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Law School Legal Outline Notes for Federal Courts I

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					FEDERAL COURTS CLASS NOTES & OUTLINE – PART I

I. CONGRESSIONAL CONTROL OF THE FCS

A. JUDICIAL REVIEW: MARBURY V. MADISON

1.

Art. III Sec. I

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 Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. 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.

Sec. II

SC original jurisdiction — in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party SC appellate jurisdiction — in all the other Cases before mentioned...both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

1

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Principles of Marbury v. Madison:
a.

FCs have the power to review the actions of the executive branch. 1) The Court could give relief; every injury of a right has a remedy. Certain matters, termed political questions, are not reviewable by FCs. 1) Modifies FCs‘ power to review actions of executive branch. Art. III is the ceiling on the Supreme Court‟s original jurisdiction. 1) Congress cannot expand original jurisdiction of CT beyond Art. III. 2) Thus, FCs are courts of limited jurisdiction. FCs have the power to declare federal statutes unconstitutional. Courts cannot decide cases inconsistently with the Constitution. 1) Judges take an oath of office; they violate it if they enforce unconstitutional laws. CT = ultimate interpreter of Constitution 1) ―It is emphatically the province and the duty of the judicial department to say what the law is.‖ 2) Court is the ultimate interpreter of the Constitution (Powell v. McCormack): other branches can interpret the constitution, but it is the responsibility of the Court to act as the ultimate interpreter of the Constitution.

b.

c.

d. e.

f.

3.

Benefits and Limitations of FCs
a.

Benefits of FCs 1) Federal judges are politically insulated (life tenure, salary protection) 2) Federal judges develop expertise in federal law 3) Uniform interpretation of federal law. Limitations of FCs 1) Limited docket 2) Limited location/inconvenience 3) More expensive 4) State interests dominate

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

B. CONGRESS‟ POWER TO LIMIT JURISDICTION OF FCS  

Congress has complete discretion over whether to create inferior FCs Art. III (only) expressly mandates creation of a Supreme Court


Summary
a.

Congress‟ Power to Limit the Supreme Court‟s Juris
1) 2)

Congress CANNOT limit Court‘s original jurisdiction Congress MAY limit Court‘s appellate jurisdiction a) 3 views on limiting Court‟s appellate jurisdiction (1) Traditional Theory: Congress has FULL power over Court‘s appellate juris (2) Essential Functions Theory: Congress may not make exceptions to Court‘s appellate juris that would destroy its ability to perform essential constitutional functions (e.g., maintaining uniformity and maintaining supremacy) (3) Limitation-as-to-Fact Theory: Congress‘ authority to limit Court‘s appeallte juris was intended to limit the Court‘s review of factual determinations only.

b.

Congress‟ Power to Limit Lower FCs‟ Juris
1) 2)

Generally: no consensus about Congress‘ ability to regulate jurisdiction of lower courts. 4 Views on Congress‘ Power to Limit Jurisdiction a) Full Judicial Power Review: Congress must vest lower FCs with full judicial power as set forth in Art. III b/c Congress‟ authority ends with creation. b) Congressional Discretion to Decide FC Jurisdiction – Greater Includes the Lesser: Congress has the authority to determine the jurisdiction of the lower FCs because it has the authority to decide whether to create these tribunals (Sheldon v. Sill) c) Justice Story‟s View: (1) Old Definition: there must be at least one FC authorized to hear all matters specified in Art III. (2) Modern Variation - Akhil Amar: jurisdiction must exist in some FC for cases involving federal questions, admiralty/maritime and ambassadors. d) Specific Constitutional Limits/Independent Constitutionality View: Congress cannot restrict FC juris in a manner that violates the Constitution or constitutional rights (e.g., Due Process Clause and E/P Clause). Practical Constraints on Congress‘ Power to Limit FC Juris: a) State courts would be left to adminster federal law b) Would leave existing federal precedent frozen in place b/c no federal court example for state court to follow.

3)

c.

Arguments for and against limiting FCs‟ ability to determine a remedy.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

1.

Big Issue = to what extent can Congress limit the FCs‟ jurisdiction as set forth in Art. III? Art. III:
a.

2.

Section 1: 1) Mandates that the Supreme Court be created. 2) Leaves it to Congress‘ discretion whether to create lower FCs and how many. Section 2 lists 9 Categories of Federal Judicial Power (Art. III):
1)

b.

Areas of Supreme Court‘s original jurisdiction (Congress cannot limit!) a) Cases affecting ambassadors, public ministers, consuls b) United States as a party Areas of Supreme Court‘s appellate jurisdiction (Congress may limit!) a) Cases arising under federal constitution, laws, treaties b) Admiralty and maritime c) Controversies b/n 2 or more states d) Controversies b/n a State and citizens of a different State e) Citizens of different states f) Citizens of same state claiming lands under grants of different states g) State (or citizen thereof) v. alien

2)

3.

Congress Cannot Limit the Supreme Court‟s Original Jurisdiction:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Congress MAY Limit the Supreme Court‟s Appellate Jurisdiction:
a.

Generally: CT‘s appellate court jurisdiction is made with such exceptions and regulations as Congress shall make. 3 Views on Limiting Court‟s Appellate Jurisdiction
1)

b.

Traditional View:
a) b)

Definition: Congress has full power over the Court‘s appellate jurisdiction. Argument IN FAVOR of allowing Congress the power to strip Court of its appellate juris: (1) Broad View of McCardle: Congress can prevent Court from ruling on an constitutional issue by removing juris – case broadly affirms the power of Congress to make exceptions to the Court‘s appellate jurisdiction. (2) Congress (democratically elected) would be able to check on Court (unelected body). Argument AGAINST allowing Congress the power to strip Court of its appellate juris: (1) Narrow interpretation if McCardle: Congress only reviewed one basis of juris – it did not review Court‘s power to hear the case under the original writ of habeas corpus (therefore, an alternative path to FCs existed) (2) Congress would strip Court of appellate juris in a political manner – creating arbitrary decision-making (3) Protecting minorities from the majority is a primary function of Court – allowing majoritarian legislature (Congress) to strip Court of certain appellate powers would seriously undermine Court‘s ability to protect individual rights (a) Removing Court‘s appellate juris would create conflicting federal law holdings (each state will decide federal laws differently) – individual rights may be lost. Case Law (1) Case - Ex Parte McCardle: (a) Facts: Party petitioned for writ of habeas, and appealed to the Supreme Court under a statute which was repealed during that time. (b) Issue: Whether the Court has appellate jurisdiction over the case. (c) Held: No jurisdiction - repeal of the Act was a positive exception, made by Congress, to the jurisdiction of the Court. (2) Views on Significance of McCardle ??? Problems

c)

d)

e)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2)

Essential Functions Theory:
a)

Definition: Congress may not make exceptions to the Court‘s appellate jurisdiction that would destroy its ability to perform essential constitutional functions. (1) Essential Functions Defined: (a) Maintaining uniformity in interpretation of federal and Constitutional law. (b) Maintaining supremacy of federal and Constitutional law. ??? Problems (1) Nothing mentioned in Art. III as to special functions or goals.

b)

3)

Limitation-as-to-Fact Theory:
a)

Definition: Congress‘ authority to limit the Court‘s appellate jurisdiction was intended to limit the Court‘s review to factual determinations. (1) ―Both as to law and fact, with such exceptions . . . .‖ (see Reading). (2) Read ―fact‖ with ―such exceptions as Congress shall make‖ (see Reading). Problems: (1) Almost never followed – mostly rejected today. (2) Rejected by McCardle.

b)

c.

Policy Concerns with Limiting Jurisdiction Involves Balancing: 1) In a democracy, value decisions should be made by the elected body; AGAINST 2) Primary function of a judiciary is to protect minority interests against majority.

5.

Congress‟ Power to Limit Lower FCs‟ Jurisdiction
a. b.

Generally: no consensus about Congress‘ ability to regulate jurisdiction of lower courts. 4 Views on Congress‟ Power to Limit Jurisdiction
1)

Full Judicial Power Review:
a)

Definition: Congress must vest lower FCs with full judicial power as set forth in Art. III. (1) Rationale = Congress‟ authority ends with creation. (a) Section 2 says judicial power shall extend to all 9 categories – thus, once Congress, under its discretion creates lower FCs, Congress must give them all federal judicial powers set forth in Art. III. Problems: (1) Never followed. (2) Judiciary Act of 1789 did not give full judicial power (no FQ juris). (3) Slippery slope argument: Congress would not even be able to limit diversity juris by setting minimum amount requirements if follow full power theory.

b)

2)

Congressional Discretion to Decide FC Jurisdiction – Greater Includes the Lesser:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a)

Definition: Congress has the authority to determine the jurisdiction of the lower FCs because it has the authority to decide whether to create these tribunals. (1) Impact: (a) Congress could have authority to restrict inferior FCs from hearing abortion appeals. (2) Case - Sheldon v. Sill: (a) Congress may withhold from any court of its creation jurisdiction over any of the enumerated cases or controversies. (b) Congress may determine the jurisdiction of the lower FCs because Congress has the discretion to decide whether or not they exist. (c) May define jurisdiction because they created them. (d) The greater power to create includes the lesser power to limit/control jurisdiction. ??? Problem:

b) 3)

Justice Story‘s View:
a)

Old Definition: there must be at least one FC authorized to hear all matters specified in Art III. (1) Problems (a) Never followed by Congress - no FC has ever been fully vested to hear all claims. (b) Ignores state courts‘ power to hear constitutional claims. (c) Sheldon, which came later, said juris must come through statute. (d) Essentially dead. Modern Variation - Akhil Amar: jurisdiction must exist in some FC for cases involving federal questions, admiralty/maritime and ambassadors. (1) In other categories of cases, Congress may but need not extend jurisdiction to lower courts. (2) Focuses on the word ―all‖: whenever Art. III describes a category of cases modified by term ―all,‖ FC power to hear those categories of cases must be vested at all times. (3) In other 6 categories, Congress can limit FCs‟ juris. (4) Problem: legislative history does not reflect a debate at ―all‖ - there is no suggestion that this must be given a focus; reading too much into it.

b)

4)

Specific Constitutional Limits/Independent Constitutionality View:
a)

Definition: Congress cannot restrict FC juris in a manner that violates the Constitution or constitutional rights. (1) Congress‟ exception power is limited by other portions of Constitution, including Bill of Rights (2) Due Process Clause limitation (a) Neither states nor federal power can deprive individuals of life, liberty or property without due process of law.  Substantive due process: are there adequate reasons for depriving individual of . . . ?  Procedural due process: was there adequate notice and hearing?

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

however, Congress limits states‘ power to hear cases as well, violation exists.  Restricting both FCs and state courts from hearing certain matters would violate the Constitution - some forum in which indvs may seek redress for a violated right must exist  NOTE: Marbury - not all claims have a remedy in court, i.e. political questions (3) Equal Protection Clause: less clear whether violation would result from depriving federal/state courts of jurisdiction
b)

(b) As long as state courts can still hear the case, no due process violation - if,

??? Problem:

6.

Practical Constraints on Congress‟ Power to Limit FC Jurisdiction
a.

State courts would be left to administer federal law.
1)

Undermine supremacy clause: could cause conflict with state law, which ultimately could undermine supremacy of federal law. a) Counter: state courts would not be bound to follow the frozen federal precedent; they would create their own, making their interpretation, not the Court‘s supreme. Undermines uniformity: could have 50 different interpretations of federal law. a) Counter: there are 94 federal districts with just as much, if not more, potential to undermine uniformity. State courts are not equipped to handle their own caseloads in addition to federal caseloads.

2)

3) b.

Would leave existing federal precedent frozen in place.

7.

Congressional Restriction of Both Federal & State Court Jurisdiction:
a.

If Congress limited both state and FCs‟ jurisdiction, it would arguably violate due process.
1)

Rationale: constitutional rights must have a place where they can be heard (see Marbury). a) If there are claims that cannot be brought in any court, it would leave a right with no remedy, so a violation of due process.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

8.

Limiting Courts Ability to Fashion Remedy v. Limiting Jurisdiction:
a.

Senator Helms‟ Anti-Abortion Bill: Helms crafted the bill in terms of remedies - courts cannot provide certain remedies in cases involving abortion. Arguments for and against bill‟s constitutionality: 1) Unconstitutional: a) If Congress strips the courts of the power to grant a remedy, it is effectively the same as stripping the courts of jurisdiction altogether. b) If there are no other equally effective remedies available, arguably this is unconstitutional. 2) Constitutional: a) Congress has greater powers when it comes to limiting remedies than to limiting jurisdiction.

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

C. THE POWER TO EXPAND FEDERAL JURISDICTION

1.

Overview:
a.

General Rule: Congress may not enlarge FC juris beyond cases and controversies in Art. III; Art. III is ceiling on FC juris (stated in Marbury, reaffirmed in Tidewater) Constitutional meaning of “arising under” federal law for purposes of art. III: 1) A case ―arises under‖ the Constitution, whenever the federal law is an ingredient of case. a) Ingredient = necessary to decide case 2) Osborne and Verlinden construed Art. III very broadly a) When any issue of federal law might appear in case, there was a federal ingredient 3) Verlinden + Mesa a) Federal law has to do more than create juris, the federal law must be basis of ―arising under‖ juris; it has to be potentially important to outcome of case (1) Verlinden: in order to bring suit under the Foreign Sovereign Immunities Act (FSIA), the PL must meet FSIA standards. Those standards constitute the federal ingredient. (2) Mesa: involved only a jurisdictional statute that was not potentially important to the outcome of the case Protective Jurisdiction (never embraced by Court): 1) Wechsler: a) For any case that Congress has substantive legislative authority to create and enact law, it may take the lesser step and enact a jurisdictional statute providing a federal forum even if state law should be applied (Congress may in turn decide procedural matters) 2) Mishkin: a) Where Congress has articulated an active federal policy regulating field, Congress can confer federal juris over all cases in that area (including those where state law will apply) (1) Protective Jurisdiction is only allowed in situations where Congress has articulated an active policy in a specific field (Osborne Bank situation is Classic example)

b.

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Purpose of FCs
a.

To prevent discrimination against federal government or instrumentalities (states acting in their own best interests vis a vis the government or in favor of their own residents) 1) But Supreme Court has repeatedly said state courts should be presumed to protect federal interests equally Provide uniform interpretation of federal law 1) No clear evidence exists suggesting that FCs create greater uniformity than State courts there are 94 judicial districts -- no more uniform body of law than 50 states provide 2) BUT there are only 13 circuits - as case rises in FC system, federal law becomes more and more uniform Why would someone choose federal over state court? 1) FCs are generally better forums to hear federal claims - FCs generally have more resources than state courts 2) Judges are chosen from small, exclusive group, confirmed by Senate, possessing salary protection and life tenure

b.

c.

3.

Basis for FQ Juris
a.

Two Questions to Consider 1) Does the case fall within the Constitutional grant (―arising under‖) of Art III? 2) Does the case fall within the statutory grant (―arising under‖) of 28 USC § 1331? Comparing Art. III and 28 USC § 1331 Diversity Statute
1)

b.

Art. III - Constitutional Basis: a) ―The judicial Power . . . shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .‖ 28 U.S.C. § 1331 - Statutory Basis: a) ―The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.‖ The scope of § 1331 has been interpreted much more narrowly than Art III (language the same): a) Art. III is the limit on FCs jurisdiction: a broad interpretation of Art III properly preserves ability of FCs to hear a broad range of case/ encompasses future cases; broad interpretation therefore also allows an overwhelming number of cases into FC b) However, interpreting 1331 broadly too would flood the federal docket c) Therefore, we construe 1331 more narrowly than Art III to prevent overrunning FCs with all types of cases; 1331 keeps certain cases out of FC (1) 1331 may be expanded by Congress up to the limits of Art III to encompass certain issues

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Congress Cannot Expand FC Power Beyond That Provided in Art. III
a. b.

RULE: Congress cannot expand FC juris beyond Art. III Case law support
1) 2)

Art. III = ceiling on Court juris (Marbury v. Madison). Art. III = ceiling on all FC juris (National Mutual Insurance Co. v. Tidewater Transfer Co.(US 1949)). a) Rule: A clear majority holds that Congress cannot assign to Art. III courts any additional duties than those listed in Art. III. b) Facts: Congress passed a law that said citizens of DC should be treated as citizens of a state for diversity jurisdiction. c) Issue: Does Congress have the authority to enact this statute? d) Held: (1) 7-2 that DC could not be a ―state‖ for purposes of Art. III diversity jurisdiction. (2) Jackson, Black & Burton, JJ., plurality: Congress has the power to create and regulate DC under Art. I. Therefore, Congress could expand jurisdiction beyond Art. III. (3) A majority (6-3) rejects that Congress could expand Art. III jurisdiction in this way. (4) The 2 dissenters on the first issue and the 3 dissenters on the second issue join together to uphold the statute.

5.

What Does “Arising Under” Provision Mean for Purposes of Art. III?
 

Analyze under (1) Osborn/Verlinden test and (2) Both protective jurisdiction analyses. Issue is relevant when there is no statute or constitutional provision expressly establishing a cause of action. Rule: federal law must be an ingredient of case potentially important to outcome of case. What constitutional provisions/laws are covered by case? 1) ―Constitution‖: every provision but Full Faith and Credit 2) ―Laws of US‖: all federal statutes, administrative regulations, federal common law Federal law must be an ingredient of case potentially important to outcome of case (Osborne v. Bank of United States (1824), Verlinden B.V. v. Central Bank of Nigeria (1983) & Mesa v. California (1989))
1)

a. b.

c.

Analysis: a) Does federal statute authorize suit in FC? b) Does Congress have the power to authorize suit in FC? Cumulative Holdings:
a)

2)

If federal law forms an ingredient of the original question which is potentially important to the outcome of the case, even though other questions may arise, FCs have power to hear case (it ―arises under‖ federal law under article III) (Osborne, Verlinden)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) Verlinden may not support action where there is no relationship between underlying

action and juris action

b)

Federal law, in order to be basis of juris, has to be potentially important to outcome of case (1) Unclear how important it has to be (2) Substantial relation might be enough “Pure jurisdictional statutes which seek „to do nothing more than grant juris over a particular class of cases‟ cannot support Art. III „arising under‟ juris.” (Mesa v. California). In Verlinden there was a connection between statute granting jurisdiction and underlying action.

c)

d)

3)

Case Law
a)

Does a matter ―arise under‖ when there is a state c/a but federal law is somewhat involved in case? Osborn v. Bank of the United States (US 1824) – p239 (1) McCulloch: State cannot tax bank (2) State taxes each office and breaks into bank and steals money, federal agents steal some of money back. State says FC can‘t hear case Verlinden (1) Contract between Dutch Co. and Nigerian bank with forum selection clause specifying France. Sued in FC on statute allowing aliens to sue foreign sovereign in FC (Federal Sovereign Immunities Act). District court dismissed case and appellate court struck down act as unconstitutional expansion of federal powers. (2) Supreme Court: ―Arising under‖ clause broad enough to provide jurisdiction because there is the remote possibility that some federal question could be raised because every action involving foreign sovereign necessarily involves body of federal substantive law that raises federal law (3) Because Congress regulates when a foreign sovereign can be subject to suit in US, every action brought against sovereign will require district court to determine if sovereign is subject to suit (and therefore a federal Q arises) (4) This doesn‘t mean that Art. III‘s requirements could be met by statute in which Congress creates juris (because that would arise under federal law) Mesa (1) Two postal truck drivers involved in car accident. Criminal action brought against them in state court. They tried to remove it to FC under statute allowing removal for actions against federal officers (2) SC: In order to remove under statute, need colorable federal defense

b)

c)

d)

6.

Protective Juris

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a.

Concept: Congress can authorize fed juris where it believes it‘s necessary to protect some important federal interest (goes all way back to Osborne) Wechsler‟s view (broad view) 1) If Congress has constitutional substantive power to enact law, it should have the lesser power to give jurisdiction to FC over a matter enacting state law Mishkin‟s view (narrow view) 1) Congress has to have a ―preexisting, active and articulated‖ policy in the area in order to exercise protective jurisdiction 2) If Congress has active policy in place, it can protect program from being undermined by state courts by allowing FCs to have juris even if they‘re applying state law a) Because state interests are already preempted because regulatory scheme takes over everything Case - Textile Workers Union v. Lincoln Mills (US 1957) 1) Facts: Taft-Hartley Act granted juris over labor-management contract disputes. Company brought suit in FC under Act. 2) Reason: a) Congress intended FCs to create federal CL of labor-management contracts under Act. Therefore, juris arises under federal laws b) Never addresses protective juris 3) Harlan‘s concurrence: state law should be applied but Congress could authorize protective jurisdiction in order to protect federal interests in this area 4) Frankfurter‘s dissent: rejects protective jurisdiction saying it can only be justified by assuming state courts inadequate to decide state law when citizens of another state are involved but diversity clause takes care of this

b.

c.

d.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

D. CONGRESS‟ POWER TO CREATE NON-ART. III COURTS

1.

Analysis
a.

General Rule: Art. I (legislative) courts will be allowed, in addition to the 5 4 express categories, as appropriate under the Thomas/Schorr balancing approach. Compare Art. I to Art. III courts 2 ways to test constitutionally of Art. I courts: (1) categorical approach and (2) functional approach. 4 Express Categories where Congress can create Art. I courts (Northern Pipeline) 1) Martial/military courts 2) Territorial courts 3) Public rights courts (suits against the govt) a) Private rights closely related to a federal government or public regulatory scheme (Thomas) – may also fall under Thomas/Schor balancing test? 4) Adjunct courts (magistrates, post-Northern Pipeline bankruptcy courts) Balancing/Functional Approach (Thomas/Schor)
1) 2)

b. c.

d.

e.

Test: balance the benefits of using Art. I (legislative) court against concerns. Danger of Balancing Test a) This is a case-by-case approach and thus CT may give away too much power and realize it too late. Benefits (aka adequacy of congressional purpose) a) Expertise b) Efficiency: inexpensive method for dealing with class of cases. c) Prompt d) Continuous Concerns:
a)

3)

4)

Personal interest/fairness (1) Personal interest/fairness can be waived by consenting to use the legislative court‘s adjudication process. (2) Not clear what happens if there no consent: We don‘t know what fair or unfair means (cases have never addressed) so we don‘t know the outcome. Structural interests/SOP concerns: (1) Structural interest/SOP concerns cannot be waived (2) 4 factors to assess SOP concerns: (a) Extent to which the essential attributes of judicial power are reserved to Art. III courts

b)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

What is the scope of the Art. I courts‘ powers? Are they broad/akin to district courts or limited/akin to adjuncts and supervised by district court.  What is Art. I court‘s ability to issue orders?  What is its standard of review?  What is breadth of its jurisdiction. (b) Extent to which Art. I court exercises its range of juris and power normally only vested in Art. III courts  What drove Congress to create this adjudicatory facility?  Was Congress creating this court to specifically channel cases away from Art. III courts? (c) Origins and importance of the right to  Public or private right?  If it is a public right, no separation of powers issues.  State common law rights raised more of a concern. (d) How insulated is the Art. I court from the political process?  Is Congress trying to influence the outcome of the case?
f. g.



What Magistrates can and cannot do Unresolved Issues 1) Schor never addressed what would happen if parties do not consent to adjudication by Art. I court 2) Sheer mass of cases may make parties‘ personal interests less important.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Art. III v. Art. I Courts
a.

Art. III Courts 1) Art. III Judges have life tenure assuming good behavior and salary safeguards (salaries cannot be decreased during time in office) 2) Purpose of tenure/salary safeguards = to insulate judges from Congress, Executive, general political pressure – protect judicial autonomy and independence. 3) Art. III does not provide for the creation of FCs other than Art. III FCs Art. I Courts (legislative courts)
1) 2)

b.

Congress‘ power to create legislative courts comes from Art. I Difference b/n Art I and Art. III courts a) Art I judges do not have life tenure or salary protection Reason Congress would create Art. I courts a) Want agencies or bodies to develop specific expertise in a specialized area of law. b) Efficiency and cost savings: cheaper because if area no longer important, can get rid of adjudicators c) Gives Congress more control - desire to keep federal judiciary small and prestigious Ability of Congress to create Art. I courts a) Not per se unconstitutional (1) Art. III seems to unambiguously require that judicial power only be invested in judges who have life tenure and salary protection – but b/c we have had legislative courts for so long, one cannot really argue that Art. I courts are unconstitutional. b) Legislative courts have existed for past 200 years in the form (1) Territorial courts (2) Military courts (3) Public rights courts (4) Adjuncts c) Real issues (1) Under what circumstances can Congress create Art. I courts? (2) What is scope of Congress‟ authority to give Art. I courts power? (not whether Art. I legislative courts are constitutional)

3)

4)

c.

Problems W/ Allowing Congress to Create Art. I Courts/Tribunals: 1) Separation of Powers Issues a) Lack of judicial independence (no tenure or salary protection fro judges) b) If Congress has unlimited power to create such courts, it can channel all cases away from the Art. III courts, raising a separation of powers issue. 2) Federalism Concerns a) Legislative courts intrude upon state courts b) Congress is essentially creating federal tribunals to rule upon state claims 3) Greatest Concern = Possibility Congress will influence the outcome of these cases.

3.

Limitations on Art. I Courts

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

b.

Express Categories where Congress can create Art. I courts 1) Martial/military court 2) Territorial courts 3) Public rights courts (suits against the govt) 4) Adjunct courts (magistrates, post-Northern Pipeline bankruptcy courts) 5) Private rights closely related to a federal government or public regulatory scheme (Thomas) Congress cannot vest in an Art. I court the power to adjudicate state law claims unrelated to federal

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Magistrates


See notes from Magistrate Judge lecture a. Magistrates Can . . . (very broad grant of power). 1) Hear and decide non-dispositive pre-trial motions, reviewable under a ―clearly erroneous‖ standard of review. 2) Submit proposed findings of fact and recommend disposition for ―dispositive‖ motions and federal district court judge only has to make ―de novo‖ review of transcript and hear counsel‘s arguments (Raddatz) a) A de novo hearing (i.e., hearing live testimony) not required b) No DPC violation because analogous procedures okay in federal agency determinations (e.g., NLRB) c) District court judge must have plenary discretion to both use and review a magistrate‘s recommendation in order to avoid article III violation (1) ―[T]he entire process takes place under the district court‘s total control and jurisdiction.‖ 3) Assist federal judges in federal pretrial discovery and motions. a) With the consent of the parties, can conduct all pre-trial and trial proceedings, including jury and non-jury civil matters, including entering final judgments in those matters. b) Perform any such duties not inconsistent with the Constitution and laws of the United States. 4) Preside over civil and criminal misdemeanor trials (Gomez) a) ―[The] carefully defined grant of authority to conduct trials of civil matters and minor criminal cases shall be construed as an implicit withholding of the authority to preside at a felony trial.‖ b. Magistrates CANNOT 1) CANNOT conduct voir dire or jury selection without consent of both the parties (Gomez v. United States (1989)) a) If parties consent, then magistrate can supervise jury selection (Raddatz) 2) CANNOT preside over felony trials (Gomez) (see above quote) c. Case – Raddatz: 1) Facts: District does conduct a new hearing 2) Issue: is it constitutional for mags to do this? 3) Held: de novo determination did not mean a de novo hearing. 4) Reason: a) De novo review of magistrate‘s decision by district court was sufficient to satisfy due process and Art. III (b/c entire process takes place under district court‘s control and jurisdiction – mags acting as an adjunct). b) Fact that you did not get de novo hearing b4 district court does not mean due pro is violated. d. Jury Selection by Mags: 1) Case – Gomez v. United States: Mag Act does not authorize mags to preside over jury selection at felony trials; to do so without consent would raise due pro concerns.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2) Case - Pertez v. United States: Magistrates may supervise jury selection in felony cases with

the consent of the parties.

5.

Case – Northern Pipeline . . . v. Marathon Pipe Line Co. (US 1982) – p265:
a.

RULE: Bankruptcy Act is unconstitutional insofar as it permits adjudication of state law claims unrelated to federal law in Art. I courts. Facts: files for bankr, Marathon says it is unconstitutional for a breach of K claim to be argued in front of bankr judge. Northern‘s argument: even if Constitution requires that bankr have Art. III status, then they are adjuncts. 1) Background: a) Pre-1978: (1) Prior to Act, bankruptcy judges were referees, appointed by and answering to district courts – referees had jurisdiction over summary jurisdiction but only had plenary jurisdiction if got consent. (2) Summary v. Plenary Jurisdiction: (a) Summary: property of debtor, limited scope of decision-making power to factual issues; property within the bankrupt‘s possession. (b) Plenary: referred to claims regarding others‘ property, not the bankrupts‘ property. b) Bankruptcy v. Reorganization: (1) Bankruptcy: seeking protection under the law whereby the assets of the debtor are collected through a claims process and distributed to the creditors then cease business - voluntary or involuntary. (2) Reorganization: file for bankruptcy, inventory assets, and pay creditors, then continue business as a different entity. c) 1978 - Bankruptcy Act: (1) Referees replace by bankr judges. (2) Bankr judges appointed by the President and approved by the Senate. (3) No salary protection; 14-year terms with some removeablity. (4) Summary and plenary distinction is eliminated. (5) Compare to power of federal district court: (a) Power is as broad/equal to the power of the district courts. (b) Power to issue declaratory judgment, jury trials, habeas corpus, etc. Held: these bankr courts are unconstitutional. Reason:
1) Brennan identifies 4 limited situations where CT has allowed creation of non-Art. III

b.

c. d.

judges - the bankruptcy courts do not fit any of them. a) Territory. b) Military courts. c) Public rights doctrine: (1) General definition: civil disputes b/w govt and private citizens (2) Rationale: Congress has waived sovereignty (3) 3 main category of cases that fall into (a) claims against US for $

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(b) arising from coercive govt conduct outside the criminal law forum (customs (c) immigration issues.

disputes)

authority in connection with the performance of the constitutional functions of the legislative or executive departments. (b) Reasoning for courts: Involve cases where Congress has control over whether the cause of action exists at all (sovereign immunity), therefore Congress can decide which tribunal claims will be heard by. (c) This is not a public right – this is state law K damage dispute – this is a private right  Bankruptcy court is not a public rights court.  Pure restructuring of debtor-creditor relationship would arguably fall within public right.  But, at issue here is a state right:  The state law claim cannot fall within the public rights exception. d) Adjuncts: (1) Definition: Traditionally courts with power to make findings of fact, but not to make or enforce orders. Standard of review very broad; district courts reviewed decisions de novo. (2) Apply: Bankruptcy courts are not adjuncts. (a) CT says there is not enough control by Art. III court over bankr court. (b) Standard of review too narrow. (c) Review process: Appeal to bankruptcy appellate panel then to circuit court. (d) Clearly erroneous standard. (e) They have too much inherent power – their scope is not limited as other adjuncts. (f) Northern says there is appellate review by an Art. III court, CT rejects and says that this is not enough to make it constitutional (see FN#39) constitutional requirements for exercise of judicial power must be met at all stages of adjudication process, not just appeal process.
e.

