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FEDERAL JURISDICTION
COCHRAN
FALL 2005
Conservatives will do anything to get rid of a case: Rehnquist, Scalia, Thomas, Kennedy, ??
Liberals want everything to be litigated: Ginsburg, Souter, Stevens, & Breyer.
Title 28 - Jurisdiction. Title 42 - Causes of Action.
28 USC § 1331 - Fed Q - Cases “arising under” Con, laws, & treaties. (From Art III).
28 USC §§ 2201-2202 - Fed Cts can grant and enforce declaratory judgments.
42 USC § 1981 -
42 USC § 1983 - Applies when a defendant acts under the color of state law (or the state),
deprives any citizen of the US of any rights secured under the Con or law (i.e.-ADA). D shall be
liable in either law or equity.
I. JUSTICIABILITY
Standing: Whether a plaintiff can properly bring a matter before a court. PBOP.
a. 3 Requirements:
i. Injury in fact: Plaintiff must have actually suffered a “distinct & palpable” injury
(judicially cognizable). Injury must be actual or imminent, not hypothetical.
1. Just b/c someone is hurt, doesn‟t mean this Plaintiff is injured in fact.
ii. Causation: Injury must be “fairly traceable” to the Defendant‟s conduct.
iii. Redress: Plaintiff must show that a favorable decision by the court will redress the
injury
b. “Next Friend Standing”: When a third party is allowed to stand in for the person who is
actually injured and bring suit.
i. “Next friend” must have some close, special relationship with the real party in interest.
ii. The real party in interest can‟t bring suit.
1. Ex: Whitmore, 495 U.S. 149: Guy in jail with death penalty, didn‟t want
to appeal. A fellow inmate wanted to appeal on his behalf.
a. Held - (1) no relationship, (2) Prisoner could bring suit.
2. Kozlowski, 125 S. Ct. 564: Similar facts, but public defenders bring suit
challenging statute that deprives Ds who confess to lawyers. CtState.
3. Hamdhi: Public defender brought suit saying Hamdhi should have
counsel. Here Hamdhi had no access to a L (distinguished Whitmore).
a. Held - L had no “special relationship,” but Dad could bring suit.
4. Newdow: Since mom had legal custody, so Dad couldn‟t sue to protect
child‟s legal interests.
Allen v. Wright: Parents of black school kids (Wright) brought class action against IRS
commissioner. IRS Code (Congress) allowed certain organizations to be tax exempt, but only if
the org did not discriminate. IRS had regs to determine if org discriminated. Ps sued to have the
IRS‟s regs made stricter. Sought declaratory jmt under 28 USC 2201 & injunction (inherit
power).
- ISSUE - Should individuals be allowed to “run” an agency pursuant to Art. III power?
- JURISDICTION - Fed Q (1331), “arising under” 42 USC 1981 (private person preventing
blacks from contracting in violation of civil rights. Violation - badge of slavery. Note - XIV
Amendment can‟t be used to stop discrimination by private person).
o Exact same suit couldn‟t have been brought in state court. McClung, 19 US 598
(holding that state courts can‟t issue orders against federal officials).
- Mootness: After suit was filed, IRS changed the regs . . . did this make the case Moot?
o For a case to be mooted (dismissed) by the voluntary cessation of illegal conduct, it
must be absolutely clear that the illegal conduct won‟t reoccur.
NOTE - IRS could change the regs back at any time. (i.e.-Reagan elected)
o City changes an ordinance - too easy to change back, not moot. Mesquite, 455 US
283. See also Milwaukee, 192 F. Supp. 2d 899; But see . . .
o If a legislature changes a statute, and the new law moots a case - It is moot. WV, 532
US 598. § 1988 says prevailing Ps get atty. fees . . . if mooted, NO FEES. Id.
o Therefore, if you are afraid a case will get mooted on you, you should think up some
way to have damages (more than just a dec action/injunction). Not moot if damages.
- Standing: Injury in fact, causation, and redressability.
o Ps claimed Injuries -
(1) Black kids were stigmatized by discrimination.
HELD - This was only judicially cognizable injury for the kids who
were denied equal treatment (i.e.-tried to get in and were kept out).
o Just b/c govt. violates law, doesn‟t mean there is standing.
(2) Denied the right to be educated in a desegregated school.
HELD - This was a judicially cognizable injury.
o Causation - Ps injury (2) was not “fairly traceable to the IRS‟s conduct.”
IRS didn‟t cause the injury (i.e.-segregation of schools).
o Redressability - Ps prayed for relief might have redressed the injury of helping
integrate the schools b/c it would be more expensive to run non-exempt school.
MOOTNESS
A) For a case to be mooted (dismissed) by the voluntary cessation of illegal conduct, it must
be absolutely clear that the illegal conduct won‟t reoccur.
i) Congress/State Legislature changes statute, it is moot.
ii) City council or govt. agency (IRS) changes ordinance/reg, it IS NOT moot.
B) Ways to prevent your suit from getting mooted out.
i) Organizational suit - Ass‟n sues on behalf of members. Hunt v. Washington
Apple - 3 Req‟ts for standing (if “member” is mooted, put up another one).
(1) A member of organization must have “injury in his own right” (e.g.-loss of
business by a particular member in Hunt)
(a) You must specifically plead in the complaint that a particular member was
injured, how so, and by the D‟s violation of what law.
(b) It can‟t be some business merely masquerading around as an association.
(2) Suit must be germane to organization‟s purpose (ie.-protect WA apple producers)
(3) The suit isn‟t one that requires the individual member to sue.
(a) Suit for damages requires an individual member.
(b) Suit for an injunction does not require an individual member.
(c) Also, while the other two requirements can‟t be waived by Congress, this one
can . . . (not required by art. III).
ii) Class Actions under FRCP 23(b)(3): After a class is certified, it can no longer be
mooted away. Mooted as to representative P, another P takes his place. Sosna.
(1) Certify a class - Numerous Ps, common Qs of law/fact predominate . . . factors.
(2) If certification was denied, and while it was waiting appeal it was mooted, but the
denial was then reversed, the case is not mooted.
(a) E.g.-prisoners challenging parole stds. Cert. Denied, then paroled - rev, not
moot.
iii) Capable of Repetition by evading review (fairly rare/limited) 2 Req‟ts
(1) The type of injury is one that is limited in time so that the cases won‟t be litigated
before the injury is over, and
(2) This type of injury is likely to happen to this same plaintiff again.
(a) E.g. - Roe v. Wade: limited duration (9mos), likely to happen again.
(b) E.g. - Super Tire Eng’g: Workers get welfare on strike, E/er challenges
statute. Limited duration, RPP would believe that this will happen to P again
(c) E.g. - Weinstein: P suing over parole laws (not a class). Paroled. It is moot b/c
you can‟t presuppose that your client will break the law again. See Lyon.
Pap’s Am, 529 US 277: No nude dancing law. Ordinance was struck down. During appeal,
Pap‟s Am closes business and moves. Moot since P is gone? No b/c city is damaged by the law
being struck down. If ordinance was upheld and P closed, it would‟ve been moot.
. . . Back to standing
C) Jus Tertii Standing - 3d party standing - When the Plaintiff argues someone else‟s rights.
i) The plaintiff has suffered an “injury in fact.”
ii) There is some close relationship between your client and those whose rights you
are arguing.
(1) Atty./Client R‟ship isn‟t “close”
(2) Dr/patient is.
iii) There must be some impediment or hindrance on the absent person‟s right to sue.
(1) This requirement has some teeth.
