom. The trial judge denied the request. After Lee was convicted, his appeal for a violation
of due process was denied on the grounds that he did not follow the state law requiring that requests for
continuances be in writing and supported by affidavits.
Held: Habeas allowed because no adequate state ground. The state applied its procedural rules exorbitantly
without having a state interest in doing so. AEDPA not in play because AEDPA comes into play only if there is
an adequate state procedural ground that cuts defendant off from habeas.
Dissent (Kenned): AISG inquiry: (1) the defendant must have notice of the rule, and (2) the state must have a
legitimate interest in its enforcement. Both are met here.
Two propositions upon which the Court appears unanimous:
(1) A state procedural ground does not foreclose litigation of a claim on the merits in a federal habeas court
if the state ground is, for whatever reason, inadequate.
(2) An adequate state procedural ground does not foreclose federal litigation of the claim on the merits if
the defendant can establish “cause and prejudice” (Wainwright) or a “compelling case of actual
House v. Bell (2006) Kennedy – actual innocence exception
Held: Habeas petitioner made a sufficient showing of actual innocence to set aside a state procedural default.
Schlup v. Delo (1995): prisoners asserting innocence as a gateway to defaulted claims must establish
that, in light of the evidence, “it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” this standard is more lax than AEDPA.
Why don’t you have to meet AEDPA? AEDPA does not regulate first habeas petitions (forgot). Court
says purpose of AEDPA not to say you get your first habeas absolutely free, but uses the rules from
before on first habeas since no governing statute.
Beard v. Kindler (2009): a state procedural rule is NOT automatically ‘inadequate’ and thus unenforceable on
federal habeas review because the state rule is discretionary rather than mandatory.
3. ISSUES OF FACT
Litigated: §2254(d)(2) and (e)(1)
Habeas review of litigated facts only if state court determination of the facts was “unreasonable.”
AEDPA also requires federal habeas courts to presume the correctness of state courts’ findings unless
presumption rebutted with “clear and convincing evidence.”
§2254(e)(2): If the applicant has failed to develop the factual basis of a claim in State Court, federal habeas
allowed only if: (1) claim relies on new law made retroactive to cases on collateral review by Supreme Court;
OR (2) factual predicate could not have been discovered with diligence AND “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.”
These conditions rarely satisfied because they are stricter than C&P and come into play only when C&P
not shown (C&P excuses compliance with this statute because no “failure” Michael Wayne Williams).
Michael Wayne Williams v. Taylor (2000) – habeas on unlitigated facts if C&P
Held: §2254(e)(2) does NOT apply if defendant was diligent, i.e. did not “fail.” If defendant was diligent, he is
entitled to habeas factual hearing.
The word “failed” contains a component of fault. Because the defendant had no way of
knowing/suspecting juror had been married to the prosecution’s lead witness, there was no fault on the
defendant’s failure to discover this earlier. So he had not “failed” to develop a factual basis – he just
didn’t do it. Fault test is “due diligence.” However, defendant did “fail” in not discovering Brady
violation = terrible holding!
“Federal courts sitting in habeas are not an alternative for trying facts and issues which a prisoner made
insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner “has
failed to develop the factual basis of a claim” where he was unable to develop his claim in state court
despite diligent effort.”
4. SUCCESSIVE PETITIONS (§2244), EXHAUSTION, & TOLLING:
Rose v. Lundy (1982) O’Connor – exhaustion required for “mixed” petitions
Held: No mixed petitions on habeas petitioner should return to state court to exhaust his claims or
amend/resubmit the habeas petition to present only exhausted claims.
Slack v. McDaniel – dismissed unexhausted petition does not count as first habeas
Held: “a habeas petition which is filed after an initial petition was dismissed without adjudicated on the merits
for failure to exhaust state remedies is not a ‘second or successive’ petition as that term is understood in the
habeas corpus context.”
Duncan v. Walker (2001) – SOL time is not tolled while federal habeas is pending
Held: one-year statute of limitations time NOT tolled while federal habeas petition is pending.
This means the clock is ticking during the time that an unexhausted claim is pending in federal court. It also
means that the time it takes a federal court to determine a “mixed” habeas petition has been filed is counted
against the expiration of the one-year period. This in turn could mean that if the petition is then dismissed
under Rose v. Lundy, the statute of limitations will have expired and the petitioner will not be able to return
to federal court. This was the problem in Rhines v. Weber.
Rhines v. Weber (2005) O’Connor – stay & abeyance for mixed petitions
Held: District Courts have the power to grant a stay to allow petitioners to exhaust claims in state court without
having mixed petition run afoul of SOL. Must place reasonable time limits on the trip to state court & back
(e.g. 30 days). Balances petitioner’s interest in obtaining review vs. finality and speedy resolution of petitions.
Test: (1) good cause for failure to exhaust claims in state court; (2) claims must have prima facie merit; (3)
petitioner did not engage in intentionally dilatory litigation tactics.
Holland v. Florida (2010) Breyer – equitable tolling available if “extraordinary” circumstances
Test: circumstances must be “extraordinary” to warrant equitable tolling.
Held: Risk of attorney error normally remains on the client in situations where, as with state and federal habeas
petitions, there is no constitutional right to counsel. However, professional misconduct that amounts to
egregious behavior could create an extraordinary circumstance that warrants equitable tolling.
Panetti v. Quarterman (2007) – unripe claims do not count as second petitions
Facts: Petitioner unsuccessful in his initial federal habeas proceedings. He later filed a second habeas petition
arguing that his mental illness rendered him incompetent to be executed. He admitted he could not meet the
exceptions in §2244(b) for repeat petitions, but he argued that he should not have been required to present his
incompetency claim in the first petition because it was not ripe.
Held: Provisions of AEDPA addressing ‘second or successive’ petitions does not govern a §2254 application
raising a Ford-based incompetency claim filed as soon as that claim is ripe.
5. NEW RULES:
Tyler v. Cain (2001) Thomas – SCT must make specific holding if new rules retroactive
Three prerequisites for repeat petitions based on “new rules”: (1) rule on which the claim relies must be a “new
rule” of constitutional law; (2) the rule must have been “made retroactive to cases on collateral review by the
Supreme Court”; and (3) the claim must have been “previously unavailable.”
Held: Second requirement satisfied only if SCT has specifically held that the new rule is retroactively
applicable to cases on collateral review.
Note: when can SCT hold a rule retroactive? In the original case, if they say it is, it would be dicta! Solution:
hold retroactive on a first habeas petition. Allow because AEDPA hole does not apply retroactivity rules here.
Dodd v. United States (2005) O’Connor
Held: AEDPA statute of litigations trigger (for “the date on which the constitutional right asserted was initially
recognized by SCT”) is the date of the new rule itself, not when it was held to be retroactive.
6. CONSTITUTIONALITY OF STATUTE, AND FINALITY OF COMPLETED SENTENCES
USED TO ENHANCE
Magwood v. Patterson (2010) Thomas
Facts: Defendant was successful in having his sentence, but not the conviction, set aside in his first habeas petition.
He was then resentenced to death. His second habeas petition challenged the sentence on a ground he could have
raised in his first petition but did not.
Held: “Because Magwood’s habeas application challenges a new judgment for the first time, it is not ‘second or
successive’ under § 2244(b).”
Felker v. Turpin:
§2244(b) is not an unconstitutional suspension of the writ: “The added restrictions which the act places on
second habeas petitions are well within the compass of this evolutionary process…”
§2244(b)(3)(E) does not make an unconstitutional exception to the Court’s appellate jurisdiction: “The act
does remove our authority to entertain an appeal or a petition for a writ of certiorari to review a decision of a
court of appeals exercising its “gatekeeping” function over a second petition. But since it does not repeal
our authority to entertain [an original] petition for habeas corpus, there can be no plausible argument that the
act has deprived this Court of appellate jurisdiction in violation of Art. III, §2.”
Numerous state and federal laws permit sentences for criminal convictions to be enhanced based on previous
criminal convictions. May the defendant collaterally attack the current sentence on the ground that a prior
conviction was unconstitutionally obtained? The court answered “no” in a pair of cases decided by 5-4 votes.
Daniels v. U.S. (2001): “If… a prior conviction used to enhance a federal sentence is no longer open to
direct or collateral attack in its own right because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully), then the defendant is without recourse. The
presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the
defendant may not collaterally attack his prior conviction through a motion under §2255.”
Lackawanna County District Attorney v. Coss (2001): Daniels extended to a habeas corpus petition filed by
a state prisoner.
Exception: based on Gideon v. Wainwright: if no counsel had been appointed in the proceedings resulting in the
prior conviction, a collateral attack based on Gideon would be permissible. In addition, “there may be rare cases in
which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault
of his own.”
7. CAPITAL CASES -- §§2261 - 2264
8. THE RELEVANCE OR IRRELEVANCE OF INNOCENCE:
A “compelling case of actual innocence” under Schlup is an excuse for C&P such that an adequate state
procedural ground does not foreclose federal litigation of the claim on the merits.
Schlup v. Delo (1995): prisoners asserting innocence as a gateway to defaulted claims must establish that, in
light of the evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” this standard is more lax than AEDPA
Why don’t you have to meet AEDPA? AEDPA does not regulate first habeas petitions (forgot). Court
says purpose of AEDPA not to say you get your first habeas absolutely free, but uses the rules from
before on first habeas since no governing statute.
Herrera v. Collins (1993) Rehnquist – actual innocence is only a gateway for constitutional claims
Facts: 10 years after his conviction and shortly before his scheduled execution, Herrera brought a habeas
petition claiming that newly discovered evidence (affidavits by persons placing blame on his recently deceased
brother) demonstrated that he was actually innocent of the murders.
Rule: “Actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas
petition must pass to have his otherwise barred constitutional claim considered on the merits.
“Claims of actual innocence based on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation occurring in the underlying state
criminal proceeding… This rule is grounded in the principle that federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution – not to correct errors of fact…”
Petitioner may file a request for executive clemency.
Note: “We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive
demonstration of “actual innocence” made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”
“the threshold showing for such an assumed right would necessarily be extraordinarily high”
Would it have to be a capital case?
Concurrence (O’Connor): “[T]he execution of a legally and factually innocent person would be a
constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is
not innocent, in any sense of the word.”
Dissent (Blackmun): “I would hold that, to obtain relief on a claim of actual innocence, the petitioner must
show that he probably is innocent.”
Hypo: what if there was a very credible confession made by someone who was still alive?
Why wouldn’t executive clemency / pardon just help? Problem: Thin Blue Line, Dretke.
May have to make up a new constitutional right to release someone known to be innocent. 14th
Amendment, Due Process, Cruel & Unusual Punishment…
House v. Bell (2006) Kennedy
Defendant’s claim of actual innocent sufficient to satisfy Schlup’s gateway standard for obtaining
federal review despite a state procedural default, but was insufficient to be free-standing (Herrera).
Bousley v. United States (1998) Rehnquist – actual innocence in context of a guilty plea
Facts: Petitioner pleaded guilty to “using” a firearm in violation of §924(c). Five years later, Bailey held that
“use” requires the government to show “active employment of the firearm.” Petition sought collateral relief
under §2255, claiming that his guilty plea was not knowing and intelligent because he was misinformed by the
District Court as to the nature of the charged crime.
Held: Case remanded to permit petitioner to attempt to make a showing of actual innocence.
“Where a defendant has procedurally defaulted on a claim by failing to raise it on direct review, the
claim may be raised in habeas only if the defendant can first demonstrate either “cause” and actual
“prejudice,” or that he is “actually innocent.” Wainwright; Murray.
Teague does not apply – Teague applies to procedural rules, here we are dealing with a substantive
criminal statute. Also, no new rule here – “The only constitutional claim made here is that petitioner’s
guilty plea was not knowing and intelligent. There is surely nothing new about this principle…” Makes
it so that the first Teague exception is not really necessary.
= when SCT interprets a statute and says it means XYZ, then it has always meant XYZ – makes the new
meaning of the statute automatically retroactive.
Concurrence (Stevens): petitioner is innocent = must be released. Government may prosecute again, but must
charge him anew.
Rehnquist keeps petitioner in habeas, wants him to go back and show cause for failure to appeal and
actual innocence. Petitioner will bear the burden, has no right to counsel.
Dissent (Scalia): “actual innocence” exception should not extend to guilty pleas.
Usually with a guilty plea, you give up your chances to attack the sentence later. Here, they get around
by arguing that it was not a voluntary guilty plea because he did not understand what was going on.
Also odd that he did not appeal the guilty plea – normally this required.
Scalia points out that sometimes people plead guilty to things everyone knows they are not guilty of, as
part of plea bargaining. Rehnquist says “In cases where the government has forgone more serious
charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to
those charges.” But, often government will not have evidence of charges from years ago.
“The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default
in cases decided by a jury “seeks to balance the societal interests in finality, comity, and conservation of
scarce judicial resources with the individual interest in justice that arises in the extraordinary case.”
Schlup. Since the balance struck there simply does not obtain in the guilty-plea context, today’s
decision is not a logical extension of Schlup, and it is a grave mistake.”
Dretke v. Haley (2004) O’Connor – actual innocence for non-capital cases
Facts: Because of mistakes of the prosecutor, the trial judge, and the defense attorney, everyone agreed that the
habeas petitioner was sentenced to more than 16 years for a crime that carried a maximum of two years.
“We are asked in the present case to extend the actual innocence exception to procedural default of
constitutional claims challenging noncapital sentencing error. We decline to answer the question in the
posture of this case and instead hold that a federal court faced with allegations of actual innocence,
whether of the sentence or of the crime charged, must first address all nondefaulted claims for
comparable relief and other grounds for cause to excuse the procedural default.”
= still unclear whether “actual innocence” exception applies in non-capital cases.
Dissent (Stevens): respondent should be released NOW. He got a sentence that was illegal for what everyone
says he did. O’Connor’s opinion seems reasonable but she is sending him back to litigate for years!
District Attorney’s Office v. Osborne (2009) Roberts – how can defendants show actual innocence?
Facts: Many years after his conviction, Osborne requests to test bloody shirt for DNA. Prosecution has the
shirt, and Osborne asks for it and offers to pay for all tests. §1983 proceeding in federal court in which Osborne
claimed a constitutional right of access to the DNA evidence.
Held: SCT denies relief.
Osborne has difficulty finding a constitutional violation. Like Brady, he wants access to evidence in the
prosecutor’s control that may be exculpatory. Should we create a constitutional right to such evidence?
Concurrence (Alito): “When a criminal defendant, for tactical purposes, passes up the opportunity for DNA
testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing
after conviction. Recognition of such a right would allow defendants to play games with the criminal justice
system. A guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and
in the hope that the other evidence would be inefficient to persuade the jury to find him guilty. Then, after
conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident
– for example, degradation or contamination of the evidence – would provide the basis for seeking
Troy Davis Case (2009):
Facts: Recantations by trial witnesses.
Held: SCT ordered a federal district court in Georgia to consider and rule on whether new evidence "that could
not have been obtained at the time of trial clearly establishes [Davis'] innocence.”