(4) Other comments: (a) ―Public rights:‖ Suits against the government by persons subject to its

Rehnquist & O‟Conner, JJ., concurring 1) It is unconstitutional for Congress to vest broad authority in Bankruptcy courts to adjudicate state law issues. 2) Did not find it necessary to answer the question of where legislative courts are allowed; would limit holding to saying what was done here was unconstitutional. 3) Do not think there are only 4 categories of cases. White Dissent – functional approach: 1) White‘s Balancing Test to determine constitutionality of Art. I courts: a) Balance: (1) benefits of the legislative court WITH (2) effects on separation of powers and judicial independence. b) He thinks these tribunals are constitutional – takes a more functional approach (compare to Brennan‘s categorical approach) – look at test – p289 – weigh ―Art. III values [effects on sep of powers and judicial independence] and ask whether and to

f.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

what extent the legislative scheme accommodates them or, conversely, substantially undermines them‖ against having matter decided by non-Art. III court. 2) Rationale for test: a) If Congress can take juris from FCs and leave it with state courts then why can‘t they take it away from Art. III courts and give to Art. I courts. (1) Brennan‘s response is that Congress cannot control state courts – so Congress will be channeling cases to courts that are subject to influence by Congress (and thus violates separation of powers). 3) Real question – p290 - Congress not want to do this b/c: a) They are specialists b) Idle bankr judges if it gave them life tenure. c) White says that Congress needs flexibility
g.

Note: although the majority‘s limited categorical approach has since been rejected, but categories are still valid. Note: 1) POST 1985 ACT: Emergency Rules – 1984 – Congress reconstitutes bankr courts – distinction b/w core and non-core matters (reflects summary and plenary distinction) – bankr ct has jurisdiction over core matters; non-core matters, bankr ct must have independent basis for FC jurisdiction (diversity) – makes proposed finding of facts/law to federal district ct which engages in de novo review and issues a decision. Still no life tenure or salary protection – they are appointed by US court of appeals for that circuit, 14 year terms – now, much more an adjunct of the district court. Note: Principles from Case 1) 2 ways to test constitutionally of Art. I courts: (1) categorical approach and (2) functional approach – right now, categorical approach won out. 2) Bankruptcy court jurisdiction is unconstitutional in so far as it permitted adjudication of state law claims unrelated or not closely related to federal law. 3) White agrees with principle; he has a problem with plurality‘s approach sets up this line of cases and goes from there; he would look for more flexibility through the balancing test.

h.

i.

6.

Case – Thomas v. Union Carbide Agricultural Products (US 1985) – p295: RULE: b/c the rights involved here were closely related to the federal government or a public regulatory scheme. b) Issue: Whether assigning private law disputes to non-Art. III court (arbitration system under EPA specialized court) was constitutional. c) Held: this system is constitutional b/c the rights involved here were closely related to the federal government or a public regulatory scheme. d) Reason: (1) This system is constitutional b/c the rights involved here were closely related to the federal government or a public regulatory scheme. (2) Distinguish and Limit No. Pipeline: No. Pipeline is limited – it only says Congress may not vest in non-Art. III courts the power to adjudicate, render final decisions, and issue binding orders in state law actions without the consent of the litigants and subject only to ordinary appellate review.
a)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

e)

Notes: (1) Implications of Thomas: (a) Case seems to reject Brennan‘s decision that there are only 4 categories where Art. I courts are constitutional and that is all – CT moving away from bright line approach. (b) Recognize new category of cases that says legislative courts can be used to protect private rights when closely related to public regulatory regime Seems to create a 5th category-to the extent there are categories - private law disputes that are closely related to a government regulatory program.. (c) Seems to get rid of rigid distinction between public and private rights. (d) Takes a more functional approach to determining whether legislative courts are constitutional.

7.

Case – Commodity Futures Trading Commission v. Schor (US 1986) – p296:
a)

Facts: (1) Schor is investor, negative balance in trading account, Conte (broker) sue Schor in federal district court, Schor files counterclaim in FC saying Conte violated Act. (2) Schor files claim in CFTC against Conte. (3) Schor moves to dismiss federal district court action, denied, but then Conte agrees to dismiss his federal district court action, Conte wants to file his claim. (4) Before the agency, Schor loses and Conte wins. (5) Then Schor tries to claim that CFTC permissive counterclaim scheme is unconstitutional – CT not all that sympathetic to Schor b/c Schor chose the venue - CT upholds this legislative court scheme. hear counterclaims arising under state law.

b) Issue: Whether commission hearing reparation proceedings under fraud act could

c)

Held: The benefits outweighed any fairness and separation of powers concerns, so in this case, the commission‘s adjudicatory power is constitutional.

d) Reason: (1) O‟Connor‟s Test - Defined: (a) Balance the Adequacy of Congressional Purpose (benefits of legislative

courts) AGAINST Fairness (personal interest) and SOP (structural interests): (2) Adequacy of Congressional Purpose/Benefits: (a) Benefits of legislative court: prompt, continuous, expert and inexpensive method for dealing with a class of cases. (3) Fairness [personal interests – 1 of 2 sets of values protected by Art. III]: (a) Definition: right of indv litigant to have claims decided by independent judges who are free from potential domination by other branches of govt. (b) Waiver: can be waived. (4) SOP [structural interests – 2 of 2 sets of values protected by Art. III]: (a) Definition: role of independent judiciary within constitutional scheme of tri-partite govt. (b) Waiver: cannot be waived (c) SOP Factors:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

A. Extent to which essential attributes of judicial power are reserved B. Extent to which non-Art. III court exercises the range of

to Art. III courts;

jurisdiction and powers normally vested only in Art. III courts (runs into first SOP factor):  Can court issue orders?  Stnd of rev?  How broad is court‘s jurisdiction? C. Origins and importance of right to be adjudicated:  Is this a private right or public right? D. The concerns that drove Congress to depart from requirements of Art. III:  Is Congress trying to influence these cases? (5) Apply Test to Facts: (a) SOP: 1. scope of commission‘s review was very limited; it decided such a narrow class of cases there was no threat to separation of powers. 2. Harm to SOP is diminished b/c they can also file in federal district court – parties have the choice. (b) Fairness: no threat to personal interest because the parties had to consent to have their case heard before the commission - interest was essentially waived.
e)

Brennan dissent: Says efficiency will always outweigh other factors b/c it is easier to visualize – too hard to weigh fuzzy/abstract SOP issues. Notes - Implications of Thomas & Schor (1) The categorical approach of Northern Pipeline is dead. (2) Legislative courts will be allowed, in addition to the 4 categories, as appropriate under the balancing approach set forth in Schor. (3) Fairness component can be met by consent – waiver. (4) The Court does not say what would happen if there was no waiver. (5) Balancing approach raises concerns that at some point, Congress could use the balancing approach to create a lot of these types of court, to slowly erode Art. III powers, ultimately raising a red, separation of powers flag. (6) Balancing test is likely to erode judicial power so that one day, the Court will have to take a step back and regain some jurisdictional power. At that point, however, it may be too late; they may not have anything to take the power back with. (7) Problems with Balancing Approach: (a) What happens when we have a case where parties do not consent to legislative court? (b) Only lends itself to a case-by-case determination.

f)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

8.

HYPO – Is new Bankruptcy Act constitutional?
a.

Bankruptcy Act (enacted after Northern Pipeline) 1) Core: Those actions that would have fit within summary jurisdiction under old law - matters involving property of the debtor. 2) Non-core proceedings: Bankruptcy could only make proposed findings of fact and law to the district court, who then would review those matters over which objections were made de novo - matters involving others‘ property. Constitutionality of Bankruptcy Act Under Categorical Approach (No. Pipeline) 1) ??? RESULT: under the categorical approach, this law would probably be upheld. 2) Core proceedings: A private right akin to a public regulatory program. - similar to Thomas. 3) Non-Core proceedings: Similar to Raddatz, bankruptcy judges are acting like adjuncts. Constitutionality of Bankruptcy Act Under Functional Approach (Thomas/Schorr): 1) RESULT: under the balancing approach, this law would probably be upheld. 2) Benefits a) Specialized tribunal with expertise, that is inexpensive and prompt, to resolve these particular class of cases. 3) Personal concerns a) Consent: No concerns. b) No Consent: We don‘t know what fair or unfair means (cases have never addressed it). 4) Structural concerns a) What is the scope of the bankruptcy courts‟ powers? (1) In Northern Pipeline, the courts had powers almost exactly like district courts. (2) Here, they only make recommendations as to non-core proceedings; much more limited scope of powers. b) Is Congress creating this court specifically to channel cases away from Art. III courts? How insulated are these courts from the political process? (1) Judges are being appointed by the Court of Appeals, not Congress; supervision is coming from the district court. Therefore, less of a concern that Congress is trying to influence the process. c) DDD d) DDD e) What is the importance of the right to be adjudicated here? (1) If it is a public right, no separation of powers issues. (2) State common law rights raise more of a concern.

b.

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

9.

??? HYPO – Edgecomb handout:
a. b.

Brennan‟s categories: would probably not pass Brennan‘s categories: O‟Connor‟s balancing test: 1) Adequacy of Congressional Purpose: a) Benefits start to look concrete b) What else goes into this? 2) Concerns: a) Fairness [personal interests] - P waived fairness. b) SOP [structural interests] – go through 4 SOP factors:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

II. CHOICE OF LAW IN THE FEDERAL SYSTEM


Issues 1. State law in FCs 2. Federal law in state courts 3. Supreme Court review of state court decisions 4. Power of FCs to create federal c/l

A. STATE LAW IN FC:

1. Summary
a. b.

Swift: allowed for creation of federal common law. Erie: overrules Swift
1)

Substantive law: FC sitting in diversity, where there is no applicable federal substantive law (in the form of a treaty, statute or constitutional provision), must apply relevant state substantive law 2) Procedural law: FC can apply federal procedural rules. 3) Rationale for overturning Swift – p26. 4) Goals of Erie a) Prevent inequitable adminstration of law/justice b) Prevent forum shopping
c.

Analysis: 1) Which State Law Governs? a) Conflict of Law Rules (Klaxon and Griffin): FC sitting in diversity should use the conflict of law rules of the state in which it sits. b) Transfer of Venue under 1404(a) (Van Dusen and Ferens): when there is transfer of venue under 1404(a), FC where matter is transferred to must apply the conflict of law rules and substantive laws that would have been followed by the transferor (initial) FC. 2) How Should a FC Determine the Content of A State‘s Law? a) High court decisions and statutes b) Predict what high ct would rule if faced with that question. c) Certification procedure d) Abstain from ruling until a declaratory judgment action is brought in state court deciding the issue - not available in all circumstances.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2. The Old Rule (Swift v. Tyson):
a.

Rule: FCs sitting in diversity need not apply state judicial decisions; they are free to develop and apply federal common law. Issue: is security trans governed by federal or state law? Held: apply federal law. Reason: 1) CT applies federal law based on interpretation of the Rules of Decision Act – 28 USC 1652. a) “Laws” of several states: only means statutory state law, not ct decisions or c/l laws. b) Common law is only evidence of the law, not law itself. 2) Rationale for Federal Common Law: a) Uniformity: Create a body of national common law to facilitate commercial transactions. b) Objective legal principles: Story felt there were objectively correct legal principles; courts were not required to follow those that were wrong. Notes: 1) Gotanda says Swift may not have been wrong – probably a pretty good decision if confined to law of merchants – nationally commercial law.

b. c. d.

e.

3. The Current Rule - No Federal Common Law (Erie Railroad Co. v. Tompkins):
a.

RULES 1) When a FC sits in diversity and there is no federal statute, constitutional provision or treaty that applies, the court must apply the relevant state substantive law – p6. 2) FCs can apply federal procedural rules. Facts: P not want PA law to apply b/c it would foreclose his recovery. Held: PA law applies. Reason: 1) 3 Reasons Why Swift Should be Overturned: a) Justice Story‟s interpretation of federal judiciary act was incorrect. (1) Under the act, when it said the “laws of several states,” it included common law in addition to statutory law. (a) Ellsworth scrap of paper: historical evidence that the draft of the Act Story relied upon was incorrectly interpreted. The draft, when read correctly, includes state common law as well as statutory law. (2) Criticisms of this view: (a) Case law was not uniformly printed and distributed; judges still rode circuit.  Congress was directing FCs to use emerging American common law as opposed to English common law.  Therefore, Warren got it wrong when he said a particular state‘s law should be applied.

b. c. d.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

could have amended it to make its intended interpretation clear.  That Congress did not do so following Swift seems to indicate they at least do not disagree with the decision, and possibly even approved of it. b) CONST‟L REASON: there is no general federal common law. (1) Congress has no power to declare substantive rules applicable to the states, no matter of what their nature - to do so is unconstitutional. (2) SOP argument – 2 strongest reasons to overturn Swift: (a) Courts were creating general federal common law in areas where Congress could NOT have acted. (b) Courts should not be legislating here – violates SOP. (3) Criticisms of view (Reed, J., concurring): (a) Congress had the authority to regulate the situation in Erie pursuant to the Commerce Clause, thereby creating substantive law applicable to the states. (4) Response: (a) But, Congress does not have complete legislative authority over all of these areas. The Court should not be exercising the power to make law in an area that Congress does not have the power to regulate. (b) Court is acting like a legislature in creating this body of law and that is not their appropriate role.  Counter: Courts frequently make law; any time they render a decision, they are making law.  Difference between being able to declare general and specialized federal common law: - When the Court interprets a statute or a constitutional provision, it is gap filling; constraints are built in by congressional action. - If there is no statute, the courts are fashioning law with no constraints whatsoever.  That assumption of power is unconstitutional. c) Application of Swift was Unfair – NEED TO CLEAN UP: (1) General Support for Unfairness: (a) Prevent Forum Shopping - lack of uniformity of result and difficulty of distinguishing between federal and state common law. (b) Result in a case could depend on where the action was brought. (2) Criticism of this reason: (a) If this is producing so much unfairness, why didn‘t Congress act to overturn CT‘s interpretation and change the statute.
e.

(b) If Congress disagreed with the interpretation of the Judiciary Act in Swift, they

Goals of Erie: 1) Prevent inequitable administration of justice: a) But the Klaxon rule thwarts this goal. b) States can protect their own by manipulating choice of law rules with a home state bias, which is rather common. 2) Prevent forum shopping: a) In light of Klaxon, there is forum shopping among FCs of different states.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4. Which States‟ Law Governs?
a.

Process 1) Look to highest state court decision or state statute. 2) If neither, then FC has to predict what highest court would say if faced with that question. a) But FC not technically bound to apply state lower court decision – only have to give ―proper regard.‖ 3) Certification procedure: allows FC to ask state high court for a certification 4) In rare cases, FC can abstain or hold in abeyance while state declaratory judgment is pending. Which States‟ Conflicts of Law Rules Apply?
1) RULE: FC must apply choice of law rules (including public policy exception, etc.) in

b.

state in which it sits to determine which states‘ substantive law to apply.

2) Possible Federal Solutions: a) Rules of Decision Act: rules of several states apply but does not clarify which rules b) Congress has the authority to enact federal choice of law rules: FF&CC, Art.

apply in case of conflict.

IV, § 1; N&PC combined with Art. III.

3) ??? Klaxon Co. v. Senator Electric Manufacturing Co., Inc. (US 1941) – p23: a) RULES (1) FC must apply choice of law rules in state in which it sits to determine (2) District court sitting in diversity is supposed to sit as a state court in the state in b) c)

which states‘ substantive law to apply.

d)

e)

f)

which it is located, not as a court of the state whose law is being applied. Issue: Does DE or NY law apply with respect to the interest? Held: FCs sitting in diversity must apply the conflict of law rules of the state in which it sits. (1) Erie says FC must apply conflicts of law rules in state in which FC sits to determine which states‘ substantive law to apply. (2) There are no federal choice of law rules. How Klaxon frustrates goals of Erie? (1) Re-instills in-state bias in federal courts. (2) Shifts forum shopping from state court and FC in same state, now forum shopping in FCs among different states. Problems are apparent when you look at what happens when you apply Klaxon reasoning to Erie‟s facts? (1) NY federal district court is supposed to apply the conflict of law rules of New York. Assuming Pa. law applies, NY federal district court sits as a NY state court applying Pa. law (2) NY federal district court does not sit as Pa. court. (a) This is important because it allows the NY court to apply any NY public policy exceptions that a Pa. court wouldn‘t have (see Ferens situation for comparison when court must sit like court of another state) ??? Gotanda thinks Klaxon is wrong – leads to absurd results

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

09-17-01

4) Griffin v. McCoach (US 1941) – p26: a) RULES: (1) FC, sitting in diversity, must act like the forum state court in applying out of (2) A state court need not apply another state‘s laws where those laws would violate

state court‘s rule.

b)

c)

d) e)

f)

the state‘s public policy – this also applies to FCs sitting as state courts. (a) Contra John Deere. (b) Impact: gives in-state courts (FC) tremendous opportunity to discriminate against out of state parties. Facts: (1) This case shows that forum may still effect outcome of case even though fed ct applies another state‟s law. (2) Administrator of estate sued in Texas to collect on decedent‘s insurance policy beneficiaries the policy had assigned their interest to others, in violation of Texas public policy. (3) Texas district court determined New York substantive law applied. Issue: (1) TX law: (public policy) that if assignee has no insurable interest, assignee cannot collect on policy. (2) NY law: lets assignees collect. Held: CT says TX law applies - remanded case to lower court to determine whether assignment violated Texas public policy. Reason: (1) Applies Klaxon (2) But public policy of forum is still important – will trump NY choice of law (TX state court in applying its choice of law analysis would say we have a public policy that would trump NY law) (3) Under Texas choice of law rules, even if another state‘s substantive law applied, the Texas public policy disfavoring assigning interests trumps the application of New York substantive law. Note - Reasons Result Seems Wrong: (1) Griffin allows FC to apply the state law of a state whose state courts would not have had jurisdiction over the matter. (a) If the suit had been brought in state court, state court couldn‘t have heard action b/c no juris over parties. (b) NY parties brought in by federal interpleader statute. State courts wouldn‘t have had this available to them. Therefore, state courts couldn‘t have brought NY assignees in. (2) Gives in-state courts (FC) tremendous opportunity to discriminate against out of state parties.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c.

Transfer of Venue:
1) RULES a) Substantive law: when case is transferred on motion of D or P, transferee ct must

apply law that would have been applied by transferor court. Choice of law: when transfer occurs under 1404(a), transferee court must apply choice of law rules of transferor court. c) Rationale: b/c transfer is change of courtroom, not change of law.
b)

2) P can use this rule to their advantage, to manipulate the system – see John Deere 3) Unresolved Issue: if case is dismissed by transferor court prior to the transfer, what

happens?

4) Change of Venue by D - Van Dusen v. Barrack (US 1964): a) Facts: (1) Plane crash, a result of which plaintiff filed suit in the Eastern District of PA. (2) D airline moved for a got a change of venue to MA. b) Issue: (1) MA has limit on wrongful death actions, PA has no limit. (2) What state law applies after the transfer of venue? c) Held: (1) RULE: when case is transferred on motion of D, transferee ct (MA) must

apply law that would have been applied by transferor court (PA). (a) Said another way, the choice of law rules of the transferring court apply to determine which state‘s substantive law to apply. (2) Rationale: plaintiff selected the forum for a reason - they should not lose that advantage just because the defendant wanted to move the case. Defendant should not be able to manipulate the outcome. (3) This seems logical: a change of rooms, not a change of substantive law.

5) Change of Venue by P - Ferens v. John Deere Co.: a) Facts: (1) Injured plaintiff filed tort claim in Mississippi and breach of warranty claim in (2) Plaintiff moved to change venue for tort claim to PA (where they could not b) Issue: whose SOL controls? c) Held: CT holds that Miss. SOL applies. (1) RULE: when case is transferred on motion of P, transferee ct (PA) must (2) The choice of law rules of the transferring court apply to determine which d) Dissent: (1) This manipulates the systems. (2) Promotes forum shopping – Congress did not : (a) Majority responds by saying that these two actions would have proceeded (3) Took Klaxon and Van Dusen rationale one step further.

PA.

have brought tort claim because statute of limitations had run).

apply law that would have been applied by transferor court (Miss). state‟s substantive law to apply.

in 2 courts anyway.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

e)

(b) Convenience to justice system outweighs unfairness to D. Note – Gotanda says this seems to thwart the aims of Erie.

5. Handouts
a.

Problem 1: 1) Should CT apply NJ or NY law here? 2) See sheet Problem 2: 1) See Semtek case on p2supp. 2) Action refiled – whose res judicata principles control? 3) If P files action in NY, assume jurisdiction, can this action be instituted – the answer, arguably, under Semtek case, is yes – we would have to know what happens when OH courts dismiss cases – traditional rule – SOL only bars a remedy, it does not distinguish a substantive right. 4) We will talk more about this case when we get to Hanna and Gasperini.

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

B. FEDERAL LAW IN STATE COURT

1.

Summary:
a.

Presumed concurrent jurisdiction. 1) Rule - p32: 2) Rationale: premised on federalism, concurrent sovereignty. 3 Ways to rebut presumption 1) Express rebuttal in statute. 2) Unmistakable implication through legislative history (Scalia does not believe in this one). 3) Clear incompatibility between state and FC issues. If state cannot rebut the presumption, state must hear federal claim unless it has a VALID EXCUSE
1)

b.

c.

3 Valid Excuses a) FNC (Douglas and Mayfield) b) State court is of limited juris (Herb v. Pitcairn) c) Neutral administrative rules (Felder) (1) Supreme Court should act with caution b4 deciding that state court is obligated to hear the claim. (2) Examples of NOT “neutral” rules (a) State courts cannot employ procedural rules regarding administration of courts in a manner that unnecessarily burdens exercise of federal rights (b) State court cannot create substantive rule that interferes with or is inconsistent with federal policy (Felder) (c) State court may not create substantive rule of immunity and treat it as procedural (Howlett) Invalid excuses = an excuse that is inconsistent with or violates federal law is NOT a valid excuse.

2)

d.

Two Situations When States Must Hear Federal Claims: 1) State courts cannot refuse to hear federal claim where similar state claims exist b/c of Supremacy Clause (Testa, Mondou) 2) State courts cannot refuse to hear federal claims where state policy is inconsistent with federal policy – federal policy trumps state policy (Testa, Howlett)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Congress‟ Power to Create State Juris of Federal Law:
a.

When Congress enacts a law, they have the choice of creating concurrent or exclusive jurisdiction. 1) Concurrent: Both state and FCs have the authority to enforce claims arising under the statute. 2) Exclusive: Only FCs are allowed to adjudicate federal suits arising under federal law.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

State Court‟s Obligations to Hear Federal Claims
a.

Presumption of Concurrent Jurisdiction:
1) General presumption: presumption that as between the federal and state governments, there

is concurrent jurisdiction.

??? How are these different from 2 valid excuses.

2) 3 Ways to Rebut Presumption of Concurrent Juris a) Express rebuttal in statute. b) Unmistakable implication through legislative history (Scalia does not believe in this one). c) Clear incompatibility between state and FC issues. 3) Rebutting the Presumption - Express rebuttal in statute. 4) Rebutting the Presumption - Unmistakable implication through legislative history (Scalia

does not believe in this one).

5) Rebutting the Presumption Clear incompatibility between state and FC issues. a) Scalia‘s view on what this means: when statute expressly mentions only federal ct juris

and state ct juris would clearly disrupt fed statutory scheme.

b.

2 Situations When States Must Hear Federal Claims:
3)

State courts cannot refuse to hear federal claim where similar state claims exist b/c of Supremacy Clause (Testa, Mondou)
a)

Testa v. Katt – p45:

(1) Facts: RI Supreme Court held it could not hear suit because it was brought under a (2) HELD: State court had an obligation to hear the case. (3) Reason (a) Supremacy clause: failure to enforce federal law violates the Supremacy Clause. (b) Clear that state courts must adjudicate fed claims when similar state claims

law that was penal in nature, and state had public policy against hearing such suits.

could be heard - the lower courts had jurisdiction to hear similar types of claims; as such, they cannot refuse to hear similar federal law claims.
b) Mondou v. NY (1912): (1) Facts: State court declined jurisdiction over FELA case because it was inconsistent (2) Held: if state trial courts have general jurisdiction to hear these types of claims

with state policy and it would be confusing for state courts to adjudicate. arising under state law, then they must hear the similar federal claim. even it is onerous.

(3) Reason: (a) The existence of this general jurisdiction creates an obligation to exercise it, (b) Court cannot refuse to hear the claim just because it disapproves of federal

policy b/c the policy of the federal government regarding a federal statute is the policy of the states as well.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4)

State courts cannot refuse to hear federal claims where state policy is inconsistent with federal policy (Testa, Howlett)

c.

States Do Not Have to Hear Federal Claims When State Has a “Valid Excuse”
1) Valid Excuse – Forum Non Conveniens (Douglas & Mayfield). a)

A discretionary power of a court to decline jurisdiction where in the interests of justice the action should proceed in another forum.

b) Typically because the other forum is more convenient. c)

Examples - Douglas (US 1929) – p47 and Mayfield (US 1950) – p48: (1) In both cases, FELA claims were brought in state court but neither party is resident of state. Held: FNC is valid.

2) Valid Excuse - State Court is of Limited Juris (Herb v. Pitcairn (1945)). a)

Description: where state court is one of limited jurisdiction under state law and that jurisdiction does not extend to subject matter of the federal suit. FELA claim because court only empowered to hear causes of action arising in city

b) Example – Herb v. Pitcairn (US 1945) – p48: Illinois city court allowed to dismiss 3) Valid Excuse - Neutral State Rules Regarding Administration of Courts: a)

When a State court refuses to hear a federal claim b/c of a neutral state rule regarding the administration of the courts, Court must act with utmost caution b4 deciding that state court is obligated to entertain the claim.

b) Description: procedural hurdle must be an indiscriminate obstacle to all claims. c)

What are NOT “neutral” rules? (1) State courts cannot employ procedural rules regarding administration of courts in a manner that unnecessarily burdens exercise of federal rights (a) To determine unnecessary burden, balance importance/strength of federal policy against strength of state procedural requirement (Dice v. Akron)  If state interest is relatively weak, then federal policy will control  If state interest is superior, then that might trump federal policy  For example, CT will probably not require state court to build a jury box. (2) State court cannot create substantive rule that interferes with or is inconsistent with federal policy (Felder) (a) When state law alters outcome of federal claims it is unconstitutional because it becomes a ―substantive condition on the right to sue governmental officials and entities‖ (Felder)  In Felder, state notice of claim reqmts are outcome determinative; in such cases the state reqmt is held inconsistent with federal interests (3) State court may not create substantive rule of immunity and treat it as procedural (Howlett)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d) Example of “Neutral” Procedural Rules – Johnson: (1) RULE: state courts can interpret neutral rules as they choose, especially when (2) Facts: (a) Defendant moved to dismiss § 1983 claim under immunity defense. (b) Motion denied, and defendant wanted interlocutory appeal; such would be

federal procedural right that party relies on doesn‘t exist outside of federal forum.

allowed under federal statute. i. Under federal law (s1291), this would be considered a ―final‖ order. (3) Held: (a) State court deciding a § 1983 action does not have to provide an interlocutory appeal for summary judgment on qualified immunity question, even though that right would exist in FC. i. This is a neutral state rule regarding the administration of the courts. ii. Deferred the appeal; did not get rid of the cause of action. (4) Reason: (a) P‘s Argument #1: when state courts construe their own rules, they must follow federal construction in § 1983 suits. i. ??? Court‟s Response – REJECTS: when FCs interpret § 1983 claims, they do so on the basis of federal law; state courts should follow state law. ii. Federalism concerns. (b) P‘s Argument #2: state‘s non-recognition of interlocutory appeal is preempted by federal law. i. Court‟s Response - REJECTS: Dismissal of appeal rested only on a neutral state rule of administration in the state courts. (c) No outcome determinative effect here: i. CT‟s Response – REJECT:  Fact that you cannot immediately appeal does not mean that you cannot appeal at another time.  This state rule does not alter the final outcome.  Unlike Felder, if the state rule is applied here, a right is not precluded, it is merely postponed. They can appeal later. The Felder plaintiff had no recourse. (d) State court balanced the right to bring an immediate appeal the interest in not allowing them. (e) Disruptive to trials. (f) Source of right to interlocutory appeal: The right to interlocutory appeal is derived from a federal procedural statute that does not apply outside of the federal forum.
4) Invalid Excuses: an excuse that is inconsistent with or violates federal law is NOT a valid

excuse – see below.
 

Bullets are messed up here – ignore bullets. States can use local procedures, but they cannot do so in such a way so as to undermine or unnecessarily burden federal law. ??? Generally, where forum-closing situations are applied non-discriminatorily: apply equally to state and federal claims.



Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I



Discriminatory State Procedural Rule – Felder (US 1988) – p55: a) Facts: (1) Plaintiff brought a § 1983 action against police officer and department, but failed to comply with state rule requiring claims be filed within 120 days. b) Held: State courts cannot employ a substantive rule that interferes with federal cause of action. c) Reason: (1) RULE: State courts cannot impose unnecessary burdens that impose on federal rights. (2) If the case had been brought in FC, the notice requirement would not have been applied. (3) The rule was outcome determinative (a) CT will not enforce a state rule that could effect outcome of litigation involving a federal right (b) GOTANDA SAYS BE WARY OF OUTCOME DETERMINATIVE LANGUAGE. (4) To apply it in state court leads to inconsistent results – see p57. Brown v. Western Railway Co. of Alabama: a) Facts: Plaintiff stepped on a clinker and brought a FELA action. Georgia court dismissed the complaint in accordance with local practice of reading the complaint against the pleader. b) Held: Federal right cannot be defeated by local practice. c) Reason (1) State court cannot use a local practice of construing the complaint against the pleader to defeat federal rights. d) Note: Gotanda says this is like Felder. Case - Dice v. Akron, Canton & Youngstown Railroad (US 1952) – p58: a) Facts: (1) Facts: Employee injured by derailed engine and sued under FELA. Trial court set aside the jury‘s verdict and the state supreme court affirmed. (2) Only part of the case was decided by a jury, but FELA provides that the decision-making authority be divided between the judge and jury. b) Issue: do state courts have to follow fed rule on right to provide jury trial on this issue? c) Held: (1) State procedural rule requiring that only part of the trial be decided by a jury is inconsistent with federal procedure in FELA and therefore not a valid excuse. (2) Court does not go so far as to say that all state procedures are preempted to the extent they are inconsistent with federal procedure. (3) Rationale: The right to have this issue tried by a jury is an important right with a strong federal policy. (4) State‘s interest in having this issue decided by a judge is not as strong as the federal policy. (5) Strong federal policy present. d) Reason:





Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) What if State Did Not Have A Jury System At All for These Types of (2) Whether federal law requires the state court to create a jury trial depends on the (3) If there is a strong federal policy, and the state procedural requirement is weak (4) But, if there is a stronger state interest, it may trump the federal policy, such as e)

Cases?

competing interests.

in terms of state interests, federal policy controls.

for a jury trial in FELA cases. Notes: (1) Compare to Johnson – doesn‘t this look like a neutral procedural rule? (a) CT relies heavily on: i. Legis‘ purpose in enact FELA was to afford right of jury trial even though not explicitly said ii. One provision that mention jury in the statute. (2) See FN#12 in Johnson case (3) Gotanda says it is hard to square these two holdings – state court adjudicating federal right must also recognize any collateral rights that go along with it (e.g., trial by jury).