E.g.-Griswold: Dr sued saying that law preventing birth control to couple was uncon. He argued
their rights. His injury - loss of $ from not prescribing drugs.
D) Generalized Injury: When practically everyone is injured in a similar way, no one has
standing.
i) The mere fact that the govt. has violated the law doesn‟t confer standing
ii) E.g. - Wright (aid to discriminatory schools, hurts all public the same), Ex Parte
Levitt (sued b/c Hugo Black‟s appointment), Schlesinger (P sued b/c reservists in the
Congress were being promoted), Richardson (CIA wouldn‟t release budget, violated
law) In all of these, all citizens were equally injured . . . no suit.
E) Taxpayer Standing as an exception to generalized injury:
i) Requirements to have Federal and State Taxepayer standing. Flast
(1) Must be challenging a Congressional Act; not agency‟s actions or Executive Act
(a) Valley Forge - Army gave away hospital to church school; Executive‟s Act.
(2) Must be challenging the act under the “spending clause”; not some other
constitutional provision
(a) Also, it must be a significant expenditure
(b) E.g.-Richardson & Valley Forge - didn‟t use Art I, § 8.
(3) Nexus: The must be a logical link b/t taxpayer status and the legislative
enactment attacked.
(4) Plaintiff must show that the spending violated a specific constitutional provision
(a) E.g. - Establishment Clause
ii) Municipal Taxpayer suit challenging municipality‟s use of funds
(1) This is different b/c it is easier to track funds in a town.
(2) Req‟t: Taxpayer must show how tax dollars were “misspent” according to the
law. (e.g.-Duremas - couldn‟t show that tax $ paid for Bible study at school).
F) Standing by a political entity (i.e.-a state): parens patriae - 2 times -
i) Govt. is suing based on its interest in the health and well-being, both physical and
economical, of its residents in general; OR
(1) E.g.-to stop pollution or anti-trust laws.
ii) To ensure that the state and its residents are not excluded from the benefits that
flow from participation in the federal system. Snapp & Son v. Puerto Rico
(1) No standing example: Mellon v. Mass.: Like Frothingham, but Mass. Was suing
to have maternity act uncon (Mass $ went to other states) . . . No standing.
G) Legislator: Just b/c you lose a vote, you don‟t have standing.
i) You may have standing if there is an issue as to whether a tie was properly broken
. . . Cochran Summing up Standing . . .
H) Lujan: Ps suing b/c of U.S. policy of not stopping international funds for projects that
may harm endangered species. Organizational case under Hunt.
i) Injury in fact: Not met b/c Ps couldn‟t show that they would go there and be
injured by the destruction of the animals.
(1) Fact that they would go “in the future” was speculative . . . plane ticket=standing
(2) Whale Watching & Laidlaw - Could show that they would use it for recreation.
ii) Causation & redressability: Funding was so small, that it wasn‟t likely that if P
won and the govt. no longer funded the projects that the projects would be stopped.
iii) Generalized injury: Not following law injured all the same. Not particularized
injury.
I) 3 Requirements:
i) Injury in fact: Must be (a) particularized to the P, distinct and palpable or (b)
imminent. The injury can‟t be mere speculation.
(1) Note, Congress can‟t do away with this requirement, but it can define injury very
broadly. E.g.-Fair Housing cases.
(2) Imminent: If a person is “likely” to be exposed (and thereby injured) to toxic
fumes because she works near a sewage plant, she has standing. LeFleur (2d Cir).
(a) But, merely owning land adjacent to a sewage plant isn‟t enough for injury.
(Another Lujan case).
(3) Environmental cases: Showing that you use the land for recreation is enough for
standing, but it must not be mere speculation. Laidlaw. (Lujan - buy ticket).
(a) E.g.-Georgetown students suit. RR rates higher for recyclable material.
Students didn‟t have standing b/c it “may” cause increased logging.
(4) Injury by Govt. agency or statute: Anytime you allege that you are injured by the
actions of a govt. agency or statute, Plaintiff must not only show injury in fact, but
P must also show that he is meant to be protected or regulated by the agency/law.
(a) Data Processing Ass’n. It isn‟t often used, but it is out there (Cochran).
(5) Food & Drug Safety suits: Chance of exposure to mad cow disease confers injury
(and therefore standing). Might have been speculative - ct wanted to hear it.
(6) Equal Protection: Where public parks were exclusively allowed to be used by
segregated private schools, non-segregated schools were injured. City of
Montgomery (Direct deprivation of right to equal use).
ii) Causation: P‟s injury must be fairly traceable to the defendant‟s conduct.
(1) Not the result of an individual 3d party‟s conduct (Allen - IRS didn‟t cause the
school to be segregated; therefore, didn‟t matter if a law change would redress
injury).
iii) Redressability: P must prove that his injury is likely to be redressed by the
requested relief. Can‟t be speculative.
(1) Simon: Hospitals could receive tax-exempt status w/out having to treat indigent
pursuant to IRS reg. Ps were denied treatment and sued to have the revenue
ruling changes. Ct said, “Not likely that Ps would get trmt by changing ruling.”
(2) Equal Protection: Usually you can show injury (lost $ b/c affirmative action, kept
out of school, etc).
(a) For redressability, P doesn’t have to show that “but for” the affirmative
action, P would‟ve gotten the contract, in school, etc. Ass’n Gen K’ors.
(3) Linda: Texas law - don‟t pay child support, dad goes to jail for 6 months, but it
only applies to father‟s of legitimate kids. Mom of bastard sued.
(a) Marshall - Speculative b/c winning won‟t make it likely mom gets $; just jail.
(4) Civil fee paid to the US: D being forced to pay a civil penalty may still redress
P‟s injury. Amount likely to insure that D won‟t violate the law again. Laidlaw.
Fifth Circuit Taxpayer suits: S Ct has really limited taxpayer suits to Est. Clause cases arising
from a specific Congressional use of the Spending Clause.
*“Choose Life” plates - Ps sued b/c she couldn‟t express her “pro-choice” VP - Ct said that it
was not redressable b/c even if Ps won (tag uncon), it wouldn‟t guarantee them a tag. Also, no
taxpayer standing b/c Ps couldn‟t show that tax dollars were spent on the tags.
But see South Carolina - VP discrimination confers standing automatically.
*Foster, Louisiana law - Drs. are liable for all damages caused by giving an abortion. P said
it was an undue burden on religion. But, there was no state actor to sue b/c there was no govt.
actor who enforced the law . . . 5th Cir kicked it out.
General stuff on standing:
*If you have standing under state law, but you appeal to S Ct, you must also satisfy federal
standing.
*Ct will sometimes just grant standing so they can get to the merits. E.g.-Duke power (Ct just
wanted to uphold nuclear power law limiting liability). Baur (P sued b/c USDA allowed downed
cattle to be slaughtered. Found standing even though general and speculative).
*Better plead injury with particularity and then build a record.
Chapter 2: Federal Common Law
(1) Court first decides what law to apply: Federal Law or State Law.
(2) Then the Court decides whether to apply Federal Common Law or “Borrow” state law
Lincoln Mills: Labor Mgt Relations Act provides for federal jurisdiction over disputes b/t unions
and companies. Act never said whether state law or federal law applied. Ct allowed federal C/L:
(1) There is a high federal interest in labor relations.
(2) There is a need for uniformity
I) United States as a Party (When does fed law apply?)
A) Lake Misere: US bought land pursuant to the migratory bird act. K said that if mineral
rights weren‟t used, they went to the govt. Then, LA passed a law stating that the mineral
rights can‟t go to US.
i) What law applies?
(1) Typically, state law applies to land deals.