(F) CONSTITUTIONAL SCOPE OF HABEAS CORPUS
Boumediene is evidence that McCardle is not good law, but the two can be distinguished. 90% of McCardle
talks like Congress can do anything it wants, but the last paragraph notes there were other remedies available in
the district courts. Everyone agrees Congress can provide one remedy rather than another – so McCardle not
important if the last paragraph necessary to the holding. Also, Suspension Clause did NOT apply in McCardle
because it was state habeas corpus. Suspension Clause arguably applies only to federal… but see:
Felker: opened up possibility that even though Suspension Clause only applied to federal habeas
originally, it has grown to apply to all habeas today. The Court was prepared to “assume for purposes of
decision here, that the suspension clause of the Constitution refers to the writ as it exists today, rather
than as it existed in 1789.”
Boumediene: “The Court has been careful not to foreclose the possibility that the protections of the
Suspension Clause have expanded along with post-1789 developments that define the present scope of
Boumediene v. Bush (2008) Kennedy
Held: Prisoners in Guantanamo have a constitutional privilege to habeas corpus that cannot be withdrawn by
Congress unless Congress provides an adequate substitute.
“Based on this language from Eisentrager, & the reasoning in our other extraterritoriality opinions, we
conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1)
the citizenship & status of the detainee & the adequacy of the process through which that status
determination was made; (2) the nature of the sites where apprehension & then detention took place; &
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”
Why does Boumediene give more rights than AEDPA? AEDPA applies where there was a full & fair process
beforehand (state criminal process). Deference in favor of state criminal procedures, but military commissions
do not have good procedures so we do not defer to them.
Extension of Boumediene?
Bagram (base in Afghanistan) / All military bases –
- Case dismissed against Afghan citizen because he could be tried in Afghan court and subject to their
- DC Circuit looks to three factors of Boumediene and contrasts with Eisentrager: (1) less process here
than in Boumediene to decide whether petitioners enemy combatants; (2) captured abroad, U.S. does
not have de facto sovereignty as compared to Guantanamo; (3) Afghanistan is an active theater of
war. These factors cut against extending habeas corpus to Bagram.
Open question whether habeas required for military bases not in war zones.
Problem re damage suits against the U.S. by Guantanamo prisoners:
Boumediene established that detainees at Gitmo may seek habeas corpus to question the legality of their
confinement. Does it follow that detainees may sue the United States or its officers for damages for illegality or
unconstitutionality for confining them or for their treatment during confinement? How might damage claims be
distinguished from habeas corpus? Should they be treated differently or not?
Does the Constitution grant rights to detainees other than the Suspension Clause? The Suspension
Clause peculiar because it applies to detainees, not to all citizens.
CHOICE OF LAW IN THE FEDERAL SYSTEM
(A) THE OBLIGATION OF FEDERAL COURTS TO FOLLOW STATE LAW:
Erie Railroad v. Tompkins (1938) Brandeis
Facts: Tompkins (PA citizen) was injured by an Erie train while walking along the train’s right of way in
Pennsylvania. He sued in federal court in New York. Erie claimed its duty to Tompkins, and hence its liability,
should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared
by its highest court, persons who use pathways along the railroad right of way are trespassers; and the railroad is
not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or willful.
Rules of Decision Act / §34 of the Federal Judiciary Act: “The laws of the several states, except where the
Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of
decision in trials at common law, in the courts of the United States, in cases where they apply.”
Swift v. Tyson construed the word “laws” as limited to “state laws strictly local,” which included
statutes, court decisions governing titles to land (real estate), and the like. Criticisms of Swift: prevented
uniformity, created uncertainties, discrimination by non-citizens against citizens, rendered impossible
equal protection of the law.
Held: “Except in matters governed by the federal Constitution or by acts of Congress, the law to be applied in
any case is the law of the state…There is no federal general common law.”
Federalism arguments: State courts can govern everything except when the constitution says they
cannot. Federal courts can only do things that Constitution gives them permission to do.
- “Congress has no power to declare substantive rules of common law applicable in a state
whether they be local in their nature or “general,” be they commercial law or a part of the law of
torts. And no clause in the Constitution purports to confer such a power upon the federal
courts.” Court was purporting to exercise power that even Congress lacked.
- “The federal courts assumed, in the broad field of “general law,” the power to declare rules of
decision which Congress was confessedly without power to enact as statutes.”
Separation of Power: not really an issue. When the court is making FCL, they are supposed to be
deciding the law as they think Congress would. If Congress does not like decision, they can overturn it.
Erie is not limited to diversity cases: Gibbs (1966): a federal court hearing a federal claim under federal
question jurisdiction could also hear a pendent state claim arising out of the same facts. Whenever pendent (or
supfjohnsonplemental) jurisdiction is exercised, Erie requires application of state law to the state claim.
Ascertaining state law: federal courts should predict what the state’s highest court would do.
Remedies for uncertain state law: (1) Abstentation; (2) **Certified Questions; (3) Dismissal should be
avoided - Meredith.
Examples of Federal Common Law:
(1) Lawsuits between states
- Hinderlider (1938): the apportionment of water rights in a stream controlled by an interstate compact
presented “a question of ‘federal common law’ upon which neither the statutes nor the decisions of
either state can be conclusive.”
- Art. III, §2: “The judicial Power shall extend… to Controversies between two or more states.” If
language of Art III includes power to make rules of decision, we can say as a constitutional matter
that would exist for diversity cases along with everything else.
(2) Admiralty Cases
(3) Procedural Rules
(4) Dormant Commerce Clause: Henry Monaghan – “the most satisfactory explanation of the [dormant]
Commerce Clause cases is that the Supreme Court is fashioning federal common law on the authority of
the Commerce Clause. That clause embodies a national, free-trade philosophy which can be read as
requiring the Court, in limited circumstances, to displace state-created trade barriers…”
- Field: Dormant Commerce Clause is not an affirmative authority to make FCL.
(5) McCulloch: example of judge-made sub-constitutional law. Marshall asserts that Maryland tax on bank
was “unconstitutional,” but this untrue because Congress could have passed a statute allowing Maryland
to tax the bank. Such a statute would have effectively overruled McCulloch, yet we are not accustomed
to think that Congress can overrule constitutional decisions.
(6) “Interstitial” lawmaking: court fills in the gaps of a comprehensive federal statutory scheme in a
manner consistent with the policies Congress is seeking to promote.
(B) WHICH STATE’S LAW?
Three reasons Erie has failed to give us uniformity:
Klaxon (1941) Reed – Use conflict-of-law rules of forum state
Held: federal courts bound by Erie to use state law must also use the conflict-of-laws rules of the forum state.
Klaxon is not constitutionally required. See Erie: applies law of PA (place of accident) = it would have
been consistent with Erie to say it is a matter for federal judges to decide what state law to apply.
Conflict of laws largely thought of as procedural = constitutional to leave decision to the federal courts.
Two types of conflict rules:
(1) Traditional points to one place (e.g. place where accident took place).
(2) Modern interest analysis: often only one state has an “interest” in the controversy; should use that
state’s laws (e.g. MA has $20K limit on plane crash liability (purpose: to protect MA airplane
companies). NY has no limit. Suppose NY plan crashes in MA. What law applies? NY – no real
conflict because MA has no interest in limiting NY company’s liability. What if NY passenger on plane
crash of MA airplane? “real conflict” = NY has interest in full recovery for citizens, MA interest in
limiting liability of its companies).
Griffin v. McCoach (1941)
Facts: A decedent’s personal representative filed suit in federal court in TX to collect on an insurance policy
issued by Prudential in NY. Prudential interpleads other claimants.
Held: TX conflict of laws apply = some claimants will not be allowed to recover because lacked an “insurable
interest” under TX law, even though personal jurisdiction over such claimants allowed only because Federal
Interpleader Act authorizes nationwide service of process.
**Shows Klaxon can be bad. TX state court could not have even had jurisdiction, yet TX law forecloses claims.
Van Dusen v. Barrack (1964) – use law of transferor state
Facts: claims by the personal representatives of 40 PA decedents killed in a plane crash in MA. Suit filed in PA
federal court. Other actions in MA federal court. MA limits recovery to $20K, PA has no such limitation.
Held: If the case is transferred to MA, PA conflicts rules govern. Plaintiffs entitled to retain whatever
advantages they achieved in the forum they selected, and defendants should not be able to secure a change of
law by changing venue.
28 U.S.C. §1404(a): “For the convenience of the parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might have been brought.”
Ferens v. John Deere (1990) Kennedy – use law of transferor state
Facts: Ferens was injured in PA by a John Deere product. He brought a diversity suit in federal court in PA.
Since the suit was filed after expiration of PA’s two year SOL on torts, Ferens brought only K and breach of
warranty claims. Shortly thereafter he filed a second diversity suit in MS federal court, where he raised his tort
claims. The MS SOL was six years. Then Ferens moved under §1404(a) to transfer the action to PA.
Held: Van Dusen rule applies (transferee applies choice of law rules of transferor) even when it is the plaintiff
that is asking for a transfer of venue.
**Policies of Van Dusen supported using the law of the transferor forum even when plaintiff moves for transfer:
(1) §1404(a) should not deprive parties of state law advantages that exist absent diversity jurisdiction;
(2) §1404(a) should not create or multiply opportunities for forum shopping;
- “If it does make selection of the most favorable law more convenient, it does no more than recognize
a forum shopping choice that already exists.”
(3) Decision to transfer under §1404(a) should turn on considerations of convenience and the interest of
justice rather than on the possible prejudice resulting from the change of law.
(C) THE POWER OF FEDERAL COURTS TO MAKE FEDERAL COMMON LAW
No FCL Power
Make FCL Rule Follow State Rule Erie 10th Am
Clearfield DeSylva: Not (Must apply state law (Must apply state
2 states (Hinderlider) weird/extreme where left alone by law in areas
Admiralty Congress/no federal where it can’t be
Torts suits against officers Statutes of interest – diversity touched)
Kohr (1 issue) limitations? jurisdiction does not give
Constitution (DP) general authority)
Federal statutes (Sherman
Antitrust) Choice of law governed
Lake Misere by Klaxon
Kohr v. Allegheny Airlines (1974) (7th Circuit) – FCL based on predominate federal interests
Facts: mid-air collision between a large jet aircraft owned by an airline and a small aircraft in airspace over
Indiana. Wrongful death actions in various federal district courts. Suits consolidated into one federal court in
Indiana. No right to indemnity and contribution existed under Indiana law.
Held: FCL of contribution and indemnity applies. How do they know what FCL is? Do what Congress
instructs or else what would be best. Court chooses to apply comparative negligence rule.
Reasoning: (1) Federal interest in regulating airways is predominant (but court quick to say FCL will not apply
in all situations involving nation’s airways); (2) don’t want inconsistency in similar occurrences;
“When the notion of federal preemption over aviation is viewed in combination with the fact that this
litigation ensues from a mid-air collision occurring in national airspace, that the Government is a party
to the action pursuant to the Federal Tort Claims Act, and that this litigation has since its inception been
subject to the supervision of the Judicial Panel created by the Multidistrict Litigation Act, there is no
perceptible reason why federal law should not be applied to determine the rights and liabilities of the
parties involved. The interest of the state wherein in the fortuitous event of the collision occurred is
slight as compared to the dominant federal interest.”
**How do we know when Erie applies and when federal common law applies? Very hard to draw the line.
Clearfield Trust (1943) Douglas – two-step test for using FCL
Facts: a check issued by the United States was stolen and later collected by Clearfield Trust. The U.S. sued
Clearfield Trust. Issue: effect of government’s delay in giving notice to Clearfield Trust of the theft. Under PA
law, recovery was barred by an unreasonable delay in giving notice.
Held: (1) Court says Erie does not apply: “The rights and duties of the United States on commercial paper
which it issues are governed by federal rather than local law.”; (2) Choice of law: Court chooses to apply
federal law lack of prompt notice was a defense only if Clearfield and Penney’s could show actual damages
resulting from the lack of notification.
**Two-step Test: (1) authority to make FCL? (federal or state law: does Erie apply?); (2) if yes, court has a
choice between applying FCL or state law (content of federal law).
**Can federal district courts make FCL? YES. Can state court judges? YES.
**FCL will be binding, just as other federal law / statutes.
DeSylva v. Ballentine (1956) – borrowing state law
Issue: illegitimate children included among “children” who could get interest in decedent’s copyright per
Federal Copyright Act?
Held: Clearfield test: (1) YES – federal power to make a decision about who “children” are; (2) Court decides
to apply state law -- There is no federal definition of children, instead generally would look to state law
definitions. To make up a federal law of family relationships seems a bit much. True, it would provide
uniformity in the Copyright Act, but it would be confusing for persons and states.
“The scope of a federal right is, of course, a federal question, but that does not mean that its content is
not to be determined by state, rather than federal law. This is especially true where a statute deals with a
familial relationship; there is no federal law of domestic relations, which is primarily a matter of state
Note: “This does not mean that a state would be entitled to use the word “children” in a way entirely strange to
those familiar with its ordinary usage, but at least to the extent that there are permissible variations in the
ordinary concept of “children” we deem state law controlling.”
State law operating by federal choice somewhat different than state law operating under Erie? Weirdo
state law under Erie must still be followed unless unconstitutional.
Little Lake Misere (1973) Burger
Facts: U.S. initiated litigation seeking to quiet title to land in Louisiana, which the government had acquired
pursuant to the Migratory Bird Conservation Act. Louisiana Act conflicted, and says land did not pass to U.S.
Held: court evades Clearfield Test: does not articulate whether state law unconstitutional (Erie applies) vs.
creating FCL (Erie does not apply).
“Once it is clear that Act 315 has no application here, we need not choose between “borrowing” some
residual state rule of interpretation or formulating an independent federal “common law” rule; neither
rule is the law of Louisiana yet either rule resolves this dispute in the government’s favor.”
Burger suggests that the fact that U.S. is a party could be a basis for making FCL in some instances.
Concurrence (Rehnquist): state law is unconstitutional so do not have to apply. This follows Erie.
Boyle v. United Technologies (1988) Scalia
Facts: Issue was whether a contractor could be held liable to individuals under state tort law for injuries caused
by design defects in products supplied to the military.
Held: FCL should determine the liability of a contractor providing military equipment to the federal
**Language: uses “preemption” when federal rule displaces a state rule -- Field would call Supremacy Clause.
**Rather remarkable case: Scalia vs. Brennan on the opposite sides of where you would expect – shows that
this is a result-oriented enterprise.
What do we mean by FCL? Field’s definition: any time a federal statute or the Constitution gives no guidance
as to how to solve a problem. E.g. – interpretation of due process. Others define FCL as when there is a grant
of authority to make all the rules in an area. Some people want to draw a line between interpretation and FCL.
Anytime judge wants to make FCL, they will be able to find the authorization (it is very broad). So the
important step is: choice uniformity of federal law vs. fit in with state law.
What about diversity cases? Can make FCL in diversity cases, but cannot make FCL solely because it is a
diversity case in federal court (i.e. cannot rely on Article III or Rules of Decision Act as the authorization).