5) Case - Howlett v. Rose: a) Facts: (1) High school student brought § 1983 action against school board in state court. (2) State court dismissed action under sovereign immunity defense; found statutory (3) If this case had been brought in federal forum, this sovereign immunity defense b) Issue: whether state courts must hear federal claims. c) Held – key principles - SUMMARY: (1) General rule: absent valid excuse, state courts presumptively obligated to adjudicate

waiver of defense did not apply to § 1983 actions. would not be available to D.

suits arising under federal law. (2) Valid Excuses: (a) FNC (b) State court is of limited juris (c) Neutral administrative rules (but cannot use rules that impose unnecessary burden on federal rights) - State court MAY be able to refuse jurisdiction b/c of neutral state rule re: administration of state courts. i. To determine unnecessary burden, look to importance of federal interest at stake and to extent of state‘s interest ii. For example, CT will probably not require state court to build a jury box. (3) Invalid Excuses: an excuse that is inconsistent with or violates federal law is NOT a valid excuse d) Reason: (1) Corollaries of Concurrent Jurisdiction (federal law is part of law of land of state): (a) A state court may not deny a federal right, when the parties and controversies are properly before it, absent a valid excuse – p38. i. The existence of jurisdiction in the state court indicates a duty to exercise it. (b) An excuse that is inconsistent with or violates federal law is not a valid excuse – b/c of Supremacy clause

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

the administration of the courts, the Court should act cautiously before deciding the state court is obligated to hear the claim. i. States have latitude to refuse jurisdiction over a federal claim based on a neutral state rule regarding administration of the courts. (2) ??? Characterizations of FL Court‟s Decision: (a) District court adopted a substantive rule of decision that state agencies are not subject to liability under § 1983. i. Court‟s response: Rejected argument ii. Federal law has established who is a person under § 1983. iii. The argument that the school board was not subject to liability because they were not a person under § 1983 is inconsistent with federal law, and to the extent that it is inconsistent, it is not a valid excuse. (b) District court simply held that § 1983 claims are excluded from a category of claims that state courts can hear against school boards. i. Court‟s response: Rejected argument ii. State courts generally have jurisdiction to hear these types of claims, therefore they cannot refuse to entertain similar federal law claims. iii. Court does not address the issue of when there is no state court where the cause of action could be heard. iv. Does not answer whether state would have to create a court to hear the right created by Congress. v. State cannot just say that these types of claims are excluded from state court. vi. CT will not tolerate discrimination against federal laws.

(c) When a state court refuses jurisdiction because of a neutral state law regarding

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

C. SUPREME COURT REVIEW OF STATE COURT DECISIONS:

1.

Summary
a. b.

See also Finality & 11A Supreme court Review Generally 1) Most decisions to grant cert are discretionary 2) Criteria for granting cert – p39 3) Denial of cert is not same as decision on merits Supreme Court Review of State Court Decisions
1)

c.

Supreme Court has appellate jurisdiction over state court decisions a) Constitution does not expressly grant Court the power to review state court decisions but ―all cases‖ language seems to include this power b) Authority for Court review of state court decisions = Martin v. Hunter’s Lessee (1816) see other arguments for allowing Court review of state court decisions – p40. Doctrine of independent & adequate state law grounds: where there is a state court decision that rests on federal and state law grounds, the Court will not review the case if the state law ground is independent of federal law and is adequate to support the result (Murdock v. City of Memphis and Michigan v. Long).
a)

2)

Rationale for IASLG doctrine: (1) Avoids advisory opinions (2) Respects state courts and promotes harmonious federal-state relations (3) Maximizes judicial efficiency and conserves finite resources (4) Avoids Court interpretation of state law Problems with IASLG doctrine: (1) Sacrifices accuracy and consistency in application of federal law. (2) Lets state insulate its decision – p42Independent state law ground: (3) Allows Court to reverse liberal lower court decisions

b)

CONTINUED

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c)

Defining “adequate state law ground”
(1) A state law ground is ―adequate‖ if the CT‟s reversal on federal law grounds will

not alter the outcome of the case.

(2) A state law ground is NOT ―adequate‖ if it is intertwined with federal law and there

is no fair and substantial basis in the record supporting the decision (Indiana ex rel Anderson)

(3) When state procedural rules will be “adequate” – p45 (4) When state procedural rules will NOT be “adequate” – p45 (a) Not ―adequate‖ where the state procedural rule denies due process of law (b) Not ―adequate‖ where state procedural rule is inconsistently applied (James v. (c) Not ―adequate‖ where state procedural rule is discretionary - state procedural

(Saunders v. Shaw (1917) & Brinkerhoff-Faris Trust & Sav. Co. v. Hill (1930)) Kentucky (1984))

rule must be mandatory to constitute ―adequate‖ ground (Williams v. Georgia (1955)). (d) Not ―adequate‖ where state procedural rule is new or novel creation (NAACP v. Alabama ex rel Patterson: (1957) & NAACP v. ex rel. Flowers (1964)) (e) Not ―adequate‖ where state procedural rule is does not promote legitimate state interests (Henry v. Mississippi (1965))  CT has never clarified what = ―legitimate state interest‖  Even if a rule serves a legitimate state interest, review is not precluded if an alternative rule is available to the state.
d)

Defining “independent state law ground”
(1) Presumption against unless there is plain/clear statement: if it is unclear

whether state court decision rests on federal or state law and state law is interwoven with federal issue, CT will presume federal law was the basis for the decision unless there is a plain statement of the state law upon which the state supreme court relied. (a) Does O‘Connor‘s approach meet the rationale for the IASLG doctrine?
(2) Compare to Stevens‟ approach: presumption that adequate state law ground are

independent unless it clearly appears otherwise.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Supreme Court Review Generally:
a. 1) 2) b.

In general, most decisions to grant cert are discretionary All review of state court decisions are by writ of cert – no appeal as of right Some still have appeal as of right. Criteria for granting petition for writ 1) Conflict in circuits on in lower courts (not to fix erroneous results in individual cases) a) CT not asking is decision below wrong but does decision below screw up the law. b) CT does not always follow this – example Bush v. Gore, fixing wrong result but could also say this was a REALLY IMPORTANT case. 2) When lower court strikes down a federal statute. 3) Whether decision conflicts with CT precedents. 4) Whether is issue is REALLY IMPORTANT.

c.

Denial of cert is NOT a decision on the merits – no precedential value – newspaper gets this wrong all the time.

3.

Constitutional Authority to Review State Court Decisions:
a.

Generally 1) Art. III: ―The judicial power shall extend to all cases and in all other cases before the aforementioned Supreme Court.‖ 2) Constitution does NOT expressly grant power to review state court decisions, but ―all cases‖ seems to include state court decisions. Case - Martin v. Hunter‟s Lessee (US 1816) – Story - p72:
1) 2)

b.

RULE: establishes proposition that Court has authority to review state court decisions. Facts: a) 2 conflicting claims to land in Virginia. VA‘s appellate court held for Hunter‘s Lessee, Supreme Court reversed, but state court refused to enforce decision. b) This is a state law claim – so what business does US S CT have telling VA ct how to interpret state law? State law issue is antecedent to federal issue. Held: CT has appellate jurisdiction over state high court decisions to decide the case. Reason a) Art. III – Supremacy Clause: (1) State courts can hear Art. III cases – text of Supremacy Clause says judges shall enforce federal laws (2) ??? Is Supremacy Clause in Art. III? b) “All cases” must include cases from state courts. (1) Only way to give effect to ―all‖ language would be if appellate juris extending to hearing cases that arise in state court. c) Historical Argument - Intent of framers: (1) Framers contemplated Supreme Court review over state court decisions.

3) 4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(2) No original jurisdiction, but appellate jurisdiction. d)

Policy reasons for allowing Court to review state court decisions: (1) Ensure uniformity in interpretation and application of federal law. (2) EP - protect against state ct bias: states‘ interests may not permit administration of justice, prejudice, competing state interests. (a) This is losing favor as a rationale in recent years. (3) CT is authoritative voice on Constn, federal law & treaties (4) Ensure supremacy of federal law.

5)

Notes: a) Tie this back to Story‘s view that we learned about earlier in the semester. b) Why is this such major case – Holmes‘ concern if it had gone the other way. First case to establish FC authority to review state court judgments. c) Speculation that Marshall helped Story write this opinion.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Doctrine of Independent Adequate State Law Grounds:
a.

IASLG Defined:
1)

Where there is a state court decision that rests on federal and state law grounds, the Court will not review the case if the state law ground is independent of federal law and is adequate to support the result – p90. CT is really asking: ―if CT rules on federal issue will it change the result?‖ Hypotheticals: a) State court rules that an ordinance is unconstitutional under both state and federal constitution, but misinterprets federal law. (1) Court would not grant cert because its reversal would have no effect on the ultimate outcome of the case as the ordinance is already unconstitutional under the state constitution. b) State court holds an ordinance constitutional on both state constitution and federal constitution. (1) CT would have jurisdiction to review the federal question only. (2) Possibly would grant cert because reversal on federal grounds would change the result of the case.

2) 3)

b.

Rationale/Benefits of IASLG Doctrine:
1)

CT review of decisions where there is an independent and adequate state law ground would almost amount to an advisory opinion - Herb v. Pitcairn – p91. Promotes harmonious state-federal relations a) CT review of state supreme court decisions causes friction/conflicts (especially when it reverses state high court decision). Conserves finite resources: CT can use this doctrine to weed out cases. Avoids SC interpretation of state law  Supreme Court ONLY has power to review federal questions when reviewing state court decisions:  CT has no authority to decide matters of state law: state courts are the final interpreters of their respective laws.  Case - Murdock v. City of Memphis (US 1975) – p75: a) Facts: (1) Murdock conveyed property with a reversionary (actually, CT got it wrong, this is a fee simple subject to condition precedent). (2) Property was not used for its designated purpose, so he wanted it back. (3) Sued in state court which held city held title. b) Held: (1) Rules: (a) Only questions of federal law are open to CT review (b) State ct judgments are final on questions of state law.

2)

3) 4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

federal claim. Reason (1) Court review limited to the correction of errors relating solely to federal law. (2) Constitution and federal laws are the only issues it can decide; the Court cannot review questions solely of state law. (3) CT rejects b/c says Congress‘ omission did not indicate a change of the law since this was a very established rule that CT‘s power is limited to reviewing issues of federal law. d) Notes: (1) leads to adequate and independent state ground doctrine – p90 for definition.
c) c.

(2) Applied: CT does not have jurisdiction to hear the appeal because there is no

Effect of IASLG Doctrine:
1)

If state court says law is unconstitutional under both state and federal constitutions, Court cannot hear case because there is an independent state ground adequate to decide case If state court declares law constitutional under both state and federal constitutions, Court can hear case under Federal Constitution and, if SC reverses, then outcome of case changes because of Supremacy Clause

2)

d.

Problems with IASLG Doctrine:
1)

Easy for state to insulate its decision from CT review by manufacturing a reason for state decision. a) Encourages state courts to declare own constitutional law and insulate it from Supreme Court review (Lawrence Tribe) Sacrifices accuracy and consistency in application of federal law b/c state ct can wrongly interpret state law as long as there is adequate and indpt state ground. a) State court decision re: fed law remains on books even though inconsistent or even plainly wrong Allows Supreme Court to reverse liberal lower court decisions. a) Gives Court a doctrine that allows it to grab cases where state courts are giving more rights under state constitution by saying it‘s not clear if this is under state law and we don‘t think that there are adequate state grounds and therefore allows Supreme Court to limit federal rights when it might not have had an opportunity to do so (essentially issuing advisory opinions)

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

09-26-01
e.

What = “Independent” State Law Ground (Michigan v. Long):
1)

RULE: a) O‟Connor‟s Approach (accepted by majority): presumption that adequate state grounds are not independent unless state court plainly states so. (1) Full Definition: if it is unclear whether state court decision rests on federal or state law and state law is interwoven with federal issue, CT will presume federal law was the basis for the decision unless there is a plain statement of the state law upon which the state supreme court relied. (2) Elements (a) State decision relies primarily on federal law or is interwoven with federal law; and (b) Adequacy and independence of possible state grounds is not clear from opinion‘s face b) Stevens‟ Approach (not accepted by majority): presumption that adequate state grounds are independent unless it clearly appears otherwise Facts: a) Police officer‘s search for weapon held by state court to exceed Terry exception and excluded evidence. b) State court purportedly based decision on state constitution which provides higher protection. Held: no IASG here. a) RULE: If it is unclear whether state court decision rests on federal or state law, CT will assume federal law was the basis for the decision unless there is a plain statement of the state law upon which the state supreme court relied. b) Benefits of bright line rule: avoids the need to look at state law; avoids advisory opinions; easy to apply. c) Application to Facts: (1) It was unclear whether the state court intended to rely on state or federal law; it kept referring to federal law. (2) Court then presumes there was no independent ground for the decision, so jurisdiction is appropriate. Reason: a) Problem with Doctrine in Application: It is not always clear whether the state decision is based on an independent and adequate state law ground. b) CT‟s Approach if Basis Was Not Clear Prior to Long: (1) Dismiss the case unless the federal basis clearly appeared. (a) Problem: Uniformity is undermined. (2) Vacate the judgment for clarification on state law issue. (a) Problem: Raises issues of judicial economy, delay in administration of case, places burden on state court to demonstrate the presence or absence of Supreme Court‘s jurisdiction. (3) Examine state law to determine whether state court used state or federal law as basis for decision. (a) Problem: Unfamiliarity with state law and Court must interpret state law.

2)

3)

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

5)

Stevens Dissent: a) Would adopt an approach where the CT presumes there is an adequate state law ground unless it appears otherwise. (1) Directly ask court (2) Attempt to infer from all possible sources of state law what state meant (3) Create a presumption that adequate state grounds are independent unless it clearly appears otherwise (4) Create a presumption that adequate state grounds are not independent unless it clearly appears otherwise. b) Purpose of CT review is vindication of rights: CT should examine cases where rights were violated, not where they were upheld. c) Advocates greater deference to state courts d) Applied to Facts: there is no reason to review a case like this because the lower court ruled in favor of the defendant – the evidence was excluded. Note - Rationale for Independent and Adequate State Ground: a) 3 Rationales: (1) Respect state courts: Stevens and O‘Connor both think they are respecting state courts in different way but Stevens probably does better job. (2) Avoid advisory opinions: Stevens does a better job here. (3) Maximize judicial efficiency: Same. b) Which approach meets these better – O‟Connor or Stevens? Gotanda says Stevens. Note - Reaction to Michigan v. Long: a) Criticisms of decision: (1) State courts do not want the Supreme Court second-guessing their decisions. (2) There used to be a presumption against FC review of state court decisions. This decision reverses that presumption b) Supporting decision: (1) Encourages states to develop their own constitutional law and it gives them a way to insulate their decisions from Supreme Court review c) Cynical view: (1) Supreme Court is going out of its way to fashion a rule that will allow it to reverse liberal state court decisions. (2) States are allowed to give more rights than the federal constitution provides. The decision give the court a doctrine that allows the Court to grab these cases where the state is giving more rights under its constitution and say it is not clear upon which ground the decision lies and reverse the decision. Note - Miscellaneous: a) Odd that Stevens and O‟Connor come out this way (1) see notes on handout about criminal cases (2) ??? [THIS IS VERY IMPORTANT] Reflect differing views of CT: (3) Stevens‘ view of CT‘s role: (4) O‘Connor‘s view of CT‘s role: thinks CT responsible for making sure that over expansive federal rights do not crowd out state rights. b) Practical reason: state ct holding on state rights are easier to correct than federal rights decision b/c state political process more responsive – to reverse federal rulings requires constitutional amendment or get CT to change its mind (much harder)

6)

7)

8)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

f.

What = “Adequate” State Law Ground?
1)

RULES a) State court‘s decision on a state law ground is adequate if the CT‘s reversal of federal law would not alter the outcome of the case. b) State law is not adequate to support the result when there is no fair and substantial basis in the record supporting the decision (see Indiana case). c) State procedural rules can be ―adequate‖: see below. Rules Concerning State Procedural Grounds:
a)

2)

State Procedural Grounds May Be Adequate: (1) Court will not review a claim involving a federal question because the claimant failed to comply with valid state procedural rule. (2) Failure to present a federal question in conformance with state procedure can constitute an adequate state ground, barring court review. (3) State court never reached the issue because the claimant failed to comply with procedural rules. (4) Procedural rule must serve or promote a legitimate state interest. (Henry v. Mississippi) Exceptions - When CT will not allow procedural state grounds to meet “adequate” requirement:
(1) Not ―adequate‖ where the state procedural rule denies due process of law

b)

(Saunders v. Shaw (1917) & Brinkerhoff-Faris Trust & Sav. Co. v. Hill (1930)) (a) Not providing a fair opportunity for hearing on federal claims (b) Refusing to allow illiterate criminal defendant to challenge racial composition of jury because not done pre-indictment (Reece v. Georgia (1955)) (c) This is the final check on state courts Kentucky (1984)) (a) RULE: state procedural rules must be consistently followed by state court in order to be ―adequate‖ ground. (b) Case - James v. Kentucky (1984):  Facts: Defendant did not want to take the stand and his attorney sought an admonition that the jury was not to hold that decision against him. Trial court refuses this instruction. Says he is entitled to an instruction, but not an admonition.  HELD: A state procedural rule cannot be deemed an adequate state law ground to bar review if it is inconsistently applied by the state courts.  Distinction not consistently followed in state court between information and admonition. (1955))

(2) Not ―adequate‖ where state procedural rule is inconsistently applied (James v.

(3) Not ―adequate‖ where state procedural rule is discretionary (Williams v. Georgia

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

RULE: state procedural rule must be mandatory to constitute ―adequate‖ ground. (1) Procedural rule that can be invoked in the discretion of the court is not ―adequate‖ ground. b) Facts: Jurors were identified by race by the color of their card. Defendant‘s counsel did not object to this practice until 6 weeks after the state supreme court affirmed the conviction. Relief was denied. c) HELD: (1) If procedural rule is discretionary rather than mandatory cannot = adequate state law ground to bar Supreme Court review. (2) Discretionary as opposed to mandatory. (3) If the state court is not required to follow the rule, it will not foreclose Court review.
a) (4) Not ―adequate‖ where state procedural rule is does not promote legitimate state

interests (Henry v. Mississippi (1965)) (a) RULES  CT has never clarified what = ―legitimate state interest‖  Even if a rule serves a legitimate state interest, review is not precluded if an alternative rule is available to the state. (b) Facts: Some question of whether an objection to the admissibility of evidence in the case was waived, thereby precluding appellate review later. (c) Held: A state procedural rule that does not serve or promote a legitimate state interest does not constitute an adequate state law ground. (d) ??? Reason  The state had an interest in barring untimely objections, but there were other procedural mechanisms that could have been used to equally protect the state‘s interests.  Legitimate State Interest  Not very helpful in defining what exactly is a legitimate state interest.  Or how to apply exception.  No subsequent case from the Court has clarified the legitimate state interest exception.  AISGD does not bar review Procedural only if serves legitimate state interest  Distinction b/c ct review substantive grounds as opposed to procedural grounds. (e) Note:  Result in this case is now in doubt.  ??? If you have procedural AISG that doesn‘t bar  Rarely invoked. Alabama ex rel Patterson: (1957) & NAACP v. ex rel. Flowers (1964)) (a) RULES  State court may not attempt to evade review of a constitutional or federal claim by creating new procedural hurdle (Alabama)  State court may not apply novel application of rules in particular case (Flowers)

(5) Not ―adequate‖ where state procedural rule is new or novel creation (NAACP v.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

It is probably okay, however, for state court to publish new rules and apply them for the first time because the parties are given notice (Gotanda) (b) Case - NAACP v. Alabama ex rel Patterson (1957):  Facts: State court refused to hear appeal because petitioner did not comply with procedural rule for appeal.  HELD: State procedural rule is not an adequate ground where the court below creates a new procedural barrier.  Found the rule that this type of appeal be brought by only a writ of mandamus was not an existing rule in the state.  The lower court created the rule. (c) NAACP v. Alabama ex rel Flowers (1964):  Facts: Alabama Supreme Court refused to hear constitutional appeal under rule that provided if a brief includes an unmeritorious section, the court does not have to consider the merits of the rest of the claims.  HELD: State procedural rule is not an adequate ground where the court creates a novel procedural rule to bar Supreme Court review of the case – p109.
g.



EXCEPTION to IASLG Doctrine – Supreme Court may review state court decision if state and federal issues are intertwined to determine if state court decision rests on a Fair and Substantial Basis
1)

RULE: where state law issue is intertwined with federal issue, Court can review state court decisions to determine whether there is a fair and substantial basis for the decision (Standard Oil v. Johnson) a) Analysis (1) Court will review state law to ensure: (a) That federal right is protected; AND (b) That state law is based on a fair and substantial basis. Case - Indiana Ex Rel Anderson v. Brand – p77: a) Facts: Teacher with tenure who was fired sued. b) Issue: Whether she had a valid contract that the state legislature could not alter. Whether she had a valid contract under state law. c) Reason: (1) Basis for Supreme Court Review of Claim: Contract Clause (2) Court wanted to ensure that there is protection of the federal right. (3) Court is obligated to take an independent look at whether there is a contract right to determine whether the proper protections were given under the Contracts Clause. (4) Rule: When the Court is looking at a state court decision to see if there are adequate and independent state law grounds, it is looking to see that the state decision rests on a fair and substantial basis to support the decision on the state law grounds. (5) Give a lot of deference to state ct decision (6) CT is reviewing question to ensure that federal right is protected. d) Notes: Case - Standard Oil v. Johnson – p???: a) Facts: California law imposed a gas tax, but exempted that gas sold to the US government. A distributor sold gas to the government and taxed it.

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Held: Reason: (1) Basis for Supreme Court Review: CT will review a state court decision where the issues of state and federal law are intertwined and it is necessary to ensure the protection of a federal right. (a) Court needs to determine whether the state court decision rests on a ―fair and substantial basis.‖ (b) The state here relied on federal law‘s definition of the relationship between the post exchange and the federal government and misinterpreted the law. d) Notes: exceptions to doctrine (Old Cases)- these types of cases are very rare.
b) c)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

III. THE POWER OF FCS TO CREATE FEDERAL LAW:

A. FEDERAL COMMON LAW:
1.

Summary See Krissy‘s outline
a.

Definition of FCL: any rule of federal law created by federal courts when the substance of that rule is not clearly suggested by federal enactments such as the Constitution or congressional legislation Presumption against the creation of FCL (see language in Rules of Decision Act and Erie and federalism concerns). Analysis for When It Is Appropriate to Create Federal Common Law
1)

b.

c.

Does the case involve the US or private parties a) Analysis is mostly the same. b) Courts are more willing to create FCL for cases involving US and its officers than in cases involving private parties (Clearfield). c) For private parties, look at: (1) Whether there is a uniquely federal interest? (2) Is there a (significant) conflict b/w state law and that unique federal interest. Is there FCL-making competence? a) Court has FCL competence if it fits one of the following categories (1) Delegated: Congress expressly confers power to make FCL on FCs. (2) Preemptive: need to protect a federal interest (3) Gap-filling in statute. b) If the court cannot fit its conduct into one of the above categories, it should apply state law in place at that juris at that time (will have to follow state law if it changes later). What should content of law be? a) Court can fail to displace state law b) Court can “borrow” state law? c) Court can create/“incorporate” (similar to borrowing) FCL. (1) Effect (a) FCs will NOT have to follow state law if it changes later. (b) FCs do not have to borrow all of the state‘s law in that area – can pick and chose.

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d.

Statute of Limitations 1) Generally, if there is no SOL provision in a federal statute, court will borrow SOL provision from analogous state statute.
2)

FCs more likely to borrow SOL from analogous federal statute rather than state statutes when one of three conditions met: a) A uniquely federal area; OR b) No analogous state law claim; OR c) Federal statute in question is modeled closely after another federal statute that contains an SOL provision (see Agency Holding Corp. (US 1987) – p153).

e.

How does this fit with Erie?

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Prohibitions on the Creation of FCL
a.

Definition of FCL 1) Any rule of federal law created by federal courts when the substance of that rule is not clearly suggested by federal enactments such as the Constitution or congressional legislation Presumption against creation of FCL 1) Rules of Decision Act a) ―The laws of the several states except when the Constitution, laws of the United States, treaties provided, shall be the rules of decision in federal court.‖ 2) Erie a) ―Except when Constitution, laws of United States, treaties provide, state law applies and there is no general federal common law.‖

b.

3.

Fashioning FCL When Suits Involve the United States or Its Officers
a.

Clearfield Trust - illustration of new federal common law 1) FCL is more specialized 2) FCL limited to areas of national concern 3) New FCL as binding on states Three types of new FCL 1) Delegated law-making - Congress expressly confers on FCs the power to make FCL 2) Preemptive Lawmaking - need to protect federal interests 3) Filling Holes in Federal Statute - filling in details / gaps in federal statute Concerns Surrounding fashioning a new FCL 1) Federalism concerns - if FCs allowed to start creating a new FCL, there is a possibility that state law will be displaced 2) Mitigating Factor - If Congress doesn‘t like what FC does, Congress can overrule ??? Two-Part Test (Clearfield Trust (1943), Little Lake Misere Land Co. (1973) & DeSylva (1956))
1)

b.

c.

d.

Determine whether there is a federal law making COMPETENCE? a) Delegated b) Preemptive c) Filling in statute Should fed rule be based on existing state law (BORROW) or should FC CREATE a new FCL rule? a) Test (1) Balance the nature of the specific governmental interest with the effect of applying state law to it (Misere) (2) State law will not be borrowed if it conflicts with a federal law or interest b) Do not borrow state law if such application will contradict fed interests (1) Is federal law necessary to protect federal interests? (2) Is federal law necessary to effectuate Congress‘ intent? c) Methods of borrowing state law

2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) Each district court can borrow state law from the forum state in which it sits (Klaxon (2) incorporated state law is not necessarily rule of law for every FC (every FC (3) State law can be borrowed and uniformly applied d)

analysis)

borrowing state law must go through Klaxon analysis)

Binding nature of borrowed state law (1) Federal court can borrow just parts of state law (a) E.g., borrow statutory interpretation of ―child‖ but not state courts‘ interpretation of it (because it‘s not sitting in diversity) (2) Federal courts are not bound by subsequent developments in state law (3) If state law is adopted, it is not binding authority on state courts. (4) If state law is adopted, it is not binding on future federal court decisions.

e.

Case Facts 1. Clearfield a. Fed gov‘t issues check for WPA work, stolen and cashed at J.C. Penney which clears check through Clearfield Trust. Person who should have gotten money got new check, U.S. gov‘t sued Clearfield Trust for money. If court applied Pa. law, U.S. would lose because of ―undue delay of notice‖ b. Power to create FCL i. Power of U.S. to issue checks comes from Constitution ii. Applying state law would destroy uniformity and ―do violence‖ to important federal interests 2. Little Lake Misere Land Co., Inc. (1973) a. Federal government acquired La land by contract . Original owner reserved mineral rights that will expire on certain conditions. Condition met for title reverting to U.S. but subsequent La. act said U.S. couldn‘t acquire land by condemnation or expropriation. Original land owners said that state law governs. b. Supreme Court i. Doesn‘t say state statute was unconstitutional re: Contract Clause violation because it said that state law doesn‘t apply here (duck constitutional question) ii. Power to create FCL 1. Implicit gap-filling power from federal statute 2. Federal law necessary here a. To protect the federal interest b. To effectuate Congress‘ intentions 3. Applying state law would run counter to federal interests 3. DeSylva v. Ballentine (1956) a. Author died, and widow attempted to block illegitimate child from participating in copyright protections b. Power to create FCL i. Federal common law governs because of uniformity, federal interests in copyright

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

ii. Borrowed from state law because no strong interest in creating federal law and state law doesn‘t conflict
4.

Fashioning FCL When Private Parties Are Involved
a.

Test (Boyle (1988)) 1) Is there a unique federal interest? 2) Does the state interest frustrate/conflict with the federal interest? Unique Federal Interests 1) Broad view (Boyle) a) ―[A]ll civil liabilities arising out of the performance of federal procurement of equipment‖ b) Appears to cover general federal interests 2) Restrictive view (Parnell (1956)) a) Private party transaction involving government-issued paper involving state issues of burden of proof and good faith defense did not implicate unique federal interest. (1) In Parnell, fed interest was relatively small – Court saw suit as b/n 2 parties therefore state law was applied, no new FCL fashioned b) Existence of congressional power to enact law governing private parties in area is not sufficient to create power (Wallis) Requirement of significant conflict b/w federal and state law 1) A significant conflict must exist b/x fed and state policy in order for FC to fashion new FCL (DeKalb) a) ―[A] significant conflict between some federal interest and the use of state law in the premises must . . . be specifically shown.‖ (Wallis (1966); DeKalb County (1977)) 2) In Wallis, no significant conflict b/w fed policy and state law existed, therefore gap in fed statute does not warrant creation of new FCL Case Facts a) Boyle (1) (2) (3) Marine died when trapped in submerged plane. Father sued for negligence, wrongful death based on state tort law. Won jury verdict but Ct. of App. overturned verdict. Held: In these circumstances, the government contractor is immune from suit, even though the suit is between two private parties. There is a uniquely federal interest involved, despite the fact that the case is between two private parties, that justifies creating federal common law – federal interest b/c if govt contractor held liable he will pass it to consumer - Gotanda says we have to be careful about dividing into federal and state concerns – not so clear Scalia FN: is there a difference b/w borrowing a state rule (inc state decision into federal law) and following the state law - ??? Gotanda says it makes a difference if refuse to displace state law, then not incorporating into federal common law (then CT cannot review it) but if you incorp into federal law, then CT can review.

b.

c.

d.

(4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(5)

Supreme Court created FCL because what really was at issue was government procurement of equipment from company and imposition of state tort liability would ultimately affect terms/conditions of contract and state law would conflict (a) Manufacturer would refuse to perform contract or (b) Manufacturer would raise price (c) No liability for government contractors if (i) the U.S. approved reasonably precise specifications; (ii) equipment conformed to those specifications; and (iii) supplier warned U.S. about dangers in use of equipment known to supplier but not U.S.

b)

Parnell (1) Facts: Suit involved federal bonds. Court of Appeals held it was like Clearfield Trust and created federal common law. (2) Held: No federal common law should be created b/c these are private individuals. (3) This is a suit between private individuals – thus, have to look at relationship to US govt. (4) The rights and duties of the U.S. are not affected as significantly as they were in Boyle. (5) The interests of the U.S. are not harmed by the application of state law. (6) Bank issued government bonds; defendants acted for people who received bonds for value. Issue was whether defendants extinguished rights of original owners. Bank brought conversion action and defendants argued they were good faith purchasers and were without notice of the defect in title. District court used state law to determine burden of persuasion regarding good faith and notice defenses. Appellate Court said Clearfield required FCL. (7) Supreme Court: This is purely a case between private parties and does not touch upon the ―rights and duties of the U.S.‖ Wallis (1) (2) Fight between private parties over who gets oil and gas lease issued under federal statute Supreme Court applied state law because state law did not conflict with federal law Agreement between county and FAA that land around airport only used for county activities. There was a plane crash and survivors wanted to sue county for breach of contract Supreme Court: State law should govern the matter because federal interest not significant and therefore no significant conflict

c)

d)

Miree (1) (2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

5.