(2) But here the govt. had a “high federal interest” because the litigation was
determining the rights & obligations of the United States under a K.
(a) ONLY govt. Ks with high federal interests are construed by federal law.
(i) E.g.-The K issue relates to a federal program.
ii) Since federal law applied, should the court “Borrow” State Law?
(1) NO if:
(a) The state law is used in an “unplain” way (e.g.-weird def‟n for child),
(b) State law does not discriminate against the govt, or
(c) Patently run counter to the terms of the govt. act.
iii) Desylva v. Ballentine: Copyright suit. Q-Is illegitimate a “child” for Copyright?
(1) Although Fed had exclusive jurisdiction, Ct borrowed state law.
B) Yazell: Small Business Admin makes a loan. Yazell dies and US goes after the widow‟s
$. Texas coverture law precluded widows from liability to creditors.
i) Ct - State law applied because there was “no need in uniformity.” Loans are
usually governed by state law . . . won‟t be a big burden to learn state law.
C) Clearfield Trust v. US: US govt. check was improperly cashed. US sued. Ct - Fed C/L
i) Govt. has a high Federal interest in its CP & there is a need for uniformity.
II) Suits Between Private Parties (When does Fed law apply?)
A) Parnell: Suit concerning who held ownership of Govt.‟s bearer bonds. 2 private parties.
i) Rights and duties of US weren‟t at stake; therefore, “no high federal interest.”
B) Boyle: Pilot went down in military helicopter. His dad brought suit against the contractor
alleging defective design. Fed Ct judicially created a “military contractor” defense (if 3d
party builds something to govt. specifications, can‟t hold builder liable). Jurisdictional
base - § 1331 . . . typically would apply state law.
i) Although b/t private parties, “uniquely federal interests.”
ii) State law was in conflict with “specific federal objectives.”
iii) Scalia used Fed C/L - Note, lobbyist hadn‟t been able to push the defense through
Congress . . . so they did it judicially (Activism by Conservatives).
III) Protective Jurisdiction: The federal court system has the latent power to take jurisdiction
when there is a high federal interest at stake. This is used when no statute confers federal
jurisdiction.
A) Osborne: OH treasurer commandeered Bank federal bank funds. US could sue although
it was before a statutory grant for the govt. to sue.
B) In re Neagle: Secret service agent for Justice shot a man who attacked the Justice. Cal.
Tried to prosecute him for murder.
i) State can‟t bring a federal employee to trial for performing his job duties in a
“reasonable manner.”
C) Tanella: DEA agent shot a druggie in the back during a struggle. NY brings manslaughter
count against him. (1) Carrying out DEA duties, & (2) it was reasonable . . . therefore, he
couldn‟t be charged in federal court. See also Mesa.
IV) Civil Suits Against Federal Officials
A) Howard v. Lyons; Barr v. Matteo: Civil actions by states against federal officials.
i) Federal Officials carrying out his duties in good faith . . . total immunity against
state civil actions that arise out of injuries incurred while carrying out duties.
B) Westfall: Federal installation who stored chemical wrongly. State claim ag supervisor.
i) TEST: Official is shielded from state court liability if his actions were (1) Within
the outer perimeter of an officials duties and (2) is discretionary in nature. Otherwise,
he gets no absolute immunity.
C) Congress‟ Reaction: 28 USC § 2679 (Westfall Act). Govt. employee being sued for
damages for a tort that occurred while within scope of duties. I give papers to US atty.
US atty. can file “Westfall scope letter,” which says, “D within duties.” Then, case is
automatically removed to federal court and it is now a FTCA suit with the US as a
defendant. **Discretionary???? Coch, “We‟ll get to that later.”
V) Federal Tort Claims Act Suits:
A) 28 USC § 1346(b) - Suits concerning the negligent acts of the federal govt. or its
employees can be litigated EXCLUSIVELY in district court. Suit is against the US, not
the negligent individual. Also, the law of the state where the negligent act occurred will
be the law applied. But see Boyle
B) Exceptions:
i) Feres Doctrine: The US govt. still has immunity for servicemen injured “incident
to service.” 4 factors:
(1) Place where the negligent act occurred;
(2) Duty status of the P when the negligent act occurred;
(3) Benefits accruing to the serviceman as a result of that service; (e.g.-using canoe)
(4) Nature of the P‟s activities at the time of the negligent act.
(a) E.g. - Active duty serviceman was on leave at a military owned recreational
cabin when he was shot and killed by a 3d party (not in the service).
(i) District Court - Incident to service, so that P couldn‟t recover.
(b) Also, if contractor is rightfully sued, can‟t implead govt.
(c) Doesn‟t matter if the negligent act was done by someone else in the military
or a civilian . . . incident to service.
(d) Even if raped, if done while you were drunk from AF party, “incident to serv”
(5) NOTE; FTCA won‟t apply to violation of 1st Am or retaliation for exercising.
(a) P can‟t bring that claim against the govt. unless some other authorization.
ii) Discretionary Exception:
(1) Historically, this exception only applied if the “discretion” used was in the high
policy making or planning level. Indian Towing (light bulb - “operational level”)
& Delahite.
(2) Current rule (more pro-govt.): Exception applies so long as
(a) the govt. actor has “an element of choice” (regardless of whether it is policy
making or operational - look at nature of conduct, not status of actor)
(b) the choice is grounded in social, economic, or political goals. Gaubert.
(3) However, if a federal regulation requires the govt. to do something and they don‟t,
the “discretionary exception” won‟t apply. (Berkowitz).
(4) E.g. - CG forcing evacuation of a ship, then it was stolen Discretionary.
(a) Same if CG didn‟t buoy wreckage (unless mandatory by regulation).
(b) Hours/mode of operation/lack of staff for a national park are discretionary.
**Back to Boyle: Scalia‟s opinion really centered around an argument that the govt. was
immune for the design of the helicopter, so the contractor should also.
1. Problem - Suit b/t private parties. Parnell & Miree - No govt. interest, no fed C/L.
2. Scalia also distinguished Miree by saying that it Boyle dealt with “uniquely federal
interests.” W/out protection, contractors would jack up prices, etc.
3. Miree - FAA gives $ for local airports so long as airport Ks to not put anything
“incompatible” with the airport. They put in a garbage dump - birds.
a. Ct - Fed C/L won‟t apply b/c (1) b/t private parties, (2) no rights or duties of US
hinged on its outcome so there was no high govt. interest or need in uniformity
i. If they tried to the govt discretionary exception.
VI) Section 2: Implied Rights of Action to Enforce Statutes
Current Test: Touche & Ross: “The 4-factor test of Cort is a bad test. The only important part of
the test is „the legislature‟s intent.‟” - Cochran.
A) Cort v. Ash: Criminalized campaign contributions in presidential races by corporations.
Brennan opinion - tons of his get overruled. Ct - No private Cause of Action. 4 part test:
i) See if statute was brought for especial benefit of the class plaintiff is in?
(1) SH wasn‟t one of the ones meant to be protected by law
ii) Is there any indication of legislative intent to create a remedy or deny it?
(1) Cochran said this was stupid. W/out it being in statute, no intent.
iii) Consistent with underlying purpose of the legislative scheme to imply the
remedy?
(1) Here, NO.
iv) Is the cause of action traditionally one that is relegated to state law?
B) JI Case: Securities statute against lying in proxy statements. Purpose of law - Protect
investors against fraudulent solicitation. SEC enforces law rather than Congress making
civil remedy. P still brought suit. Another statute said D Ct could enforce SEC duties.
i) S Ct - Private cause of action will “effectuate the purpose of the act.”