Textile Workers Union v. Lincoln Mills (1957) Douglas – authorization easy to find
Facts: The union entered into a collective bargaining agreement with the employer. It included a grievance
procedure: arbitration. Several grievances arose; the union requested arbitration, and the employer refused.
The union sued in federal court to compel arbitration. §301 granted the federal courts jurisdiction.
Held: §301 gives federal courts jurisdiction AND authorizes them to make FCL for enforcement of agreements.
“We would undercut the Act and defeat its policy if we read §301 narrowly as only conferring
jurisdiction over labor organizations.”
**Main point: notice how little supports Congress’s “mandate” to the courts to make federal common law.
SUITS AGAINST PRIVATE PARTIES: state law applies
Parnell (1956) Frankfurter
Facts: Bank sued to recover funds an individual obtained by cashing bonds that were previously stolen.
Defendants claimed they were good faith purchasers.
Held: State law controls (puts burden on defendants to show good faith). This litigation is purely between
private parties and does not touch the rights/duties of the U.S.
Wallis v. Pan American Petroleum (1966) Harlan – judicial restraint in making FCL
Preliminary Question: (1) is there a threat to federal interest or policy in applying state law? Do not consider
making FCL unless threat. If there is a threat, balance this against state interest in having its own laws apply.
“Because we find no significant threat to any identifiable federal policy or interest, we do not pass on to
consider other questions relevant to invoking federal common law, such as the strength of the state
interest in having its own rules govern, the feasibility of creating a judicial substitute, and other similar
Miree v. DeKalb County (1977) Rehnquist
Facts: plane crash victims sue FAA and county airport.
Held: No FCL – like Parnell, this litigation is between private parties and no burdening of federal interests.
SUITS AGAINST FEDERAL OFFICERS: federal defenses apply
Federal defenses allowed in state-law tort suits against federal officers.
Howard v. Lyons (1959): privilege against defamation by federal officer determined by FCL.
Westfall v. Erwin (1988): “absolute immunity does not shield official functions from state tort liability
unless the challenged conduct is within the outer perimeter of an official’s duties and is discretionary in
STATUTE OF LIMITATIONS
Agency Holding Corp (1987) O’Connor
Rule: “Given our longstanding practice of borrowing state law, and the congressional awareness of this
practice, we can generally assume that Congress intends by its silence that we borrow state law.”
Held: Court borrows statute of limitations for civil RICO claims from another federal statute that offered the
“closest analogy” based partly on legislative history.
IMPLIED RIGHTS OF ACTION UNDER FEDERAL STATUTES
Borak (1964) Clark – high point in implying PRA & remedy
Facts: The Securities Exchange Act states that it is unlawful for a person to solicit proxies in violation of rules
prescribed by the SEC. Issue: whether a shareholder had a private right of action for violation of the Act.
Held: Federal courts may create a private right of action, in the absence of express congressional authorization,
if damage suits would help accomplish the legislative purpose for a statute.
“While [it] makes no specific reference to a private right of action, among its chief purposes is “the
protection of investors,” which certainly implies the availability of judicial relief where necessary to
achieve that result.”
Cannon v. University of Chicago (1979) Stevens
Facts: plaintiff alleged that she had been denied admission to medical school in violation of Title IX. She sued
for an injunction.
Held: Court recognizes a private right of action based on Cort v. Ash.
Cort factors: (1) Is the plaintiff within the class for whose benefit the statute was enacted? (2) Is there
any indication of legislative intent, explicit or implicit, either to create or deny a cause of action? (3) Is
it consistent with the underlying purposes of legislative scheme to imply such a remedy for the plaintiff?
(4) Is the cause of action one traditionally relegated to state law, in an area specifically of concern to the
states, so that it would be inappropriate to infer a cause of action based solely on federal law?
Field’s summary of the rule: it all depends on Congressional intent
Dissent (Powell): Cort test violates separation of powers. Congress should be the one to determine when
private parties are to be given causes of action under legislation it adopts. Federal courts should infer a PRA
only when there is the “most compelling evidence of affirmative congressional intent.” Powell requires specific
intent. Distinguish between (1) specific intent to give the courts right to make remedy vs. (2) specific intent
showing what the remedy should be – which essentially says no right to make FCL (ridiculous!).
**Harlan: it should be easy to apply remedies. Powell: it should be harder to imply remedies. Field: it should
be just the same as everything else – look to legislative intent!
**After Cannon, the Court became more restrictive. Touche Ross (1979): Court refused to infer a private
remedy for damages in a complex securities case all but rejected the four Cort factors, saying that “our task
is limited solely to determining whether Congress intended to create the private right of action asserted.”
Franklin v. Gwinnett County Public Schools (1992) White
Held: private damages remedy available under Title IX for sexual harassment.
“we presume the availability of all appropriate remedies unless Congress has expressly indicated
**Gebser (1998): "will not hold a school district liable in damages under Title IX for a teacher’s sexual
harassment of a student absent actual notice and deliberate indifference.”
Maine v. Thiboutot (1980)
42 U.S.C. § 1983 creates a civil action for damages or injunctive relief against any person acting “under
color of” state law who deprives any person of “rights, privileges, or immunities secured by the
Constitution and laws…”
Held: the words “and laws” in §1983 should be read literally and comprehensively to authorize §1983 actions
against any state officer who violated a federal statute, regardless of whether the underlying statute
contemplated private enforcement.
Dissent (Powell): §1983 was only intended to cover laws that apply to equal rights or laws that cover personal
rights vs. property rights. Powell afraid of bypassing the agency.
**Note: the Court has cut back on Maine v. Thiboutot.
Alexander v. Sandoval (2001) Scalia
Facts: Alabama amended its Constitution to declare English its official language. Plaintiffs sue under Title VI
of the Civil Rights Act of 1964.
Held: no private right of action under §602 of Title VI.
“Far from displaying congressional intent to create new rights, §602 limits agencies to “effectuating”
rights already created by §601… So far as we can tell, this authorizing portion of §602 reveals no
congressional intent to create a private right of action.”
(D) SUITS BY PRIVATE PARTIES TO ENFORCE THE CONSTITUTION
Bivens (1971) Brennan
Facts: Agents of the Federal Bureau of Narcotics acting under claim of federal authority entered Biven’s
apartment and arrested him for alleged narcotics violations. Bivens asserted that the arrest and search were
effected without a warrant, without probable cause and by use of unreasonable force.
Held: Court infers a private right of action for damages against federal officers directly from the Fourth
State remedies are not enough; using constitution as a shield not enough; reasonable to imply remedies.
Theme: majority thinks judiciary has the right to make any ordinary remedy for violation of the
Constitution or federal law if consistent with Congress’s intent.
Two prior actions that make this extension not shocking: (1) exclusionary rule; (2) ex parte Young.
Bivens Rule: No private right of action for constitutional violations: (1) where there are special factors
counseling hesitation in the absence of affirmative action by Congress, (2) where Congress has specified an
alternative mechanism that Congress believes provides an equally effective substitute.
**After Bivens, what if say thing happens with a state officer? Can you sue state officer and the city that
employs him? Yes, but Court changes this and has immunities of §1983 apply to Bivens actions.
Concurrence (Harlan): the “too many cases” argument is not a good one unless you say that cases you are
going to let in are less deserving than the cases that are already there.
Dissent: separation of powers: Congress, not the Court, should create causes of action. Courts will be “choked
Cases Creating Bivens Actions in Other Contexts
Davis v. Passman (1979) Brennan
Facts: an administrative assistant sued Congressman who discharged her because she was as a woman.
Held: implied cause of action for money damages from the Fifth Amendment.
Carlson v. Green (1980) Brennan
Facts: Green sued the Director of the Federal Bureau of Prisons and other officials on behalf of the estate of her
deceased son. She claimed that her son had died from personal injuries resulting from violations of his Due
Process, Equal Protection, and Eight Amendment rights.
Issue: whether a remedy was available directly under the Constitution, given that Green’s allegations could also
support a suit against the U.S. under the Federal Tort Claims Act? YES.
Held: Court allows Bivens remedy.
There were no “special factors counseling hesitation” in suits against prison officials, and there was no
“explicit” indication that Congress intended the FTCA as the exclusive remedy.
Four reasons for thinking that Bivens was more effective than the FTCA and should therefore be
retained: (1) Bivens damages were likely to act as a greater deterrent; (2) punitive damages might be
available under Bivens but are precluded by statute in an FTCA action; (3) jury trial is not available
under the FTCA but is under Bivens; and (4) the FTCA incorporates state law as the measure of liability,
and thus would preclude an action if none was available under state law. For these reasons, Brennan
concluded, “Plainly FTCA is not a sufficient protector of the citizens’ constitutional rights, and without
a clear congressional mandate we cannot hold that Congress relegated respondents exclusively to the
Cases Denying Bivens Actions in Other Contexts
Schweiker v. Chilicky (1988) O’Connor
Issue: whether the improper denial of social security disability benefits, allegedly resulting from violations of
due process by government officials who administered the federal social security program, may give rise to a
cause of action for money damages against those officials.
Held: Bivens remedy, not having been included in the elaborate remedial scheme devised by Congress, is
Chappell v. Wallace (1983)
Held: No Bivens action for enlisted military personnel who alleged that they had been injured by the
unconstitutional actions of their superior officers and who had no remedy against the government itself.
“Taken together, the unique disciplinary structure of the military establishment and Congress’ activity in
the field constitute “special factors” which dictate that it would be inappropriate to provide enlisted
military personnel a Bivens-type remedy against their superior officers.”
Bush v. Lucas (1983) Stevens
Facts: Bush, a federal employee, sued Lucas, his supervisor, alleging that Lucas fired him because of public
criticism of the agency in which they worked.
Issue: whether Bush could assert a private right of action for deprivation of his First Amendment rights. Bush
argued that available civil service remedies (reinstatement with back pay) were inadequate because they did not
allow punitive damages, attorneys fees, jury trial, or compensation for emotional and dignitary harms.
Held: Bivens unavailable.
comprehensive alternative remedies available
“Congress is in a far better position than a court to evaluate the impact of a new species of litigation
between federal employees on the efficiency of the civil service.”
United States v. Stanley (1987) Scalia
Facts: Stanley, a sergeant in the Army, was unknowingly administered LSD while in a military research
program. He suffered adverse effects and ultimately brought a Bivens action.
Holding: “no Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to
special factor that counsels hesitation: “congressionally uninvited intrusion into military affairs by the
judiciary in inappropriate”
irrelevant whether alternative remedies available
Correctional Services Corp. v. Malesko (2001): SCT refused to extend Bivens to actions against a private
corporation operating a halfway house under contract with the Federal Bureau of Prisons. A previous decision,
FDIC v. Meyer, had held that Bivens actions would not lie against federal agencies.
Wilkie v. Robbins (2007) Souter – shows retreat from presumption in favor of damages remedy for
constitutional violations. In most cases, apparently, Bivens actions will not lie.
Facts: Robbins was a Wyoming landowner who claimed employees of the federal Bureau of Land Management
had unconstitutionally harassed and persecuted him for refusing to give the government an easement on his
Held: Bivens unavailable.
Fear that allowing a damages action on these facts would lead to a flood of litigation .
Difficulties involved in providing or disproving that otherwise lawful action of government officials was
rendered unconstitutional by improper motive.
Dissent (Ginsburgh): Robbins has no alternative remedy. Counters “floodgates” argument with the “value
judgment” argument from Harlan’s Bivens concurrence.
FEDERAL QUESTION JURISDICTION
A. FEDERAL QUESTION JURISDICTION – THE CONSTITUTIONAL DIMENSION: THE
SCOPE OF CONGRESSIONAL AUTHORITY TO CONFER JURISDICTION
Article III: “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.”
Osborn v. Bank of United States (1824) Marshall – constitutional scope of FQJ
Facts: McCulloch held that it was unconstitutional for the state of Maryland to tax bank of the United States.
States disagreed – Ohio seized bank money. Bank sued in federal court to recover. The issue was jurisdiction.
Test: “original ingredient”
“We think, then, that when a question to which the judicial power of the Union is extended by the
constitution, forms an ingredient of the original cause, it is the power of Congress to give the Circuit
Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.”
Dissent (Johnson): federal courts should not assume jurisdiction “on a mere hypothesis” and FQJ should not
exist until a federal question “actually arises.”
**Ambiguity #1: Field says Johnson misconstrues Marshall’s test as constitutionally allowing FQJ anytime a
federal question might arise. Instead, Field thinks Marshall says FQJ only if there is something federal actually
in the case or background that will be used.
**Ambiguity #2: naturalized citizen scenario (last paragraph phenomenon) – Field just ignores this.
Textile Workers Union v. Lincoln Mills (1957) – protective jurisdiction
Concurrence (Burton/Harlan): “some federal rights may necessarily be involved in a §301 case, and hence that
the constitutionality of §301 can be upheld as a congressional grant to Federal District Courts of what has been
called ‘protective jurisdiction.’
Dissent (Frankfurter): Argues against the concept of ‘protective jurisdiction’ because it is outside the scope of
Article III. Fears Congress could expand FQJ without bounds.
Protective Jurisdiction: Congress gives federal court jurisdiction over state-law claims asserted by non-
diverse plaintiffs who need the “protection” of a federal forum (no “original ingredient”; only state law).
- Hart & Wechsler: In any case for which Congress has the constitutional power to prescribe
federal rules of decision and thus confer “true” FQJ, it may, without so doing, enact a
jurisdictional statute, which will provide a federal forum for the application of state statute and
decisional law Greater includes the Lesser.
- Mishkin: Limits H&W by saying Congress can only give protective jurisdiction in an area where
it has a pre-existing active and articulated policy.
- Judge Wyzanski: §301 might be read as containing a direction that controversies affecting
interstate commerce should be governed by federal law incorporating state law by reference, and
that such controversies would then arise under a valid federal law as required by Article III.
**Can the policy of Osborn support protective jurisdiction? Court wanted jurisdiction in Osborn to protect the
bank from discrimination by states. Field thinks protective jurisdiction is the same policy as Osborn.
**There are not many protective jurisdiction cases because too many alternatives – could find that FCL governs
or that there is an original ingredient.
Facts: Dutch corporation brought suit in federal court against Nigeria claiming breach of contract. Jurisdiction
based on Foreign Sovereign Immunities Act of 1976.
Held: FQJ under “arising under” clause of Article III. “[A] suit against a foreign state under this act necessarily
raises questions of substantive federal law at the very outset, and hence clearly “arises under” federal law, as
that term is used in Article III.”
Argument 1: federal issue enters by way of defense. Court responds: who cares – only the statute
requires WPC, as far as the Constitution is concerned, it does not matter where “original ingredient” lies.
Argument 2: a jurisdictional provision could not itself provide the basis for “arising under” jurisdiction.
Court responds: Act is not just a jurisdictional statute, it codifies federal standards.
**This case could have been supported by protective jurisdiction, but Court does not reach this argument.
Mesa (1989) O’Connor
Facts: California issued criminal complaints against two mail-truck drivers involved in serious accidents. Both
defendants removed their cases to federal court under §1442.