SOL - p152

All statutes post 1990 that do not contain SOL now governed by ??? But still lots of litigation on statutes without SOL pre-1990 General Rule: FC confronted with federal claim from federal statute without SOL provision will borrow SOL for analogous claims under state law. If FCs borrow state‘s SOL, they also borrow the state‘s tolling rules. You could argue to FC that state SOL will undermine federal policy – this claim rarely succeeds – cts are unsympathetic to claims that disparities among Ps in different states are unfair. FCs more likely to borrow SOL from federal statute rather than state statutes when one of three conditions met (1) a uniquely federal area, (2) no analogous state law claim; or (3) federal statute in question is modeled closely after another federal statute that contains an SOL provision (see Agency Holding Corp. (US 1987) – p153).
6.

Open Question of CERCLA Successive Owners 1. 2. CERCLA a) CERCLA says owners and operators are liable for clean-up (but successors not mentioned) Successor scenarios a) A owns property; dumps contaminated property to C. C doesn‘t have a lot of money. A sells all good assets to B. Can plaintiff sue B for clean-up costs? b) A keeps contaminated property and transfers all valuable assets to B. A becomes relatively judgment-proof. Who pays for clean-up costs? How does CERCLA generally work? a) Sometimes EPA cleans up and then sues but often private parties sue because they‘ve handled the clean-up costs b) Courts are divided on this issue (whether you should create federal CL for private parties) Why does it matter whether the courts apply federal or state law? a) Because state laws have very different notions of successor liability, a successor could get off in one case and not in another (1) Raises concerns about uniformity; state law thwarting federal policy b) Can try to apply Clearfield by arguing that the private party really stands in place of federal government (1) Therefore, there is federal authority to create federal CL

3.

4.

Issues: Can EPA or a PRP sue Z corp for cleanup costs under CERCLA? Would the issue of successor liability be governed by federal or state law? Should this be governed by federal common law? ??? Held: there is competence to create federal law but that there is no need for federal common law rules of successor liability – should apply state rule.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Reason: 1. Federal Law Making Competence: There is federal common law making authority – there is a federal scheme here. Distinguish Wallis (which says gap filling not enough to create federal common law) Federal interest is strong here – strong interest in clean up of site – otherwise federal govt may have to pay. Uniformity argmt – want uniformity in this area to effectuate purpose of statute. 2. What should federal law be? Does state law conflict with federal policy? Successor liability law among states is relatively uniform. Cts have rejected the idea that maybe we want a federal law on this b/c we want to make it stricter. Generally, liability not pass on asset sale – exceptions vary by state law. Go back to Erie – federal system operates on state system – thus apply state law – unless application of state law conflicts with federal law, apply state law. Kendell Foods 3-factor test: (1) federal interest require national uniform body of law; (2) frustrate or conflict with objectives of federal program; (3) will apply of federal law disrupt commercial relationship predicated on state law (expectations of parties). Would it make a difference if EPA sued rather that PRP? No, b/c not a significant conflict b/w federal interests or state law – Scalia footnote about not seeing a difference ??? – one could argue it makes a difference here b/c if you are incorporating state decision rule of successor liability into federal common law and then state changes its successor liability law, FCs not bound by that change.
7.

Discussion of Victim Compensation Fund:
a.

General Elements: 1) Protect airlines 2) Provides compensation to any individual killed or injured 3) 2 ways to file: 4) File with special master – waived all claims of going to court (no appeal) – SM gets to determine – funding comes from business fund and govt funds. 5) File action in FC – s408 – limits liability of airline carriers to amount of limits of liability coverage – creates federal c/a – exclusive remedy for damages arising out of Sept 11 events – directs state substantive law to apply unless preempted – gives SDNY original and exclusive juris. Is Special Master scheme constitutional? 1) OK under Art. III 2) OK under due process. 3) YES b/c claims here are closer to federal entitlement program – thus they can prescribe manner in which entitlement is doled out. 4) Falls under public rights context. 5) Would be tricky if statute gave SM authority to rule on liability of airlines – problematic under No. Pipeline. a) Apply Schorr balancing test to changed facts: personal interest is waived, SOP analysis (remember various factors) b) ??? Why would it be unconstitutional?

b.

Does Congress have the power to limit liability of airlines? Gotanda says this is probably OK.
c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d.

??? Can Congress create an exclusive federal c/a or confer exclusive juris on federal district court? 1) Is Congress expanding juris of FCs? 2) Is this only protective jurisdiction? Only a juris creating statute? 3) Fact that limit liability may be enough to create a federal question. Is 408(b)(2) – Substantive Law constitutional? 1) Trickier issue will arise from plane crashes in PA but everything has to be litigated in SDNY – but PA state law will apply and SDNY will have to apply PA choice of law principles the way a PA court would. Would you choose Special Master or FC? 1) SM administering a program of limited funds – SM may have incentive not to pay out as much as court. 2) But FC will take much longer – how much $ will be left in fund by time case gets through court.

e.

f.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

B. Implied Rights of Action to Enforce Federal Statutes


Issues a. Whether private parties may sue to enforcement federal statutes b. When can FCs create or supplement remedies for pre-existing federal statutes. Summary
a. b.

1.

Courts are reluctant to create private rights of action b/c SOP and federalism concerns 3 tests to determine whether a private right of action exists to enforce federal statute
1)

Broad approach (Borak (1964)) a) FC can create a private right of action, in the absence of an express congressional authorization, if the suit effectuates the purpose of the statute or if the private right furthers the purpose of the fed statute Narrow 4-factor test (Cort v. Ash (1975)) a) Look at following factors to determine whether to grant private right of action. (1) Whether the plaintiff is a member of the class for whose benefit/protection the statute was enacted. (2) Is there any indication of legislative intent, explicit or implied, either to create or deny a private right of action. (3) Is it consistent with the underlying purposes of the statute to imply such a remedy. (4) Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law. b) Criticisms of this approach – see Powell dissent in Cannon on p60. Legislative intent test (Redington (1979) and Sandoval (2001)) a) There must be affirmative evidence of congressional intent to create a private cause of action. b) CT will NOT consider legal context in which statute was enacted to determine intent to create private causes of action.

2)

3)

c.

Court‟s Approach: 1) CT started out with liberal approach to create private right of action – cut back in Cort – then test changes – CT no longer applying 4 factors with equal weight – focusing on congressional intent – can get congressional intent by look at statutory text (scalia) or legislative history (stevens) – be cautious about using legislative history. 2) Now, legal context in which statute enacted, alone, is not enough to create private right of action. 3) Impact of Sandoval – cut back significantly on when courts will create private causes of action.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Courts Are Reluctant/Concerned About Creating Private Rights of Action b/c
a. b.

Separation of powers: legislature should legislate, not the courts. Federalism 1) Absence of federal regulation means the issue is governed by state law. 2) To the extent a federal cause of action is created, it displaces the state law in the area.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

3 tests to determine whether a private right of action exists to enforce federal statute
a.

Broad Test (Borak)
1)

RULE: a) FC can create a private right of action, in the absence of an express congressional authorization, if the suit effectuates the purpose of the statute or if the private right furthers the purpose of the fed statute b) Broadest view, high water mark case Application of Borak test a) SC has not overruled Borak, but it has significantly cut back on it; Borak generally gone Case – J.I. Case v. Borak (1964) a) Facts: shareholder brought derivative suit under § 27 of the Securities Exchange Act of 1934 claiming damages for fraudulent disclosure in violation of § 14. b) Held: There is an implied cause of action for violations of § 14. (1) There was evidence in the statute that indicates suits were intended. (2) Purpose of the statute was effectuated by allowing such a cause of action. (3) Private enforcement of the proxy rules is necessary to enforce them properly. (4) A cause of action can be implied in a statute without an express authorization by the statute if the suit would further the purpose of the statute.

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

b.

Narrow 4-Factor Test (Cort)
1)

RULE a) Narrower than Borak test. b) Look at following factors to determine whether to grant private right of action. (1) Whether the plaintiff is a member of the class for whose benefit/protection the statute was enacted. (2) Is there any indication of legislative intent, explicit or implied, either to create or deny a private right of action.
(3) Is it consistent with the underlying purposes of the statute to imply such a (4) Is the cause of action one traditionally relegated to state law, in an area basically

remedy.

the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law.

2)

Application of Cort Test a) Although applied in later cases (Cannon), Court has cut back on using test but has never overruled it. Criticisms of Cort Test (from Powell‘s Cannon dissent) a) Violates separation of powers b) First factor is circular, doesn‘t lead anywhere c) Second factor is crucial one - it is the only factor we should focus on d) Third factor allows federal court to determine what goals of federal scheme are and how they should be advanced e) Fourth factor should lead to consideration of whether Congress took into account state law remedies and fact that Congress hasn‘t spoken to this issue; therefore it would be inappropriate to displace state law Case – Cort v. Ash (1975) a) Facts: Violation of campaign finance law by company. The statute provides only criminal penalties. A shareholder wanted to bring a private damages suit because of the violation of the statute. b) Held: There was no implied cause of action. c) Reason: apply 4-factor test (1) Whether the plaintiff is a member of the class for whose protection the statute was enacted. (a) Applied: no b/c protection of stockholders was only secondary concern – primary purpose was to assure federal elections free from corp $. (2) Is there any indication of legislative intent, explicit or implied, either to create such a remedy or deny one. (a) Applied: no indication (3) Is it consistent with the underlying purposes of the statute to imply such a remedy. (a) Applied: no b/c recovery of damages would not aid congress purpose to reduce flow of $ on federal elections. (4) Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law.

3)

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d)

(a) Applied: no Notes: Court takes a narrower view on implying causes of action – backs off J.J. Case test

5)

Case - Cannon v. University of Chicago (US 1979) – p162 a) Powell‘s dissent is very important – loses battle but wins the war. b) Facts: Female student who was denied admission to medical school brought damages action under Title IX. Title IX does not expressly provide for a damages remedy. c) Held: private right of action exists under Cort test d) Reason: (1) Goes through 4-factor Cort test (a) P = member of protected class.  Powell says this factor begs the questions – question is not whether person is in protected class but whether the statute confers additional right to provide a remedy. (b) Congressional Intent: legislative history shows Congress intended a broad remedial scheme.  IX is based on VI where there is private remedy.  Different ways to clean intent: (1) look at plain text [Scalia] – Gotanda says this should be the primary source; (2) look at legislative history [Stevens] (c) Frustrate underlying purpose: allowing this suit would be consistent with the statute‘s purposes.  2 purposes (p162)  Problem here – may want to give agency discretion about which cases to force and against whom. (d) Traditional state concern: federal government has always been the protector against discrimination so a cause of action would not displace any state law. (2) Court should be reluctant to imply private right of action absent congressional specificity. e) Rehnquist: thinks Congress duped by CT – in future, say no more private rights of action unless Congress makes it explicitly clear f) Powell Dissent – VERY IMPORTANT: (1) Powell‟s test - p165: unless there is clear statement of congressional intent, CT should not imply private remedy (2) SOP concerns: 4-factor test cannot be squared with separation of powers. (a) CT is doing Congress‘ job (b) Congress alone should have the authority to establish these causes of action. (c) When Congress has not spoken, there must be compelling evidence of intent to create a cause of action, or it should not be done. (3) Powell‟s Problems with 4-factor Cort Test (a) Factor (1) is a circular question. (b) Congressional intent should be the only question. (c) Determining whether a private right of action would be consistent with the statute requires the Court to determine what the goals of the statute are and how they should be advanced. (d) The fact that Congress did not create a private right of action should weigh heavily against creating one.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c.

Legislative Intent Test (Post-Cort/Redington) – Current Approach
1)

RULE: there must be affirmative evidence of congressional intent to create a private cause of action a) This is second factor from Cort b) Shows Powell won the war. Application a) This is dominant approach but it is not always clear Court is applying this approach - has led to inconsistent results. Case - Touche Ross & Co. v. Redington (1979) a) Held: there is no private because there is no evidence in the statute or legislative history indicating Congress intended one. b) Reason (1) CT focuses almost exclusively on congressional intent to provide a private cause of action. (2) TEST: Whether Congress intended to create a private cause of action in enacting the statute. (3) Court does not overrule Cort but moves away from the four factors and focuses on intent, as evidenced by the language of the statute and legislative history. (4) Reasoning akin to Powell‟s dissent. Case - Transamerican Mortgage Advisors, Inc. v. Lewis (1979) a) Issue: whether two sections of Investment Advisers Act of 1940 created a private cause of action. b) Held: CT finds private right of action under s215 (but not s206) due to the need for ―someone‖ to bring forth action to rescind K/ c) Reason: (1) Court focused on legislative intent - does not overrule Cort but focusing on second factor. (a) § 215: Includes language that implies there would be an action to declare the contract void; whether the contract is void must be litigated somewhere. (b) § 206: No language or legislative history showing Congress intended to create a cause of action. This section only prohibits fraudulent conduct; it does not create or alter any civil liabilities. There was no evidence that Congress intended to created a private c/a – CT focuses on whether there is explicit or implicitly Congressional intent. Case - Merrill Lynch v. Curran (1983) & Section 105(b) Cases a) Held: there is an implied cause of action under § 105. b) Reason: these cases can be explained by the fact that the Court created an implied cause of action and then Congress amended the statute, but it did not change any language relating to the private causes of action. Therefore, Congress approved of the Court‘s creation of the cause of action. Case - Gepser a) Held: if CT has power to create/find/imply a private right of action, CT also has power to limit scope of that private right of action (out of respect for other interests involved).

2)

3)

4)

5)

6)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

7)

Case - Davis v. Monroe County a) CT still creating private rights of action but standard and test has changed/ Case - Sandoval (US 2001) – p48 Supp a) Facts (1) Title VI – discrimination on basis of race, (2) S601 – operative language . . no person . . (3) S602 - authorizes DOJ to promulgate regulations to effectuate s601. (4) Regulations enacted and prohibited federal funds where criteria has effect to discriminate. b) Issue: Does English only provision violate title VI? Is there private right of action to enforce the regulations? c) Held: no private right of action under s602. d) Reason (1) s601: there is a private right of action to enforce 601 but scope is limited to actions that have discriminatory intent. (2) s602: no private right of action to enforce 601 b/c no congressional intent – CT looks to . . . (a) Unlike 601 that says ―no person,‖ 602 does not focus on ―person‖ – it is twice removed from individuals who will benefit from protection – 602 does not focus on person being discriminated against, nor on person doing discriminating but on agencies overseeing potential discriminators. (b) CT also looks to enforcement provisions: by Congress showing how they want agency to enforce it, seems to preclude other methods of enforcement. (c) P‘s argmt: US Govt and Sandoval argue that VI was enacted when Borak was prevailing rule and that at that time CT was implying private rights of action and thus CT should do so here – CT rejects this argmt b/c legal context matters only to extent it clarifies the text – otherwise legal context is not relevant – CT has gone back and forth on this rule –  It is clear now that CT will not consider legal context in which statute was enacted to determine whether it should imply private rights absent other evidence. e) Stevens‟ Dissent: (1) This is a ―sport‖: could have filed this with s1983 and then would have had a c/a. (2) If you refuse to infer private right of action under VI, can you then sue under same statute for violation of s1983 – some district courts have held that Sandoval does not preclude s1983 actions to enforce s602 regulations – this is now pending b4 third circuit. f) Notes (1) Gotanda says this is one of the most important decisions of last term (2) Cuts back significantly on private right of action – clearly says that context in which statute enacted is not enough to create private right of action. (3) Prior to Sandoval: almost all cases prior to Sandoval said you could bring disparate impact claim under VI and IX (Cannon) – Sandoval questions ability of P to bring disparate impact claim under IX, unless CT follows Stevens s1983 suggestion. (4) Gotanda says s1983 alternative does not make sense – Congress implicitly contended that by not providing private right of action may preclude using s1983

8)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Hypo

Go through all 3 approaches CT originally took much more liberal approach, now have cut back significantly. Is the P one of the class for whose especial benefit the statute was enacted – that is does statute create federal right in favor of P? FHSA evidences intent to benefit buyers of household products, protect children - leans in favor of creating private c/a. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one? FOCUS is now here Underlying purpose is to achieve uniformity Nothing in statute or legislative history that indicates there should be private c/a Could probably stop here under current CT‖s approach Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for P? CT now says this is related to #2 This factor leans against creating private c/a b/c Act sets up CPSC Multiple individual lawsuits will hinder/undermine goal of nationwide uniformity in regulation of haz products. Is the c/a one traditionally regulated to state law in an area basically he concern of states, so that it would be inappropriate to infer a c/a based solely on state law. This is basically tort/neg action – traditionally state law Weigh against create private c/a Bottom line – not going to create private c/a.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

C. RIGHTS OF ACTION FOR THE UNITED STATES 

Summary
a. b.

Theme: Is CT also willing to create these rights of action for the federal govt? FCs cannot create a private right of action for US unless there exists an express congressional intent to do so. There is no federal criminal common law – courts cannot create a criminal prosecution, absent some statute b/c of SOP and federalism concerns (Hudson & Goodwin).

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

1.

Rule (Hudson, Goodman, Standard Oil)
a.

FCs cannot create a private right of action for the United States unless there exists an express congressional intent to do so. Compare: CT generally unwilling to create c/a for US but is willing to create one for private individuals to enforce federal statutes

b.

2.

Federal Common Law Crimes:
a.

CRIMINAL - United States v. Hudson & Goodwin (US 1812) – Johnson - p175: 1) RULE: there is no federal criminal common law – CT cannot create a criminal prosecution, absent some kind of federal statute. 2) Facts: c/l libel action against the President and Congress. 3) Issue: whether federal circuit courts can exercise common law jurisdiction over these cases. 4) Held: there is no federal criminal c/l – for something to be a crime, legis must enact a statute, fix the punishment and declare that cts have juris. 5) Reason: a) Separation of powers: FCs possess only the authority that Congress has given them, and Congress has not given them the authority to create federal law for criminal prosecutions. b) Federalism: state courts, rather than FCs, should be the ones to try these cases. 6) Notes a) Antitrust statutes come close to creating federal criminal c/l. b) ??? Does not rule any criminal punishments not specifically provided by statute. c) FCs retain power to fine or imprison people for contempt: contempt power cannot be dispensed with b/c it is needed and necessary for ct to exercise its other power ??? CIVIL - US v. Standard Oil (US 1947) – p177: 1) ??? RULE: federal law applies when federal interests are unique and state law conflicts with federal law. a) Extension of Clearfield doctrine 2) Facts: soldier was hit by Standard Oil Co truck, US sued Standard Oil to recover soldier‘s pay while incapacitated. 3) Issue: Whose law governs? Federal law governs. 4) Held: CT refuses to create a private c/a for US 5) Reason: a) Like Clearfield case. b) Congress is custodian of national purse c) ??? Why will CT create a private right of action for private individuals when statute is silent but not for the federal govt? (1) US govt can use Congress to create a right of action, thus Congress needs to be explicit in authorizing the action for the US. (2) We do not have same concerns about limited powers when we are dealing with private parties.

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

D. RIGHTS OF ACTION TO ENFORCE CONSTITUTIONAL RIGHTS

1.

Summary and Analysis:
a.

THEME: whether CT will create c/a for private individuals to enforce federal constitution RULE
1)

b.

Private individuals have a private right of action for money damages against federal officers for violations of constitutional rights. Applied in 4A (Bivens), 8A (Carlson) and Title VII (Davis)

2) c.

Analysis
1)

Are the elements of Bivens met? a) Look to effectiveness of Bivens remedy to determine whether it should be employed (Carlson) (1) Compare to facts of Bivens (2) Deterrence (3) Availability of damages (4) Availability of certain protections (e.g., jury trial) (5) Whether alternative remedy incorporates state law Are there any applicable exceptions?
a)

2)

Alternative remedy in form of comprehensive statutory scheme intended (does not have to be expressly stated ) to be the exclusive remedy; or (1) Adequacy of alternative remedy (a) Under Davis and Carlson the CT seemed to indicate that the absence of punitive damages and a jury trial played a part in its analysis of whether or not to grant the Bivens action but now, under Bush, this no longer seems to concern the CT. (2) Explicit statement from Congress saying it is precluding Bivens action is no longer required (a) Now, court may preclude the creation of a Bivens action even if Congress does not expressly state it wants to preclude such an action (b) Now, Congress can indicate its intent to substitute an alternative remedy for a Bivens action by (1) statutory language; OR (2) legislative history; OR (3) nature of the statutory remedy (backing off of Carlson) Special factors counseling hesitation in the absence of affirmative action by Congress. (1) Comprehensive remedial scheme can itself be a special factor warranting hesitation (Chilicky) (2) Military context is special factor (Stanley)

b)

d.

Application: rarely successful – CT seems to be retreating from Bivens.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Case Law Development of Bivens Causes of Action:
a.

Case - Bivens v. Six Unknown Named Agents (US 1971) – Brennan – p180:
1)

Facts: a) Federal agents searched person‘s home and arrested him. b) He claimed his privacy rights were violated and that his 4th amendment rights were violated. c) District court dismissed the claim for failure to state a cause of action. Held: There is a private cause of action for damages for violations of a person‘s 4th amendment rights by federal officials. Reason: a) Govt‟s Argmt: thinks P should bring state law action based on trespass or battery, then constitutional violation would be relevant b/c would argue immunity, and then constitutional argument would be used to take away govt‘s defense (rather than using constitution as an affirmative claim). b) CT rejects govt‟s argmt b/c says govt is in a different situation when it violates people‘s rights in this manner. (1) Govt is worse than private individual in trespass suit b/c people will normally consent to entry by govt officer, thus eliminates state tort remedy (consent is a defense). (2) Govt can do far more harm than what state tort law is designed to cover. (3) Need to have federal right of action to enforce these constitutional rules - courts should be able to create these causes of action. (a) People who have their rights violated in this manner should not have to depend on state law remedies which might be inadequate or hostile to constitution. (4) Deterrent effect and to compensate injured victims. (5) Ordinary means of enforcing these restrictions (e.g., exclusionary rule) is not sufficient (e.g.¸ govt never charged Bivens). (6) Relies on Marbury v. Madison: every injury deserves a remedy (―essence of civil liberty is right of individuals to claim protection of laws‖ Harlan Concur: a) Reformulates questions b) Notes you can get equitable relief c) Looks to Borak d) Agrees a private cause of action is created here. e) Compare to implied private c/a in statutes: In the case of statutes, the Court was willing to imply causes of action even where Congress did not expressly provide for one - it would not make sense that CT could create a private right of action for violations of statutes but we cannot do it where there is a constitutional provision involved (1) B/c judiciary‘s role would mean they have more power to create private rights of action to enforce constitutional rights f) Would propose a policy test: Is private right of action necessary or appropriate? Would any other form of relief be feasible? Dissents

2)

3)

4)

5)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Court is legislating. Will open up the floodgates of litigation. (1) Harlan responds in his concur: says if these are frivolous, they will self-select and if some of these claims are non-friv, then we cannot say these are ―burdensome‖ c) Separation of powers issue (1) Court is essentially legislating here: CT is looking at § 1983 by analogy and takes that body of law and applies it to the federal government. (2) Response by ???: (a) It does not violate separation of powers because traditionally the Court has fashioned remedies in the absence of legislative action. (b) Additionally, federal rights should not depend on state law and if they are dependent on it, they may not be uniform.
a) b) 6)

Notes: a) This is very controversial case (1) Postscript : CT expands Bivens remedy for awhile but now, CT retracts the remedy. b) ??? Policy arguments favoring creation of private right of action for constitutional rights c) ??? Policy arguments disfavoring creation of private right of action for constitutional rights (2) No textual support in Constitution for these. (3) SOP violated if CT creates a private right of action (s1983 shows that Congress has power to do this – b/c they did not do it there, cts should be hesitant to create such rights) d) Basis for Bivens Cause of Action: Constitution or Statutorily/Common Law Based? (1) Distinction is important because if the cause of action has a constitutional basis, Congress cannot get rid of Bivens. If its basis is in common law, Congress could abolish this cause of action by statute. (2) Support for constitutional basis: (a) Marbury v. Madison: For every violation of a right, the courts must provide a remedy. (b) CT emphasizes the importance of an adequate remedy: implicitly, it is constitutional and Congress cannot get rid of the entire Bivens cause of action. (3) ??? Support for Common Law Basis:

[NOTE: Gotanda thinks CT likely to give broad powers to federal govt in security and foreign affairs – threat to federalism – see Ernie Young piece responding.]
b.

Case -Davis v. Passman (US 1979) – p205: 1) Facts: Female employee fired for gender sued under 5A. 2) Held: CT finds there is a Bivens cause of action for damages under the 5A b/c no other remedy for her (Title VII exempts congressional employees). 3) Reason: a) D‟s argmt: Title VII excluded congressmen from coverage. b) CT‟s and P‟s response: (1) The exclusion of congressional employees from Title VII did not reflect an explicit declaration that these employees could not recover discrimination. (2) Congress made it explicit they were immune from Title VII, but not explicit that they were immune from Bivens or other types of suits.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Burger Dissent: a) Separation of powers: President can appoint based on discriminatory reasons so congressmen should be allowed to too. 5) Powell Dissent: a) Relies on Title VII: it is inappropriate also for the court to create a cause of action where Congress specifically exempted itself - goes against the intent of Congress.
4) c.

Case - Carlson v. Green (US 1980) – p206: 1) Facts: Mother sued director of prisons under Bivens-type claim for violations of 8A for death of her son. She also had an FTCA action for damages available. 2) Issue: Whether she can bring a Bivens claim under the constitution in addition to the FTCA claim? 3) Held: A Bivens action was available. 4) Reason: a) Exceptions to Bivens (1) When it is demonstrated that there are special factors counseling hesitation in the absence of affirmative action by Congress. (2) When Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery under the constitution which is viewed as equally effective. b) Rule and Exceptions Applied: (1) No explicit stmt by Congress that this was alternative remedy (a) Congressional intent: the FTCA was intended to be a counterpart to a Bivens action, not to supercede it, as reflected in the congressional intent. (2) No alternative remedy b/c remedies were more effective under Bivens action than FTCA. (a) Bivens actions would act as a greater deterrent. (b) Punitive damages may be available under Bivens but are precluded by statute in an FTCA action. (c) Jury trial is not available under the FTCA. (d) FTCA incorporates state law as the measure of liability and thus would preclude an action if none were available under state law. 5) Rehnquist Dissent: a) Bivens itself is an unconstitutional act of power by the courts. b) Congress has created a remedy for the violation – the FTCA. A Bivens action is unnecessary.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

Current Bivens Exceptions:
a.

Summary of Exceptions: 1) Comprehensive statutory scheme intended (does not have to be expressly stated) to be the exclusive remedy; or 2) Special factors counseling hesitation in the absence of affirmative action by Congress. Alternative Remedy Exception - Comprehensive Statutory Scheme Intended to be the Exclusive Remedy
1)

b.

Case – Bush v. Lucas (US 1983) - 208: a) Facts: Employee sued supervisor saying he was demoted for publicly criticizing the agency in which he worked. For exercising his 1st amendment rights. b) Held: No Bivens action available here c) Reason: (1) New approach to alternative remedy exception: Congress can express its intent to preclude a Bivens cause of action through (1) statutory language; (2) clear legislative history; or (3) the remedy itself - p208. (a) CT gets rid of explicit congressional declaration requirement: Congress can indicate its intent to prevent judicial remedies through any of these methods. (2) Applied to facts: in this statutory scheme, it is clear Congress intended there be no supplemental Bivens action. (a) The scheme set up is comprehensive civil service remedy. (b) Congress is in a better position to assess the situation and provide a remedy. d) Notes: CT starts to cut back on Bivens exceptions Case – Schweiker v. Chilicky (US 1988) – O‘Connor - p192: a) Facts: (1) Claim that SSI benefits were terminated without due process. (2) Congress enacted a statute that provides a comprehensive benefits program. The state government instituted a policy that cut people off. (3) Plaintiff claimed he was wrongfully terminated in violation of his due process rights. b) Held: No Bivens action available here c) Reason (1) ??? Which is reason that CT relies upon? (2) Alternate Remedy CT has to assess whether Congress provides alternate remedy (a) No explicit declaration that this ―alternate remedy‖ (b) Case is indistinguishable from Bush. (3) Special Factors Exception: (a) Congress decision not to provide complete relief is irrelevant – Congress made this decision – comprehensive statutory scheme shows that Congress intended to be the exclusive remedy. (b) CT seems to be muddling the 2 tests – p196:  Special factor exception: Congress alternate scheme can fit under special factor test as well. d) Dissent: (1) Found the relief provided in Bush was more complete than here. (2) There, there was at least a forum to address the constitutional claim; there is no forum here.

2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

e)

Note: there is no longer any explicit declaration requirement in alternate remedy exception – only need statutory language, legis history, or remedy itself (example in Chilicky case).

c.

Special Factors Counseling Hesitation in Creating Cause of Action Exception:
1) 2)

General Special Factors Rule: Military Special Factors Rule: Bivens claims are never allowed for constitutional violations in the military no matter how egregious or outrageous the violations. The Military: United States v. Stanley (US 1987) – p210: a) Facts: Army member was given LSD unknowingly. He wanted a Bivens action for the deprivation of liberty. b) Issue: Whether Bivens actions could arise in military service. c) Held: No Bivens action available, even though there is no federal statute that would provide a remedy. d) Reason: (1) Found special factors counseling against a right of action. (a) It is the military and Congress controls the military: CT is reluctant to intrude upon Congress‘ authority here.  These suits arise out of military service and doing so is inherently dangerous.  To allow claims would destroy the hierarchical structure of command; would disrupt the relationship between enlisted people and their superior officer e) Brennan Dissent: raises similar argument to O‘Connor, notes there is no available remedy here. f) O‟Connor Dissent: (1) Allowing Bivens here would not disrupt hierarchical structure – not like Chappell. (2) Agrees a Bivens action should generally not be available, but should be in this case because what happened was beyond human decency. (3) This dissent shows how CT has changed – if this case came up again, this case may now come out the other way – however, recent terrorism events may make CT be more deferential to military. (4) Distinguish from Chappell b/c what the Army was doing was beyond any military mission. g) Notes (1) This is a very special case – not wide applicability (2) # of Bivens cases brought – 12,000 filed in FC but P won only 30 of these cases: this suggests either that Bivens is not worth it (Powell) or that courts have made it too hard to win these Bivens actions. (3) 2 views on whether a total bar on these types of suits necessary to achieve military objectives? (a) A policy decision. (b) When dealing with military suits, the Court is very deferential.

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Is Bivens Action a Constitutional Requirement or Federal Common Law?
a. b. c.

If Bivens is a constitutional right, then Congress cannot totally eliminate Bivens claims. If Bivens is a FCL right, then Congress can legislate around Bivens claims

Bivens appears to be constitutional requirement (therefore Congress cannot entirely abolish
it)
1)

―The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the law, whenever he receives an injury.‖ (Marbury) 2) Political Questions? 3) Congress may be able to get rid of parts of action
5.