(1) NOTE, SEC even asked the Court in Amicus to create the cause of action.
ii) Ct performed a legislative function . . . Congress should only create a CoA.
C) Title VI & IX claims - Since Court created CoA, it has wide latitude.
i) Cannon: Congress didn‟t create a private cause of action. Congress knew of cases
where the Court had implied private causes of actions (e.g.-Title VI, which Title IX
was patterned after). Therefore, Congress didn‟t provide for a private cause of action.
All 4 factors from Cort v. Ash were present.
(1) Powell‟s dissenting opinion in Cannon: Absent the most compelling
congressional intent to create a cause of action, judicially creating one is a huge
violation of separation of powers. Ct performed Art. I function.
(2) Cannon is still good law in the sense that Title IX confers an implied CoA.
ii) Gebser: Initially filed in state court (but it alleged Title IX), then it was removed
to federal court. Sued the school board b/c a teacher had sex w/ student.
(1) NOTE, P could also have (but didn‟t) brought a § 1983 claim. Right secured by:
(a) Constitution (Body integrity - Jacobsen) of US
(b) Law of US (Title IX).
(2) Martinez, 444 US 277: fn8 - To have state immunity laws as a defense of federal
law would make Con rights illusory. State immunity laws are completely
ineffective for federal claims.
(3) Test for School Board‟s Liability for Student/Teacher Harassment:
(a) Actual notice to someone who can take corrective measures, and
(b) That person must take a stance of “deliberate indifference to the
discrimination.”
iii) Davis v. Monroe County, 526 US 669: Student on Student Harassment
(1) Test for School Board‟s Liability for Student on Student Harassment:
(a) Deliberate indifference to the harassment.
(b) Actual knowledge of the conduct (sexual harassment).
(i) Conduct must be so “severe, persuasive, and objectively offensive as to
deny someone the access to an education.” (Must be egregious).
iv) Alexander v. Sandoval: Title VI case. Same type of analysis will apply to Title
IX. See Gebser. AL dep‟t of public safety. Drivers license test is only in English.
Mexican-American sues.
(1) Title VI - provides liability for intentional discrimination based on race,
nationality if a state agency took federal funds. Judicially created CoA.
(2) New Regulation - State govt. agencies can be liable for disparate impact.
Expanded liability beyond the statute‟s “intentional discrimination.”
(3) Held - Scalia - Regulation can‟t conjure up a cause of action not intended by
Congress. “Agencies must play the sorcerer‟s apprentice, but not the sorcerer
himself.”
(a) A regulation can‟t extend a cause of action beyond a statutory authorization.
(4) Test for implied cause of actions:
(a) Legislative intent is the test to determine if there is an implied cause of action.
Touche, not Cort. AND
(b) There must be “rights creating” language.
Example of the current “implied Cause of Action” approach:
Boswell, 361 F.3d 1263 & Love v. Delta, 310 F.3d 1347: Air Carriers Access Act - No
discrimination by airlines if someone has mental or physical impairment. You can file a
complaint w/ sec‟y of transportation, if you lose, you can appeal to a ct of appeals. No private
cause of action.
- Most important element - look to legislative intent. Intent can be shown by rights creating
language. W/out legislative intent, it‟s out.
- 11th Cir & 6th Cir: By providing a specific cause of action shows a legislative intent NOT to
give a cause of action.
Spending power cases - By taking federal $, you open yourself up to federal liability (e.g. - Title
IX). Is it fair to open up those who take federal funds to huge liability?
*If you coerce the states into taking money, it is unconstitutional (there has never been an
unconstitutional use of spending power).
D) § 1983: Currently, the jurisprudence is merging with law for implied cause of actions.
i) § 1983 provides a cause of action when a state actor deprives someone of
“RIGHTS secured under the Constitution or laws of the US.”
(1) To have a § 1983 claim, there must be “rights creating language” in the statute
that the state actor violated. Pennhurst.
ii) Difference b/t implied cause of action and § 1983
(1) What if a state doesn‟t comply w/ federal law? Yes, § 1983. If state action rather
than implying a cause of action, you‟re into 1983, which gives a cause of action.
Even if the federal law doesn‟t authorize a cause of action . . . § 1983 IS the cause
of action. See book 174.
(a) But, if Congress DOES provide a comprehensive remedial scheme, it shows
the intent of Congress NOT to allow a § 1983 cause of action. Middlesex.
(i) Similarly, the Court will not imply a cause of action if Congress created a
comprehensive remedial scheme.
iii) Maine v. Thiboutot: ME‟s welfare dep‟t refused only granted benefits to 5 kids.
Congress‟ statute provided benefits to all kids. Ct allowed a §1983 claim even though
the Welfare law didn‟t grant a cause of action. § 1983 granted the cause of action.
iv) Pennhurst State School: Mentally ill kids are being shackled at school. A
Congressional Act provided funds for such schools and also declared a “bill of rights”
which stated that the kids should be held in the “least restrictive environment
possible.”
(1) Rehnquist for the Ct - there was no “rights creating language” in the statute. The
Act merely showed a preference for certain treatment of mentally ill kids.
(a) Congressional Intent - To create a right or to impose a condition on the receipt
of funds, Congress must use unambiguous, rights securing language.
v) Middlesex County: Sea Clammers organization sued county to stop its pollution
of clamming grounds under the Federal Water Pollution Control Act. The Act
provided for an “unusually elaborate remedial scheme” which included the
authorization an injunction . . . but there was NOT authorization for a damages suit.
(1) Comprehensive Remedial Scheme: The Court held that the express provisions
providing a criminal penalty and allowing an injunction showed a Congressional
intent to “supplant any remedy that would . . . be available under Section 1983.”
vi) Current Cases
(1) Blessing: Federal law requires states to set up a program to determine paternity,
collect overdue child support for single mothers, etc. AZ didn‟t have such a
program.
(a) O‟Connor held that this law didn‟t confer specific federal rights on anyone.
The standards in the act were only a “guide to the states in creating their
program.” See Pennhurst.
(b) Unlike Middlesex County, there was not enough for a comprehensive remedial
scheme.
(2) Gonzaga Univ. v. Doe: The Family Educational Rights & Privacies Act prohibited
federal funding of schools that released student records w/out consent. Gonzaga
released allegations of sexual misconduct by an employee to the teachers‟
certification board . . . violation of FERPA.
(a) Law was enacted under Congress‟ spending power
(b) Rehnquist - FERPA didn‟t unambiguously show a Congressional intent to
create federal rights. (Same test as under “implied cause of action” cases).
(c) IMPORTANT - This case showed a merger between the “implied cause of
action” line of cases and § 1983. See Touche.
(i) For § 1983, P must show that Congress intended to “confer individual
rights on a particular class of persons.” (e.g. - confer rights to a specific
person) P. 1258.
1. Section 1983 provides the cause of action after a right is shown.
2. Example of “right creating language”: “No person shall be subjected
to violations of FERPA”
3. Example of “non-right creating language”: The federal law has an
“aggregate scope” and requires that recipients “substantially comply.”
(ii) For “implied cause of action,” P must also show that Congress had
intended to create a private remedy.
(3) City of Rancho Pacos Verdes: P applied under the Telecommunications Act to
operate a commercial radio tower at his home. He was denied and sued under §
1983. The Act itself provided that suit could be brought after a denial (this suit
was more limited - 30 days v. 3 yr SOL - than that authorized by 1983), but it
was silent as to § 1983.
(a) Parties stipulated that FTA conferred individual rights.