§1442(a)(1): “A civil or criminal prosecution commenced in a state court against any of the following
persons may be removed by them to the district court of the United States… (1) Any officer of the
United States… for any act under color of such office…”
Held: Federal officers must allege a federal defense for removal jurisdiction over their cases.
“[P]ure jurisdictional statutes which seek “to do nothing more than grant jurisdiction over a particular
class of cases” cannot support Article III “arising under” jurisdiction.”
“[I]t is the raising of a federal question in the officer’s removal petition that constitutes the federal law
under which the action against the federal officer arises for Article III purposes.”
**Field thinks O’Connor WRONG. Congress ought to be able to protect federal officers.
Gutierrez (1995) Ginsburg
Facts: Westfall Act grants absolute immunity from common law tort claims to federal employees for acts
undertaken in the course of their official duties. When an employee is sued for negligent conduct, the AG can
certify that the employee was acting within the scope of employment at the time of the incident on which the
suit was based. Following certification, the defendant is dismissed and the U.S. is substituted as a defendant;
the case is then governed by the FTCA. If the suit was filed in state court, certification is followed by removal.
Held: Westfall Act certifications are reviewable.
Dissent (Souter): majority’s decision might create Article III problems in removal cases. This allows federal
courts, after removal, to retain jurisdiction over state law tort claims between non-diverse parties even after
determining that the AG’s certification (and thus the U.S.’s presence as a defendant) was improper.
Majority’s Response: The Article III problem is not huge. There may no longer be a federal question once the
federal employee is re-substituted as defendant, but there would have been a non-frivolous federal question,
certified by the local U.S. Attorney, when the case was removed to federal court. Because a case under the
Westfall Act “raises a question of substantive federal law at the very outset,” it “clearly arises under federal law
as that term is used in Article III.” Verlinden. Once the case is in federal court, considerations of judicial
economy, convenience and fairness to litigants make it reasonable and proper to keep it there.
Dissent Counter-Response: Majority saying that the authority to determine whether a Court has jurisdiction
over the cause of action supplies the very jurisdiction that is subject to challenge – aberrant concept!
Tidewater (1949) – fractured holding provides the basis on which citizens of DC are parties to diversity suits
Held: (1) Court voted 7-2 that a citizen of DC was NOT a citizen of a state for purposes of the diversity
jurisdiction provided in Article III. (2) Jackson plurality of 3 said that since Congress could create non-Article
III courts to hear such suits, it could also place them in Article III courts despite the absence of diversity.
The 2 Justices who lost the first issue and the 3 Justices who lost the second combined to make a majority to
uphold the constitutionality of diversity jurisdiction for DC citizens, even though decisive majorities had
rejected both theories on which that result could be sustained.
**Field thinks Jackson’s theory is the same as Hart & Wechsler. Most people reject Jackson’s analysis.
B. FEDERAL QUESTION JURISDICTION – THE STATUTORY DIMENSION
General Federal Question Statute – §1331: “The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”
Well-Pleaded Complaint Rule: only look to plaintiff’s complaint (what plaintiff was required to plead) in
determining whether federal question supporting jurisdiction under §1331.
- Mottley (1908): no FQJ because WPC would have said that the parties had a valid contract,
which the defendant refused to honor. Whether the defendant had a justification for refusing to
honor the contract (federal statute) would enter the case only by way of defense. And whether
the defendant’s justification was based on an unconstitutional statute would enter the case only in
the third round of proper pleading.
Would a declaratory judgment save the Mottley’s? A well-pleaded declaratory judgment
complaint tells what the action is about – here, it would be clear that case is all about
questions of federal law. This question aims at Skelly Oil – which says declaratory
judgments do not expand FQJ; instead must ask whether there would be FQJ in the
underlying cause of action.
- Defendants are also limited by the WPC rule in seeking removal (Field thinks this is wrong).
- Policy of WPC rule? We must judge whether there is jurisdiction immediately upon plaintiff’s
filing of a complaint, sometimes defendants do not even answer. But policy dictates that the
defendant should be able to remove based on their case.
Hypothetical Jurisdiction: disallowed. Steel.
Removal – §1441:
(a): removal only if the case is one that is within the court’s “original jurisdiction.” This precludes
removal based on a federal defense, since FQJ requires the plaintiff’s WPC contain a federal question.
(b): only defendants who do not live in the state where the action is brought can remove in diversity
(1) Where can you look? Mottley (look to WPC) and Skelly (if declaratory judgment action, look to WPC
in the action that could have been brought)
(2) What do you look for?
- Holmes Creation Test: “A suit arises under the law that creates the cause of action.”
Field thinks this should be the exclusive test.
- “Turns on Federal Law”: unimportant category of FQJ because almost never makes it over
WPC hurdle (but see Smith where local rules required including federal issue that the case would
Skelly Oil (1950) Frankfurter – declaratory judgments do not expand FQJ
Facts: action in federal court seeking a declaratory judgment that a proper certificate had been issued by the
Federal Power Commission and that therefore the contract had to be performed.
Held: declaratory judgments do not expand FQJ; instead must ask whether there would be FQJ in the
underlying cause of action.
1. “The operation of the Declaratory Judgment Act is procedural only.”
2. “To sanction suits for declaratory relief as within the jurisdiction of the District Courts merely because,
as in this case, artful pleading anticipates a defense based on federal law would contravene the whole
trend of jurisdictional legislation by Congress, disregard the effective functioning of the federal judicial
system and distort the limited procedural purpose of the Declaratory Judgment Act.”
**Explained by Franchise Tax: “Skelly Oil has come to stand for the proposition that “if, but for the availability
of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action,
jurisdiction is lacking.”
Criticism: Field thinks Frankfurter gets it wrong here.
3. Mishkin: Skelly Oil is dictum – but this argument relies on an alternative holding that the Court did not
4. Hart & Weschle: in determining whether FQJ, look at coercive action that could be brought by DJ
plaintiff against defendant OR what DJ defendant could bring against the DJ plaintiff.
T.B. Harms v. Eliscu (1964) (2nd Circuit – Friendly) – Infringement required for FJ under Copyright Act
Facts: suit to establish ownership of copyrights.
Rule: “[A]n action ‘arises under’ the Copyright Act if and only if the complaint is for a remedy expressly
granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction, or asserts a
claim requiring construction of the Act, as in DeSylva, or, at the very least and perhaps more doubtfully,
presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the
Held: no federal jurisdiction for this copyright ownership dispute. This assumes there are state remedies. If
not, feds could require OR implied federal cause of action.
**Exclusive federal jurisdiction for copyright actions = a finding of federal jurisdiction “would entail depriving
the state courts of any jurisdiction over matters having so little federal significance.” BUT, plaintiff could just
sue for breach of contract instead of infringement if they want to stay in state courts.
**In addition to Holmes Creation Test, Friendly recognizes supplemental test of “turns on federal law.” Smith
(see below); DeSylva (Issue was whether a child within the meaning of the copyright act includes an
illegitimate child. Friendly says “Since there was no diversity of citizenship and no infringement, the only, and
a sufficient, explanation for the taking of jurisdiction was the existence of two major questions of construction
of the Copyright Act.” this case is not strong authority for “turns on” test because SCT does not even
consider the jurisdictional issue.)
Smith v. Kansas City Title & Trust Co. (1921) – “turn on federal law” test
Facts: a stockholder in a corporation created by state law sued to enjoin the corporation from investing in
certain federally authorized bonds. The federal statute provided that the bonds were lawful investments for
corporations, and state law authorized the corporation to invest in all lawfully issued government bonds. The
plaintiff’s position was that the federal statute authorizing the sale of the bonds was unconstitutional.
Rule: “where it appears from the bill or statement of the plaintiff that the right to relief depends upon the
construction or application of the Constitution or laws of the United States, and that such federal claim is not
merely colorable, and rests upon a reasonable foundation, the district court has jurisdiction…”
Held: case arose under federal law.
5. “The objecting shareholder avers in the bill that the securities were issued under an unconstitutional law,
and hence of no validity. It is therefore apparent that the controversy concerns the constitutional validity
of an act of Congress which is directly drawn in question.”
**Met WPC rule because Missouri rules told you to say what the case would turn on.
Moore v. Chesapeake & Ohio Railway (1934) – floodgates argument against “turns on” jurisdiction
Facts: Moore was a railroad worker. He sued the RR in federal court under a state statute covering injuries in
intrastate commerce. That state statute incorporated portions of the Federal Safety Appliance Acts, which
covered railroad injuries in interstate commerce. Under the state statute, violation of the federal acts would
constitute negligence per se and bar the RR from relying on contributory negligence or assumption of risk.
Issue: interpretation of the Federal Safety Appliance Act as incorporated by state law.
Held: claim did not arise under federal law.
**Should state-incorporated federal law give rise to original federal jurisdiction? Problem that states could put
whole set of cases into federal courts by adopting federal standards. This would allow state courts to decide
federal jurisdiction and overburden federal courts. Thus, a total “turns on” test would be problematic.
**If you don’t really know whether it will turn on federal law, it makes since to go through state courts first. If
it does end up turning on federal law, SCT can review.
William Cohen argues that the search for analytical or verbal formulas to determine when a case arises under
federal law is misguided. Instead, the courts have established “pragmatic standards for a pragmatic problem.”
Franchise Tax (1983) Brennan (unanimous) – recognizes “turns on” & creation test. Applies Skelly to state DJ
and endorses Edelmann modification.
Issue: whether ERISA permits state tax authorities to collect unpaid state income taxes by levying on funds
held in trust for the taxpayers under an ERISA-covered vacation benefit plan.
Held: no federal jurisdiction. The law that creates the cause of action here is state law, so federal jurisdiction is
unavailable unless it appears that (A) some substantial, disputed question of federal law is a necessary element
of one of the well-pleaded state claims, or that (B) one or the other claim is “really” one of federal law. Neither
(A) nor (B) is the case.
6. Court extends Skelly Oil to state declaratory judgments. Court also endorses the Edelmann rule, which
limits Skelly by saying that there can be jurisdiction if the DJ plaintiff OR DJ defendant could have
brought a coercive action that necessarily presented a federal question.
7. The Court admits that ERISA grants trustees a cause of action for injunctive relief when their rights and
duties under ERISA are at issue, so this would seem to give jurisdiction under Edelmann. But then Cout
rejects jurisdiction for policy rationales: FN 22 is the key: “comity makes us reluctant to snatch cases
which a State has brought from the courts of that State, unless some clear rule demands it.”
o Three main discretionary issues: (1) comity; (2) substantiality of federal issue; (3) burden on
federal court (floodgates argument)
**Affirms both the Holmes Creation Test and the “Turns on Federal Law” Test (both of which are limited by
Merrell Dow (1986) Stevens – no FQJ if it would “flout” congressional intent”
Facts: Suit against pharmaceutical company for birth defects. Negligence theory based in part on the allegation
that the drug was misbranded in violation of the FDCA.
Held: No federal jurisdiction. FDCA provided no federal cause of action, and all Justices agreed that this was
not a situation where the federal courts would create an “implied” private right of action under federal law.
8. “We simply conclude that the congressional determination that there should be no federal remedy for the
violation of this federal statute is tantamount to a congressional conclusion that the presence of a
claimed violation of this statute as an element of a state cause of action is insufficiently “substantial” to
confer federal question jurisdiction.”
Rule that if there is no explicit federal cause of action, there can’t be FQJ? Field says he is confused.
**Field think this case looks like Moore because it is not clear whether this turns on state or federal law.
Dissent (Brennan): This case is appropriately in federal court under Smith. Yes, Moore is inconsistent, but that
case was “sport” and should be overruled.
9. “[I]f anything, Congress’ decision not to create a private right remedy strengthens the argument in favor
of finding federal jurisdiction over a stat remedy that is not preempted.”
Grable & Sons Metal Products v. Darue Engineering (2005) Souter
Facts: quiet title action turning on whether service proper under federal statute.
Held: yes federal “turns on” jurisdiction.
10. “[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.”
Concurrence (Thomas): wants Holmes Creation Test to be the exclusive rule – for clarity. (Field agrees)
**Quiet title is one of the few causes of action like the DJA that tells you to set out the nub of the controversy—
what the whole thing is about rare in fitting “turns on” + WPC tests. This makes Grable not very important.
Vaden v. Discover Bank (2009) Ginsburg
11. Counterclaims cannot give rise to FQJ.
12. “Under the WPC rule, a completely preempted counterclaim remains a counterclaim and thus does nto
provide a key capable of opening a federal court’s door.”
Possible reforms to FQJ:
(1) Only use Holmes Creation Test. Problem: if something really turns on federal law, federal courts should
be able to consider. SCT review insufficient safety net.
(2) Overturn Skelly: would allow anyone to bring DJ (which requires stating “nub of the controversy” in the
WPC). If WPC rule satisfied, you can have FCA and “turns on” jurisdiction. Field does not like Skelly.
(3) Change the removal rules: would allow judge to consider jurisdiction based on defendant’s case.
Federal law provides no injunctions against union strikes. Employer comes to state court and asks for an
injunction. State court should dismiss, but what if they do not?
13. Union can claim preemption: if the things plaintiff is doing are clearly preempted by federal law, then
you cannot bring case.
14. Problem: how broadly does preemption apply?
15. Field calls these FCA cases because that is the only type of cause of action that the employer can bring.
Beneficial National Bank (2003) Stevens – removal proper if exclusive federal cause of action (preemption)
Rule: a state claim may be removed to federal court: (1) when Congress expressly so provides (e.g. Price-
Anderson Act); or (2) when a federal statute wholly displaces the state-law cause of action through complete
preemption (§301 of LMRA).
16. Test: whether federal law provides the exclusive cause of action?
- FN5: “the proper inquiry focuses on whether Congress intended the federal cause of action to be
exclusive rather than on whether Congress intended that the cause of action be removable…”
Issue: Does the National Bank Act provide the exclusive cause of action for usury claims against national
banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not,
then the complaint does not arise under federal law and is not removable.
Held: Because the National Bank Act provides the exclusive cause of action for usury claims, there is, in short,
no such thing as a state-law claim of usury against a national bank. This cause of action only arises under
federal law and could, therefore, be removed under §1441.
** Avco (1968) origin of the preemption rule – started with §301 (collective bargaining agreements).
**Metropolitan Life (1987): ERISA resembles §301, so preemption rule applies.
Pendent Jurisdiction / Supplemental Jurisdiction -- §1367
Rule: federal courts can exercise pendent jurisdiction over a related state law claim when the claims arise from
a “common nucleus of operative facts” and you would normally expect to try the claims in the same place.
17. Power is discretionary. Factors to consider: if state claim dominates, should dismiss; if federal claim
dismissed before trial, shouldn’t hold on to state claim”
18. Constitutional limit: are claims part of the same “case or controversy”?
Duke Power Co (1978) Burger – oddity case
Issue: declaratory judgment action re: whether the Price Anderson Act is constitutional.