Does Bivens Violate SOP?
a.

NO 1) Borak had allowed private right of action from statute 2) Federal rights should not be dependent upon state remedies because need uniformity YES 1) Congress had enacted § 1983 against state officials but declined to do so for federal governments 2) FCs are judicially creating body of federal law that is going to be massive and complex (like 1983) is best left to Congress

b.

6.

Reconciling the Court‟s Approach to Bivens Causes of Actions
a. b.

Bivens implies private c/a for violation of constitutional right
2 exceptions when CT will not create a remedy 1) Special factors a) Remedial scheme can constitute a special factor. 2) Alternate remedy a) Explicit Statement by Congress: (1) Then - Davis & Carlson: Court permits Bivens suit in part because there is no explicit statement from Congress precluding such an action. (2) Now - Bush & Schweiker: Despite the lack of a clear statement from Congress, a Bivens remedy is precluded – cut back on Bivens. b) Adequacy of the Alternate Remedy: (1) Then - Davis & Carlson: Absence of punitive damages, jury trial, etc. played a role in the Court‘s decision. (2) Now - Bush & Schweiker: The remedies were argued to be inadequate, but the Court rejected it as a determinative factor. Cases Represent an Inconsistent Retreat from Bivens: HYPO – Handout – 10-12-01:

c. d.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Facts: a) Cannot bring damage claim under 1983 b) Can bring injunctive claim under 1983 and try to bring damage claim under Bivens c) District court, decide case pre – Bush and Chilicky, follows Carlson and finds Bivens claim is valid b/c no special factors counseling hesitation and finds no alternative remedy 2) Held: if apply more recent cases, this action would be barred.
1)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

IV. SUBJECT MATTER JURISDICTION

A. FEDERAL QUESTION JURISDICTION

1.

Summary & Analysis
1)

Is well-pleaded complaint rule met (see Mottley)? a) It must be clear from face of P‘s complaint that a FQ exists - federal defense is not sufficient. b) Only need to show federal standard is relevant to P‘s c/a. c) If D raises a federal issue in a counter-claim, this may be sufficient to remove the case from state to FC. d) If plaintiff chooses not to present a federal claim, even though one is available, and simply sues on the state cause of action, the defendant cannot remove the case to FC. e) The plaintiff cannot defeat removal by omitting to plead a necessary federal question in the complaint. f) Necessary federal component in the case so that the federal statute creating the cause of action is required to decide the case. (Merril Dow). Does federal law create the c/a? (see American Well Works)
a)

2)

General Rule to meet “arising under” language of 1331: if federal law creates the cause of action, it will generally meet the ―arising under‖ test of 1331. (1) Even if the federal law meets the ―arising under‖ test of 1331, it may fail the ―arising under‖ test of Art. III if it is not constitutional. RARE Exception (see Shoshone). (1) Exception: not every c/a created by federal law presents a case arising under federal law. (a) Even though Congress created a cause of action, if Congress directs that the substance of the law to be applied is state created, the cause of action may not be deemed to arise under federal law (2) Very limited application: Court has not addressed this type of situations since this case).

b)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3)

Does state law create the c/a? (may still have federal question juris under Smith)
a)

Smith Rule:

(1) FQ juris exists if the right to relief under state law depends on resolution of

substantial federal question.

b)

Smith Rule Limited by Merrill Dow:

(1) FQ juris exists if the right to relief under state law depends on resolution of

substantial federal question unless Congress has determined that there should be no explicit or implicit federal c/a for violations of that statute. (2) Question under Merrill Dow: whether Congress intended federal element to be enforceable through a federal c/a? (a) You will almost always fail this test if you failed American Well Works (b) But this rule would not apply to Smith.
c) 4)

Taylor Exception: ―preemption plus‖.

Is this Declaratory Judgment?
a)

Skelly Oil Rule:

(1) There is no FQ juris if but for the availability of the DJA the federal claim would (2) Skelly Oil is satisfied and FQ juris exists if either litigant could have brought the

arise only as a defense to the state-created c/a.

coercive action (suit for damages or injunctive relief) that would arise under federal law.

b)

EXCEPTION (Franchise Tax): (1) FQ juris exists if either litigant could have brought the coercive action (suit for damages or injunctive relief) that would arise under federal law UNLESS the federal law only gives one party the right to bring the case in FC and that party does not chose to do so. EXCEPTION TO EXCEPTION (Taylor): (1) There is FQ juris if Congress so clearly preempts a particular area of law that any civil complaint becomes federal in character.

c)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Federal Question Jurisdiction (See also Congress‘ Authority to Limit & Expand Federal Jurisdiction & Implied Causes of Action)
a.

28 U.S.C. § 1331: the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States. Although 1331‟s language is similar to Art. III, 1331 is interpreted more narrowly. 1) Art. III allows a broad variety of cases to come into FC. 2) The statute has been interpreted to allow only a certain type of cases to come into FC. 3) Advantages to different interpretations Scope of 1331 is policy judgment of Congress – can expand up to Art. III or retract. Many of these cases arise under 1441: general removal statute – can‘t remove a case unless it could have been brought under 1331 in first place. Why Congress would want to confer federal juris under 1331: 1) Salary and tenure 2) Loyal to federal purpose b/c appointed by federal govt. 3) Expertise in federal law. 4) More uniform interpretation 5) Use federal procedures which are uniform throughout the system Why Congress would want to narrow 1331? 1) Workload a) Solution: increase # of federal judges (1) Solution itself is problematic b/c expensive, increased bureaucracy, and courtpacking (give one prez authority to appoint a majority of the federal bench), ―if you build it, they will come‖ (open door of fed cts to more cases). 2) Federalism concerns: taking away cases from state courts

b.

c. d.

e.

f.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

Early Federal Question Jurisdiction Jurisprudence:
a.

L&N RR v. Mottley (US 1908) – 450:
1)

RULE: a) Well-pleaded complaint rule (WPCR): it must be clear from face of P‘s complaint that a FQ exists. (1) AKA: a suit arises under federal law for purposes of 1331 only when P‘s own stmt of c/a shows it arises under federal law (2) Rationale: protect against expanding all sorts of federal time and energy to then find that federal defense is not valid. (3) P cannot file in federal ct and D cannot remove to FC unless it is clear from face of P‘s complaint that there is a federal question b) Juris cannot be based on federal law defense or P‘s anticipation of federal law defense. (1) Defendant can recast federal defense as an affirmative counter claim – but this is limited by Franchise Tax case. Held: no SMJ Reason: a) Party that invokes federal juris has burden of establishing that juris exists b) Lack of smj can be raised at any time c) SMJ can be raised by ct on its own motion even if no party raises it. Notes: present doctrine in this area is unsettled.

2) 3)

4) b.

Case - American Well Works – (US 1916) – p451: 1) Facts: Defendant claimed plaintiff‘s pump infringed on his patent. Plaintiff sued defendant for libel. 2) Issue: Is there jurisdiction under § 1338, a statute giving the district courts exclusive jurisdiction over patents. 3) Held: No jurisdiction - nothing under the patent law gives jurisdiction for actions for business libel. 4) Reason: a) Holmes does not rely on well-pleaded complaint rule b) Holmes‟ Test = suit arises under the law that creates the cause of action. (1) A case arises under federal law if it is based on a cause of action arising under federal law. (2) If state law creates the cause of action, it cannot arise under federal law even if the substance of the case falls under federal law. (3) Applied: here, the business libel suit is a state cause of action that does not arise under federal law. 5) Notes: a) Compare Holmes‟ Test and Well-Pleaded Complaint Rule (1) ??? Hypo: suppose state libel law made truth a part of offense. (a) Well-pleaded complaint rule would be met (b) But Holmes‘ Test would not be. b) How to use the Holmes‟ Test.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) Has largely been superceded. (2) Test is not useful for determining what cases do not fall under federal law. (3) Viewed as sufficient but not a necessary condition for “arising under juris”: (a) If federal law creates the c/a, then case almost always arises under federal law –

c)

another theory. ??? Compare 1331 and 1338 (1) 1338 is exclusive under FCs. (2) Can‘t force P to bring a federal claim (3) Result – IP cases litigated in state courts rather than FCs.

(b) If state creates c/a, there is still a chance it might arise under federal law under

meets 1331.

c.

EXCEPTION - Federal Law Creates Cause of Action, But No Jurisdiction:
1) 2)

Not every c/a created by federal law presents a case arising under federal law Case - Shoshone Mining Co v. Rutter (US 1900) – p452: a) RULE: (1) This case is the exception to the general rule. (2) General Rule: if federal law creates the cause of action, it will generally be sufficient to say it arises under the federal jurisdiction statute. (3) Exception: even though Congress created a cause of action, if Congress directs that the substance of the law to be applied is state created, the cause of action may not be deemed to arise under federal law. b) Held: No jurisdiction c) Notes: Court has not addressed this type of situations since this case.

d.

When Plaintiff Does not Allege Cause of Action Based on Federal Law, But There is Still Federal Question Jurisdiction
1)

RULES a) Plaintiff‘s state law claim must depend on a federal law that creates the cause of action. b) Must have a federal right of action that is somehow enmeshed in the state cause of action. c) If there is no federal right of action, no matter how strong the federal interest, no federal question jurisdiction. Case - Smith v. Kansas City Title & Trust Co. (US 1921) – 452: a) Facts: Action brought to enjoin corporation from purchasing certain bonds. Shareholder claims the statute that authorizes the investment is unconstitutional and the investment is impermissible. b) Held: There is federal jurisdiction. c) Reason (1) TEST: A case can fall within general federal question jurisdiction if the plaintiff‘s complaint establishes that the right to relief depends on the construction and application of the constitution or the laws of the United (2) States - See p453 – Rule. (3) TEST Applied: (a) There is enough of a federal question that is integral in plaintiff‘s complaint. (b) Reason for suit is that issuance of bonds is unconstitutional.

2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d) 3)

Notes: Is Smith consistent with Moore?

Case - Moore v. Chesapeake & Ohio RR (US 1934) – p453: a) Facts: (1) Employee sued under state statute that incorporated portions of a federal statute for personal injury. (2) Violations of the federal statute negates any defense of contributory negligence on the part of the plaintiff; the incorporated federal statute did not create the cause of action. b) Held: No jurisdiction over a claim based on state law that incorporates federal statute. c) Reason: (1) State statute did not give plaintiff a specific remedy for violation of federal statute. (2) The only way the federal statute comes involved is by way of a reply to a defense. d) Notes – is Moore consistent with Smith? (1) Smith dealt with the constitutionality of a federal statute: federal issue was whether the issuance of the bonds was unconstitutional. (2) Moore dealt with a state cause of action that was not fundamentally changed by incorporation: federal issues only came up as a reply to a defense. Not enough to give federal jurisdiction. (3) See Merrill Dow. Case - Merrell Dow Pharmaceuticals v. Thompson (US 1986) – p455:
a)

4)

??? RULE: where P alleges violation of fed statute as element of state law c/a, and Congress has determ there should be no federal private c/a for violations of that statute, then case does not arise under 1331. Facts: (1) Tort suit for birth defects. Defendant‘s violation of Food, Drug Act constitutes negligence per se. (2) Everyone thought there was an implied c/a but P wanted to be in state court. Held: No federal question jurisdiction. Reason: (1) The FDCA does not create a private cause of action. (a) Court assumes Congress did not intend to create a remedy, and to imply a remedy by giving jurisdiction would contravene Congress‘ intent. (b) Congress specifically gave the authority to enforce the statute to the FDCA. (c) The Court is only going to allow the agency (not individuals) to sue in FCs on these types of causes of action. (2) 2 ways to look at Congress intent here: (a) Congress could have been saying there are no private remedies for violations of FCDA: this would preempt all state claims too – CT rejects this view. (b) Congress did not want to create private remedies under federal law.  Why would Congress not want to create private remedies under federal law?  Congress did not want to expend federal resources  Congress wanted to leave states the discretion to allow private enforcement of FDCA through state tort law.

b)

c) d)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I



Does it matter which one of these motivated Congress?:  If it is first, then Stevens is right.  If it is the second, then Brennan (dissent) is right.

e)

Notes: (1) Example of implied c/a of action (2) Satisfies well-pleaded complaint rule. (3) Case significantly cuts back on Smith, notwithstanding Moore. (4) But holding in Merrill Dow does not actually effect cases factually similar to Smith.

4.

Well-Pleaded Complaint Rule:
a.

The Well-Pleaded Complaint Rule: federal question in a suit must arise on the face of the well-pleaded complaint in order to raise a federal question. Rationale: avoids expenditure of federal resources on a case that might not contain a federal issue at all. Criticisms of Well-Pleaded Complaint Rule 1) If the defense based on federal law is raised, state courts will be adjudicating these issues. a) FCs should be allowed to adjudicate cases of federal importance (those based on federal law). b) Uniformity would suffer. 2) Rule does not effectively decide which cases have a strong enough federal interest. Related Rules
1)

b.

c.

d.

Plaintiff cannot file suit in, and the defendant cannot remove to FC, unless it is clear from the face of the well-pleaded complaint that there is a federal question. ??? If the defendant then raises a federal issue in a counter-claim, that is not sufficient to remove the case from state to FC – I thought this would be okay. If plaintiff chooses not to present a federal claim, even though one is available, and simply sues on the state cause of action, the defendant cannot remove the case to FC. a) Plaintiff does not have to bring a federal cause of action even though one is available. The plaintiff cannot defeat removal by omitting to plead a necessary federal question in the complaint. a) Necessary federal component in the case so that the federal statute creating the cause of action is required to decide the case. (Merril Dow).

2)

3)

4)

e.

Declaratory Judgments & Well-Pleaded Complaint Rule (See Younger Abstention)
1)

Skelly Oil (US 1950) – p465:
a)

RULE: (1) There is no FC juris if but for availability of DJA, the federal claim would arise only as a defense to the state created c/a.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(2) Unless declaratory judgment could have been brought in FC to begin with (i.e. there

was an independent basis for federal question jurisdiction), and not removed because there is a declaratory judgment action, then the case must be filed in state court. (3) Consider the case absent the declaratory judgment action and the plaintiff‘s wellpleaded complaint must raise an issue of federal law.
b)

Facts: (1) Skelly and Phillips enter agmt contingent upon 3rd power getting Commission approval by certain date. Skelly refuses to perform. (2) Declaratory Judgment Act: permits bringing action for declaration of rights if there is actual controversy b/w the parties. (3) For a long time courts ruled they did not have power to issue declaratory judgments b/c worried about advisory opinions – but s2201 (Declaratory Judgment Act) said courts could. Held: no FC juris if but for availability of DJA, the federal claim would arise only as a defense to the state created c/a. Reason (1) Cannot circumvent the well-pleaded complaint rule. (a) What would Skelly have raised if there was no Declaratory Judgment Act?  Phillips (P) would have sued Skelly and it would have been state law breach of K action.  Federal claim would have been raised by Skelly (D) as a defense (and we know Mottley prohibits this).  ??? Declaratory Judgment Act allows P to plead affirmative c/a on a federal issue but still does not help here. (b) ??? What would happen in Mottley? Notes: interpreted narrowly, else exception would swallow well-pleaded complaint rule.

c)

d)

e) 2)

??? Case - Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California (US 1983) – Brennan – p459:
a)

Facts: (1) Centralized vacation fund established. Franchise tax board (state agency responsible for collecting state income taxes) assessed income tax on the trust fund. (2) Trust argued it is exempt from taxation because it involves ERISA. (3) ERISA says the state cannot collect taxes from them. (4) Tax board sues in state court claiming (1) they are owed their money and (2) they want a declaratory judgment that ERISA does not preempt their ability to collect money from the trust. Held: (1) No federal question jurisdiction over claim for tax revenues b/c not meet well pleaded complaint rule. (2) This was a state cause of action. (3) Federal law only applies by way of a defense, so the action cannot be removed to FC.

b)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c)

Held: (1) No federal question jurisdiction over declaratory judgment action. (2) Declaratory judgment: Remedy that allows a declaration of the party‘s rights as long as there is a controversy between the parties. (3) Exception to Skelly Oil: Only if the party that can bring suit under the federal statute files suit first is there federal question jurisdiction. ERISA only allows certain parties to bring suit; state could not do so. Therefore, state‘s declaratory judgment action was not within the scope of ERISA, so no federal question. Reason:
(1) Is well-pleaded complaint rule met? YES, federal preemption issue is a necessary

d)

element of complaint.

(2) Does this case arise under 1331? (a) Meet the Holmes‘ Test from American Well Works? NO, does not meet b/c this (b) Meet Smith/Merrill Dow principles? NOT CLEAR – PROBABLY YES b/c CT

is state c/a.

has frequently recognized federal c/a to establish preemption – not clear whether this is from Supremacy Clause or federal law doing preemption.
(3) Skelly analysis still applies even though this is state declaratory judgment

action but CT says application of Skelly to this kind of case is unclear.

(4) In what circumstances will FC take juris over declaratory judgment claims? (a) ??? RULE: FCs have original juris over declaratory judgment suits if either

litigant could have brought a coercive action that would arise under federal law p467: (b) Exception: ERISA only gives a c/a to certain parties – ERISA does not give state right to bring action in FC and does not give Board right to remove case to FC. (c) Applied:  Board could have brought action here in FC.  This is not what we have here – state here brought the action.  ERISA does not give state right to bring action in FC and does not give Board right to remove case to FC.
(5) No field preemption here (6) ??? Defendant cannot obtain declaratory judgment in FC unless the plaintiff‘s

original cause of action includes (or would include) a federal question.
(7) ??? Even though the relevant federal statute authorizes declaratory judgment

actions, there is no federal question jurisdiction unless there is a federal issue independent of the declaratory relief. jurisdiction.

(8) ??? Declaratory judgment cannot expand or form the basis for federal question

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(9) Exception: Taylor-type total preemption. e)

Notes (1) Compare to Taylor – p473 (a) Exception to Well-Pleaded Complaint Rule: Congress may so clearly preempt area that any civil complaint becomes federal in character. (b) Reason: Compare to Franchise b/c there is total preemption here: preemption provision here had such a strong preemptive effect that it was not just a defense to state claim, it made whole claim inherently federal.

f.

Total Preemption of Field
1) 2)

Rule Case - Metropolitan Life Insurance Co. v. Taylor
a)

Facts: Taylor was insured by Met Life. There was a dispute about whether he was disabled and was fired. He sued for breach of employment contract. Defendant‘s removed under ERISA. Held: there is federal question jurisdiction Reason
(1) Preemption alone is not sufficient to warrant removal (Franchise Tax). (2) Preemption Plus: (a) Congress can preempt the entire area of law so that every suit in the area is a (b) Congress has outlawed the state claim and made the entire matter inherently (c) ERISA is an example of preemption plus. (3) Determining whether Congress intended to preempt all claims in an area

b) c)

federal claim. federal.

Twitchell‟s Three Part Test - p476: (a) Whether Congress has given plaintiff an express cause of action for some of the relief sought in state court. (b) If so, whether defendant could reasonably argue that Congress intended that the regulatory scheme preempt plaintiff‘s asserted state claim; and (c) If so, whether in fact the state claim is pre-empted. pleaded complaint rule requires, therefore there was a federal question and removal was proper.

(4) Here, plaintiff omitted to raise a necessary federal statute, which corollary to well-

d) g.

Notes: provides exception to Franchise Tax and other well-pleaded complaint rules.

Analysis:
1)

Is well-pleaded complaint rule met (see Mottley)?

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

g) 2)

Only need to show federal standard is relevant to P‘s c/a.

Does federal law create a c/a (see American Well Works)? c) Generally, if federal law creates a c/a, then there is arising under juris. d) RARE Exception (see Shoshone). If state law creates c/a, may still have federal question juris under Smith? d) Right to relief under state law depends on resolution of substantial federal question. e) Smith Rule Limited by Merrill Dow: where P alleges violation of federal statute as an element of state law claim AND Congress has determined that there should be no explicit or implicit federal c/a for violations of that statute, then no fed juris. (1) ???Question under Merrill Dow: Whether Congress intended federal element to be enforceable through a federal c/a? (a) You will almost always fail this test if you failed American Well Works (b) But this rule would not apply to Smith. Is this Declaratory Judgment? a) Skelly Oil Rule: no federal juris if but for availability of . . ., federal claim arises only as a defense to a state c/a – see above. b) GENERAL RULE: Skelly Oil is satisfied and federal juris exists if either litigant could have brought the coercive action (suit for damages or injunctive relief) that would arise under federal law. c) EXCEPTION (Franchise Tax): No federal juris over declaratory judgment removal actions if only the D could have brought the coercive action under federal law AND that federal law does not say that such suits must be brought in FC. d) EXCEPTION TO EXCEPTION (Taylor): there is federal juris if Congress so preempts an part area than any complaint raising claims that fall within this area, become federal in character.

3)

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

B. DIVERSITY JURISDICTION   

What is it? Complete diversity rule Meaning of citizenship
1.

Summary & Analysis
a.

Complete Diversity Rule: diversity juris not exist unless each D is a citizen of a different state from each P (Strawbridge). 1) Complete diversity is not constitutionally required – thus, Congress could change complete diversity requirement. Diversity Requirements for Third Party Defendants: 1) (Kroger) 2) s1367(a): allows D to implead a party from same state as P so long as P does not assert a claim against 3d-party D. 3) s1367(b): prevents a P from asserting a claim against a D from the same state – P cannot evade s1332 via s1367(b). 4) Open issue: can 3d party D assert claim against non-diverse P? Meaning of “citizenship”

b.

c.

2.

28 U.S.C. § 1332:
a.

TEXT of 28 U.S.C. § 1332: District courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between: 1) Citizens of different states 2) Citizens of a state and citizens or subjects of a foreign state 3) Citizens of different states and in which citizens or subjects of a foreign state are additional parties; and 4) A foreign state, defined in section 1603(a) as plaintiff and citizens of a state or of different states. For the purposes of this section, section 1335 and section 1441, an alien admitted to the United States for permanent residence shall be deemed a citizen of the state in which such alien is domiciled. Art. III of Constitution provides FCs will have jurisdiction over certain types of cases Congress can limit that jurisdiction through statute. 1) Constitutional provision is the limit to Congress‘ ability to give jurisdiction. 2) It gives Congress the power to regulate district courts. 3) Statute has been interpreted much more narrowly than the constitutional provision. Purpose of Diversity Jurisdiction:
1)

b.

c.

Protect out of state residents from court bias.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2)

Justice Friendly challenges the idea of court bias: a) Says there is not hostility to out of state residents but there is hostility against out of state business interests. b) Thus, purpose of diversity juris is to protect commercial interests: (1) To protect against state legislatures from enacting certain laws biased against merchants. Most people agree neither of these are real problems anymore. a) This leads some people to argue that we should get rid of diversity jurisdiction.

3)

d.

Merit of Retaining Diversity Jurisdiction
1) 2)

Eliminates bias against out-of-state litigants (arguable). If it were eliminated, it would transfer cases from a crowded federal docket to a crowded state docket. Allows actions to be brought in more assessable locations. a) FCs are usually located in more urban areas; easier access to the courts. Educational value: a) Federal system frequently adopts rules that either are designed or become model rules for the states. Federal system is doing a good job. a) There are no problems with the system as it is.

3)

4)

5)

e.

Arguments to Dispense with Diversity Jurisdiction:
1)

Complexity of system: a) Erie problem would be eliminated if there were no diversity jurisdiction. Burden on FCs: expensive to the federal government. Charles Allen Wright says there is no real evidence of a bias problem. a) Counter: (1) There may not be specific evidence of a bias, but there is the perception of a bias. (2) Parties would rather litigate in FC. (3) Irrational fear of a bias may keep you from acting in the area to stop the threat of defending a suit there.

2) 3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

Complete Diversity Rule:
a.

RULE: diversity juris not exist unless each D is a citizen of a different state from each P. 1) Complete diversity is not constitutionally required – thus, Congress could change complete diversity requirement. Case - Strawbridge v. Curtiss (US 1806) – p483: 1) Facts: citizen of MA sued citizens of MA and VT. 2) Issue: whether complete diversity was required. 3) Held: Complete diversity is required. 4) Reason a) Rule: complete diversity does not exist unless each defendant is a citizen of a different state from each plaintiff. b) Rationale for Complete Diversity Requirement: (1) If the purpose is to avoid state bias, why wouldn‟t minimal diversity be sufficient? (a) If there is a minimal diversity requirement, there would be no reason for bias. (b) Any decision for a party will necessarily negatively impact another person from the same state. (c) Therefore, it furthers the purpose of protecting against out of state bias. (d) This rationale does not always work (2) Keeps a # of cases out of FC: (a) Minimal diversity would significantly increase the number of cases that can be heard in FC. c) Criticism of complete diversity rule: (1) Dual litigation: P that wants federal forum may omits certain parties (D) from suit - increases the chance of dual litigation in state and FC (inefficient) – and may lead to inconsistent results. Complete Diversity Requirement Rule for Third Party Defendants:
1)

b.

c.

??? RULE: ct cannot assert juris over claim by P against non-diverse third-party D. a) Rationale: we do not have same concerns that we do when P brings claim (worry P will only bring claims against diverse D and wait for diverse D to bring in non-diverse D, and thus, get around complete diversity requirement). b) Although cts have not decided this issue, the text of 1376 does not prohibit ct from exercise juris over claim by third-party D against non-diverse P. Case - Owen Equipment & Erection Co. v. Kroger (US 1978) – Stewart – p487: a) Facts: Plaintiff‘s husband was electrocuted and she sued in FC. Plaintiff: Iowa resident. Files third-party complaint against Owen. Defendant: Nebraska resident. Defendant impleaded Owen. At time impleaded, Owen claims to be a Nebraska company, but it turns out they are from Iowa. b) Held: No juris b/c complete diversity requirement not met. c) Reason: Plaintiff cannot defeat statutory requirement of complete diversity by only suing those defendants who were diverse, waiting for the defendant to implead others and then sue them as third parties. Codified in 28 U.S. C. s 1367(b):

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a)

Claims by Plaintiffs (1) Prohibits supplemental juris over claims by P against persons made parties under various joinder provisions when exercising juris over such claims would be inconsistent with requirements of 1332. Claims by Defendants Over Non-Diverse Parties
(1) RULE: ct may assert juris over claim by third-party D against non-diverse P, even (2) Rationale – statute does not prohibit claims by defendants: statute only

b)

though in its face, there is not complete diversity.

prohibits claims by plaintiffs against persons made parties. (a) Purpose of § 1367(b) and Owen was only to prevent plaintiffs from circumventing the rule: want to prevent the plaintiff from abusing diversity jurisdiction statute by being able to assert their claims against the party they want to eventually. (b) Where the defendant is asserting a claim, the same concerns are not raised, in part because the third party defendant did not initiate the suit, did not choose the forum and is not trying to circumvent the statute.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Meaning of Citizenship:
a.

Requirements: 1) Citizen of United States 2) Domiciled in a particular state Domiciled in a particular state requirement for INDIVIDUALS:
1)

b.

RULE: domicile is the permanent home to which he or she plans to return whenever absent therefrom. a) Elements: (1) Physical presence (2) Intent to remain: (a) Focus is on person‘s course of conduct: person‘s course of conduct is more significant that what personally actually says (b) Indications of intent  Place of permanent home  Place of employment  Auto registration  Voter registration  Property ownership General rules on domicile for individuals: a) Can have only one domicile. b) Diversity determine at time that you file the suit (or at time of removal). c) Change in domicile after filing suit is irrelevant.

2)

c.

Domiciled in a particular state requirement for CORPORATIONS:
1)

Principal place of business: a) Three approaches: (1) Corporate decision making/corporate nerve center: some courts look at where corporate policy is made. (2) Where assets of corporation are located. (3) Where the most corporate activity takes place: some courts simply look to where the headquarters of the company are and deem that the principle place of business. State of incorporation: a) What happens if corp is incorporated in more than one state? (1) Current approach: a corporation can be a citizen of each state in which they are incorporated. (2) Old approach: Some courts look to see where the corporation was incorporated and in which of those states they were sued or sued first

2)

d.

Domiciled in a particular state requirement for Unincorporated Associations:
1)

RULE: unincorp associations are deemed citizens of each state where they have members. a) Rationale: not treated same as corps – congress can do it.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2)

Case - United Steelworkers of America AFL-CIO (US 1965) – Fortas – p476: Facts: NC corporation sued an unincorporated labor organization. The labor union tried to remove to FC by argued its principle place of business was PA, so there was diversity. b) Held: unincorporated associations are not treated like corporations for the purposes of citizenship. There may be good reasons for treating them the same, but Congress should be the one to decide.
a)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

C. THE SUBSTANCE/PROCEDURE PROBLEM

(See also Diversity Jurisdiction and State Law in FCs)
1.

Summary & Analysis
a.

Current Analysis
1)

Is there a direct conflict between state and federal law?
a) b)

If NO - apply both If YES - is there a valid federal statute or federal rule of procedure on point?
(1) If YES - apply Hanna (a) If it is a FRCP, see if it is constitutional under the Rules Enabling Act –

arguably procedural. (b) If it is a federal statute, see if it is constitutional

(2) If NO - would the application of state law likely determine the outcome of the suit

and fail the twin aims of Erie (prevent inequitable administration of laws and forum shopping)?
(a) If NO - apply federal law (b) If YES – (even if application of federal law will determine the outcome of the

case and promote the two evils Erie tried to prevent) is there an overriding federal interest justifying the application of federal law?
 

If YES - apply federal law If NO - apply state law

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

What is Origin of the Problem?
a.

Congress has the Power to Create Procedural, But Not Substantive Law: 1) Background: a) In Erie, Brandies said the court is powerless to declare substantive rules of common law applicable to the states. b) Justice Reid said, concurring, that no one doubts that there is authority with regard to procedural matters. c) As a result, Erie drew clean line between substance and procedure – general rules. (1) Substance - governed by state law (2) Procedure - governed by the Federal Rules. Conflicting Language in Rules Enabling Act: 1) Gives the Court the power to prescribe general rules of practice and procedure in FCs. 2) But, such rules shall not modify, abridge or enlarge any substantive rights. a) Therefore, also seems to draw a distinction between substance and procedure.

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

Old Approaches to the Substance/Procedure Problem - The Principles Upon Which the Current Analysis Was Founded:
a.

Substance/Procedure Test - Sibbach v. Williams (US 1941) – p503:
1)

Facts: a) Woman injured in Indiana but brought suit in Illinois FC. b) She did not want to submit to a physical exam. c) Illinois procedural rule said no exam. d) The FRCP and Indiana said an exam was necessary. e) She is arguing (1) that the exam rule is procedural and ct is in IL so IL rule should apply, and (2) the FRCP rule of procedure is invalid, therefore it cannot apply. Held: the FRCP are valid. Reason a) Congress‟ authority to regulate rules of practice in FCs . . . (1) Flows from necessary and proper clause. (2) Authority can be delegated pursuant to the Rules Enabling Act.
b)

2) 3)

Test to Determine Whether Rule Falls Within Congress‟ Power to Delegate Authority and Authority to Regulate Practice or Procedure: (1) Whether a rule really regulates procedure, -- the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them. (2) If the rule fits the test, it is a rule of procedure, even if it includes substantive aspects, and it is a valid exercise of power under the enabling act.