(b) The suit provided by the FTA was a “comprehensive remedial scheme” that
showed an intent not to allow a § 1983 claim.
(4) Save Our Valley: § 1983 “arising under Title VI.” Tried arguing the same
regulation found in Alexander (“disparate impact” rather than intentional
discrimination).
(a) Congress showed no intent to create a right based on disparate impact. The
regulation expanded beyond Congress‟s intent.
(b) REMEMBER - § 1983 and “implied cause of action” lines merged.
Westfall review - Long John, 253 F.3d 567: Kid drowns in national park. P sued saying National
Weather Service failed to warn. FTCA suit. Discretionary function.
*Say your neighbor (e/ee of NWS) says, “I‟ll call you if it gets bad.” He doesn‟t. You sue in
state law. Into Westfall. Gets a “scope” letter (w/in scope of his duty). Removed to fed court
and becomes FTCA. Then, dismissed under discretionary exception.
Comparison to Alexander v. Sandoval.
Jackson v. Birmingham Sch. Dist., 125 S Ct 1497: Black man, women‟s high school volleyball
coach complained about his team not getting any money. Fired for complaining.
*Title IX case - Sex discrimination. Fired for complaining about it.
**Regulation said, “You can‟t retaliate against someone for speaking out against sex
discrimination.”
*11th Cir. Alexander: Agency was acting as a sorcerer.
**But S Ct said, “You can sue under the regulation because this regulation didn‟t expand
the power of the statute.” You can‟t do a discriminatory act based on sex, retaliation is based on
sex discrimination . . . act based on discrimination. 4 dissents - Girls could sue.
VII) Bivens - Constitutional violations by Federal actors. If Federal actor is violating a
federal statute, try a § 1331 implied cause of action claim.
A) Bivens: Fed Narcs violated IV Amend rights. P sues them individually for $ damages.
i) Held: There can be a federal cause of action for a federal official‟s violation of a
constitutional right unless
(1) There are “special factors counseling hesitation”
(2) There are other alternative mechanisms/remedies provided by Congress
(3) There is a statutory prohibition against the suit.
ii) Could P have sued for damages in state court?
(1) Westfall Act - P will file a scope certificate, then it would be a FTCA (only
applies to negligence) against the US. Now the FTCA (after Bivens) allows
FTCA claims for federal law enforcement officers‟ intentional torts.
(a) Two causes of action today - (1) FTCA & (2) Bivens action.
iii) Could P have brought an injunction?
(1) No standing - Lyons - not likely to happen again.
iv) Could there have been a criminal prosecution?
(1) Neagle line of cases - Only state criminal prosecutions against them when they
aren‟t acting reasonably w/in the scope of their business.
v) Do you have a problem with Bevins?
(1) Opinion used Marbury v. Madison (where there is a wrong, there is a remedy) &
JI Case - Implied cause of action would effectuate the securities law. But, now
Touche applies and JI Case is pretty much dead.
(2) Harlan concurred w/ Lincoln Mills and Clearfield Trust - Use Fed C/L b/c there is
a high federal interest in protecting people from IV Amend violations.
(3) Burger‟s dissent - Congress should grant causes of actions. Violation of the
Separation of Powers for the S Ct to create a cause of action.
B) Cases allowing a Bivens action:
i) Davis v. Passman: Eq. Prot claim through the Vth Am b/c of Congressman‟s
conduct. No special factors causing hesitation; No equally effective remedy.
ii) Carlson v. Green: Client in Federal Prison who doesn‟t get healthcare. P brought
a FTCA and a § 1331 Bivens claim under VIII Am.
(1) Ct - FTCA wasn‟t adequate . . . Under Bivens, P can - (1) get punitive damages,
(2) have a jury trial, (3) the defendant is the actual individual who did the harm
rather than the US govt., and (4) you use the federal common law rather than state
law (high fed interest + need for uniformity).
(2) NOTE, this case may be DOA after Bush and Chilicky.
CASES NOT ALLOWING A BIVENS ACTION
C) Chilicky: Medicare regulation case. Originally, there had to be “periodic reviews” of
Medicare eligibility, but there were thousands of people who were being ripped off and
not given Medicare (mainly b/c feds feared fraud and pressured states). Therefore,
Congress unanimously changed the regulations but no relief was granted to those who
didn‟t get benefits b/t the old regs and the new ones. P sued for $ damages.
i) No cause of action . . . relied on Bush v. Lucas.
ii) P‟s had an administrative remedy and Congress provided for judicial review;
however, that review didn‟t include damages. Complete relief isn‟t required.
D) Bush v. Lucas: Man worked for NASA and called a press conference where he trashed
NASA.
i) There was an “alternative remedy.” Civil Services Remedy is available.
E) Military cases:
i) Stanley: Army program in the 1950‟s to give soldiers LSD to study its effects.
(1) Scalia - NO private cause of action b/c Feres - “Special factor causing hesitation.”
ii) Chappell: Black guy in Navy brings Eq. Prot. claim. Congress provided a
“comprehensive internal system of justice” for such claims.
F) Federal agencies and private corporations acting under color of federal law
i) You can‟t sue a federal agency w/ Bivens. FDIC.
ii) You can‟t sue a private corporation acting under color of federal law. Malesko.
G) SOL:
i) § 1983 claims: Use the personal injury SOL for the state in which the cause of
action accrued that will best effectuate the purpose of §1983. Owens.
(1) E.g. - The SOL that will allow more suits. See 42 USC § 1988.
(2) Look up RPV.
ii) Bivens suits, you use the same SOL as you would use for § 1983.
iii) Implied cause of action: Same as 1983.
iv) FTCA litigation has a two-year SOL.
Chapter IX: 42 USC § 1983 (enacted in 1871)
History - After civil war, XIV Am & § 1983 were enacted to put federal power between the
states and their own citizens. Allow suit in federal district courts for violations of Con.
*There weren‟t many cases because “who would enforce the orders?” Ct didn‟t want to enter
an order that wouldn‟t be enforced. 1960‟s - Eisenhower sent in the troops.
I) Monroe: 8-1 opinion. State cops kicked in the door and waived in the four-four. It was a
violation of the IV Am and IL‟s state law. Held D w/out charging.
A) Jurisdiction: § 1983 (rights secured by IV Am), § 1331 (arising under § 1983 & IV Am).
B) Purposes of § 1983:
i) Override state law (e.g. - blacks can‟t testify)
ii) Provide a remedy where state laws are inadequate.
iii) Provide a federal remedy where state laws are adequate in theory, but not
enforced in real practice.
C) Federal Court has ability to enforce the XIV Am against state and those who represent it
whether they are acting w/in their authority or misusing it. Ex Parte Virginia (Traditional
notions of federalism no longer apply after XIV - state can‟t say, “we have a right to
violate XIV”) & Ship (Sheriff let inmate get lynched).
D) Defendants Arguments in Monroe:
i) § 1983 was meant to apply to the South and discrimination against black folks
ii) Ps could have sued in state court. No exhaustion of state remedies.
(1) But, the purpose of § 1983 was to help protect citizens from their states.
(2) IMPORTANT - You don‟t have to exhaust state or administrative remedies b/f
filing § 1983 suit. Patsy (administrative) & Howards (state)
(a) Patsy & Howards give you a forum shopping possibility . . . you can either
bring the administrative action, state action, or the federal action.
(b) Congress could change this, but the Ct won‟t.
E) “Under Color of State Law” Test: “Misuse of power, possessed by virtue of state law
and made possible only because the wrongdoer is clothed w/ the authority of state law, is
action „under color of state law.‟”
i) Frankfurter‟s Dissent: Cops broke the law; therefore, they weren‟t acting under
state law.