19. A colorable cause of action is enough to give jurisdiction over the whole controversy and do not have to
decide whether there is an actual federal cause of action.
20. Burger really wants to hold Price Anderson Act constitutional so he cheats on standing etc… Field says
Burger does not understand judicial function; SCT is not supposed to worry about whether nuclear
power plants will be built.
**This is the type of case that may slip through federal courts despite lack of FQJ because it looks federal
JUSTICIABILITY: CASE OR CONTROVERSY (outside reading)
Simon v. Eastern Welfare Rights (1976) Powell
Rule: Standing requires (1) injury in fact; (2) injury fairly traced to the challenged action of the defendant; (3)
relief likely to redress injury.
Held: persons who had been denied hospital services because of their indigency had no standing to sue the
Secretary of the Treasury on the ground that a new Revenue Ruling, which granted favorable tax treatment to
hospitals despite their refusal to give full service to indigents, was contrary to the Internal Revenue Code.
21. “[I]t is purely speculative whether the denials of service specified in the complaint fairly can be traced to
petitioners ‘encouragement’ or instead result from decisions made by the hospitals without regard to the
Roe v. Wade (1973) Blackmun
22. Plaintiff 1: pregnant woman who wanted an abortion yes standing, even though no longer pregnant
by the time of appeal – court recognizes an exception to the general rule that an actual controversy must
exist at stages of appellate or certiorari review because of the limited time nature of pregnancy.
23. Plaintiff 2: doctor arrested for giving abortions no standing, he can raise his defenses in the state
criminal proceedings against him.
24. Plaintiff 3: married couple who want the right to abortion if they get pregnant no standing. Alleged
injury is too indirect to present an actual case or controversy.
Golden v. Zwickler (1969) Brennan
25. Proper inquiry was whether a “controversy” requisite to relief under the Declaratory Judgment Act
existed at the time of the hearing on remand.
- No controversy because the “New York statute’s prohibition of anonymous handbills applies
only to handbills directly pertaining to election campaigns, and the prospect was neither real nor
immediate of a campaign involving the Congressman.”
Davis v. FEC (2008)
Facts: Davis challenged federal election laws. The case was not decided until after the election. FEC argued
the case should be dismissed for mootness and lack of standing.
Held: Davis’s injury at the time of the complaint gave him standing. On mootness, the Court based its rule
squarely on the exception for cases “capable of repetition but evading review.” [Roe v. Wade]. It was
sufficient, said the Court, that no election campaign would last long enough for the issue to be resolved on the
merits and that Davis had announced his intention to run again as a self-financed candidate.
ABSTENTION -- FEDERAL COURTS' DEFERENCE TO STATE COURTS
A. PULLMAN ABSTENTION: abstain if (1) unclear state law; (2) possibility of avoiding federal
constitutional question; (3) adequate state remedy.
Pullman (1941) Frankfurter
Pullman Abstention Test: (1) unclear state law; (2) possibility of avoiding federal constitutional question; (3)
adequate state remedy.
Frankfurter does not trust federal judges to read state statutes. Here, the statute was actually pretty clear.
Frankfurter’s worries re: unclear state law: (1) federal courts will needlessly mess up the state program if
they interpret the state law wrong (but is it worth delaying decision for years? – delaying could mess
things up); (2) federal courts will needlessly decide the federal constitutional issue.
England (1964) Brennan
Held: Upon abstention, parties have a choice between litigating both state & federal claims in state court, or
reserving federal claims for a return to federal court. If reserving, must tell the state court your federal claims.
Abstention is a postponement, but not a relinquishment of federal jurisdiction.
Even without an explicit reservation, the right to return to federal court is given up only if party
voluntarily does more than Windsor requires.
**Note: abstention does not necessarily produce the final word on state law – State Supreme Courts may deny
Wisconsin v. Constantineau (1971) Douglas
Facts: Acting under authority of a state statute, the Chief of Police, without notice or hearing, “posted” the
plaintiff’s name in all retail liquor outlets in a Wisconsin town. The consequence was that the plaintiff was
unable to purchase liquor for one year. She sought a federal injunction against the practice of “posting.”
Held: No abstention because no ambiguity in the state statute. Plaintiff denied procedural due process and
entitled to injunctive relief.
“In the present case there is no ambiguity in the state statute… The act on its face gives the Chief of
Police the power to what he did to the appellee. Hence the naked question, uncomplicated by an
unresolved state law, is whether that act on its face is unconstitutional. Abstention should not be
ordered merely to await an attempt to vindicate the claim in a state court.”
Dissent (Burger): wants states to have the first chance to pass on the constitutionality of their own statutes (this
is wrong / not part of Pullman abstention).
Harris County Commissioners v. Moore (1975) Marshall – unusual procedure to accommodate state law
Held: abstention required = complaint dismissed without prejudice so that remaining federal claims may be
raised in a federal forum after the Texas courts have been given the opportunity to address state law questions.
Under England, federal courts normally “stay” the case. But here, TX disallowed state declaratory relief
if a federal court retained jurisdiction over the federal claims (state rule against advisory opinions).
- “We have adopted the unusual course of dismissing in this case solely in order to avoid the
possibility that some state law remedies might otherwise be foreclosed to appellees on their
return to state court. Obviously, the dismissal must not be used as a means to defeat the
appellee’s federal claims if and when they return to federal courts.”
- Note: would still have to tell the state court that you have federal claims you are holding onto
(England) = it’s the same thing (state will be making advisory opinion)!
**Field offers a different option: federal courts could force state courts to go along with Pullman procedures.
**Field says if states won’t cooperate, federal courts should just exercise their jurisdiction and decide the whole
case. Abstention doctrine is mostly to help out states, should let them give it up.
Three doctrines that limit Pullman:
1. Certification often used instead
- Some states do not accept certified questions (e.g. – rule against advisory opinions). Could the
federal system require? YES – Article III + necessary & proper clause; NO – 10th Amendment.
- Some states only allow Court of Appeals to certify questions versus District Courts. Why?
Gives state benefit of having factual findings.
2. Younger (no federal injunctions against pending state criminal proceedings)
3. Pennhurst (federal courts cannot enjoin state officials on the basis of state law)
- Pennhurst will not apply if outside 11th Amendment (e.g. suing a municipality).
B. BURFORD AND THIBODAUX ABSTENTION: abstain if complex administrative procedure
(Burford); or (1) eminent domain (or something similarly “special and peculiar”) + (2) unclear state law
Burford (1943) Black
Burford Abstention Test: complex administrative procedure
Unclear state law is NOT a requirement; applies to both federal question AND diversity cases.
Rationale: unified system, once you went through administrative process – if you sought review within
state judicial system, there was one court in the state that heard the cases – concentrated judicial review.
Contours are not well-defined = you can argue for it anytime an administrative agency is involved.
**Procedure after Burford abstention: federal court dismisses the case. Most likely, the plaintiff in the federal
suit will then bring the same issue to state court. If he loses in state courts, he cannot return to federal court
(unless SCT grants cert) Burford abstention is an abdication of jurisdiction (dismissal vs. Pullman stay).
**Burford abstention grew out of Prentiss Doctrine where the Supreme Court held that a federal court should
have refused to review a rate order of the Virginia State Corporation Commission because that body was acting
in a legislative capacity and review by the Virginia Supreme Court of Appeals should have been sought first.
Required to go through the whole state court system because the state courts were partners in the administrative
process – courts acting in a legislative fashion rather than a judicial fashion.
Burford vs. Pullman?
If you do satisfy the rules for both Pullman and Burford, federal courts would apply Burford because it
offers the more extreme procedure of dismissal.
Line between Burford and Pullman: no exhaustion requirement for §1983 cases = do not have to go to
administrative agency + state courts. So, it is pretty clear you can get around Burford just by never
going to the administrative agency. If you do go to the administrative agency in a §1983 case, can you
go straight to federal court afterwards or can you be subject to Burford? No clear answer but Field
thinks you would be able to go straight to federal court. Other argument that by going to administrative
agency you have to stay within the state system.
Thibodaux (1959) Frankfurter
Facts: The city filed a condemnation proceeding in a state court. The power company removed the case to
federal court, invoking diversity jurisdiction. District Court stayed the case pending institution of a declaratory
judgment proceeding in state court to determine whether the city had the power to make the kind of
expropriation involved. City appealed the District Court’s decision. The power company (the party that had
removed the case in the first place) supported the District Court’s decision to defer to additional state
proceedings. Court of Appeals held the stay inappropriate. Power Company successfully obtained cert in the
SPT, arguing the stay order was proper.
Both parties playing the system: city trying to get things settled as quickly as possible so they can
proceed with condemnation; power company trying to delay so they can delay condemnation.
Thibodaux Abstention Test: (1) eminent domain + (2) unclear state law
“Eminent domain cases are of a “special and peculiar nature” that are “intimately involved with
sovereign prerogative… Avoiding “the hazards of serious disruption by federal courts of state
government” and “needless friction between state and federal authorities” justified deference to the state
courts, particularly since the issues of state law were unclear.”
Held: SCT agreed with power company and the case was remanded to await the outcome of the state suit.
**Procedure after Thibodaux abstention: head back to state court to see if taking was fair. If it was not
authorized, go to federal court to determine compensation. Is it a postponement or abdication?
**Possible expansion of Thiobodaux for something that is “special and peculiar” like eminent domain.
Mashuda (1959) Brennan
Facts: Mashuda’s land had been taken by the county for the purpose of enlarging the Pittsburgh airport.
Mashuda was awarded compensation under the applicable state procedure, and both parties appealed the award
to the appropriate state court. Mashuda then learned that the land had been leased to a corporation, allegedly for
its private business use. Under state law, private property could not be taken for private use under eminent
domain. While the appeal in the condemnation proceeding was still pending, Mashuda filed a diversity action
in federal court against the county and the corporation, seeking damages and their ouster from the land.
Held: No abstention although there was eminent domain – no unclear state law.
Rationale: validity of the taking could not be challenged in the compensation proceeding and that, since
an independent suit was required in any event, the federal diversity action should proceed.
**Compare to Thibodaux: only two people joined both majorities of Thibodaux and Mashuda. Stewart says it is
just a coincidence that both cases involved eminent domain; he emphasizes law was clear in Mashuad versus
unclear in Thibodaux. But Pullman requires more than just unclear law – it would totally uncut it to just say
unclear state law justified abstention. In the end, Field thinks the best way to accept Thibodaux is to require (1)
eminent domain + (2) unclear state law.
Kaiser Steel (1968) – no-name abstention based on already pending state declaratory action.
Facts: diversity action seeking damages and an injunction for trespass. Kaiser had entered the plaintiff’s land to
use water under the authority of a New Mexico statute. The plaintiff claimed that the statute, if construed to
permit Kaiser’s action, would violate the New Mexico constitution.
Held: abstention required.
No abstention doctrine/cases cited. Field calls this “no-name abstention” based on already pending state
declaratory action. Field says this abstention makes particular sense where the state action is already
Quackenbush (1996) O’Connor
[Burford] abstention derives from courts’ equity powers. It is not available in suits for damages.
C. THE ANTI-INJUNCTION ACT: abstain if pending state litigation
Anti-Injunction Act (§2283) it forbids a federal court from enjoining pending state litigation.
“A court of the United States may not grant an injunction to stay proceedings in a state court except as
(1) expressly authorized by Act of Congress, or (2) where necessary in aid of its jurisdiction, or (3) to
protect or effectuate its judgments.” [The 3 exceptions were added in the 1948 revisions to the statute.]
§2283 does not apply where federal suit is filed first (Ex Parte Young).
§2283 refers to state proceedings, but also cannot enjoin the judge/parties/statute etc.
The Tax Injunction Act (§1341) forbids federal court from enjoining the assessment, levy or collection of
any state tax if there is a state remedy.
The Johnson Act (§1342) forbids federal court from enjoining the operation of/compliance with any order
affecting rates chargeable by a public utility and made by a state administrative agency.
Statutory Exceptions of §2283:
(1) Expressly Authorized by Act of Congress
- Mitchum v. Foster (1972) Stewart: §1983 is an “express” exception to §2283.
o Test: “whether an act of Congress, clearly creating a federal right or remedy enforceable in a
federal court of equity, could be given its intended scope only by the stay of a state court
Test asks whether an injunction of state court proceedings is within the intent of the
congressional statute. But isn’t this what you would ask w/o §2283? Maybe you can
say §2283 makes a slight presumption against injunction, but cannot be much because
there is not much in §1983.
o Special reasons for having §1983 be an exception: Younger may have required; purpose of
§1983 was to protect people from state government & state courts.
- Vendo Co (1977) Rehnquist plurality: §16 of the Clayton Act NOT an “express exception” to §2283
(1) the last clause of the statute (beginning “under the same conditions and principles”) means
that §16, unlike §1983, “may fairly be read as virtually incorporating the prohibitions of the Anti-
Injunction Act…”; (2) unlike in Mitchum, the legislative history does not show policy of enjoining
state court proceedings; (3) **if §16 is an “express” exception, under the same logic just about
everything would count as an express exception.
o §16: “Any person… shall be entitled to sue for and have injunctive relief, in any court of the
U.S. having jurisdiction over the parties, against threatened loss or damage by violation of
the antitrust laws… when and under the same conditions and principles as injunctive relief
against threatened conduct that will cause loss or damage is granted by courts of equity…”
(2) Where Necessary in Aid of its Jurisdiction (REMOVAL)
- Exception allows federal courts to stay the state court for proceedings that have been removed to
federal courts. This is applicable only if the state refuses to accept removal order. Injunction not
really necessary because either way the federal case would be controlling. Even if the state court
finishes first, the proceedings there were illegal so they cannot beat out federal proceeding.
(3) To Protect or Effectuate its Judgments (DUPLICATIVE LITIGATION)
- A sues B in federal court. A loses. A then sues B in state court on the same cause of action. Can
you get a federal injunction? YES. Injunction again is unnecessary because state suit would be
illegal (res judicata) and could not undercut federal judgment.
Non-Statutory Exceptions of §2883:
Atlantic Coast Line makes it seem like no non-statutory exceptions but there are a few:
Leiter Minerals (1957): exception if the United States is a party.
NLRB v. Nash-Finch (1971): “implied authority of the NLRB, in spite of the command of §2283, to
enjoin state action where its federal power pre-empts the field.”
Atlantic Coast Line
Facts: A federal court refused to issue an injunction to halt labor picketing. Subsequently, the state court
enjoined the labor activity. SCT then decided a case called Jacksonville Terminal that held that unions had a
federally protected right to picket. Union sought a federal court injunction staying enforcement of the state
court’s order halting the picketing. District Court granted the injunction.
Held: injunction against the state court was not justified under any of the exceptions of §2283.
“necessary in aid of its jurisdiction” does not apply – (1) an injunction was not necessary just because
the district court thought the state injunction was improper under Jacksonville Terminal; (2) for the
exception to apply, the injunction cannot just be related to the jurisdiction, but must be in aid of it; (3)
concurrent jurisdiction – Kline – in cases of concurrent in personam jurisdiction, both proceedings can
go forward. It is a race to judgment – the first judgment that is completed will control as res judicata.