4)

Notes a) This was the first real challenge to Federal Rules of Civil Procedure b) Problems with Test In Practice: (1) Implicit in the decision is that there is a clear line between matters of substance and matters of procedure. (2) The test assumes there is clear line b/c substance and procedure but this is not the case.

b.

Outcome Determinative Test - Guaranty Trust v. York (US 1945) – Frankfurter – p505:
1)

Facts: a) Suit against trustee brought in FC under diversity. b) If brought in state court, would have been thrown out because statute of limitations expired. c) Argument: FC should apply the state statute of limitations which would bar the suit. Issue: whether state statute of limitations should apply, or whether FCs have equitable powers to allow this action to go forward. Held: state SOL should apply.

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4)

Reason:
a)

Rationale behind Erie – p506: outcome of litigation in FC should be substantially the same as outcome that would happen in state court. Substance/Procedure Distinction is Inadequate: (1) CT rejects idea that there is clear cut distinction between substance and procedure. (2) Substantive and procedural laws seem to overlap depending on the context. Outcome Determinative Test: (1) Test: (a) whether the state law in question is likely to determine the outcome of the case. (b) If a state law would be outcome determinative, then apply state law. (2) Rationale: b/c of rationale behind Erie. (3) CT should look at whether the law at issue significantly affects the right of recovery/remedy Test Applied: state statute of limitations should apply because it is outcome determinative.

b)

c)

d)

5)

Notes: a) Criticisms of Decision: almost anything could be outcome determinative, even purely procedural requirements (such as the size paper the briefs must be on).

c.

Outcome Determinative Test Applied
1)

Case – Ragan (US 1949) – p513: a) Facts: FRCP Rule 3 says an action is commenced simply by filing a complaint in FC. State statute says the action is not commenced until the defendant is served. Defendant was not served until after the state statute of limitations had run. b) Issue: which law governs? c) Held: state law applied because it was outcome determinative. d) Reason: (1) If this action was brought in state court, it would be time barred. (2) CT applies outcome determinative test from York and looks to see whether the law is outcome determinative, which it finds it to be. e) Notes: the holding of this case poses most direct challenge to FRCP. Case – Woods (US 1949) – p514: a) Facts (1) No FRCP on point (later people have thought Rule 17 was) (2) Mississippi statute barred a foreign corporation from bringing suit in state court unless certain requirements are met, which were not. b) Held: state law applied because it was outcome determinative. c) Reason (1) Court applied outcome determinative test (2) A case in FC should have no more life than in state court. d) Dissent: Miss state SOL rule only applies to Miss courts - has nothing to do with seeking relief in other courts. e) Notes

2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) Neither the majority or the dissent noted FRCP 17(b) which provides that a

corporation‘s ability to sue or be sued should be determined by the law under which the corporation was organized. (a) Court instead looks to the law of the state where the corporation tried to sue. (b) Raises the issue of whether Woods implicitly overruled Rule 17(b). (c) Others felt the Mississippi statute is best characterized as a jurisdictional bar. (d) Rule 17 deals with capacity to sue. (e) Therefore, Rule 17 was not at issue.

3)

Case – Cohen (US 1949) – p515: a) Facts (1) Stockholders derivative action in FC. Plaintiff were required by state statute to post a bond for defendant‘s attorney‘s fees and costs if plaintiffs lost. (2) Plaintiff relied on FRCP 23 which is silent to whether a bond has to be posted. (3) State statute was therefore inapplicable because the Rule states all requirements to bringing action in FC. b) Issue: Whether the state statute applied in FC c) Held: State statute was substantive as well as procedural. d) Reason (1) State statute is substantive right b/c it created a new liability where none had existed before. (a) Where a stockholder brought an action, they had a new liability of the bond. (b) Viewed as more substantive than procedural. (2) FRCP 23: Found the Rule did not conflict with NJ statutory requirement – says the two rules coexist – none of the provisions of the Rule were contradicted by the state statute. e) Dissent (1) Cause of action is separate from this rule. (2) Requiring someone to post bond has nothing to do with this cause of action, therefore it is not substantive. Trilogy of cases seemingly apply York outcome determinative test, but in doing so, throws into doubt the validity of all of the Federal Rules of Civil Procedure. a) Unclear after the trilogy whether any rule will withstand a conflict with a state rule. b) Not clear whether any of the federal rules would be valid in face of conflicting state rules.

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

The Impact of the Byrd and Hanna Cases:
a.

Balancing Test - Byrd (US 1958) – p517: 1) Facts a) SC provides for a judge deciding this issue – federal law says jury should decide the issue 2) Held: federal rule wins out 3) Reason: a) CT says outcome determinative is NOT only test and not only factor. b) Balancing Test: Balances federal policies (re: how fed court should be run) WITH policy of Erie (policy of providing same outcome in FC as in state court). c) Test Applied: overriding federal interest should be applied here even though state rule is outcome determinative. 4) Notes: a) CT is moving from purely outcome determinative test to balancing approach. b) CT has not yet addressed a case where there is a direct conflict b/w state rule and FRCP.

b.

Hanna v. Plumer (US 1965) – CJ Warren – p519:
1)

Facts: a) P met requirements of FRCP 4(d)(1) but not Mass process requirements. (1) Mass: has 1-year service of process requirement plus have to serve by hand or file notice with probate. (2) FRCP: provides for service of process under federal rules ??? Held: Reason
a) b)

2) 3)

D argues, relying on Ragan, that . . . CT says Erie has 2 policy considerations – p523: (1) Whether failure to apply state law will result in forum shopping. (2) Avoidance of inequitable administration of law. But CT does not apply outcome determinative test, does not apply Erie here – instead looks to see whether Rule is within the authority of the Rules Enabling Act New Test – p525: (1) Test: when you have direct conflict b/w FRCP and state rule, determine whether FRCP is valid under Rules Enabling Act [determine this by ask whether FRCP is rationally capable of being classified as procedural (arguably procedural is enough)] Test Applied:

c)

d)

e) 4) c.

Notes: upholds validity of FRCP in face of conflicting state rule.

Subsequent Applications of these decisions:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

1) 2) 3)

Walker Ricoh Szantay

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

5.

The Current Analysis A. If There is a Direct Conflict, Is There a Valid Federal Statute on Point? (Ricoh (1988)) 1. A federal statute that is on point and is a valid exercise of Congress‟ power overrides state law a) RDA only requires state law when there is no controlling federal statute on point

B. If There is a Direct Conflict, Is There a Valid Federal Procedural Rule on Point? (Hannah (1965)) 2. Congress does have the authority to promulgate procedural rules (Sibbach (1941)) 3. Was the rule promulgated according to the REA? (Hannah) a) As long as rule can rationally be categorized as procedural, then it is within the scope of the REA and must be applied (1) Does the rule regulate ―the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them‖? (Sibbach)

C.

In the Absence of a Direct Conflict, Would State Law be Outcome-Determinative and Would the Failure to Apply It Frustrate Erie‟s Goals? (Guaranty Trust (1945) & Walker (1980)) 1. Analysis a) Will state law in question likely determine the outcome of the case? (Guaranty Trust) (1) If YES, Apply state law (2) If NO, Apply fed law b) Would failure to apply state law raise concerns about forum shopping or the inequitable administration of law? (Walker)) (1) If YES, Apply state law (2) If NO, Apply fed law 2. What did Guaranty Trust Court mean by ―outcome-determinative‖? a) ―As to consequences that so intimately affect recovery or non-recovery a federal court in a diversity case should follow State law.‖ Problem with test a) Anything can be outcome-determinative b) Later cases — Palmer, Cohen, Ragan & Woods — led to fears that F. R. Civ. P. couldn‘t be used in diversity cases (Hannah resolved this)

3.

E.

If State Law is Outcome-Determinative, Is There an Overriding Federal Interest (Byrd v. Blue Ridge Electric Cooperative, Inc. (1958)) 1. Federal law should be applied where there is an important, overriding federal interest 2. Balance the federal interest with the importance of providing the same outcome in federal court as would exist in state court

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

6.

The Full Analysis with Case Information

Is there a Federal Rule of Civil Procedure? a. Yes: 1. Is there a direct conflict between federal and state law? a. No: 1. 2. Apply Both or One Court of Appeals‘ Approach (Szantaty v. Beech Aircraft) a. Facts: Plane crash. Victims‘ families brought a wrongful death action in SC. State statute prohibits state courts from exercising jurisdiction over suits brought by nonresidents against foreign corporations arising from incidents in another state. b. Three-Step Analysis 1. If the state provision, whether legislatively adopted or judicially declared, is the substantive right or obligation at issue, it is constitutionally controlling. 2. If the state provision is a procedure intimately bound up with the state right or obligation, it is likewise constitutionally controlling. 3. If the state procedural provision is not intimately bound up with the right being enforced but its application would substantially affect the outcome of the litigation, the federal diversity court must still apply it unless there are affirmative countervailing federal considerations. a. This is not deemed a constitutional requirement but one dictated by comity. c. There were important federal interests at stake which outweigh the state interests involved. 1. Statute designed primarily to relieve state courts from hearing cases that don‘t have much to do with the state. a. Therefore, not important state interests in enforcing the state law, but important federal interests in not enforcing the rule. d. Distinguishing from Hanna or Stewart 1. There was no federal rule that applied or conflicted with state law. Nonetheless, state law does not control.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Because no conflicting federal law, does not go through Hanna analysis; goes through Erie analysis, with Byrd balancing tacked on.

b. 2.

Yes…

Is there a federal rule or statute on point? a. Yes 1.

Hannah v. Plumer Truly Regulates Procedure Rule
a.

b.

c.

d.

Facts: Service in law suit was made to defendant‘s wife. Respondent claimed this violated state law that said summons had to be delivered in hand or comply with a different procedural rule. 1. Service complied fully with Federal Rule. Applicability of Erie 1. Policies Underlying Erie a. Discourage forum shopping b. Avoidance of inequitable administration of the law 2. Court concludes Erie does not constitute the appropriate rule to test the validity of a federal rule. a. Every rule could be seen as outcome determinative. Rules Enabling Act 1. Test: Whether the rule truly regulates procedure. a. If so, then federal law applies. 2. Determining Substantive v. Procedural Rules a. To the extent a rule is rationally capable of being classified as procedural, that is sufficient. a. So long as a reasonable person can characterize the federal rules as procedural. (Concurring‘s view). b. Whether it falls within the Rules Enabling Act; to do so it must be procedural. 2. Conclude that the federal rule is valid and that it governs the present action. Harlan, J., concurring 1. Finds the test the Court adopts to be too far from York. a. Now, there is a presumption that the

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Rules are valid. 1. As long as a law is arguably procedural, it will be valid. 2. Takes issue with this as too lenient a standard and arguably intrudes on states or state substantive law. 2. Distinguishing Hanna from Megan & Cohen a. Approach is different, but result is the same. b. Hanna Court does not have to say those cases are overruled because in those cases, there was no direct conflict between the state law and the federal rule of procedure. 1. None of the previous cases dealt with the situation presented here, therefore distinguishable. 2. Therefore, when there is a direct conflict, this is the test that should be applied. If Hannah test not met: a. Law is substantive: Apply state law. 1. Marshall v. Mulrenin 1. Facts: Diversity action naming the wrong party as D. After the claim is filed and the statute has run, they want to substitute the correct party. a. Rule 15 did not permit the parties to relate back the amendment to the complaint. b. State statute would have allowed the relation back. 2. Analysis a. Did not apply Hanna, even though it appears that there is a conflict between the federal and state rule. b. Held court must apply the MA statute because it is substantive. 1. Hanna dealt with a strictly procedural rule. 3. Following this case, other circuits, including the Third Circuit, held the opposite way. 4. Federal Rules were amended in 1991 to take into account this decision and to allow federal district courts to take into account state statute of

3.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

limitations that allowed relation back. a. Rule 15(c) will apply, but to the extent there is state law that permits relation back that is broader than the federal law, apply state law. b. Because the federal rules address this issue, they are presumptively valid under Hanna. b. No: Apply the policies of Erie 1. Would applying federal law result in (1) forum shopping or (2) inequitable administration of the law (outcome determinative)? a. Walker v. Armco Steel Corp. 1. Facts: Summons not delivered until after statute of limitations had run. a. Federal rule says action is commenced upon filing of complaint. b. State rule required personal delivery. 2. Held: There is no direct conflict between FRCP 3 and the state statute, therefore policies of Erie should be applied to determine what law to apply. a. No conflict because there is no indication that Rule 3 was intended to toll the statute of limitations. b. Because there is no conflict, do not go through Hanna analysis. 3. Policies of Erie a. Prevent forum shopping and the inequitable administration of law. b. Does failure to apply state law raise either of these concerns? 1. Held there was no problem with respect to forum shopping. 2. Would be concern with second issue: a. Failure to apply state law would result in inequitable administration of law (outcome determinative test). c. Therefore, state law applies.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Yes: Apply Byrd Balancing Test (Byrd v. Blue Ridge) a. Facts: Plaintiff injured and sued employer of his contractor. 1. Question was whether he had to sue under the workers‘ compensation act – whether he was a statutory employee, and whether the issue should be decided by a jury. a. State law said that the question should be resolved by a judge. b. Federal practice was that these issues were resolved by a jury. 2. The availability of a jury trial could be outcome determinative. b. Held: Federal rule allowing jury to decide governs. 1. Outcome determinativeness is not the only test. c. Balancing Test 1. Balance the federal interest (consider whether there is an overriding federal interest) against the interest in having the same result in federal and state court. a. Where a law is outcome determinative, federal law can still be applied where there is an overriding federal interest. b. Found an important federal interest—in having a jury decision) and a relatively unimportant state interest. No: Apply federal law.

3. b.

No: Federal Statute (And Possibly Judge Made Rule) Instead 1. Is there a direct conflict between federal law and state rule? a. No: Apply both. b. Yes… Apply Hannah-like analysis: Is the statute sufficiently broad to control the situation and is it a valid exercise of Congress‘ authority under the Constitution? a. Yes: Federal law applies. b. No: State law governs 1. Stewart Organization, Inc. v. Ricoh Corp. a. Facts: Contract included a forum selection provision for New York, but suit was filed in Alabama. Once the case was filed, the defendant wants the case transferred to New York, relying on

2.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

b.

the provision. 1. Alabama law regards forum selection clauses as unenforceable. 2. Federal statute provides for transfers under doctrine of forum non conveniens. 3. District court denied the motion to transfer. Court of Appeals reversed. Held: Alabama law applies. 1. Federal statute was sufficiently broad to cover the issue, and it conflicted with the state statute. 2. Applied something similar to a Hanna analysis except that once it is determined that there is a conflict, instead of trying to determine whether the Rule is procedural, just trying to determine whether the statute is valid.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

D. FINALITY AND APPELLATE REVIEW 

See also Supreme Court Review of State Court Judgments
1.

Summary
a.

Appeals from FC decisions
1)

Finality requirement (28 U.S.C. § 1291) a) 1291 gives court of appeals jurisdiction over appeals of final decisions of district court. (1) Final decision: final decision is a decision that ends the litigation on the merits and leaves nothing for court to do but execute the judgment. Exceptions to the finality requirement (other ways Courts of Appeal can hear appeals from district courts)
a)

2)

Collateral Order Doctrine (see Cohen and Coopers & Lybrand): (1) Definition: appeals are allowed from order characterized as final even though it is clear they do not terminate the proceedings. (2) 3 Requirements (occasionally 4): (a) Conclusively determine disputed question; AND (b) Resolve important issue separate from merits of action; AND (c) Effectively be unreviewable on appeal from a final judgment. (d) No immediate review unless there is a seriously unsettled question – p105. (3) Stays are probably appealable (4) Disqualification order is probably NOT appealable Interlocutory appeals (28 U.S.C. § 1292)
(1) Section 1292(a): (a) Definition: allows appeals from certain interlocutory orders. (b) 3 areas:  Interlocutory orders granting, denying, modifying injunctions  Interlocutory orders appointing receivers (someone who is entrusted with 

b)

assets involved in litigation) Interlocutory degrees determining rights and liabilities of parties to admiralty cases.

(2) Section 1292(b): (a) Definition: allows appellate review of certified questions from district court. (b) Standard: a district court MAY certify . . . .lets CA to hear appeals from district (c) Requirements:  District court must make a certification  Court of Appeals has discretion

court‘s certification ―controlling immediate appeal – materially adva – p553

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c)

Severable claims (F.R. Civ. P. 54(b)) (1) Definition: district court can make an express determination of appealability – see p554. (2) Compare to Section 1292: 54(b) requires ―sufficiently separable claims‖ while 1292(b) requires substantial ground of difference. Mandamus (28 U.S.C. § 1651) (1) Definition: CT has authority to issue all writs necessary and appropriate in aid of their respective jurisdiction - see p 554 (2) Last ditch effort – rarely granted.

d)

b.

Appeals from final decisions of STATE courts
1)

Supreme Court review of state court decisions (28 U.S.C. § 1257) General Rule: CT can review final judgments (same meaning as above) by highest court in state in which a decision could be had (exhaustion requirement – does not have to be state high court). b) Four exceptions when CT can hear state court decision that may not be technically “final” (1) Federal issue is conclusive or outcome in state court preordained (Mills). (2) Federal issue will survive anyway (Brady). (3) Federal issue cannot be review later – now or never (North Dakota Bd. of Pharmacy) (4) Later review would seriously erode federal policy (Cox)
a)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Supreme Court Review of FC Judgments Generally:
a.

Sources of Authority for Review 1) 28 U.S.C. § 1291 2) 28 U.S.C. § 1292(a) 3) 28 U.S.C. § 1292(b) 4) Rule 54(b) 5) Mandamus in exceptional cases. Reasons for allowing review ONLY of final judgments 1) Congress is the one that sets forth the conditions of appeal and they have set forth the finality rule. 2) Protects against repetitive decisions by court of appeals. 3) Court will be able to review on a more complete record. 4) Requiring a final appeal will stop the delay that occurs with interlocutory appeals. Reasons for allowing interlocutory appeals 1) If not allowed immediate appeal in certain cases, important rights could be permanently lost - suffer irreparable injury. 2) Some issues are so readily separable from the case that there is no advantage to waiting for a final decision on the merits.

b.

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3.

Collateral Order Doctrine (28 U.S.C. § 1291 & Cohen & Coopers & Lybrand)
a.

Summary of Collateral Order Doctrine
1)

Doctrine: an order that is immediately appealable because it is an offshoot of the principle litigation a) Doctrine is narrowly construed (small category of cases falls within it) Elements: a) Order must conclusively determine the disputed question; (1) Matter to review must have been finally disposed of by district court so that its decision is not tentative, informal or incomplete b) Order must resolve important issue completely separate from merits of action (1) It must be so independent of the cause itself that the appellate decision need not await disposition of other matters c) Order must be effectively unreviewable on appeal from the final judgment (1) There must be a risk of an important loss of rights if question not immediately review d) Unless there is a serious unsettling question, no immediate review is available (1) Primarily there are only 3 req‘mts to Collateral Order Doctrine (2) 4th req‘mt is only read into doctrine by some FCs (3) 4th req‘mt limits collateral Order Doctrine further No ―death knell doctrine for class action certification (Coopers & Lybrand) a) “Death knell” doctrine defined (1) An order denying class certification is appealable if it is likely to terminate litigation (2) Without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination (3) Appeal should be available from order that has practical effect of terminating action even though formally it doesn‘t b) Why CT rejects “death knell” doctrine (1) The court would be legislating if it accepted the death knell doctrine (2) Waste of judicial resources leading to numerous appeals in same case (3) Contrary to 1292(b) which allows interlocutory appeals (4) Defeats appropriate relationship between courts - thrusts appellate courts into trial process before trial court had ended (5) May work unfairness in some cases to parties Cases satisfying collateral order doctrine a) Cohen: immediately appealable b/c offshoot of principle litigation – irreparable injury would occur if not appealable.
b)

2)

3)

4)

Moses H. Cone

(1) Order conclusively determines disputed question: no reason to think D. Ct.

judge would reconsider stay decision; practically commensurate with dismissal (see p. 551) and general rule is that party can‘t immediately appeal from stay but Moses is an exception

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(2) Resolved important issue: order amounting to refusal to adjudicate merits plainly (3) Effectively unreviewable on appeal: once state court decided issue of arbitration,

presents important issue separate from merits

district court would be constrained under res judicata to honor determination
5)

Cases where collateral order doctrine was not satisfied
a)

Coopers & Lybrand

(1) Order didn‘t conclusively determine disputed question because district court could

revisit and revise decertification order (2) Merits of claim intertwined because issues of fact and law combined in order (3) Order denying class certification can be effectively reviewed on final judgment
b)

Risjord

(1) Effective review could be had on appeal following final judgment (2) Supreme Court also held appeals court improperly reach merits of disqualification

issue (because it said decision would apply prospectively) in violation of § 1291

b.

Requirements of Collateral Order Doctrine under Cohen v. Beneficial Industrial Loan Corp.:
1)

Facts: Shareholders‘ derivative action. State law required that security be posted for suit and defendant‘s demanded plaintiff‘s comply. The district court denied the request for bond ruling the statute inapplicable. Appealed. Held: The ruling is immediately appealable. Reason:
a)

2) 3)

Views this as a collateral order within § 1291: an offshoot of the principle litigation therefore it can be immediately appealed as a final decision. Original requirements of collateral order doctrine:
(1) Order must conclusively determine the disputed question. (a) Matter to be reviewed must have been finally disposed of by district court so

b)

that ruling is not tentative, informal or incomplete. for immediate appellate review of the matter.

(b) Rationale: if the district court will change or alter its decision, there is no need (2) Order must resolve an important issue completely separable from the merits

of the action. (a) Must be so independent of the cause itself that the appellate decision need not await the disposition on other matters.

(3) Order must be effectively unreviewable on appeal from the final judgment. (a) Must be a risk of an important loss if immediate review is not available. (b) Applied: if the purpose of the security requirement is to ensure that the winning

party will collect expenses, if you go through trial and there is no fund, if the loser has no money, the winner will not be able to collect without immediate review.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(4) Case must involve a serious unsettled question. (a) Some courts have interpreted this to mean the collateral appeal is only allowed

if the issue appealed on would raise an important unsettled question that could affect many other cases. (b) Must provide an important question. (c) One that is serious and unsettled. (d) Coopers & Lybrand takes a different formulation on this element.

c.

Current Requirements of Collateral Order Doctrine Under Coopers & Lybrand:
1)

Case – Coopers & Lybrand v. Livesay:
a)

Facts: claimed the shareholders sustained a loss based on their audit of company records because they violated ‗33 and ‘34 acts - district court certified the class and decertified the class. Plaintiffs wanted an immediate appeal of the decertification order. Held: Cohen requirements are not met here. Reason:
(1) CT rejects collateral order doctrine argmt: (2) CT refined (narrowed) the elements of Cohen - Cohen requirements not met

b) c)

here: (a) Conclusively determined: order was subject to revision. (b) Resolve an important issue: class determination was enmeshed with factual and legal merits of the claim. Therefore, not a completely separate issue. (c) Effectively unreviewable on appeal from a final judgment.  Order can be effectively reviewed at final judgment.  Do not include the fourth requirement.

(3) Limits Gillispie to its unique facts. (4) Death Knell Doctrine: (a) Argmt for Death Knell Doctrine:  Appeals should be allowed for an order that has the practical effect of

terminating the action even though formally there is no final judgment. It would not be economically feasible to continue the litigation unless they are a class.  Some courts of appeals have held these decisions are immediately appealable. (b) CT rejects Death Knell Doctrine:  Appears like the court is legislating in this area if it accepted the death knell doctrine.  A waste of judicial resources, could lead to numerous appeals in the same case.  Contrary to § 1292(b) which allows interlocutory appeals.  Favors plaintiffs.


Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I



Defeats the appropriate relationship between the courts: puts the appellate courts into the area of the trial courts and therefore is an improper intrusion on their areas.

d.

Collateral Order Doctrine in Application
1)

General RULE & Rationale: a) If you meet requirements of this doctrine, even though decision may not be technically final (end litigation and leave nothing . . ), court will consider it final for purposes of s1291. b) Rationale: if you do not allow reviews of these orders, then a party‘s rights could be irreparably lost and these orders are easily severable. Collateral order doctrine will be construed narrowly: it is limited to a small class of cases. Reinforcing Coopers & Lybrand:
a)

2) 3)

RULE: collateral order review of disqualification orders is not proper. (1) Rationale: b/c disqualification motions have been used for harassment and delay purpose. Case - Firestone Tire & Rubber Co. v. Risjord:: (1) Facts: Attorney had a potential conflict and Firestone wants him disqualified. The trial court did not disqualify him. Party appealed. (2) Held: Requirements of collateral order doctrine were not met. (3) Reason: (a) Collateral Order Doctrine improper here b/c because parties could have review from an appeal from a final judgment.  Third element not met: it can be effectively reviewed on appeal.  Commentators have questioned this b/c:  Significant harm can be done by allowing atty to remain even if there is consent.  In this case, that probably is true. May not be true in other cases.  The attorney did not have unfair information.  More concern about the settlement being negotiated in favor of one client. (b) Court has also held pretrial orders disqualifying counsel in criminal cases were not appealable until end. (c) Prospective Effect Conclusion:  Court of appeals had also concluded that its decision would only be prospective in effect: did not apply its rule to the case before it.  Court reversed: collateral order doctrine is jurisdictional in a sense that if the court of appeals does not have jurisdiction, it cannot hear the case - The case is then essentially over. (4) Notes: shows that CT limits the orders subject to review under collateral under doctrine.

b)

4)

Appeals from Stay Orders:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a)

RULE: Denials of stays are generally not appealable. (1) Exception: if the case falls within the collateral order doctrine. Case - Moses H. Cone Memorial Hospital v. Mercury Construction Co.: (1) Facts: Breach of contract suit in state court. Hospital wanted a declaratory judgment that it owed nothing to the contractor and that it did not have to arbitrate. Sought an order in FC for arbitration. District court granted stay of its proceedings depending on state court outcome. Appealed from district court‘s decision. (2) ??? Held: (3) Reason: (a) This meets the final judgment rule under s1291: (b) Alternatively, this order meets collateral order doctrine:  Conclusively determine disputed question  Court saw no reason why the district court stayed the action.  Should have dismissed it which would have been appealable.  Separable important issue & effectively unreviewable: once the state court decides the issue of arbitrability, it would be res judicata on the FC and it could not decide the issue. (4) Notes: compare to Gulf Stream Case Case – Gulfstream Aerospace Corp. v. Mayacamas: (1) Facts: Plaintiff sued in state court. Defendant sued plaintiff in FC. Plaintiff in state court action moved for a stay of federal proceedings which was denied. District court denies the stay. (2) Held: generally an order relating to the conduct or progress of the case before the court is not an injunction and therefore it is not appealable (3) Reason: (a) Argument: b/c there is a state court proceeding ongoing, it makes sense to hold the proceedings in FC while the state court action goes on. (b) Argmt that this meets collateral order doctrine (c) Argmt that it is appealable under 1292(a)(1):  There are some issues that are so separable that they do not need to wait to be heard.  May advance the termination of the litigation; promotes judicial efficiency.  CT rejects b/c an order denying a stay is not the equivalent of interlocutory appeal/injunctions: it is akin only to the progress of the litigation, therefore it does not fall within scope of § 1292(a)(1) (d) Argmt that it is appealable under Mandamus: CT rejects

b)

c)

5)

Balancing Approach to 1291:
a) b)

RULE: limited to its immediate facts Case – Gillespie v. United States Steel Corp.: (1) Facts: executor sued seeking relief under Jones act and Ohio wrongful death act. District court dismissed the case as to the Ohio statute and found the brother and sister, upon whose behalf she sued, were dismissed. Plaintiff wanted to appeal these dismissals and petitioned for mandamus. (2) Held:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(3) Reason: (a) RULE: Balancing Test to Determine Whether Order is Final – balance:  the inconvenience and cost of piecemeal review AGAINST  the danger of denying justice in delay. (b) RULE applied:  There is no greater cost of inconvenience for court to decide issue on  (4) Notes (a) Problem with this decision:  Overlooks requirements of 1292(b): they had an available appeal under §

appeal - the parties met the § 1292(b) requirements, so treating this case as appealable meets Congress‘ purpose behind the statute. Balances the two interests and held there could be immediate review.

1292(b) - but district court must make certification, which it did not here Court is willing to overlook this.  Balancing process: Saying an appeal is final simply by weighing the benefits and costs of immediate review would create a significant exception to § 1291 - would allow many more immediate appeals. (b) Gillespie is limited to its immediate facts.  Gillespie seems to be big exception to 1291  CT retreats from this idea in Coopers & Lybrand – p545 n30.  Balancing approach is a special case.  It is only in cases with these special facts where the balancing test should be applied. (c) CT now is very hesitant to take appeal b4 juris has been established: courts must first decide jurisdictional issue b4 discussing merits.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Interlocutory Appeals (28 U.S.C. § 1292)
a.

1292(a) = interlocutory appeals not requiring district court certification (1) Interlocutory appeal from order granting/modifying/denying injunction (major category) (2) Interlocutory appeal from appointing receivers (3) Interlocutory appeal from admiralty orders 1292(b) = interlocutory appeals requiring district court certification: 1) District court can certify non-final order for interlocutory appeal when the order involves a controlling question of law ―as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation.‖ 2) Certification must be written order 3) Court of appeals has discretion to hear the case

b.

5.

Severable Claims (Rule 54(b))
a.

Allows the district court to make an express determination of appealability when the judge decides a decision on some of the claims are sufficiently separable from the remainder of the case. District court judge must decide that some of the claims are sufficiently separable from the remainder of the case. Put in to avoid uncertainty about whether or not something is a final order. Court should raise issue sua sponte – do not have to request this ruling.

b.

c. d.

6.

Mandamus (28 U.S.C. § 1651)
a.

The Court and all district courts have the authority to issue all writs necessary and appropriate in aid of their respective jurisdiction. 1) Defined: order from court compelling whatever you want. An extraordinary remedy available only when there are no other means to obtain relief. 1) If relief can be had by direct appeal, a writ of mandamus is not available. 2) Seek mandamus to compel an official or a judge to do something. a) Frequently come up in front of court of appeals asking the court to order the district judge to rule. Denial of stay is NOT a final decision – Gulfstream

b.

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

7.

Supreme Court Review of STATE Court Judgments:
a.

Generally: 1) See also: a) Federal question jurisdiction b) Supreme Court review of state court judgments c) 11A 2) Different statutes for review depending on whether court is state or FC: a) Appeals from FC are governed by 1291. b) Appeals from state court are governed by 1257. 28 U.S.C. § 1257 1) RULE: Final judgments rendered by highest court of state in which a decision could be had may be reviewed in the Court by writ of cert. a) Requirements: (1) What = “highest court of a State in which a decision could be had”? (a) This is not necessarily state‘s highest court (b) Individual seeking CT review must exhaust all available avenues of appeal within state court system. (c) If state‘s highest court refuses to hear case, can still appeal to CT. (d) Even if rehearing is available, if individual does not ask for rehearing, can still appeal to CT (unless rehearing is matter of right). (2) What = “final judgment or degree” under 1257? (a) Essentially the same rule as in the federal context: a decision is final if it ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment. 4 Exceptions to Finality Rule
 

b.

c.