(1) Beef w/ Frankfurter: Wrote precursor to WV v. Barnette (compelled speech if
compulsory pledge of allegiance - 8-1 opinion) . . . 10 yrs later, it was overruled
8-1 . . . no one ever took him serious again, so he dissented all the time.
II) “State Action” Requirement:
A) Suing Public actors - Question: Was it private action?
i) Bennett: Sheriff rapes a witness. He forced his way into her house and said, “I‟m
sheriff, I can do as I want.” Under color of state law?
(1) By invoking his “official capacity,” there was a nexus b/t his position & tort.
ii) Almand: Cop broke down a woman‟s door and raped her while he was off duty.
(1) He wasn‟t acting as a state actor when he broke down the door. He didn‟t gain his
access by being clothed with the authority of state law. No § 1983 claim.
iii) Opeliaka: City manager continually refers to secretary as “Big Tits.” After
leaving a required “Rotary Club” meeting, he rapes her.
(1) But for the fact that he was the city manager, he couldn‟t have gotten her in his
car; therefore, he was acting under color of state law. He utilized his authority to
rape her.
B) Suing private people - Public Function Doctrine: Does a private company have to
comply w/ Procedural Due Process Requirements? Only if it is performing an “exclusive
prerogative of the state.”
i) Jackson v. Metro Edison: Private company kept shutting off power w/out giving
notice or an opportunity to be heard.
(1) Providing power in PA wasn‟t an “exclusive prerogative of the state.”
(2) The fact that the govt. regulated the power company wasn‟t enough to create
“state action” b/c there was no nexus b/t the state regulation and the violation.
(a) If the state had regulations about termination of service nexus.
ii) ME private school case: Teacher at private school sued for violating civil rights.
(1) Not within the “exclusive prerogative of the state.”
iii) Kohn: The mere receipt of federal or state money doesn‟t make someone a state
actor for purposes of § 1983.
C) Flagg Brothers: UCC allows warehouse liens to be made w/out notice or hearing.
i) Just b/c the state authorized the violation of XIV Am didn‟t make it state action.
If the law had been mandatory, then there would have been state action.
D) Joint Activity Line - There must be joint action b/t the private actor (§ 1983 D) and the
state actor; plus, there must be some sort of conspiracy b/t them.
i) Adickes: Conspiracy b/t the police and a restaurant not to serve black people.
(1) Proof of conspiracy w/ state actors would establish that the restaurant acted under
color of state law so that the private entity could be liable under § 1983.
(2) Dennis: Private individuals who conspire w/ state officials (Judge) are liable
under § 1983. “Willful participant in joint action with the State or its agents.”
ii) Polk County: Public defender is not a state actor b/c he is acting for client.
(1) Policy - if you allowed 1983 claim against PD . . . tons of litigation.
(2) But see Tower - Where there is a conspiracy b/t Judge & PD, there is state action.
iii) Atkins: Can sue prison doctor under § 1983.
iv) NCAA: NCAA recommended that a coach be suspended by a state university.
(1) Ct - No “joint activity” b/c there was no Conspiracy b/t NCAA & state.
(2) Brentwood Academy v. Tenn. Athletic Ass’n: TAA is an actual state organization.
(a) Pervasive entwinement b/t state and TAA. Therefore, there was state action.
(b) TAA officials were paid by the state, etc.
v) Recent Circuit Court Cases
(1) Memphis in May: MiM has exclusive jurisdiction to police areas during the
festival. Preacher outside their jurisdiction was harassing people inside the
festival. MiM had him arrested by Memphis police . . . preached sued MiM.
(a) Funding from state or using state property isn‟t enough to make private person
a state actor
(b) Ct said it wasn‟t state action . . . Coch disagrees.
(2) Givens: Initiation ceremony by prison guards where they taped another guards
penis to his leg, etc; while on duty.
(a) State Action - “Ceremony.” Higher ups knew about it.
(i) On duty - presumed to have been under color of law even though
improper. Monroe v. Pape.
(ii) Also, this was intentional conduct by a state actor.
(3) Rossignol: Off-duty deputies confiscate a newspaper that is going to trash sheriff.
(a) Direct nexus b/t their violation of rights and their official duties b/c the
officers were seeking to stop the story about their poor performance.
(b) This was not a “purely personal” action by the officers.
(i) Again INTENTIONAL ACT.
E) Direct Nexus - Focus on the Family: City transit system was allowing a private company
to build bus shelters and lease ads. Regulation - there can be no “embarrassing” ads.
FotF wanted anti-gay ads and were denied. Sued bus-company.
i) State required the private company to take such actions through a regulation;
therefore, there was a direct nexus b/t state‟s regulation and the private company‟s
actions.
F) Negligence:
(1) Negligence can‟t be a basis for § 1983 liability. Dennis. Need an intentional
violation of someone‟s rights.
G) DeShaney: 4 yr old was continuously beat by dad, dep‟t of human services noted the
abuse but took no action . . . kid ended up brain dead. § 1983 suit against dept.
i) Rehnquist - There is no XIV right to be protected by the state against a 3d person.
(1) 2 exceptions -
(a) Special relationship b/t the state and the person injured
(i) e.g. - prisoner incarcerated . . . duty to protect from 3d parties.
(ii) Student in school - NO SPECIAL RELATIONSHIP.
(b) State created danger exception
(i) Scanlon v. Texas A&M: B/c school was fully knowledgeable about
bonfire and danger, their non-action created the danger.
(ii) Knight: Cops arrested a man while walking home w/ wife and left her; she
froze to death. State put woman in more danger than she was in b/f their
action, and it was more than mere negligence.
(iii)McClendon: Sheriff gave drug informant a gun, then informant shot
someone. Estate sued. No suit b/c Sheriff was merely negligent.
III) Official Immunity:
A) Scheurer v. Rhodes: Gov called in National Guard at Kent State. Estate of people killed
sued National Guard and governor. § 1983 action b/c state law made governor immune.
i) Not negligence - Complaint, “Willful, wanton, reckless action by needlessly
deploying troops and by ordering them to perform illegal acts.” Never called local
police
ii) XITH Am for governor? No b/c he was sued in his personal capacity.
iii) Absolute immunity for governor? NO; merely qualified.
(1) Analysis to see if absolute immunity should apply:
(a) Did actor have absolute immunity at common law?
(b) Are there good policy reasons for keeping that immunity in place?
B) Categories of Total Immunity: Only protected from $ damages, not injunctive relief.
i) Legislative immunity: Can‟t sue a legislator if he is engaged in a legislative act
while he harms you. (w/in the sphere of legislative actions.)
(a) Scope of immunity: Bogan: Black City Manager is not well liked so the city
council didn‟t give her a budget. Ct - Legislative immunity applies to city
councils. It was a legislative act, don‟t look at purpose at all . . . immune.
(b) Legislative immunity is the only type that also applies to injunctive relief. S Ct
of Va.
ii) Judicial Immunity: Anything w/in judicial capacity of judge is w/in the scope of
immunity. Stump (an order of sterilization was deemed a judicial act).
(1) To be outside the scope of immunity, the act must be one w/ a complete absence
of all jurisdiction . . . no merely procedural errors.
(2) Functional Approach - When someone is performing similar functions to that of a
judge, he may be given judicial immunity.
(a) Hearing examiners for agriculture dep‟t - immune. Butts.
(b) Judge demoted a probation officer - Judge wasn‟t immune. Forrest.
(i) Judge was carrying out an administrative function, not judicial capacity.
(c) Judge directed cops to bring in a public defender in chains - Immune.