“necessary to protect or effectuate its judgment” does not apply – here the earlier judgment is the federal
court refusal to issue an injunction. That refusal was not based on a belief that the unions had a right to
picket (precluding a state law injunction), but rather on a lack of jurisdiction; therefore a later injunction
has nothing to do with protecting or effectuating that earlier judgment.
If concurrent jurisdiction (Kline) and you win in federal court, immediately ask federal court for an
injunction against the state court proceeding. If you ask the state court for res judicata and they rule
against you – the federal court will be bound by res judicata on that issue.
D. YOUNGER V. HARRIS ABSTENTION: abstain if pending state criminal* proceedings
Dombrowski v. Pfister (1965) Brennan
Held: injunction allowed: (1) state proceeding is non-pending; (2) bad faith harassment; (3) chilling effect on
first amendment because of overbroad statute.
Younger v. Harris (1971) Black – no federal injunctions against pending state criminal proceedings
Facts: Harris was indicted in state court for distributing leaflets allegedly in violation of the California Criminal
Syndicalism Act. Harris sought a federal injunction against the state criminal prosecution on the grounds that
the Act violated the First & Fourteenth Amendments. Three other people intervened as plaintiffs, claiming the
prosecution of Harris inhibited them as members of the Progressive Labor Party.
Standing: Harris has standing because he is being prosecuted under the Act. No standing for the others
because they only alleged intimidation, and there was no indication that they would actually be sued. “If these
three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District
Court had found this allegation to be true… then a genuine controversy might be said to exist.” standing
cases very often say “if they had alleged so-and-so of course we would give them standing.”
Held: no federal injunctions against pending state criminal proceedings. EXCEPTIONS: (1) bad faith; (2) if
the statute is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence,
and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” Buck.
Note: the exceptions never actually arise (1) Cameron v. Johnson: if there is any evidence supporting
guilt, then no bad faith harassment (see also Zwicker v. Bull / Field v. Wisconsin); (2) Nothing actually
unconstitutional in every clause; (3) “chilling effect” exception of Dombrowski rejected.
Three years prior to Younger, the Court held this statute unconstitutional in Brandenburg. No
bad faith even though the statute under which he was indicted has been declared unconstitutional
Bad faith: why does federal court protect you better? Really the only time you need a federal
court here is if the state court is in collusion with the prosecutor.
Part II: explains history of Younger abstention doctrine – “Our Federalism.” Field says there was not
really any basis for Dombrowski, Younger. Policy reasons for NOT enjoining state proceedings: (1)
§2283; (2) reluctance to enjoin criminal prosecutions + traditional requirement of irreparable harm.
- Yes, irreparable harm is usually required for a federal injunction. BUT, here irreparable harm
inquiry asks whether there will be such harm if left to the state court proceedings. In usual §1331
case you assume federal jurisdiction except in extraordinary circumstances. With Younger, Courts
cannot exercise federal jurisdiction unless irreparable harm in being left to state jurisdiction.
**Does Younger also mean you cannot bring a damage action that would interfere with pending criminal
**Younger abstention is ABDICATION. When the federal court abstains, the case will proceed in state court.
Can you ever get federal review? Possibility of federal habeas (not great relief for Younger-type plaintiffs,
particularly now since federal habeas is so limited). If challenging the constitutionality of the statute itself –
second Teague exception? At the time this decision was handed down, also the possibility that res judicata
would not apply in §1983 cases (this did not pan out).
**Note: state can re-construct the statute and “a valid narrowing construction can be applied to conduct
occurring prior to the date when the narrowing construction was made, in the absence of fair warning
problems.” So if P gets the whole statute thrown out because it is unconstitutionally overbroad, if P then
participates in actions previously prohibited by the statute and the state re-draws the statute to cover such
actions, state can prosecute him. Brennan did say this in Dombrowski too. Field finds this extraordinary.
**Problem with Younger (per Field): fails to recognize distinction between criminal proceedings for one-time
crimes (e.g. murder) versus continual crimes where defendant claims a right in continuing what they are doing.
**Field thinks Black got the votes for Younger only because he was willing to limit it to pending state
proceedings. However, the reasoning of Younger very much goes beyond pending state prosecutions. He
criticizes Dombrowksi, but this would be unnecessary if he was relying on pending prosecutions because
Dombrowski had won the race to the courthouse.
**Is Younger a necessary corollary to the exhaustion requirement for federal habeas corpus?
**Hamdan: no abstention pending completion of ongoing court-martial proceedings. Why: we admire state
tribunals, not military commissions. Military commissions not entitled to same amount of deference.
Younger companion cases:
o Boyle v. Landry (1971) Black: “those who originally brought this suit made a search of statutes and city
ordinances with a view to picking out certain ones that they thought might possibly be used by the
authorities as devises for bad-faith prosecutions against them.” Such “speculation,” the Court held,
could not support equitable relief.
o Samuels v. Mackell (1971) Black: Younger applies to declaratory judgments. Declaratory judgments are
one step away from injunctions because they can be used to get an injunction under §2283 to effectuate
a judgment. They may also have res judicata effect. Field thinks all statutes prohibiting injunctions
also apply to declaratory judgments (otherwise it would be a loophole). Nonetheless, Court does not
always follow this reasoning (e.g. SCT does not like three-judge court act so did not make applicable to
declaratory judgments). Unclear whether §2283 also applies to declaratory judgments.
Note: it is an open question whether Younger should apply to damage actions.
o Perez v. Ledesma (1971) Black: Younger rule extended No federal court suppression of evidence in a
pending state criminal proceeding.
Steffel (1974) Brennan – declaratory judgment if no pending state prosecution (win race to court)
Facts: Plaintiff and his companion were threatened with arrest for violating Georgia criminal trespass laws
while distributing handbills at a local shopping center. Although they left to avoid arrest, they returned a few
days later and again were threatened with prosecution for trespass. While the plaintiff left, his companion
remained and was arrested. Plaintiff then filed a suit in federal court seeking declaratory relief.
Held: “[R]egardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded
when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a
disputed state criminal statute, whether an attack is made on the constitutionality of the state on its face or as
Injunction claim dropped because no three-judge court. This decision does not pass on whether an
injunction is available.
Policy: no duplicative proceedings, no disruption of the state system, doesn’t reflect negatively on state,
if no state proceeding no forum for which plaintiff could otherwise raise his claim, declaratory
judgments milder alternative to injunctions.
Concurrences: Stewart: emphasizes the “genuine threat of imminent arrest” requirement. White: a DJ holding
P’s conduct to be immune from state prosecution should be accorded res judicata effect in any later prosecution.
Also, it’s possible that a federal court could enjoin a later state prosecution on the basis of a DJ declaring
conduct immune. Rehnquist: A DJ could not be used to get an injunction later; otherwise, the DJ would be just
as intrusive as an injunction. A DJ is just a statement of rights and a state court is not compelled to follow it.
**Problem: talked about as if in the same category as Dombrowski (non-pending case where plaintiff wins race
to federal courthouse). Field thinks this wrong because Steffel had not done anything for which he was going to
be prosecuted – unless he violated the act again in the future. This makes him further from the existence of a
state prosecution than if he had violated the statute, then race to the courthouse. Field thinks Steffel should be in
a third category of cases where the plaintiff has not violated the statute at all.
Hicks v. Miranda (1975) White – expands definition of “pending”
Facts: police seized four copies of the film “Deep Throat” from an adult theater. Criminal charges were
brought against two employees and state judicial proceedings declared the film obscene. Theater owners asked
federal court for an injunction and declaration of the statute’s unconstitutionality. State court amended the
criminal complaint to name the theater owners as additional defendants in the criminal charges.
Held: “where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is
filed but before any proceedings of substance on the merits have taken place in the federal court, the principles
of Younger v. Harris should apply in full force…”
Two grounds: (1) First, when the federal complaint was filed, the theater owners’ interest was already at
stake in a pending state prosecution (owners could not avoid the rule of Younger merely because they
had not been formally named as defendants prior to the federal suit); (2) Extension of Younger.
Dissent (Stewart): “It is an open invitation to state officials to institute state proceedings in order to defeat
**Redefines the definition of “pending” – if state court starts later, it can still be “pending” as long as the
federal case is not too far along on the merits.
**Hicks will prevent plaintiffs from beginning suit because it will likely spur the state to initiate prosecution.
**Takes away the idea that plaintiff can win the race to federal courthouse.
**Two big things in Hicks: (1) changes definition of “pending”; (2) says district courts cannot disregard
summary affirmances – must take just as seriously as full-fledged decisions.
**This is the worst decision because makes clear that many people will never be able to get into federal court.
Doran v. Salem Inn (1975) Rehnquist
Facts: Three bar owners operated topless bars. The town passed an ordinance against topless dancing, after
which the bars clad their dancers in bikini tops and brought a federal suit under §1983 for a declaration of the
invalidity of the ordinance and an injunction against its enforcement. The day after the complaint was filed, one
of the bars resumed topless dancing and was prosecuted under the ordinance. The federal court thereafter ruled
the ordinance unconstitutional on its face under the 1st Amendment and issued a preliminary injunction
restraining its enforcement against all three corporations.
Held: With respect to the corporation that had been prosecuted, the Court held that Younger and Hicks barred
both injunctive and declaratory relief. With respect to the other two corporations, the Court unanimously held
that they were entitled to the preliminary injunctive relief.
**shows typical case where you are going to get standing, without violating the law business that is doing
something that is later prohibited. Even if the business complies immediately, you know they want to do the
activity and there is standing.
**For the bar that violated the statute, it slips into Hicks. The other bars are in the category of non-violators
presumption of federal jurisdiction. If no violation, cannot get Younger or Hicks.
**Problem in a lot of these cases – very difficult to get standing.
= unless you can get justiciability and avoid violating the federal statute, you cannot have a federal forum. In
those situations there a presumption that you can exercise jurisdiction, whereas in Younger cases there is a
presumption against jurisdiction.
Huffman v. Pursue (1975) Rehnquist – must use state appellate process (case still “pending”)
Held: A state prosecution is still “pending” after final judgment has been entered in the trial court, prior to
completion of state appellate proceedings.
“Virtually all of the evils at which Younger is directed would inhere in federal intervention prior to
completion of state appellate proceedings, just as surely as they would if such intervention occurred at or
Wooley v. Maynard (1977) Burger
Facts: Maynards covered “Live Free or Die” motto on their state license plates. They were convicted for this
three times. None of these convictions were appealed. The Maynards successfully sued in federal court under
§1983 to enjoin future enforcement of the statute.
For abstention purposes, it is as if Maynard has never violated the law (although he has violated it
enough to give him standing).
Several justices dissented and said that just declaratory relief should have been given (see Steffel).
Burger answers back that no reason to distinguish between declaratory judgment and injunction. This is
true, because when in non-violation column, federal courts fully exercise federal jurisdiction.
Trainor v. Hernandez (1977) White
Facts: The Illinois Department of Public Aid filed a lawsuit for civil fraud in state court to recover the welfare
benefits obtained by Hernandez, who allegedly concealed personal assets while applying for and receiving
public assistance. Such conduct is a crime under Illinois law. IDPA obtained a writ of attachment against
Hernadez’s credit union. Hernandez sued in federal court, challenging the constitutionality of the attachment
statute and seeking DJ and injunction.
Held: Younger abstention applies.
State is a party + quasi-criminal: state could have brought criminal state prosecution.
Huffman v. Pursue (1975) Rehnquist
Facts: State officials instituted a civil nuisance proceeding against an adult movie theater. The state won.
Rather than appealing, the theater sought injunction and DJ in federal court under §1983.
Held: Younger abstention applies.
Emphasized the similarities between criminal prosecution and the public nuisance action. The state was
a party to the action, which was “both in aid of and closely related to” criminal obscenity statutes. The
offense to the state’s interest occasioned by the federal court injunction was “likely to be every bit as
great as it would be were this a criminal proceeding.”
Juidice v. Vail (1977) Rehnquist
Facts: plaintiff held in contempt for failing to honor a subpoena designed to uncover his assets. Judge issued an
ex parte commitment order. Debtor then brought a federal class action against the judge to enjoin enforcement
of the contempt procedures.
Held: Younger abstention applies to enforcement of contempt proceedings.
“A state’s interest in the contempt process, through which it vindicates the regular operation of its
judicial system, so long as that system itself affords the opportunity to pursue federal claims… is of
sufficiently great import as to require application of the principles of those cases [Younger, Huffman].”
Dissent (Brennan): “Huffman’s “quasi-criminal” rationale and today’s reliance on state “contempt power” are
revealed to be only covers for the ultimate goal of denying §1983 plaintiffs the federal forum in any case, civil
or criminal, when a pending state proceeding may hear the federal plaintiff’s federal claims.”
But note: non-violation cases cannot fit within Younger.
New Orleans Public Service v. Council of City of New Orleans (1989) Scalia
Held: Younger does not apply to ALL civil litigation.
“it has never been suggested that Younger requires abstention in deference to a state judicial proceeding
reviewing legislative or executive action. Such a broad abstention requirement would make a mockery
of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in
deference to the states.”
Moore v. Sims (1979) Rehnquist
Facts: Texas Department of Human Resources removed children from parents suspected of child abuse. State
court issued an emergency ex parte order giving the Department temporary custody. After inconclusive
proceedings in state courts, the parents filed in federal court.
Held: Younger is “fully applicable to civil proceedings in which important state interests are involved.” As in
Huffman, the state’s child-protection procedures were “in aid of and closely related to” criminal statutes.
Abstention appropriate so long as there was an “opportunity” to present federal claims in the state proceeding.
Middlesex County (1982) Burger
Held: Younger applies to state bar disciplinary proceedings certified to the state supreme court: (1) the
proceedings were “judicial” in nature; (2) ethics committee has “important state interests” in “maintaining and
assuring the professional conduct of the attorney s it licenses”; (3) bar disciplinary proceedings gave ample
opportunity to raise federal claims.
Hawaii Housing Authority v. Midkiff (1984) O’Connor
Held: “Since Younger is not a bar to federal action when state judicial proceedings have not themselves
commenced, abstention [in favor of the] administrative proceedings was not required.”
OTHER CASES – overly enthusiastic applications of Younger:
Rizzo v. Goode (1976) Rehnquist
Injunction ordering city police commissioner and officials to implement directive for handling citizen
complaints of police misconduct, fashioned by the court under §1983, was reversed as an unwarranted
intrusion on official discretion.
City of Los Angeles v. Lyons (1983) White
LAPD officers using chokehold against plaintiff. Plaintiff sued for injunction against future chokeholds.
Court found Lyons failed to allege a sufficiently plausible threat of future injury to have standing for an
injunction. Lyons did have standing on damages action.