There are 4 categories of cases where CT has treated state court decisions as ―final‖ Case - Cox Broadcasting Corp. v. Cohn:  Held: there are 4 categories of cases where state court decisions are sufficiently final even though there are ongoing proceedings in state courts.  Facts: TV newsman published the name of a rape victims name. He learned the information from public records. State had a statute allowing a cause of action for this activity. State supreme court agreed a cause of action could be asserted, but reversed grant of summary judgment for plaintiff and remanded on factual issues. Defendant‘s argued they were immune under the 1A. Federal Issue Conclusive or Outcome In State Court Preordained: a) ??? Requirements: (1) There are further proceedings in state court, but the federal issue is conclusive or the outcome is preordained. b) Rationale: when it is clear the remaining proceedings are a formality, there is no reason to postpone review. c) Case – Mills (US 1966) – p560:

1)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) Facts: Defendant demurred to criminal complaint. The only defense available in

the case was a constitutional defense. He could not argue it in state court therefore it could be heard in FC. (2) ??? Held:
2)

Federal Issue Will Survive Anyway a) ??? Requirements b) Rationale: there is a federal issue that ultimately will have to be decided, so no reason to wait until state court proceedings are done. c) ??? Case – Brady v. MD (US 1963) – p560 (1) Issue: D claimed he was entitled to a new trial based on assertion of violation of federal constitutional rights. (2) Held: CT may as well grant cert because the federal issue will be around anyway, regardless of how punishment comes out; regardless of how the state court issue is decided. Federal Issue Cannot Be Reviewed Later (Now or Never Exception) a) Requirements: (1) Now or never exception. (2) Court must take the case now or it will never be able to review the state court‘s decision on this issue. b) Rationale: ensure Court will be able to review state court‘s decision on federal law. c) Case - North Dakota State Board of Pharmacy v. Snyder‟s Drug Stores (US 1973) – p560: (1) If Snyder‘s was denied the license, there would be no review. (2) If Snyder‘s was granted the license, state law prevented the state from appealing. Later Review Would Seriously Erode Federal Policy a) Requirements: (1) Federal issue finally decided by state court. (2) Further proceedings must be pending where party seeking review might prevail on merits of non federal grounds making review of federal grounds unnecessary. (a) It is possible the appealing party might win making review unnecessary. (3) The reversal of state court on federal issue will preclude any further litigation on the case. (4) Failure to immediately review state court decision would seriously erode federal policy. b) Rationale: resources are saved, social good is served by allowing Court review at this stage. c) Case – Cox – p561: this exception applies making the case sufficiently final to bring within § 1257. (1) P met first element b/c . . . (2) P met second requirement b/c if D won on non-federal grounds below then federal issue would be moot. (3) P met third requirement b/c if the state high court reversed, it would end the litigation. (4) P met fourth requirement b/c 1A freedom of the press issue was so important it would be intolerable to leave it for later.

3)

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

d.

Summary Comments on § 1257 and Its Exceptions:
1) 2)

??? Compare Third and Fourth Exceptions Court Construes § 1291 More Strictly Than § 1257.
a)

Arguments that 1257 should be more strictly construed than 1291: (1) Federalism: this is odd b/c one would think CT would construe 1257 more strictly then 1291 b/c of comity and federalism concerns. (2) Adequate and Independent State Ground: state court might reach opposite result that is adequate and independent. Arguments that 1257 should be less strictly construed than 1291:
(1) ??? Big Reason: protect erosion of federal rights in state courts. (a) A lot of these federal rights could be dispensed with by state courts (2) B/c CT has provisions, in addition to 1291, that allow it to hear appeals. (a) Rule 54(b) (b) § 1292 (c) Mandamus (3) ??? Under 1291, interlocutory appeal interrupts state trial court proceedings

b)

but review under 1257 does not have same effect (a) Less of an intrusion on state trial proceedings under 1257 than under 1291.

e.

Exceptions Applied
1)

Case - Southland Corp. v. Keating (US 1984) – p564:
a)

Facts: Franchisees alleged violation of state law by franchiser and sought arbitration under terms of contract. State court held disputes over state law required judicial resolution. Party appealed to Supreme Court. Held: State supreme court decision was final under fourth exception. Reasons: (1) Requirements: (a) First Factor: Federal issue was finally decided by state court: state court held the arbitration clause was inapplicable. (b) Second Factor: Appealing party may prevail on merits and if he did, there would be no need for federal review. (c) Third Factor: Reverse on the state law claim would terminate the action: case would go to arbitration. (d) Fourth Factor: Important federal policy, Federal Arbitration Act, was implicated. Notes: This is like Moses case.

b) c)

d) 2)

Case - Fort Wayne Books v. Indiana (US 1989) – p566:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a)

Facts: D charged with distributing obscene matter in violation of state law and with two RICO counts. RICO charges were dismissed as unconstitutionally vague but state appeals court reversed and remanded. D wants to know if they have 1A defense. Held: State court decision was final under fourth exception. Reason: (1) Requirements: (a) First Factor: State court of appeals upheld state RICO law. (b) Second Factor: If the defendant prevailed at trial, there would be no need to appeal the RICO decision. (c) Third Factor: If the CT reversed state court decision on validity of RICO statute, no prosecution in state court. (d) Fourth Factor: Important federal policy - 1A cases generally will raise sufficient public policy concerns.

b) c)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

V.

ABSTENTION

A. ABSTENTION ANALYSIS:

See 11-16-01 handout.

B. GENERAL PRINCIPLES

1.

Summary
a.

Abstention defined: a FC may decline to exercise, or postpone the exercise, of its jurisdiction in an extraordinary and narrow exception to the general duty of a district court to adjudicate a controversy properly before it. 5 Kinds of Abstention
1)

b.

Colorado River: FCs may abstain and defer to state courts (when there are parallel proceedings) under ―exceptional circumstances‖ a) Factors indicating exceptional circumstances: (1) Is it in rem case? problems occur when state and FCs assume jurisdiction over the same property – do not want inconsistent decision re: property. (2) Inconvenience of federal forum. (3) Need to avoid piecemeal litigation. (4) Order in which proceedings were filed. (5) Existence of federal interest – usually weighs against abstention. Burford: FCs may abstain and defer to state court where exercise of FC review would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern – complex state administrative procedures a) Elements: (1) Is there a state agency/state administrative proceeding? (2) Is there timely and adequate state court review of state administrative agency‘s ruling? (3) Will the exercise of federal review of the question in the case and in similar cases disrupt state efforts to estb a coherent policy with respect to a matter of substantial public concern? Thibodaux: FCs may abstain in diversity cases where there are unclear or difficult questions of state law bearing on policy problems of substantial public import. Pullman: FCs may abstain where state law is unclear and state clarification may make federal/constitutional interference or a federal ruling unnecessary. Younger: FCs must abstain when there is pending state criminal proceeding absent extraordinary circumstances.

2)

3)

4)

5)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Abstention Generally:
a.

General Rule: a FC may decline to exercise, or postpone the exercise, of its jurisdiction in an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it. Abstention is a Judicially Created Doctrine: it was designed to bar the hearing of case even though all jurisdictional requirements are met. Reasons for Abstention 1) Economy & Efficiency: do not want t2 courts hearing same case 2) Federalism: harmony between the state and FCs. 3) Judicial resources Problems: 1) What judiciary is doing is taking legislature‘s role when deciding whether or not to hear cases. 2) ??? What or how do notes on p586 fit in to big picture.

b.

c.

d.

3.

Mere Fact That State Law Is Unclear or Difficult, Alone, Is Not a Proper Ground for Abstention:
a.

RULE: a FC is not free to abstain in a diversity case simply b/c of difficulty or novelty of questions of state law. Case – Meredith - p586: 1) Held: mere fact that a state issue is novel or different or difficult is NOT grounds for the FC to abstain. 2) Reason: a) Would thwart diversity. Congress authorized federal district courts to hear diversity cases. b) Would violate separation of powers: (1) Would be a court-made exception to a congressional rule. (2) Judicial nullification of diversity statute

b.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

5 Kinds of Abstention
a.

Colorado River Abstention:
1)

RULE:
a)

CT‟s Language: A FC may decline to exercise, or postpone the exercise, of its jurisdiction in an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it. Abdication of the duty to decide cases can be justified under abstention doctrine ONLY in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest. Requirements for Colorado River Abstention: (1) Only applies when there are parallel proceedings (concurrent juris) in state and FCs: this test explains when FC should abstain if there are on-going state proceedings. (2) Factors indicating exceptional circumstances: (a) Problems occur when state and FCs assume jurisdiction over the same property – do not want inconsistent decision re: property. (b) Inconvenience of federal forum. (c) Need to avoid piecemeal litigation. (d) Order in which proceedings were filed. Application indicators: (1) Will apply every time there is a Younger case. (2) Most common kind of abstention. Notes: This kind of abstention gives lower FCs the most trouble.

b)

c)

d) 2)

Case – Colorado River Water Conservation District v. US (US 1976) – Brennan – p577:
a)

Facts: Dispute over water rights. Suits brought in state and FC at same time. Federal government sued first in FC and defendant sued federal government in state court district court granted abstention and appellate court reversed. Issues: (1) Whether McCarran Amendment terminated juris of FCs to adjudicate federal water rights? No – it did not terminate jurisdiction. (2) If jurisdiction is not terminated, was the district court‘s dismissal proper under the abstention doctrine here? YES – abstention was proper here b/c met truly exceptional circumstances test. Held: abstention here is appropriate b/c there are truly exceptional circumstances. Reasons:

b)

c) d)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) General rule for concurrent actions in state and FCs: the pendency of an action

in state court is no bar to proceedings concerning the same matter in a FC having jurisdiction. general principle is to avoid duplication.

(2) General principle for duplicate actions in FCs: there is no precise rule but (3) Traditional doctrines of abstention are inapplicable here: (a) Pullman abstention:  Defined: abstention is proper in cases presenting a federal constitutional



issue which might be mooted or presented in a different posture by a state court determination of pertinent state law. Applied: not applicable here b/c no federal constitutional issue here.

(b) Thibodaux Abstention:  Defined: abstention is proper where there have been presented unclear or



difficult state law questions bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.  It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Applied: not apply here b/c state law is not difficult or unclear.

(c) Younger abstention:  Defined: abstention is proper where, absent bad faith, harassment or a



patently invalid state statute, federal juris has been invoked for the purpose of restraining (1) state criminal proceedings; (2) state nuisance proceedings antecedent to a criminal prosecution which are directed at obtaining the closure of places exhibiting obscene films; OR (3) collections of state taxes. Applied: not applicable here b/c no criminal, nuisance, tax collection type case.

(d) Burford Abstention: CT does not discuss this one but it is not applicable. (4) BUT abstention is appropriate in this case b/c a FC can abstain out of

deference to a pending state court proceeding when there are TRULY EXCEPTIONAL CIRCUMSTANCES.
(a) Factors in Determining Whether Exceptional Circumstances Exist: 

Problems occur when state and FCs assume jurisdiction over the same property – do not want inconsistent decision re: property. Inconvenience of federal forum. Need to avoid piecemeal litigation. Order in which proceedings were filed.

  

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(b) How Should Courts Apply Factors  Factors should be applied narrowly.  You do not need to satisfy every single factor.  Courts can consider factors as whole (c) Factors Applied Here:  Need to avoid piecemeal litigation: McCarran Amendment: Federal 

policy of law is the avoidance of piecemeal adjudication of water rights in a river system. Order of filings: case filed in FC first but the federal action did not go very far (no federal proceedings filed other than complaint) – proceedings in state court went much further.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

b.

Buford Abstention:
1)

RULE:
a)

Doctrine (1) FCs must decline to interfere with state administrative agencies where it would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern and there is timely and adequate state review available. Elements - p580: (4) Is there a state agency/state administrative proceeding? (5) Is there timely and adequate state court review of state administrative agency‘s ruling? (6) Will the exercise of federal review of the question in the case and in similar cases disrupt state efforts to estb a coherent policy with respect to a matter of substantial public concern? Rationale (1) Abstention is proper in these circumstances b/c need to defer to state administrative procedures – unclear state law – need to defer to state mechanism to handle a matter of important concern. Application Indicators: (1) Applies when there are state administrative proceedings. (2) IF purpose of state administrative system = to achieve uniformity in state re: this program, then it is a matter is of great importance to the state – p580. Rarely applied. CT refused to apply in (1) School desegregation cases (2) State statute preventing individuals who owed child support from obtaining marriage. Effect of Burford Abstention (1) Totally removes case from federal juris

b)

c)

d)

e) f)

g)

2)

Case – Burford v. Sun Oil Co. (US 1943) – p590: a) Facts: party sought to enjoin Texas Railroad Commission from granting Burford a permit to drill four oil wells. Jurisdiction was based on diversity and the alleged unconstitutionality of the commission‘s order. Procedures in state were complex. b) Held: federal suit should have been dismissed – abstention was proper here. c) Reason: (1) CT finds there is a state interest in uniformity: FCs should defer to well established state administrative system. (2) FC must decline to interfere with state administrative agencies where it would be disruptive of state efforts to establish coherent policy with respect to a matter of substantial public concern.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

3)

Case – Alabama Public Service Commission v. Southern Railway Co. (US 1951) – p591: a) Facts: FC was asked to enjoin the Commission‘s refusal to permit discontinuance of two local trains. b) Held: District court should have abstained. c) Reason: (1) The regulation of local train service is primarily the concern of the state. (2) Review of commission decisions was concentrated in single state court. (3) As adequate state court review of an administrative order based on predominantly local factors is available, intervention of a FC is not necessary for the protection of federal rights. d) Notes (1) One could argue that this case goes beyond Burford case – did not raise same concerns as oil. (2) This case seems to say that in any case where there is state administrative agency designate to hear the matter, FCs should abstain – but this cannot be rule – thus, key factor must be that federal review could disrupt state‘s efforts at a coherent state policy. Case - New Orleans (US 1989) – p591: a) Held: abstention not proper here. b) Reason: (1) State law was not complex or unsettled. (2) CT takes narrow view of abstention. c) Notes (1) ??? Supreme Court never invoked Burford since it decided Burford. (2) Supreme Court‟s Latest Pronouncement: where timely and adequate state court review is available, a FC must decline to review the proceeding or orders of state administrative agencies where the exercise of federal review would b disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. (3) Burford was mentioned in Colorado River, however, so it is still valid.

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c.

Thibodaux Abstention:
1)

RULE: FCs should abstain in diversity cases where there are unclear or difficult questions of state law bearing on policy problems of substantial public import. Analysis: a) In order for FC to abstain, must have: (1) Unclear state law (2) That bears on policy problems of substantial public import. Case - Louisiana Power & Light Co v. City of Thibodaux (US 1959) – p592: a) Facts: FC abstained from deciding whether the city had legal authority under state law to use eminent domain power in the manner used in the case. b) Held: abstention is appropriate here. c) Reason (1) Abstention is appropriate where there are unclear or difficult questions of state law bearing on policy problems of substantial public import. (2) Eminent domain proceedings are special and inherently involved in government sovereign prerogative. (3) Eminent domain is one of the areas that bears on policy problems of substantial public import. Case – Mashuda (US 1959) – p592: a) Facts: Masuda‘s land taken by city and he was compensated. Then found out the property was going to be used for private use, which violated state law. Filed action for damages in FC. District court abstained from deciding issue. b) Held: abstention not OK here. c) Reason: (1) Action should not be stayed in district court. (2) Only in exceptional circumstances should abstention be allowed and there are no exceptional circumstances here. d) Notes (1) Distinction Between Cases: in Mashuda, the question of fact was over a question of relatively clear, settled state law, but in Thibodaux, the statute had not been interpreted yet (thus, there was an unclear state law or unsettled state law). Case – Kaiser Steel Corp. v. W.S. Ranch Co. (US 1968) – p594: a) Facts: Kaiser claimed authority to use water on land. b) Held: Abstention was proper. c) Reason: (1) CT does not say what ground of abstention it is relying on, but it seems as though it was Thibodaux. (2) Uncertain state law (a novel question) and policy problems of substantial public import (water rights in New Mexico). d) Notes (1) Combining Burford and Thibodaux: in subsequent cases, Court has taken Thibodaux and Burford and lumped them together, calling it Burford abstention.

2)

3)

4)

5)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

C. PULLMAN ABSTENTION

1.

Summary
a.

Doctrine: Federal courts should abstain from exercising jurisdiction when state law is uncertain and a clarification of state law by state court would make the FC‘s determination of the constitutional question unnecessary Application 1) ??? For Pullman Abstention to apply, there must be a constitutional issue 2) Abstention is NOT appropriate when the federal constitutional claim is not complicated by an unresolved issue of state law 3) Abstention IS appropriate when the challenged state statute is part of an integrated scheme of constitutional provisions or statutes and the scheme as a whole calls for a state court‘s clarification

b.

2.

Basics of Pullman Abstention:
a.

Doctrine: 1) Federal courts should abstain from exercising jurisdiction when state law is uncertain and a clarification of state law by state court would make the FC‘s determination of the constitutional question unnecessary 2) Abstention is NOT appropriate when the federal constitutional claim is not complicated by an unresolved issue of state law 3) Abstention IS appropriate when the challenged state statute is part of an integrated scheme of constitutional provisions or statutes and the scheme as a whole calls for a state court‘s clarification Rationale for Pullman Abstention 1) Avoids erroneous federal interpretations of state law a) Primary rationale b) Risk inherent in DJ 2) Avoids unnecessary (federal) constitutional rulings a) If a state strikes down a statute as invalid, no constitutional determination exist 3) Avoids friction between state and federal courts that results whenever federal courts strike down state statutes a) Friction exists only where FCs strike down state statutes as invalid that state upheld as valid What is “unclear state law”? 1) Supreme Court has not clarified what constitutes an unclear state law 2) Lower courts look to: a) newness of the statute; b) absence of judicial precedent; and c) whether the statute is fairly subject to an interpretation that will render unnecessary a ruling on the federal constitutional claim

b.

c.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) If state statute is obviously unconstitutional, no need for an abstention simply so the

state court can rule it unconstitutional under state law.- Check this.

d.

Effects of Pullman Abstention 1) DELAYED PROCEEDINGS 2) Pullman DEF Case – Pullman Commission of Texas v. Pullman Co. (1941): 1. Facts: Texas RR Commission passed a discriminatory law. Plaintiff claimed the law violated equal protection, due process and the commerce clause. Plaintiff also filed a state claim that the commission lacked the authority to issue the law in dispute. Held: District court should have abstained from ruling on all issues, including federal issues, and let the state court rule on the state claim. a. There is no showing that there will not be a definitive ruling in state court on the state law issue. Rule: Federal district courts should abstain where state law is uncertain and the clarification of state law would make interpretation of the constitutional issue unnecessary. a. Rationale 1. Federalism a. FCs should restrain authority because of conflict between state and federal systems. b. Promotes harmony between the systems. Avoids friction between state and federal governments. 2. Avoids or reduces the likelihood of erroneous interpretation of state law. a. The state statute is unclear. b. Federal judges are not knowledgeable about state law, so court should abstain so that they do not issue erroneous state law decisions. c. Counter: The judges have practiced law in the state most likely so they probably know the law. 1. Counter: State judges are less likely to misinterpret because the final check is the state supreme court. 3. If the state court rules in favor of the plaintiffs on state law grounds, the federal constitutional issues would be moot. a. Avoids the constitutional question altogether. 1. If the state court invalidates the

e.

2.

3.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

action, no need to reach the constitutional issue, which the Court should try to do if at all possible.
f.

Case – Wisconsin v. Constantineau (1971) 1) Facts: § 1983 action challenging chief of police‘s ―posting‖ plaintiff‘s name in all of town‘s liquor stores, without notice or a hearing, and preventing her from purchasing alcohol for a year 2) Held: abstention not warranted b/c state statute authorizing posting was clear on its face 3) Reason a) Rule: abstention is appropriate where the challenged state statute or action is integrated in a scheme of constitutional, statutory or regulatory provisions where it calls for state courts clarifying the interpretation of the statute. b) State and federal law questions were the same. c) As opposed to Pullman, where there was a separate state statute claim that was bound up in the constitutional claim and deciding it made decision on the federal claim unnecessary. 4) Dissent: abstention was warranted to give state courts the first crack and interpreting Wisconsin law under its constitution - would make it unnecessary to decide the federal issue.

3.

FCs‟ Ability to Hear Claims After Pullman Abstention
a.

A state court‟s ability to review a federal claim is NOT a substitute for a FC hearing.
1)

When FC abstains under Pullman, parties need only try state claims in state court and can return to FC to litigate federal Constitutional claims (even though state court has concurrent jurisdiction) a) Parties may return to FC to have federal claims determined. b) State court decisions re: federal claims will not have res judicata effect in federal court Party is bound by state court‘s determination of federal issues only where that party agreed to have all issues determined by state court (England) a) A determination by state court of all issues, where parties have agreed to have all issues determined by state court, will have res judicata effect.

2)

b.

Reservation of Right to Return to FC
1)

Parties can keep state court from reviewing federal issue by explicitly or implicitly reserving the right to have federal issues decided in FC. a) A determination by state court of the federal issues will not have a res judicata effect on the subsequent FC hearing the case. Problems with implied reservation a) To determine whether there has been reservation, FC must determine intent of parties based on issues raised in state court - very difficult to do b) Thus, a presumption exists in favor of finding that you haven‘t voluntarily relinquished your right to litigate in FC based on involvement in state litigation

2)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

c.

Case – England v. Louisiana State Board of Medical Examiners (1964): 1) Held: just because a state court decision on federal issues can be reviewed by the Supreme Court on appeal, this should not be a substitute for originally having claims heard in FC parties are entitled to a hearing in FC.

4.

Getting the State Court to Settle the Unclear Law:
a.

Problem 1) After court grants Pullman abstention, case remains on federal docket 2) State courts may say its asking for an advisory opinion and refuse to hear case 3) In Harris the TX SC said it couldn‘t grant declaratory relief under state law if FC retained juris over federal claim Solution: 1) Court said district court should dismiss case without prejudice and allow P to refile after state court disposes of state claims (to get around problem) 2) Does this solution solve problem? NO - because state court‘s concern is that they‘re not really rendering a final opinion because if case is still on FC docket, parties will relitigate in FC Case - Harris County Comm. v. Moore (1975) 1) Facts: State had rule that if case remained on FC docket, state court could not hear case. 2) Held: To avoid problem, district court should dismiss the complaint without prejudice so the parties can refile the action in district court after the state court has decided the state issues. a) But holding does not address state‘s concerns in rendering a decision on federal issues that will be made moot in FC. b) Whether the case is stayed or dismissed, as long as the party can go to FC, there is no difference.

b.

c.

5.

Alternatives to Pullman = state certification procedure

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

D. YOUNGER ABSTENTION

1.

Summary:
a.

WHEN THERE IS YOUNGER, THERE WILL ALWAYS BE A COLORADO RIVER ABSTENTION ARGUMENT.

b.

Younger Abstention in Criminal Context
1)

Rule for when state criminal proceeding are PENDING prior to federal suit (aka if state proceedings start b4 federal ―proceedings on the merits‖ begin)
a)

Injunctive Relief: FCs cannot issue injunctive relief against state criminal prosecutions begun prior to the institution of the federal suit except (1) where there is a showing of bad faith, harassment or other exceptional circumstances; (2) where the disputed state statute is flagrantly and patently violative of Constitution; or (3) where irreparable harm exists (Younger). Declaratory Relief: FCs cannot issue declaratory judgments regarding state criminal prosecutions begun prior to the institution of the federal suit except (1) where there is a showing of bad faith, harassment or other exceptional circumstances; (2) where the disputed state statute is flagrantly and patently violative of Constitution; or (3) where irreparable harm exists (Samuels v. Mackell (US 1971)) Preliminary Relief: FC can issue preliminary relief

b)

c) 2)

Rule for when state criminal proceedings are NOT PENDING prior to federal suit (applies to both injunctive and declaratory relief)
a)

Rule from Steffel/Hicks: if state proceedings have not commenced b4 federal ―proceedings on the merits‖ being AND the federal P can demonstrate a genuine threat of enforcement of a disputed state criminal statute, Younger will not bar FC involvement - p641. To get around Hicks, use Doran: when there are no pending state court proceedings, preliminary injunctive relief, not just declaratory relief, may be available.
(1) Preliminary Injunctive Relief - 3 Factors: (a) Likelihood of success on merits. (b) Irreparable harm ($ not considered irreparable harm unless going to go broke,

b)

loss of a constitutional right).

(c) Balance of harms c.

Younger Abstention in Civil Context
1)

Rule for when state CIVIL proceeding are PENDING prior to federal suit

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

a)

Under Younger, a FC must abstain when state CIVIL proceeding are PENDING prior to federal suit + there are ―important state interests‖ + the proceedings are NOT considered legislative and not judicial.

2)

Rule for when state CIVIL proceeding are NOT PENDING prior to federal suit a) Under Younger, a FC must abstain when state CIVIL proceeding are PENDING prior to federal suit + there are ―important state interests‖ + the proceedings are NOT considered legislative and not judicial. 3 examples of ―important state interests‖ a) Close relationship b/w criminal and civil proceedings b) Civil proceedings that are necessary for the vindication of important state policies. c) Functioning of the state judicial system

3)

d.

Younger Abstention in the Non-Judicial Context
1)

Younger applies to administrative that are judicial in nature and that involve important state interests. 2) Younger does not apply to executive or legislative proceedings.
e.

Younger Abstention and the Anti-Injunction Act (s2283)
1)

2 separate requirements: party must satisfy requirements of anti-injunction act (s2283) and Younger

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Effect of Younger Abstention 1. Effect of Younger abstention a) Once FC abstains a case will not return to FC until appeal b) Criminal defendant must raise constitutional issues in defense and have those subjected to full and definitive decision in state court. Federal review only available in SC unless habeas action brought (this is much more limited action) c) State court‘s determination of fed law has res judicata effect d) Contrast with Pullman abstention (1) When case goes to state court, can come back to federal court as long as party hasn‘t expressly agreed to have everything litigated in state court (2) Pullman results only in postponement of federal court proceedings

3.

Cases Preceding Younger:
a.

General Approach: absent prosecutorial bad faith or harassment, a FC cannot enjoin a pending state criminal prosecution. Case - Douglas v. City of Jeannette (US 1943) – p610
1)

b.

Rule: FCs should not interfere with state‘s good faith administration of criminal laws (by issuing injunctions) unless there is irreparable injury, immediate and great. Facts: Jehovah‘s witnesses prosecuted for distributing literature. Brought an action in FC seeking an injunction against further prosecutions. District court granted the injunction. Held: Injunction was not proper here b/c there was no danger of irreparable injury that was great and immediate. Reason: a) General Rule: (1) FCs should not interfere with state‘s good faith administration of criminal laws (by issuing injunctions) unless there is irreparable injury, immediate and great. (2) Rationales: (a) B/c D can always raise constitutional issues as a defense in criminal proceedings. (b) FCs should not issue an injunction (equitable remedy) if there is an adequate remedy at law. (c) FCs should not issue an injunction (equitable remedy) if there are adequate constitutional review procedures available. b) Rule Applied: (1) No irreparable injury here b/c D could raise constitutional claims in state court. (2) Parties could have raised the constitutional issues in their criminal dispute.

2)

3)

4)

c.

Case - Dombrowski v. Pfister (US 1965) – p611:

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

1)

RULE: FC‘s injunction is proper here b/c there is irreparable injury through bad faith harassment – this would have a chilling effect on the exercise of 1A rights. Facts: Prosecutor kept threatening party with prosecution without any expectation of bringing the case to trial because a conviction was unlikely. Held: Injunction was proper. Reason: a) General Rule of Non-Interference with Criminal Laws: generally, FCs should not interfere with a state‘s good faith administration of its criminal laws. b) FC‟s injunction is proper here b/c there is irreparable injury through bad faith harassment – this would have a chilling effect on the exercise of 1A rights. c) Distinguish this case from Douglas case. (1) Defense in the state court proceeding will not assure adequate protection of constitutional rights b/c prosecutors never intended to bring case to trial. (2) This would = irreparable injuries Harlan Dissent: thought this required too much supervision of state court criminal proceedings by FCs. Notes: a) Effect of This Case: many P brought suit in FCs seeking injunctions against criminal proceedings based on overbroad state statutes. b) B/c “chilling effect” language seemed to indicate that a ―chilling effect‖ alone may be enough to warrant an injunction‖ some lower courts read the case this way – this got around standard from Douglas.

2)

3) 4)

5)

6)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Case - Younger v. Harris (US 1971) – Black - p614:
a.

RULE: FCs cannot enjoin state criminal prosecutions begun prior to the institution of the federal suit except (1) where there is a showing of bad faith, harassment or other exceptional circumstances; (2) where the disputed state statute is flagrantly and patently violative of Constitution; or (3) where irreparable harm exists. 1) Analysis: a) Is the court prohibited from issuing an injunction under the Anti-Injunction Act? b) If not, must the court abstain from enjoining the state court proceeding under Younger? 2) ??? Other Considerations in Analysis: a) Standing issue b) Jurisdiction issue (federal question and well-pleaded complaint rule). Facts: 1) Harris charged with violation of state criminal law. 2) He filed suit in FC seeking an injunction against prosecution b/c it would inhibit his free exercise of free speech. 3) Other Ps similarly situated joined the suit. 4) District court granted the injunction. Held: district court should have abstained - injunction is not proper here. Reason:
1)

b.

c. d.

Rule: FCs should not enjoin state criminal prosecutions begun prior to the institution of the federal suit except where there is a showing of bad faith, harassment or other exceptional circumstances. Standing Issue - not all of the parties had standing: a) Harris had it, because he was indicted under state law. b) Other parties were not indicted under the law, so they did not have standing. c) Cannot have standing based on future potential prosecution. 2 Rationales for Not Letting FCs Interfere With State Court Criminal Proceedings - Equity & Comity: a) “Equity”: (1) Reason: there is no need for equitable remedies when there is an adequate remedy at law and when part will not suffer irreparable injury if denied equitable relief – p617. (2) Irreparable Harm Defined (a) Cost, anxiety, and inconvenience do NOT = irreparable harm (b) The threat to P‘s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. (3) Applied here: P here could have raised constitutional claims as a defense to state criminal prosecutions. b) “Comity”: (1) A dual system where there is sensitivity to both state and federal legitimate interests: govt will function best without federal interference.

2)

3)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(2) Proper respect for state functions: federal government (and its courts) will not

unduly interfere with legitimate actions of the state.

4)

Distinguishing Dombrowski: a) CT limited Dombrowski to its facts – to “unusual circumstances”: prosecutorial abuse; bad faith prosecutions; using statute to harass plaintiffs. (1) Rationale: no opp for P to raise constitutional challenges in state court proceedings. (2) Applied: here, there is none of this. b) CT rejects district court‟s interpretation of Dombrowski about “chilling effect” language: (1) District court interpreted it to mean the presence of 1A may justify an injunction. (2) Court disagrees and says ―chilling effect‖ alone does not justify federal intervention: just because first amendment freedoms are at issue, it does not justify federal intervention. Samples of ―Unusual Circumstances‖: a) Bad faith harassment: more common. b) Flagrantly and patently unconstitutional state statute: which is 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 - p622. (1) Very rare that you will have a statute this is this flagrantly unconstitutional.