Mireles.
(d) Parole boards - immune. Dawson.
(e) Parole Officers - not immune as a judge, but may be immune as a witness
(i) Witnesses had C/L immunity, good reasons for extending. Holmes.
(f) Prison disciplinary board - not immune (biased)
(g) Court reporter - not immune
(3) Derivative Immunity? Cop gets improper warrant and bursts into your house
(a) 9-0 - No Immunity. Natalie.
(b) Test: Would a reasonably well-trained officer have known that the facts given
were not sufficient to give probable cause?
iii) Presidents: They are immune from suits seeking money damages for acts taken
while in office, but you can sue for acts b/f or after presidency. Nixon; Clinton.
Ch. VIII: XI Am Immunity - The judicial power of the US shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the States by citizens of
another State or by Citizens of any foreign state. But see Hans.
I) General information: In Chisolm v. Ga, the Court allowed a state to be sued by a citizen of
another state in federal court. The XI Am was in response to Chisolm.
A) Hans: Rewrote the XI Am to add “sovereign immunity.” Now, a citizen can‟t sue his
own state in federal court.
B) Monaco v. Mississippi: XI Am doesn‟t allow suit by a foreign govt. ag state in fed ct.
C) Jurisdictional - XI Am can be raised for the first time on appeal.
II) Ex parte Young: MN passed a law fixing RR rates (tons of support in MN). SH of RR
corporation sued the AG seeking an injunction to prevent enforcement of the statute. AG
claimed XI Am immunity. After the complaint was filed, the Federal Court issued a
preliminary injunction. AG filed mandamus action in state court to have law enforced;
therefore, the federal court placed AG in contempt. See Younger & 28 USC § 2283
A) One of the ten most important cases ever.
B) Complaint - 1st Para is jurisdiction (1983, 1331); 2d names the Ds; 3d lists statute; 4th
says violation of XIV; 5th has relief & § 1988.
C) Defendants - You sue the person who enforces the law (AG in MN)
i) Since you‟re seeking an injunction, you sue him in his official capacity.
ii) NEVER name the actual state entity (e.g. - AL Bureau of Prisons).
D) Held that when you sue a state official for an injunction and allege a state law is
unconstitutional, you are saying that the state official isn‟t upholding the constitution;
therefore, he is stripped of his official XI Am immunity and is an individual for the
purposes of the suit.
E) Ex Parte Young opened the door to challenging the constitutionality of a state act w/out
having to violate the act first. Otherwise, you would have to violate law to challenge it.
F) Remember, under § 1983, you don‟t have to exhaust administrative or state remedies;
therefore, a state‟s notice provision is unconstitutional (e.g. - you must give 120-days
notice b/f suing). Felder.
i) Choice of Law - § 1988 - use state law unless it is in conflict w/ the Constitution
or laws of US
III) Edelman: XI Am bars a plaintiff from seeking retroactive money damages that will come
from the state treasury. See also Ford Motor Co.
A) NOTE, since Edelman, § 1983 underwent several changes (Pennhurst, Middlesex).
B) How would you file Edelman today?
i) Bring a § 1983 claim against the state officials in their official capacity for
injunction (Ex parte Young).
ii) Try suing the county for retroactive relief (not protected by XI).
(1) AG would argue that $ would come from the state . . . Immune.
IV) State entity v. Municipality
A) “Where will the money come from?” - If the jmt will come from the state treasury, it is a
state entity. Hess. (Ginsburg opinion)
i) Regents v. Doe - Univ. of CA had K w/ defense dept. where dept. would be liable
for some things. 9th Cir - Can sue the state entity b/c $ will come from dept, not state.
(1) 9-0 Reversal by the Ct - “You could sue the state anytime there was an ins K.”
ii) O‟Connor - Look at who exercises control, not who will pay the jmt.
B) Fifth Circuit analysis of State entity v. Municipality: Pendegrass
a. Statutes and case law of state characterization of the entity,
b. Does entity have local autonomy,
c. Source of funds,
d. Entity concerned w/ local or state wide problems,
e. Can suer be sued in its own name,
f. Can the entity own property?
C) Suits against officials in their individual capacity: Not barred by XI Am b/c money
won‟t be coming from the state to pay the jmt. Hafer.
D) § 1983 claims: A state (or official in his official capacity) isn‟t a person under § 1983.
Will. When you sue an official in his official capacity, $ is coming from state - XI.
V) Waiver of XI Immunity:
A) Receipt of federal funds or participation in a federal program will not be a basis for a
waiver of XI Am. Edelman.
i) There can be no “constructive waiver” of XI Am. Edelman (overruling Parden -
by operating a RR, the state submitted to FELA regulation).
VI) FFC of a state‟s Sovereign Immunity Law
A) A state‟s sovereign immunity is a separate issue from the XI Am.
B) Nevada v. Hall: State A does not have to give FFC to State B‟s “sovereign immunity
law/statute” when State B is being sued in State A‟s state court system.
VII) Injunction based on state law in a federal court
A) Pennhurst II: State law injunction sought in federal court after the federal law claim was
booted out.
i) Rehnquist for the Ct - The fed system has no power to issue an injunction against
a state official in his official capacity based upon state law.
(1) Rationale - Ex parte Young was based upon “stripping” of State authority when an
official violated federal law/constitution (which is supreme).
B) Therefore you can either
i) Bring two separate claims (have to watch out for res judicata in 28 USC 1738 &
Klien) or
ii) You can bring both in state court (removal).
VIII) Consent and Congressional Abrogation (NOTE, all of these cases are 5-4)
A) Test for Congressional Abrogation:
i) Congress made its intent to abrogate XI Am immunity “unmistakenly clear.”
Atascadero.
ii) Congress acted under proper authority to abrogate XI immunity. Seminole Tribe.
(1) E.g. - § 5 of XIV Am . . . not Art I.
iii) Law must be Congruent and Proportional to the enforcement of the XIV Am right
allegedly being infringed upon. Boerne.
B) Fitzpatrick: Title VII was passed pursuant to § 5 of XIV and said, “State‟s liable.”
C) Atascadero State Hosp.: Man sued state hospital under Rehabilitation Act saying that he
was discriminate against b/c of his diabetes.
i) Congress‟ intent wasn‟t unmistakenly clear. See also Welch (OR Parden, again).
ii) Just b/c a state waives “state sovereign immunity” doesn‟t mean the state waived
XI.
D) Lapides: P sued in state court (state immunity was waived), state removed and invoked
XI Am . . . Held - By removing, state waived XI Am immunity.
E) Union Gas: Allowed Congress to abrogate immunity pursuant to its exercise of Art I, §8.
F) Seminole Tribe: There was a Gambling law passed pursuant to the Indian Commerce
Clause (Art. I, § 8, cl. 3). Law req‟d that the State negotiate w/ the tribes for establishing
a gambling system. Expressly allowed tribe to sue to compel “GF negotiation.”
i) There was an unmistakenly clear intent to abrogate state sovereign immunity.
ii) 1st Holding - Congress can only abrogate a state‟s XI Am pursuant to XIV, § 5. It
can‟t abrogate immunity pursuant to Art. I. Overruled Union Gas.
iii) 2d Holding created an exception to Ex parte Young - Ex parte Young was not
applicable b/c of “special factors counseling hesitation.” Chilcky.
(1) Special Factors - Congress had set up a detailed remedial scheme of enforcement
that provided only a very limited remedy (negotiate or Sec‟y of Interior decides
terms); therefore, it showed a Congressional intent to preclude an injunction.
iv) Other points in Rehnquist‟s opinion:
(1) XI Am incorporated state sovereign immunity from English CL
(2) XI Am has a “new” purpose - Protect states from the “indignity of being sued.”