Supreme Court held that: (1) that plaintiff might have been illegally choked by police did not establish
real and immediate threat that he would again be stopped for traffic violation or for any other offense by
officer or officers who would illegally choke him into unconsciousness without any provocation or
resistance on his part, and additional allegation that Los Angeles police routinely applied chokeholds in
situations where they were not threatened by use of deadly force fell far short of allegations necessary to
establish case or controversy, and (2) because plaintiff did not allege that all police officers in Los
Angeles always choked any citizen with whom they happened to have encounter, whether for purpose of
arrest, issuing citation or for questioning, nor did complaint allege that city ordered or authorized police
officers to act in such manner, there was failure to allege case or controversy.
Pennzoil v. Texaco (1987) Powell
Gross misuse of Younger abstention doctrine. Has not spawned a whole new exception.
Judgment debtor brought action to challenge Texas court judgment in excess of 11 billion dollars and to
challenge constitutionality of application of Texas judgment lien and appeal bond provisions requiring
bond in excess of 13 billion dollars. The United States District Court for the Southern District of York
preliminarily enjoined attempts to enforce judgment or to obtain lien. Supreme Court held that Younger
abstention required district court to abstain from hearing constitutional claims, where judgment debtor
did not present those claims to Texas courts, and where it was impossible to be certain that governing
Texas statutes and procedural rules actually raised those claims.
First ambiguity: whether this is Kline concurrent in personem jurisdiction or whether we should treat the
state proceeding as finished (in which Rooker-Feldman says you cannot bring federal lawsuit). Here, it
cannot be Rooker-Feldman because state proceeding was not finished before federal suit started (since
filed in federal court before state entered judgment).
**Field thinks right to abstain here, but not under Younger. Younger used to dump things they do not want.
**Alternative: Field thinks you should ask for mandamus for the SCT. Or say it is a collateral order that can be
reviewed separately from the judgment. Field thinks you would have to stress the emergency.
E. COLORADO RIVER ABSTENTION: abstain if concurrent civil litigation & exceptional
Colorado River (1976) Brennan – abstain if concurrent civil litigation & exceptional circumstances
Facts: U.S. brought suit in federal district court seeking a declaration of water rights. Over 1000 defendants
were named. Subsequently, one of the defendants filed a motion in state court to make the U.S. a party to a
state court proceeding concerning the same water rights. Although the U.S. generally may not be sued in state
court, the McCarran Amendment provides that the U.S. consents to being sued in state court in actions to
determine the rights to water in a river system.
Held: federal courts may abstain in favor of concurrent state civil litigation if exceptional circumstances.
Factors: (a) inconvenience of the federal forum; (b) desirability of avoiding piecemeal litigation; (c)
order in which jurisdiction was obtained by the concurrent forum.
Here abstention proper: McCarran Amendment policy to avoid piecemeal litigation; comprehensive
state system for the adjudication of water rights that federal litigation may disrupt; proceedings have not
progressed beyond filing of the complaint in federal court; district court is a less convenient forum;
related pre-existing state proceedings.
**Civil counterpart to Younger. This could have been a Burford abstention case.
FIGHTS OVER COLORADO RIVER DISCRETION:
**Rehnquist in Will v. Calvert Fire Ins. (1978) argues for federal district courts to have much broader discretion
to abstain in favor of pending state-court litigation than was recognized in Colorado River. Field thinks a
possible reform of abstention doctrine would be to leave discretion with the district court judge.
**Moses H. Cone (1983): re-confirmed that Colorado River states a narrow exception to the normal obligation
of federal district courts to decide cases properly before them.
**O’Connor in Wilton v. Seven Falls (1995) tries to compromise by holding district courts have “greater
discretion [to abstain] in declaratory judgment actions than that permitted under the “exceptional
circumstances” test of Colorado River and Moses H. Cone.” Problem: what if plaintiff asks for both DJ &
injunction? Lower courts applying discretion only in situations where only relief available is DJ.
NOTES ON CONCURRENT LITIGATION:
Cohens v. Virginia (1821) Marshall: federal judiciary has “no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given. The one or the other would be treason to the
Meredith (1943): a federal court is not free to abstain in a diversity case simply because of the difficult or
novelty of questions of state law.
EXCEPTIONS TO CONCURRENT LITIGATION:
(1) If second suit would interfere with the control of property already in the “custody” of another court, the
second court must defer to the court in control of the property;
(2) Lower federal courts have discretion to defer to pending federal litigation involving the same parties;
(3) Declaratory judgments are discretionary and may be withheld if the same issues are already pending in
another court (Brillhart).
F. ROOKER-FELDMAN DOCTRINE: abstain if state court loser brings decided case to district court.
Exxon-Mobil v. SABIC (2005) Ginsburg
Facts: SABIC sued Exxon in state court seeking a DJ that certain royalty charges were proper under a joint
venture agreement. Two weeks later, Exxon sued SABIC in federal court alleging that it had been overcharged.
State court proceedings went to judgment first, resulting in a verdict in favor of Exxon. Federal appeals court
received issue of immunity after the state court jury verdict.
Held: Rooker-Feldman doctrine is confined to cases brought by state court losers complaining of injuries
caused by state court judgments rendered before the district court proceeding commenced, inviting district court
review and rejection of those judgments.
**Preclusion rules will still apply. Difference between not having jurisdiction vs. issue decided by res judicata.
Lance v. Dennis (2006)
Facts: (1) State suit (Salazar): Colorado Supreme Court read state constitution to require use of court-ordered
redistricting plan; (2) Federal suit: four citizens unhappy with Salazar sued for use of the legislature’s plan.
Held: Rooker-Feldman doctrine inapplicable because federal suit plaintiffs were non-parties to the earlier state
judgment. Privity irrelevant to the Rooker-Feldman doctrine, but relevant to res judicata issues.
Dissent (Stevens): dislikes Rooker-Feldman doctrine.
G. RES JUDICATA DOCTRINES
- Claim Preclusion (res judicata): things that were never litigated but should have been raised in the
same proceedings. Same parties or privity.
- Issue Preclusion (collateral estoppel): things that were litigated & decided. Mutuality.
Full Faith & Credit Rules:
Article IV, §1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
§1738: “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the
same full faith and credit in every court within the United States and its Territories and Possessions as
they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”
**Field thinks §1738 should have been interpreted to apply only to diversity jurisdiction, and then applied
otherwise on a case-by-case basis.
**The Court that issued the first judgment decides its res judicata effect. Field thinks there is an argument for it
to be the other way – second court has an interest in deciding whether to use their resources to re-do the case.
Migra (1984) Blackmun
Facts: Migra won in state court. She then took constitutional claims to federal court. She had brought these
claims in state court, but had moved the state trial court to dismiss w/o prejudice after she won on other claims.
Held: must look to Ohio state laws on preclusion in deciding whether these later claims in federal court are
barred because they could have been brought in earlier suit (claim preclusion).
§1983 does not override state preclusion law and guarantee petitioner a right to proceed to judgment in
state court on her state claims and then turn to federal court for adjudication on her federal claims.
- §1738 vs. §1983: Field thinks there is a conflict between the policies of §1738 and §1983. §1983
has a policy of allowing people’s federal constitutional claims to be aired in federal court.
Concurrence (White): federal courts should be able to reject claims based on their own res judicata rules, even
if state law would allow the suit. Field disagrees – seems unfair since §1983 policy of granting federal review.
**Allen v. McCurry (1980) previously held that issue preclusion was available in federal court to foreclose re-
litigation of issues determined in a prior state court suit (even though Allen was forced into state court).
**Often federal courts do not actually look to state preclusion laws; there seems to be a FCL of res judicata.
Exclusive federal jurisdiction?
Will v. Calvert (1978) Brennan speculated: “I confess to serious doubt that it is ever appropriate to
accord res judicata effect to a state-court determination of a claim over which the federal courts have
Marrese (1985) O’Connor: (1) P brings associational claims in state court. Loses. (2) P brings anti-trust
claims in federal court. Sherman Act interpreted to give federal courts exclusive jurisdiction over anti-
trust claims. No claim preclusion because P could not have brought the federal claims in the original
- Burger: P could have brought a state anti-trust claim. “If the state preclusion law foreclosed a
second suit on state antitrust issues because that claim could have been raised in the first suit, then
perhaps a federal antitrust suit should also be foreclosed even though state preclusion law did not
speak to the effect of the state judgment on matters within the exclusive jurisdiction of the federal
courts.” Field does not like this.
Semtek (2001) Scalia
Facts: Suit 1: federal court in CA. Suit dismissed because California SOL expired. Suit 2: federal court in
MD. In Maryland, SOL is not expired.
Held: MD case can go forward.
Rule: if federal suit finishes first… (1) FQ cases – federal res judicata rules apply; (2) diversity cases – state res
judicata rules apply.
Field does not like this rule: jurisdiction does not provide sensible solutions or relate to what the lawsuit
is actually about.
REMEDIES AGAINST GOVERNMENT: THE CIVIL RIGHTS ACTS
A. MONROE V. PAPE
Monroe v. Pape (1961) Douglas – case that awoke §1983, broad definition of ‘under color of’ state law
Facts: Chicago police officers broke into Monroe’s home and arrested him without a search or arrest warrant.
Issue: were police actions were ‘under color of state law’ as required to recover under §1983 suit? YES.
Held: “Misuses of power, possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law, is action taken ‘under color of’ state law.”
Dissent (Frankfurter): It’s not “under color of” state law if the officials are violating state law. Frankfurter
would require first figuring out whether the behavior is illegal under state law. This would go against no
exhaustion policy of §1983.
B. LIABILITY AND IMMUNITIES OF INDIVIDUAL OFFICERS
Legislatures Judicial Executive
Damages Absolute immunity for “legislative Absolute immunity for Qualified immunity
actions” “judicial actions” - Special rules
- Federal: Art I, §6 (speech & - Federal: Butz for President
debate clause) - State: Pierson - State: Scheuer
- State: Tenney - Test: Harlow
Prospective No immunity No immunity
DJ) State: limited by §1983, State: Ex parte Young
Criminal No immunity No immunity
**The determinative factor is the function performed, not the office held**
Butz: (1978): immunities accorded state officers (§1983 suits) & federal officers (Bivens actions) are the same.
Tenney (1951) Frankfurter – absolute immunity for state legislator engaged in legislative activity from damages
Held: extends absolute immunity of federal legislators set in U.S. Constitution (Art I, §6) to hold persons
engaged in state legislative activity are absolute immune from civil liability under §1983
Reasoning: legislative immunity was so well established at common law that Congress would have
explicitly said so if it had meant to abolish such immunity under §1983.
Tahoe Lake Case – absolute immunity to administrative agency acting in legislative function
Facts: California & Nevada created a single agency to coordinate development around Lake Tahoe. Relief
against agency rules? NO.
Held: agency has absolute immunity because it was acting in a legislative capacity when it made the rules.
Problem: we thought it was OK to give immunity to legislators based on Constitution (Speech & Debate
Clause) and alterative remedy of voting legislators out of office. But here, the officials were appointed
(= cannot vote out of office) and deciding a land use plan does not have the same justifications as
Speech & Debate Clause.
Looks at function to treat as legislators rather than the executives they are.
Pierson (1967) – absolute immunity for state judges from damages
Held: extends absolute immunity from suit to state judges based on Tenney reasoning.
Why immunity for judges? Would not be a good use of judicial resources to allow people to sue judges
for conviction under unconstitutional statutes. There will be a loser in every case. When people think
the judge got it wrong, they are supposed to appeal – not start a lawsuit against the judge.
Zarcone (2nd Cir 1978)
Facts: Judge ordered a sandwich vendor to be handcuffed and brought before him for selling “putrid” coffee.
Held: Judge liable for compensatory and punitive damages.
Behavior was outside judicial function – judge was on 9th Circuit w/o general jurisdiction.
Stump v. Sparkman (1978) – absolute immunity for judge performance of judicial functions
Held: Upheld the immunity of a state judge who ordered a tubal litigation on a 15-year-old girl who was told
she was having an appendectomy.
No authority in the state for judge to order sterilizations – but no statute/case law prohibiting it either.
No other remedy? Cannot recover against the hospital, because they were acting pursuant to judicial
order. Cannot recover against mother, because she had “properly” gone to court to have this ordered.
Lesson: if within judge’s jurisdiction, you cannot challenge whatever it is that he does.
Eisenberg: would judge have been immune if he had ordered the execution of the girl? Nothing
prohibiting judge from doing this – Eisenberg trying to point out broadness of the opinion.
Pulliam (1984) – allowed prospective relief against state judge, now subject to §1983, §1988
Facts: Suit was brought to enjoin a state magistrate from her practice of requiring bond for nonjailable offenses
and incarcerating those who could not make bail. Because of the short duration of each pretrial detention and
the recurring nature of the practice, arguably there was no adequate alternative remedy.
Held: judges do not have absolute immunity from injunctions.
Problem: §1988 requires loser of §1983 suit to pay the other side’s attorneys fees. Because of this case,
Congress modified §1983 & §1988.
- §1983 now provides that the person acting under color of state law “shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.”
NO injunction against judicial officer for an act/omission taken in official judicial capacity
unless a DJ was violated or no DJ action is available.
- §1988(b) now provides that the court may allow “a reasonable attorney’s fee as part of the costs,
except that in any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, such officer shall not be held liable for any costs, including attorney’s
fees, unless such action was clearly in excess of such officer’s jurisdiction.”
Judicial officers acting in judicial capacity are not liable for costs/attorneys fees.
Pierson (1967) – qualified immunity for state executive officers from damage suits
Held: qualified immunity for executive officers (e.g. police).
Scheuer v. Rhodes (1974) Burger – varying degrees of qualified immunity for executive officials
Facts: Ohio National Guard killed four students participating in an antiwar protest at Kent State University.
§1983 litigation against the governor of Ohio and several state officials.
Held: executive officers entitled to varying degrees of qualified immunity, “the variation being dependent upon
the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at
the time of the action on which liability is sought to be based.”
Governor tries to analogize himself to President. Special rules for the President of United States –
Nixon: absolute immunity for things done while in office & within scope of authority. Clinton: no
immunity for Paula Jones case because what was alleged took place before Clinton took office.
Governor subject to same qualified immunity defenses, but more discretion. Executive immunity
category always distinguishes between higher ups & police officers / lower levels.
Imbler (1976) – certain core prosecutorial functions also trigger absolute immunity from damages
Held: prosecutors are absolutely immune from the award of damages for acts “intimately associated with the
judicial phase of the criminal process”; but prosecutors engaged in investigative or administrative activities
have only a “good-faith defense comparable to a policeman’s.”
Van de Kamp (2009) Breyer – prosecutorial absolute immunity for some administrative procedures
Facts: Goldstein sued a former D.A. asserting liability for failure to train and supervise subordinates, who had
failed to disclose impeachment material to the accused, as required.
Held: Although the wrongs complained of involved administrative procedures, SCT upheld absolute immunity.
“We conclude that prosecutors involved in such supervision or training or information-system
management enjoy absolute immunity from the kind of legal claims at issue here. Those claims focus
upon a certain kind of administrative obligation – a kind that itself is directly connected with the conduct
of a trial.”
TEST FOR “QUALIFIED IMMUNITY”:
Wood v. Strickland (1975) White – qualified immunity requires objective & subjective good faith
Facts: school board (executive officials) expelled high school students w/o providing procedural due process.