5)

e. f. g. h.

Stewart Concur: Gotanda did not mention. Brennan Concur: Gotanda did not mention. Douglas Dissent: Gotanda did not mention. Notes: 1) Open question: what can or should FCs do when there is no prosecution pending in state court at time federal proceeding is begun?

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

5.

Declaratory Judgments:
a.

General Rule: FCs should not issue declaratory judgments regarding state prosecutions begun prior to the institution of the federal suit except where there is a showing of bad faith, harassment or other exceptional circumstances. Case - Samuels v. Mackell (US 1971) – p625:
1)

b.

RULE: FCs should not issue declaratory judgments regarding state prosecutions begun prior to the institution of the federal suit except where there is a showing of bad faith, harassment or other exceptional circumstances. Issue: whether policies of Younger also foreclose federal declaratory relief against a state criminal statute under which prosecutions were pending. Held: district court must abstain from issuing declaratory judgment here. Reason: a) Rule: FCs should not issue declaratory judgments regarding state prosecutions begun prior to the institution of the federal suit except where there is a showing of bad faith, harassment or other exceptional circumstances. b) CT extends Younger to actions for declaratory judgment: treats declaratory judgment same as injunction. c) Rationale: (1) In end, declaratory judgment has same effect as injunction on state court action ability to proceed. (2) In practical effect, there is not much difference between an injunction and declaratory relief. (3) No less interruptive of state proceedings if a state statute is declared unconstitutional through a declaratory judgment or an injunction is granted.
a)

2)

3) 4)

5)

Notes: Analysis: (1) Standing issue (2) Jurisdiction issue, including federal question jurisdiction, courts‘ power to imply federal causes of action, well-pleaded complaint rule and Franchise Tax.

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6.

Interplay Between Anti-Injunction Act (s2283) & Younger Abstention: a. Generally: 1) Party must satisfy requirements of anti-injunction act (s2283). a) Requirements: 2) Party must satisfy Younger. a) Requirements:

b. Case - Mitchum v. Foster (US 1972) – p631:
1) 2)

RULE: Facts: a) Prosecutor brings nuisance action. b) Defendant goes to FC and asks for an injunction under § 1983. c) District court held statute prohibited grant of injunction. d) Three exceptions to anti-injunction act (s2283) one of which is if expressly authorized by an act of Congress. Held: injunction is proper b/c s1983 falls within ―express exception‖ under 2283. Reason: a) § 1983 is an act of Congress that falls within the “express” exception of s2283: (1) Injunctions are expressly authorized in § 1983 as indicated by ―suit in equity‖ language. (2) Separateness rationale: Congress sought to prevent irreparable loss of constitutional rights. (3) Congress intended to alter the relationship between the states and the FC system. (4) Court never reaches the Younger abstention question.
b)

3) 4)

Is the case consistent with Younger? (1) CONSISTENT on its face (a) CT indicates that 2 cases are consistent.  Not inconsistent because all the court is saying is that § 2283 does not prohibit the district court from entering an injunction in a § 1983 action. (b) This does not mean that the court can and should issue that injunction.  Younger still applies.  District court is not prohibited from issuing an injunction, but still have to fall outside of Younger to be able to issue the injunction.  They are two separate requirements.  Result: P has to fall within exception of anti-injunction act (s2283) and satisfy requirements of Younger. (2) INCONSISTENT from a policy standpoint: (a) Policy of § 1983: Congress adopted § 1983 because they distrusted state courts to protect constitutional rights - purpose of s1983 was to interpose FCs b/w states and the people – p633.

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(b) Policy of Younger: rests on the assumption that state courts can be trusted to

adequately protect civil rights and civil liberties.

7.

CRIMINAL - Does Younger Apply When There is No Pending State Court Proceeding?
a.

Summary
2) 3)

Big Issue = what is applicability of Younger if there is no pending state court proceeding? Rule from Steffel: a FC may grant federal declaratory relief (and thus, Younger abstention is not proper) where the federal P demonstrates a genuine threat of enforcement of a disputed state criminal statute (even if no state prosecution is pending, regardless of whether federal injunctive relief is appropriate, and regardless of whether the constitutional attack is facial or as applied) - p641. The CT limited Steffel in Hicks c) . . .. if state prosecution is commenced b4 any proceedings FC proceedings on the merits. The CT extended Steffel in Doran: a) When there are no pending state court proceedings, preliminary injunctive relief, not just declaratory relief, may be available. Preliminary Injunctive Relief: a) 3 Factors: (1) Likelihood of success on merits. (2) Irreparable harm ($ not considered irreparable harm unless going to go broke, loss of a constitutional right). (3) Balance of harms b) Various Weighing Approaches: the weighing of these three factors varies from circuit to circuit. (1) ??? If there is a pending state criminal prosecution or if there is not but proceedings of substance have not occurred by the time the state proceeding is brought, regular Younger rules apply as seen in Samuels v. Mackell. (2) Initiation of Grand Jury Proceedings: may be sufficient to trigger Younger.

4)

5)

6)

b.

RULE for Whether Declaratory Relief Is Available When There Is No Pending State Criminal Prosecution
1)

RULE: a FC may grant federal declaratory relief where the federal P demonstrates a genuine threat of enforcement of a disputed state criminal statute (even if no state prosecution is pending, regardless of whether federal injunctive relief is appropriate, and regardless of whether the constitutional attack is facial or as applied) - p641. Case - Steffel v. Thompson (US 1974) – Brennan – p634:
a)

2)

Facts: (1) Party was leafleting and was threatened with arrest; P comes back and does the same thing.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(2) P‘s companion is arrested. (3) P files suit in FC seeking injunctive and declaratory relief prohibiting future

prosecution.

b)

Issue whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of had-faith enforcement or other special circumstance has not been made. Held: abstention was not proper here. Reason:
(1) Standing Issue - potential prosecution meets Art III “actual controversy”

c) d)

requirement: (a) Threat of prosecution here is more than speculative: unlike 3 of Ps in Younger, threat of prosecution here is not merely speculative. (b) Arrest not necessary: CT says it is not necessary that P be arrested b4 challenging the statute on constitutional grounds. (c) Requirements: P must show that (1) he or she engaged in the conduct and (2) prosecution is likely.

(2) Request for Injunctive Relief (a) P abandons this claim so CT does not really address it. (b) ??? Debate continues today as to whether the CT‘s opinion extends to

permanent injunctions.

(3) Request for Declaratory Relief (a) Distinction From Younger:  There is no pending prosecution against the P: important because if

there is a pending state prosecution, an injunction can be very disruptive to the state proceedings.  Will not be the case if there is no pending proceeding: b/c there is nothing to disrupt. (b) RULE: FCs can issue declaratory relief if state criminal proceedings are threatened but not pending:  Said in a more long-winded way: a FC may grant federal declaratory relief where the federal P demonstrates a genuine threat of enforcement of a disputed state criminal statute (even if no state prosecution is pending, regardless of whether federal injunctive relief is appropriate, and regardless of whether the constitutional attack is facial or as applied) - p641.  Absent state proceeding, FC action cannot be viewed as negatively affecting the state court‘s application of its constitutional principles. (c) Policy Rationale for RULE:  A contrary holding would have foreclosed FCs to all challenges to state statutes.  P here showed a genuine threat of enforcement of a disputed state criminal statute, whether a facial or an as applied constitutional attack.

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e)

Rehnquist-White Debate: Rehnquist White




Draws a distinction between injunctions and declaratory relief. Declaratory judgment is simply a statement of rights - not binding on state authorities - no res judicata effect – state courts may choose to follow, but not bound to follow the decision p642. Injunction is binding on the state courts. BUT Gotanda says Rehnquist is wrong b/c rationale of Samuels case say that injunctive and declaratory relief have same effect.
f)



Says it is more than a stmt of rights b/c then declaratory judgment would amount to an advisory opinion. Once a FC issues declaratory relief, there is no problem with issuing an injunction.



 

Notes: (1) What P must prove to get anticipatory relief: (a) P must show he will engage in the conduct. (b) Prosecution is likely. (2) ??? Is this a good decision from a policy standpoint? (a) If CT ruled other way in this case, P would be precluded from raising claim. (b) If there is no pending proceeding in state court, then declaratory relief is possible.

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c.

CRIMINAL – What happens if state brings state criminal action after P files suit in FC?
1)

RULE: FC cannot grant declaratory relief & must dismiss under Younger if state prosecution is commenced b4 federal proceedings on the merits (Hicks v. Miranda) - limited the holding of Steffel Case – Hicks v. Miranda – p644:
a) b)

2)

RULE: p644 Facts: Facts are important. (1) Police seize copies of pornography. They arrest two employees but do not arrest the owner (2) State brings criminal suit against store employees. (3) Store owners file suit in FC for injunctive relief. (4) State amended its criminal complaint to name store owners. (5) District court granted relief under Younger. Held: Younger applies and district court should have abstained here. Reason: (1) Where state court proceedings have been filed after federal action was filed but before proceedings of substance have taken place, the principles of Younger should apply. (2) District court must dismiss the suit if there have not been proceedings of substance on the merits in the federal case prior to the initiation of the state prosecution. (3) Court does not draw the line purely at whether the action is pending or not pending. (4) Problem with line: it is not clear what proceedings of substance on the merits are; owners interest were already involved in case. (5) CT moves away from pending/non-pending bright line from Steffel. Test now is whether any ―proceedings of substance on the merits have taken place in FC‖ Dissent: (1) Allow state to strip FC of juris by filing charges against petitioner. (2) Open invitation to state officials to institute state proceedings in order to defeat federal juris – p645. (3) Alters the federal scheme for adjudicating constitutional claims – P not get to chose the forum in this scenario. (4) Whether or not to invoke Younger should not depend on who gets to the courthouse first. (5) Comity: more like unilateral deference than mutuality (6) State courts need not defer to FCs if someone goes to FC first. (7) If the requirements of case are met, the district court must defer. (8) COUNTER ARGMENT: should not draw bright line b/c have same policy arguments whenever 2 actions are going on – courts should abstain regardless of which action is filed first. Notes

c) d)

e)

f)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

(1) What are “proceedings of substance on the merits” – CT has not given any

guidance on this to date. (a) Guidance from CT:  Denial of request for temporary restraining order is not ―proceedings of substance on the merits‖  Grant of preliminary injunction seems to be ―proceedings of substance on the merits.‖  In b/w is unclear.  If a motion to dismiss has been filed or denied, there may not be enough proceedings of substance to keep the case in FC. (2) Key Problem with Hicks: gives state prosecutor the power to choose the forum all they have to do to defeat jurisdiction is file charges - smacks of unfairness. (3) Cut back by Doran case.

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d.

CRIMINAL - Injunctive Relief When No Pending State Court Prosecution
1)

Rule: if there is a pending state prosecution, regular Younger principles apply as seen in Younger. Case - Doran v. Salem Inn – p645: a) Case seems to create an exception to the injunction standing rule because non-prosecuted parties were able to obtain an injunction. Facts: § 1983 action to declare ordinance prohibiting topless dancing unconstitutional. One party arrested under ordinance after action filed. District court grants injunctive relief as to all. c) Held: (1) As to prosecuted defendant, Younger barred injunction and declaratory relief: there were pending state court proceedings. (2) As to other owners, they were entitled to injunctive relief: restrictions of Younger did not apply here. d) Reason: (1) Does not violate Younger because there is no pending proceedings against these people – thus Steffel applies. (2) Not troubled by fact that one is being prosecuted in state court. (3) Injunctive relief is available because declaratory remedy would not protect interests in the interim between now and final judgments on the merits. (a) Irreparable harm: Would go out of business if they could not operate between now and when final judgment rendered. (b) Preliminary Injunctive Relief is available since there is no declaratory remedy available to protect their interest e) Notes: (1) Extends Steffel beyond declaratory field – also applies when P seek preliminary injunction. (2) Effect of this case on Hicks: (a) In light of Doran, district court can issue a preliminary injunction to prevent the application of a statute thereby preventing the state prosecutor from initiating proceedings, then Younger will not apply and the case will stay in FC. (b) Case should allow you to go to FC and get a preliminary injunction, thereby preventing the state action, and preventing Younger from applying. (c) To some extent, may limit the effect of Hicks: but, in practicality, if the DA is good, he or she will probably be able to get criminal proceedings started before a preliminary injunction can be issued.
b)

2)

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e.

CRIMINAL - Is There Any Merit to the Pending v. Not Pending Distinction?
1)

Some commentators suggest the distinction is important: say these cases seem to indicate that CT draws line between past (not able to challenge) and future conduct (able to challenge): a) Future conduct: declaratory or injunctive relief is available. (1) Prospective Relief - Wooley v. Maynard (US 1977) – p647: (a) Facts: Parties were convicted without appeal. They served their sentences. Then they brought suit in FC asking for declaratory judgment for prospective actions - seeking to prevent future prosecutions. P did not challenge past conduct. (b) Held: No Younger problem. (c) Reason:  No exhaustion problem as in Huffman.  Relief sought for future conduct of the prosecutor. b) Past Conduct: declaratory or injunctive relief is NOT available. (1) Relief for Past Conduct – Huffman v. Pursue, Ltd. (US 1975) – p647: (a) Facts: P loses in state trial court but it was still appealable (but did not file notice of appeal). Instead, P challenged statute under § 1983 in FC. (b) Held: Younger is implicated. (c) Reason:  District court had to abstain from hearing federal claim.  Relief sought for past conduct by the prosecutor. Gotanda thinks this distinction is wrong: a) Gotanda thinks real distinction is Hicks‘ distinction: b) (―any proceeding . . . .‖) b/c in Huffman there is pending case in state court whereas in Wooley there is no case in state court..

2)

f. HYPO: Hypo: PA passes law that prohibits distribution for any periodical that depicts obscene nudity. Borders wants to sue. What would I tell Borders to do? Go to FC, request preliminary injunctive relief immediately (why? B/c prevent Hicks situation from happening and enjoin state from bring criminal action against you – what does P have to show for preliminary injunctive relief). If district court issues preliminary injunction, this will prevent state from filing action in state court. Mere filing of motion for preliminary injunction would not be enough – have to get the preliminary injunction. Advise Borders to comply under it gets the preliminary injunction.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

8.

CIVIL - Does Younger Apply in Civil Context?
a. b.

??? Judicial Administrative Proceedings: Younger does not apply Legislative Administrative Proceedings
1)

??? RULE: Younger applies to pending administrative proceedings that involve ―important state interests‖ so long as the proceedings are considered legislative and not judicial. Examples of Important State Interests:


2)

In each of these cases – proceedings are close or akin to criminal proceedings or quasi-criminal cases – with the exception of New Orleans case. Close Relationship Between Civil and Criminal Proceedings:

a)

Case - Huffman Facts: Initiate civil proceedings in state court for nuisance. He does not appeal the action, but files a § 1983 action in FC. Held: Younger applies so that the district court should abstain from hearing § 1983 claim. The state proceeding is more like a criminal proceeding than a civil proceeding. State is a party. Brennan Dissent: points out that this is only the first step to applying Younger to all types of civil cases.
b)

Civil Proceedings That Are Necessary for Vindication of Important State Policies:

Case - Trainor v. Hernandez Facts: State civil law suit filed for fraud in state court seeking writ of attachment. Defendants bring an action in FC challenging the constitutionality of the attachment statute. Held: Younger applies so that district court should abstain from hearing case. Like Huffman b/c this is quasi-criminal. Even though not as closely akin to criminal case as in Huffman. Reason: Rationale – p652 (add notes): suit and attachment follow very important state public policies - ability of state to render safety to citizens state is a party to the suit. Exceptions when Younger should not apply in civil context: State remedies are inadequate to litigate constitutional claims. Extraordinary circumstances. Case - Moore v. SIMMs: Facts: Texas Dep‘t of Human resources removed children from abusive parents under order for temporary custody. Parents file suit in FC saying authority of department to do so is unconstitutional. Distrust court holds unconstitutional because not adequate notice. Held: District court should not have reached the merits of the case; Younger should have been applied. Akin or closely related to criminal statutes. Strong state interest in domestic policy.

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But See New Orleans Power Service (US 1989) – p659 – show Younger does not apply to call civil cases: Facts: Federal agency told the city it would have to pay for a portion of a new nuclear power plant. FERC wants to pass this cost on in rates and ask the city counsel for a rate increase. Council says no and they file suit for declaratory relief. Files suit in FC challenging the constitutionality of council‘s action. Held: Younger was not applicable (thus, district court should not have abstained) because the state‘s interests were not implicated. Reason: How different from Vail, Trainor and Huffman? Other cases involved enforcement type proceedings – quasi criminal. Rate-making always been more like legislative function than enforcement function. Federalism arguments not apply as much City council‘s decision was part of the legislative process, not judicial in nature. D‘s argue that there is a state and a federal action pending. The pending state court proceeding would have centered on council‘s decision, which was more of an administrative determination. Only dealing with the amount of money that they can charge consumers for power - not a huge public interest. FC is not required to abstain simply because there is a pending state court proceeding - don‘t have to abstain in all instances. Notes: This case puts a stop to application of Younger in civil cases. Younger not meant to apply to challenges to executive or legislative decisions.
c)

Necessary For Functioning of State Judicial System:

Case - Juidice v. Vail (US 1977) – p658: Held: Younger is applicable, so district court should abstain from hearing federal claim, because there are important state interests at stake, those being administration of the state‘s contempt process. Reason: Comity principle underlying Younger. This is still close to a criminal proceeding. To interfere with the proceedings would be the same as interfering with criminal proceedings. State‘s interest: operation of state judicial system. State was not a party to the suit, yet Younger held to apply. Left unanswered the question of whether the state has to be a party for Younger to apply. Case - Pennzoil: State does not have to be a party for Younger to apply to a civil proceeding.
3)

Arguments For and Against Application of Younger in Civil Context:
a)

??? Argument For: (1) Policies and rationale of Younger (comity, federalism) apply in both criminal and civil context. (2) If the FC interferes with an ongoing state proceeding, it raises the same problems, whether the proceeding is civil or criminal – BUT if that is the case, should Younger apply to all state proceedings?

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with state judicial proceedings, but it is necessary in some cases - Where to draw the line? Is irreparable injury necessary - is to obtain an injunction. But, apart from that, is it not necessary (for example if you were seeking a declaratory judgment) - What is the purpose of having a federal forum if federal jurisdiction can be defeated simply by filing a state action on the matter? b) Argument Against: (1) No habeas corpus equivalent in civil context : (a) In criminal context, federal abstention is not permanent exclusion from FC b/c of habeas corpus. (2) How real is the friction? (a) State trial courts: may welcome the opportunity to have FCs take some of their cases – not all that much friction. (b) State appellate courts: may feel a friction if FC enjoins a state court proceeding.
4)

(3) Problems with this argument: Comfortable with idea that FCs should not interfere

Arguments For and Against Application of Younger in Administrative Proceedings? a) NO (according to Tribe) (1) Younger is based on a comity for judicial proceedings. (2) Administrative bodies do not raise the same comity concerns as a judicial proceeding. b) YES: (1) Court says this is close enough/akin to a judicial proceeding so that the administrative proceedings should be considered quasi-judicial as long as there is an important state interest. (2) Counter by Tribe: (a) In an administrative proceeding, don‘t necessarily have all the safeguards desired, therefore may not have a place to raise all arguments. (b) Cutting off access to FC at too early a date.

c.

??? “Judicial” v “Legislative” Administrative Proceedings

1) Judicial: Case – Middlesex County (US 1982) – p666. Facts: Attorney made a statement and was charged with misconduct under rules of professional responsibility. Attorney files suit in FC claiming the actions were unconstitutional. No state judicial proceedings. Held: Abstention is proper under Younger. Reason: Disciplinary proceedings were judicial in nature. Supervised and reviewed by state supreme court. Examples of important state interests here: Interests are making sure the attorney adheres to professional conduct. Bar disciplinary proceeding gave the attorney the opportunity to raise his claims. 2) Legislative: Case - Hawaii Housing Authority v. Midkiff: Facts: Case involved a just compensation challenge to a state statute. Party claimed Younger should apply to administrative proceeding. Held: Younger does not apply. Reason:

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There are no state judicial or quasi-judicial proceedings. CT limits Middlesex: the proceedings in Midkiff were not part of judicial proceedings, while they were considered such in Middlesex County.
d.

See Hypo from 11-16-01

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

E. ANTI-INJUNCTION ACT

1.

Summary
a.

This should be the first step in the analysis every time a party requests that the FC enjoin a state court proceeding. The Anti-Injunction Act (28 U.S.C. s2283) prohibits FCs from enjoining pending state court proceedings unless one of 3 exceptions applies 3 explicit statutory exceptions + 1 judicial exception
1)

b.

c.

Express authorization a) Statutorily-created exception b) Disputed statute need not expressly refer to 2283 c) Disputed statute need not expressly authorize FC injunction d) Disputed statute must create a unique federal right or remedy that would be frustrated w/o FC power to enjoin state court proceedings In aid of jurisdiction a) Statutorily-created exception b) Removal Context: where state court proceeding is removed to FC and state court refuses to release the case, the FC may enjoin the state court proceeding c) Litigation over Real Property: (1) General rule: when case involves real property, whatever court decides case 1st maintains exclusive juris. (2) General rule in Anti-Injunction Act context: where a FC is 1st court to acquire a case re: real property, FC may enjoin state court proceedings re: same property. (3) Rationale: prevents inconsistent rulings d) When state proceedings would interfere with a federal agency‟s authority to bring injunctive relief. Relitigation a) Statutorily-created exception b) FCs may enjoin state court proceedings when necessary to ensure the preclusive effect of an earlier FC decision ??? s2283 does not prohibit suits brought by the U.S. or federal agencies seeking injunctions against state proceedings. a) Jjudicially-created exception b) Although the 3 exceptions are generally exclusive (Atlantic Coast Line Railroad), § 2283 doesn‘t apply to suits brought by U.S. or federal agencies seeking injunctions against state proceedings (Leiter Minerals v. United States (1957); NLRB v. Nash Finch)

2)

3)

4)

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

2.

Policies Behind Anti-Injunction Act
a.

Federalism - avoids friction: allowing courts of one juris to tell courts of another juris what to do causes friction - if one court is allowed to tell another jurisdiction what they can and cannot do, there will be conflict - biggest rationale. Non-hierarchical view of 2 systems: you cannot assume a state court is wrong simply because a FC disagrees with it. ??? There is federal review available.

b.

c.

3.

Application Guidelines
a.

This should be the first step in the analysis every time a party requests that the FC enjoin a state court proceeding. ??? Exceptions are exclusive: case must fall within one of the three specific exceptions for anti-injunction act not to apply – but what about judicially created exception? ??? Cannot evade Anti-Injunction Act by enjoining the party as opposed to the state court: the effect, not the title, of the injunction matters (Atlantic Coast). Always check that you are not inhibited by other doctrines – abstention, etc.

b.

c.

d.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

4.

Expressly Authorized Exception (Mitchum v. Foster)
a.

Elements of the Expressly Authorized Exception 1) Is there a uniquely federal right or remedy? 2) Is ability to enjoin state court proceeding necessary to affect the statute‘s purpose? Rationale: Congress created the anti-injunction act, so Congress can choose to overrule its limitations and authorize stays (injunctions) of state court proceedings. Application Guidelines 1) Indicators of authorized exception (in some circumstances this may be enough): grant of exclusive juris to FCs + statutory authority to enjoin violations. 2) Preemption alone is not enough. 3) Disputed statute need not expressly refer to s2283 4) Disputed statute need not expressly authorize FC injunction 5) Disputed statute must create a unique federal right or remedy that would be frustrated w/o FC power to enjoin state court proceedings Case - Mitchum v. Foster:

b.

c.

d.

Issue: Does § 1983 constitute an express authorization for injunction of state court proceedings? Held: § 1983 is an express authorization for injunctions of state court proceedings b/c the action could be frustrated if the FC did not have the power to enjoin. Reason: Test = The act of Congress must (1) create a specific and uniquely federal right or remedy, enforceable in a FC of equity; and (2) which could be frustrated if the federal court were not empowered to enjoin a state court proceeding (aka is the injunction necessary to effectuate the statute‘s purpose? Even though § 1983 does not make any express reference to the anti-injunction act, CT finds that the disputed statute need not specifically refer to 2283. The statute need not expressly authorize an injunction of a state court proceeding The statute must create a unique federal right or remedy that could be frustrated without the power to enjoin a state court proceeding. Notes: Could read this case very broadly, any federal statute could be seen as falling under this exception.
e.

Case - Vendo Co. v. Lektro-Vend Co.

Facts: State court action and while going on, defendants file a FC action claiming it violated the Clayton Act. Federal case gets put on hold while state court action continues. State court found for plaintiff. After decision, defendant went to FC seeking injunction against enforcement of state court judgment. Held: Case does not fall within expressly authorized exception. Plurality (Rehnquist, Stewart, Powell): CA was not an express exception Statute was not unique – no uniquely qualified federal remedy. Legislative history does not show an intent by Congress for this to be an exception to Anti-Injunction Act – injunction not necessary to effectuate legislative purpose. If § 16 of statute were read as an exception, it would eviscerate § 2283. Broad reading would mean that all federal statutes would fall under authorized exception. Concur: s16 of CA is an authorized exception but only in narrow circumstances (not presented here). Dissent: s1 constitutes an express exception and injunction should be authorized in this case

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Notes: 6 justices seem to be saying in s16 in certain circumstances = express exception to AIA. This exception now narrowly construed.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

5.

In Aid of Jurisdiction Exception (Capital Services, Inc. v. NLRB)
a.

In aid of juris exception: where FC injunction is necessary to aid its jurisdiction over the matter. Application Guidelines
1) 2)

b.

Construed VERY narrowly Mere allegation by moving party that state court is wholly without juris over subject matter is insufficient to meet in aid of juris exception (Amalgamated Clothing Workers (1955)). This exception only really applies in 2 context: (maybe a 3d):
a)

3)

Removal Context: (1) Applies where there is a removal from state to FC pursuant to § 1441.where state court proceeding is removed to FC (under s1441) and state court refuses to relinquish juris, the FC may enjoin the state court proceeding Real Property Context: (1) Permits a FC to enjoin state judicial proceedings where the FC first obtains jurisdiction over a case involving real property. (2) Prevents conflicting decisions regarding real property. When state proceedings would interfere with a federal agency‟s statutory authority to bring injunctive relief (Capital Services v. NLRB (1954)). (1) Although Capital Services could have been broadly interpreted, CT has narrowed its reach in later cases.

b)

c)

c.

Case - Amalgamated Clothing Workers (US 1955) – p677:

Facts: state court enjoined picketing. Union sought an injunction in FC to preclude enforcement of the state court injunction. Held: NLRB is not seeking injunction – union is seeking to enjoin the state court proceeding. No injunction per anti-injunction act. No statute which gives the union the right, as opposed to the NLRB, to move for an injunction. Notes: CT indicates Capital Services should be read narrowly: seems to indicate that its granting of injunction in Capital Services case was based on express authorization exception as opposed to the in aid of its juris exception.
d.

Case - Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers (US 1970 ) – Black – p669.

Facts: Union goes to FC seeking injunction for picketing which was denied. Then went to state court which granted injunction. Court then decided that the Railway Labor Act barred state courts from enjoining picketing. Union went to state court to get injunction dissolved. State court distinguished supreme court case, and refused. The union went to FC for an injunction against enforcement of state court injunction.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

Held: case must fall within one of three specific statutory exceptions otherwise the anti injunction act applies. Reason: Union‟s First Argument: under certain circumstances, a FC can enjoin, even if does not fall within one of exceptions. CT rejects - says you cannot evade 2283 by enjoining the party as opposed the state court. None of the exceptions apply CT says it does not fall within the relitigation exception: b/c order did not address whether ACL had federally protected right to picket. CT says it does not fall within the in aid of juris exception. Anti injunction statute applies whether or not the FC has jurisdiction. Federal preemption is not enough: state court action must directly interfere with FCs‘ exercise of its own jurisdiction (concurrent cases is not enough): here, the state court did not directly interfere with FCs‘ exercise of juris. This is a very narrow exception - p674. Notes: CT is narrowly construing the exceptions to 2283.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

6.

Relitigation/Protection of Judgments Exception (Parsons Steel)
a.

Relitigation/protection of judgments exception: when injunction is necessary to promote or effectuate an earlier judgment of the FC. Effect: when FC decides an issue, it can prevent the issue from being relitigated in state court where principles of preclusion would bind the state court. Application Guidelines 1) Injunction must be granted b4 state court rules on res judicata issues regardless of what court issues it. 2) If federal appellate court grants injunction after federal district court denies injunction and after state court rules, it is too late – all party can do is ask FC of appeals for temporary injunction. Problems 1) Encourages people to run to FC for injunctions 2) Gives federal winner 2 bites at apple: ask for injunction and, if you don‘t get it, argue res judicata in state court Case - Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers:

b.

c.

d.

e.

Held: relitigation/protection of judgments exception not applicable. Reason: District court never addressed the issue of whether state law remedies were precluded. Did not declare the union had a federal right that superceded the state‘s right to grant injunction, so no res judicata effect.
f.

Case - Parsons Steel Inc. v. First Alabama Bank (US 1986) – p683:

Facts: Simultaneous suits in federal and state court. FC decides first in favor of defendant, who takes this as a defense to the state court claim. State court rejects and finds for the plaintiff. Defendant sought an injunction against the enforcement of the state court ruling. Held: Injunction was improper. Reason: State court ruled on the merits of the res judicata issue: cannot enjoin the state court under these circumstances because… Exception is applicable only in those situations where the state court has not ruled on the merits of the res judicata issue. Notes: What should bank have done to avoid this result? Bank in this case should have gone back to FC b4 state court issued its ruling. If the state court has not ruled yet, go to FC and get an injunction before the state court does so - to prohibit the state court from proceeding further so as to give res judicata effect to its decision. From a policy standpoint, this case not make sense: If theory behind 2283 is that we trust state courts, then it seems odd to say we do not trust state courts to get res judicata right. Problem with Parsons Rule: Encourages people to seek injunctions seeking to restrain state court.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

But, otherwise risk the state court giving or not giving the federal judgment res judicata effect and then appeal in state court. § 1738: Requires FCs to give full faith and credit to state court judgments. Once the state court rules that it is res judicata, FC must give full faith and credit to that decision.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I

7.

Judicially Created Exception – Suits Brought by U.S. Government and U.S. Agencies:
a.

Exception: anti-injunction act does not apply to any suits brought by the United States or its agencies. Case - Leiter Minerals

b.

Held: Anti-injunction act does not apply to any suits brought by the United States. Reason: Policy reasons for holding. Frustrate interests of US govt. District court can issue injunctions against state court proceedings in suits brought by the United States. Recognizes this does not fall within any of exceptions. Court seems to create an additional exception.
c.

Case - NLRB v. Nash-Finch

Held: Anti-injunction act not applicable to suits brought by federal agencies.

Amy C. Gaudion Gotanda-Federal Courts Fall 2001 OUTLINE – PART I


				
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