Held: school officials have qualified immunity: requires both objective & subjective good faith.
Dissent (Powell): too much of a burden on school board officials to know the law… but shouldn’t they be
expected to uphold legal rights when they are yielding expulsion power?
** Could have argued for absolute immunity based on judicial function of the school board.
Harlow v. Fitzgerald (1982) – qualified immunity test only includes objective element?
Held: “We therefore hold that government 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.”
Why does court do this? Around this time, court says purpose of immunity is to protect people from
trial. Field thinks this is a purpose only of abs, not qualified immunity.
**At the time, unclear whether totally getting rid of subjective element. Later cases would make this clear:
Anderson v. Creighton (1987)(officer’s subjective beliefs about the search irrelevant); Crawford-El v. Britton
(1998)(court precluded any opportunity to overcome qualified immunity by proof of malice).
**Allows police officer to use subjective intent to defend? “If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent public official should know the law governing his
conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove
that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.”
Wilson v. Layne (1999) – Saucier two-step test; overruled by Pearson v. Callahan
Facts: Plaintiffs claimed that their 4th Amendment rights had been violated when police invited newspaper
reporters to accompany them on a lawful search.
Saucier Two-Step Test for Qualified Immunity: (1) Has a constitutional right been violated? (2) If so, is it a
clearly established right that a reasonable officer should know?
Three possible rules: (1) first decide constitutional question, second decide immunity; (2) first decide
immunity, second decide if constitutional violation; (3) normal rule – no necessary order of decision.
Teague v. Lane: threshold issue for decision is whether it would be a new rule, if it would – then court
will not decide it. This is sort of the opposite of Wilson.
Brosseau v. Haugen (2004)
Facts: A police officer, Brosseau, was chasing a suspect, Haugen, who was wanted on a warrant. Haugen got
into a car and began backing it out of a driveway to get away from the officer. Brosseau raised her gun and
ordered Haugen to get out of the car. When Haugen refused and continued to back out, Brosseau shot and
wounded him. He sued for the use of excessive force and she raised qualified immunity as a defense.
Held: Court skips the first question (constitutional violation?) and goes straight to finding qualified immunity.
Prior cases show that the area is one in which the result depends on the facts of each case. Hazy border
between excessive and acceptable force. So it is not clearly established that her conduct violated the 4 th
Field thinks Haugen ought to be able to dispute the facts establishing claim for qualified immunity – did
she really think he had a gun? Strategic for plaintiffs to emphasize disputed facts. Case was a summary
reversal – decided without briefing or argument by the parties.
Hope v. Pelzer (2002) Stevens – law can be clearly established without prior decision on point
Facts: Alabama Department of Corrections’ used “hitching posts” to punish state prison inmates who refused to
work or disrupted work squads. Hope was subject to this punishment and brought §1983 suit against guards.
Held: Alabama’s practices violated the Eighth Amendment and do not need a prior decision on point to show
the existence of clearly established law.
DOJ report saying the practices were likely unconstitutional not communicated to prison guards, but
Field points out that Court of Appeals decisions unlikely to be communicated either. Clearly established
law somewhat of a fiction because we do not know that it is communicated to the guards.
Idea that facts have to be the same or else no notice = struck down. “Obvious cruelty inherent in the
practice should have provided respondents with some notice”
Lanier: state judge argued that he had not received “fair warning” that his conduct violated the statute
because no prior case had held that sexual assaults committed under color of state law violated the
Fourth Amendment SCT disagreed!
Dissent (Thomas): Field thinks he is saying that prison official had to not only know that it was unlawful, but
also that it was clearly established. Field says she thinks if guards know it is unlawful, they should not do it!
Bunting v. Mellen (2004) – Saucier creating mess; non-appealable losses!
Facts: Two cadets at VMI challenged the school’s practice of conducting a prayer before meals under the 1 st
Amendment. They sued Bunting, the superintendent. The district court granted an injunction against prayer,
but said that the superintendent had qualified immunity on the damages ground because it wasn’t clearly
established law. Both sides appealed. SCT denied cert.
Problem: court of appeals said prayer violated the establishment clause, and superintendant would like
to have this reviewed by SCT. He cannot seek cert in SCT because he won on the immunity issue.
Dissent (Scalia): constitutional determination should be appealable by the party who loses on that ground (here,
Bunting) even if they win on qualified immunity. Wrong to hold Bunting to an unreviewable injunction.
Pearson v. Callahan (2009) – overruled Saucier two-step test. May decide qualified immunity question first.
**Note: we still have Saucier/Bunting problems – because courts not ordered to decide qualified immunity first
– may decide in whatever order.
APPEALS OF IMMUNITY DENIALS:
Mitchell v. Forsyth (1985) – federal court immunity denials are immediately appealable
Held: rejection of a qualified immunity defense is immediately appealable under the “collateral order” doctrine
of Cohen. But see Johnson v. Jones: courts required to separate a “reviewable determination (that a given set of
facts violates clearly established law) from an unreviewable determination (that an issue of fact is ‘genuine’).”
“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.”
**Note: state courts do NOT have to provide the opportunity for an interlocutory appeal that would be available
in federal courts under Mitchell. Johnson v. Fankell.
Governments generally choose to protect their employees against damage liability, either by themselves
providing defense counsel and indemnifying the employees against loss or, less commonly, by purchasing
Is this good? Without indemnification, many persons may be deterred from government positions.
Expected that they will be sued all the time, and if they had to bear the legal costs it would be too much.
Is it equally clear that government should pay their damages if they are found liable? Quite commonly,
the act giving rise to liability must have been within the scope of employment and often must have been
performed in good faith.
If state does have a policy, can they then argue it is a suit against the state barred by the Eleventh
Amendment? No. Could interpret it as a waiver.
Carey v. Piphus: damage judgments must be limited in amount to compensation for actual harm
suffered; only nominal damages may be awarded to vindicate the declaration of rights.
C. LIABILITY AND IMMUNITIES OF CITIES AND COUNTIES
Monell (1978) Brennan – overturned Monroe on cities; cities liable under §1983 for official policy/custom
Facts: Suit against NYC challenging policy requiring pregnant teachers to take unpaid leaves of absences.
Held: municipalities liable under §1983 for actions taken pursuant to an official policy or custom.
**Stevens argues for respondeat superior; which Court specifically rejects.
Will v. Michigan (1989) White - “person” in §1983 does not include states or state officials acting in their
Hafer v. Melo (1991) O’ Connor
Rule: Official capacity suits attempt to sue the government entity by naming the officer as a defendant, whereas
personal capacity suits seek to impose individual liability upon an official for actions taken under color of law.
Sate officials sued in their individual capacities are “persons” within the meaning of §1983.
Field thinks you should plead suit against an official in both personal & official capacities.
Owen (1980) Brennan – cities do not have good faith defense in §1983 suits
**New constitutional rules applied retroactively on direct review = localities will be held liable for failing to
anticipate new rulings, even in circumstances where individual defendants would have enjoyed the defense of
**Note: a roundabout attempt to extend the rule of Owens to suits against the federal government was rejected
in FDIC v. Meyer. A unanimous SCT ruled that Bivens actions would not lie against federal agencies.
Example of when individual would be liable but city not? Official acted outside of official policy/custom.
DEFINITION OF OFFICIAL POLICY/CUSTOM?
Pembaur (1986) Brennan
Facts: Police officers refused entry to serve subpoenas called prosecutor for further instructions. Prosecutor
told them to “go in and get them.” The police chopped down the door, which was the basis for §1983 suit.
Held: “In ordering the deputy sheriffs to enter petitioner’s clinic the county prosecutor was acting as the final
decisionmaker for the county, and the county may therefore be held liable under §1983.”
Brennan would recognize multiple final decisionmakers.
Dissent (Powell): “no official county policy could have been created solely by an off-hand telephone response
form a busy county prosecutor.”
Prapotnik (1988) O’Connor plurality
Facts: Architect sues the city, claiming he was fired for retaliatory reasons.
Held: state law dictates Civil Service Commission is the final policymaker. O’Connor says if there is someone
above the official who has review, then that official is not a policymaker. Brennan objects that this could allow
cities to insulate themselves from liability by having a review system for all decisions. O’Connor responds if
you delegate all the time, this could be custom/usage providing city liability. This leads to Brennan pointing out
gaping hole – nothing to cover isolated decision by official with de facto authority. End goal: Brennan wants
this to be a jury question. Field thinks courts most likely to follow O’Connor, despite Brennan’s arguments.
McMillian v. Monroe County (1997) Rehnquist
Held: in matters of law enforcement, the sheriff was not a final policymaker for the county. The basis for this
ruling was a detailed analysis of Alabama law, which revealed that, insofar as they were engaged in law
enforcement, county sheriffs were in fact state officers.
Opens possibility of manipulation to avoid liability, but here the policy had been in the State constitution
since 1901 (long before Monell).
Harris (1989) White – city liability for failure to train only if deliberate indifference
Held: a municipality can be liable under §1983 for failure to train its employees, but only under very limited
circumstances. “[I]nadequacy of police training may serve as the basis for §1983 liability only where the failure
to train amounts to deliberate indifference to the rights of persons with whom the police came into contact.”
D. EXHAUSTION OF REMEDIES, INTERPLAY OF SECTION 1983 AND HABEAS CORPUS
Preiser (1973) Stewart
Facts: NY state prisoners sued under §1983 in federal court alleging that the NY Corrections unconstitutionally
deprived them of good-conduct-time credits. They sought injunctive relief to compel restoration of the credits,
which would result in their immediate release from prison.
Held: when doing “core/essence of habeas corpus,” cannot get around it by §1983. Habeas requires exhaustion
of state remedies + no res judicata.
“We hold today that when a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Dissent (Brennan): he says majority’s scheme is unworkable and will lead to all sorts of confusion.
Heck (1994) Scalia
Issue: may a state prisoner challenge constitutionality of conviction in a suit for damages under §1983? NO.
Held: “We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or
for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.”
Benefits: no parallel litigation; SOL dos not start until criminal prosecution overturned.
**What about Wooley? Under Heck, he could not bring a damages action because convictions not overturned.
**Possible hole: future inmates could just sue for lesser damages? E.g. only sue for false arrest, imprisonment.
**Presier was in place when we had full-fledged habeas. As we make habeas less available, should there be
greater availability for §1983?
Deakins (1988) Blackmun – abstention
Facts: propriety of an eight-hour search of business premises during which hundreds of documents were seized.
District Court dismissed §1983 damages suit in deference to the pending state grand jury proceedings.
Held: “District Court had no discretion to dismiss rather than to stay claims for monetary relief that cannot be
redressed in the state proceeding.”
Concurrence (White): wants to answer the question of whether Younger applies. He believes that it does.
Edwards v. Balisok (1997) Scalia
Facts: state prisoner sought damages under §1983 for allegedly unconstitutional procedure used to take away
his good-time credits; he did not seek damages for the result.
Held: dismisses §1983 action; reaffirms Heck – cannot bring §1983 damage action which “could be such as
necessarily to imply the invalidity of the judgment.” Here, prisoner had alleged deceit and bias by the prison
hearing officer, allegations that, if proved, would imply the invalidity of the disciplinary action.
**But if just challenging procedures, and correction of the procedures could result in either release or continued
confinement, then this does not necessarily imply the invalidity of conviction?
Wilkinson (2005) Breyer
Facts: two prisoners denied parole based on guidelines implemented after their convictions. Both sought an
injunction under §1983 on the ground that retroactive application of the 1998 guidelines denied them due
process and violated the Ex Post Facto clause.
Held: suit may proceed under §1983.
Concurrence (Scalia): wrote separately “to note that a contrary holding would require us to broaden the scope
of habeas relief beyond recognition.”
Review Osborne – suggests retreat from Wilkinson:
Even if DNA evidence does not match, it will not necessarily mean his release. If DNA shows he is
guilty, he definitely will not be released.
How could he possibly win? Arguing for new constitutional right. Trying to create a radyB right for
after you are convicted. Teague – cannot create a new constitutional right on habeas.
METHOD OF EXECUTION CASES:
Nelson (2004) O’Connor. Three days before his scheduled execution by lethal injection, petitioner
Nelson filed a civil rights action in District Court under §1983, alleging that the use of a “cut-down”
procedure to access his veins would violate the Eighth Amendment. He proposed other methods of
execution. Held: §1983 claim could go forward. **She suggests circumstances in which should not
hear method of execution claims – “If as a legal matter the cut-down were a statutorily mandated part of
the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede
acceptable alternatives for gaining venous access, respondents might have a stronger argument that
success on the merits, coupled with injunctive relief, would call into question the death sentence itself.”
Hill (2006) Kennedy. Challenge to particular 3 drug sequence used in Florida’s lethal injections. Held:
case controlled by Nelson = §1983 action allowed. **If the guy manipulating them, maybe wouldn’t
allow it. Court says petitioner does not have to come up with alternative method of execution.
E. FOR WHAT WRONGS?
§1983 requirements: (1) official action under color of law; (2) constitutional deprivation.
Paul v. Davis (1976) Rehnquist
Facts: P’s name distributed by list of active shoplifters to storeowners. §1983 suit against police chiefs
responsible. He argues procedural due process: list distributed without opportunity for him to respond.
Held: damage to reputation insufficient to amount to violation of due process.
How can they reconcile with Constantineau? There, a real property/liberty deprivation – P unable to
**See also Siegert (1991): bad job recommendation – cited Paul for the proposition that defamation is not a
DeShaney (Poor Joshua case) (1989) Rehnquist
Facts: child beat by his father multiple times, left brain-damaged.
Held: government does not have an affirmative obligation to act = limits constitutional deprivations.
Lewis (1998) Souter – no police liability for causing death in a high-speed automobile police chase
Held: standard for substantive due process analysis was whether the deputy had been guilty of an abuse of
power which “shocks the conscience” – here, requires proof of an intent to harm the suspects.
Parratt (1981) Rehnquist
Facts: prison lost $23.50 of mailed hobby materials. Taylor filed §1983 damage action against prison claiming
negligent deprivation of property without due process of law.
Held: (1) no state of mind requirement to §1983 (although may be required for underlying constitutional
violation or immunity) – overruled by Daniels which says negligence is not enough; (2) sufficient due process if
post-deprivation remedies available.
Normally, due process requires pre-deprivation hearing. But here, state had now way to know it would
lose hobby materials.
Hudson (1984) Burger
Facts: ripped pillowcase.
Held: also impossible to have pre-deprivation hearing for intentional unauthorized violations.
Note: post-deprivation remedy in these cases normally tort claims
Daniels (1986) Rehnquist
Facts: tripped on pillowcase negligently left by prison guard.
Held: negligence is NOT sufficient for due process violation.
Zinermon (1990) Blackmun
Facts: respondent alleges petitioners deprived him of his liberty, without due process of law, by admitting him
to FSH as a “voluntary” mental patient when he was incompetent to give informed consent to his admission.
Held: problems in this case foreseeable = state should have had procedures