(3) If D Ct denies your mtn to dismiss pursuant to XI, you can file an interlocutory
appeal. 28 USC §§ 1291-1292.
v) Souter‟s dissent
(1) XI Am didn‟t come alive until people tried to enforce debts against South.
(2) Shouldn‟t incorporate English CL . . . that‟s why we left.
G) Alden v. Maine: State employees sue state for damages under Fair Labor & Stds Act in
state court (dismissed b/c of Seminole Tribe‟s OR of Union Gas). FLSA - CC law.
i) Held - XI Am & ideas of state sovereign immunity incorporated therein will bar
claims against a State in that state‟s courts unless State consents. Relied on Hans.
ii) Kennedy‟s Ways to sue: (1) States can waive immunity; (2) Attach Congress can
by saying states must waive to get $; (3) Federal Govt. could sue the state; (4) § 5 of
XIV; & (5) Injunction against future violations (must name state official, not state).
H) College Savings Bank I: Bank has college savings plan; so does FL. Bank sues FL
saying they violated the Lanham act‟s prohibition against “deceptive ads.”
i) Unmistakenly clear intent to sue the states (Atascadero), but
ii) Passed pursuant to CC (violation of Seminole Tribe).
(1) P tried arguing that the state wasn‟t a “state” after it entered the private mkt.
(a) Held - Even if a state has entered a private MKT, it can claim XI Am.
(b) Also, expressly overruled Parden‟s “constructive waiver” again.
I) Federal Agency Adjudication: Federal Maritime Comm’n v. SC Pt Auth.: XI Am applies
to federal agency proceedings when a state is involuntarily sued in front of a federal
adjudication agency.
i) Dissent - Merely the federal govt. regulating the states through adjudication
J) City of Boernes: Constitutionality of RFRA. (CGI + NT for incidental effect on FE).
i) Interlocutory Appeal: § 1292(b) order. “Controlling Q of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.”
ii) Congruence and Proportionality Test: If Congress is going to exercise its power
pursuant to § 5 of XIV, “there must be congruence and proportionality between the
injury to be prevented (or remedied) and the means adopted to that end.”
(1) NOTE, if not a law passed pursuant to § 5 . . . DOA
K) Cases construing the “Congruence and Proportionality Test” (not met - DOA)
i) College Savings Bank II: Patent claim violation based on the same facts as above.
This was a XIV, § 5 use of power b/c it protected property, but was it a proper use?
(1) Atascadero and Seminole Tribe were met.
(2) C&P Test: There was no evidence of a history of the states depriving people of
property by violating patents; therefore, Congress‟ exercise of power wasn‟t
congruent to a problem that they had perceived.
ii) Suits that would get Low Scrutiny Review under XIV
(1) Kimel: Age Discrimination in Employment Act (ADEA).
(a) Met Atascadero and Seminole Tribe, but age receives LSR in Eq Prot clause.
(b) There was no evidence in the record of a pattern of discrimination by states;
therefore, C&P not met.
(c) Dissent - XI Am should be limited to diversity cases; SSI shouldn‟t be in XI.
(2) Garrett: Title I of Americans w/ Disabilities Act (employment).
(a) Atascadero & Seminole Tribe met, but disabilities receive LSR under Eq Prot.
(b) No pattern of states discriminating in employment against disabled.
(c) Ct stated in a fn that Ex parte Young was be available for prospective relief
(d) Dissent - 13 hearings by Congress documenting the societal discrimination
against disabled. 300 cases of state discrimination were found.
iii) Nevada v. Hibbs: Family Medical Leave Act. 6-3 allowing abrogation.
(1) Here, gender discrimination was the harm being remedied - higher review in EP.
(2) C&P test was met b/c there was a history of a pattern of discrimination by states
against women (Congruent)
(3) Higher std of review, easier for Congress to show a pattern of Con violations.
(4) Scalia dissent - Should show evidence for each individual state.
iv) Tennessee v. Lane: Title II of ADA. Services provided by the state. Criminal
defendant in a wheelchair had to crawl courthouse stairs b/c not ADA compliant.
(1) This case involved VI Am rights being violated (higher review than employment).
(2) C&P met: Much more evidence concerning disability discrimination by states
when it comes to providing services rather than in employment.
(a) B/f looking at the state pattern of discrimination, ct looked at societal disc.
(b) No evidence of a particular state‟s conduct.
(3) Scalia dissent - Wanted to drop C&P all together
v) Miller v. King (11th Cir): Title II of ADA. Paraplegic in prison can‟t go to the
bathroom. Held - Congress couldn‟t abrogate immunity.
(1) NOTE, VIII Am claim, not VI. VIII are few and far between.
(2) No evidence of a pattern of discrimination by state against disabled in prisons.
vi) George Mason Univ.: Title II of ADA. Student had chronic migraines and law
professor refused to let her take the final at a different time.
(1) No fundamental right to education . . . LSR; therefore, Lane won‟t control (HSR).
(2) There was some evidence of a pattern of Title II discrimination by schools
(congruent), and Congress provided a limited remedy in the ADA (proportional).
IX) Exceptions to the Ex parte Young Exception of the XI Am: see p 37 for cases.
A) Seminole Tribe: Where there are “special factors counseling hesitation,” Ex parte Young
will not apply. (e.g. - a detailed remedial scheme set up by Congress counsels hesitation)
B) Coeur d’Alene Tribe is DOA. Injunction to quiet title to a lake based on exec. order.
i) Kennedy and Rehnquist tried to say that:
(1) Young isn‟t available if there is a state remedy and Young isn‟t available where
there are “special sovereignty interests.” (E.g. - suits to quiet title)
ii) O‟Connor, Scalia, & Thomas disagreed.
C) Verizon: State order conflicted w/ FCC‟s order. 9-0 allowing injunction. See also Dairy
Mart (allowing Young where state filing provision conflicted w/ Bankruptcy law)
i) Ex parte Young is available so long as:
(1) There is an ongoing violation of federal law, and
(2) The Plaintiff is seeking prospective relief; unless,
(3) There are special factors counseling hesitation. Seminole Tribe.
ii) The rest of Coeur d’Alene is DOA . . . NO special sovereignty exception.
Qualified (Good Faith) Immunity to § 1983 and Implied Causes of Actions:
This defense is used by a govt. official when he is sued in his INDIVIDUAL capacity for
damages
I) Objective Reasonableness Test: “A govt. official is immune from civil liability insofar as
his conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person in similar circumstances would‟ve known.” Harlow.
A) E.g. - Conduct violate clearly established con/statutory rights? RP official know that?
II) What is a “clearly established statutory/constitutional right?”
A) There doesn‟t have to be an exact case on point, the question is one of whether a
reasonable official would have fair warning of the rights violated. Lanier (stating that
every state official should know that a sexual assault violates the rights of the victim).
i) But, A “hazy” case that falls on the border of right or wrong and is very fact
dependant is not a “clearly established right.” Brosseux (cases went both ways on
whether shooting a victim in the back violates IV Am; therefore, reasonable official
wouldn‟t know and the Harlow/Anderson immunity applied).
(1) Cochran thinks this one has legs.
III) The subjective test of Wood is DOA b/c it required the court to determine whether the
official “acted w/ a malicious intent.” Therefore, the P defeated sum jmt by alleging malice.
IV) Interlocutory Appeals: When a govt. official seeks qualified immunity and is denied by
the district court, he is allowed an immediate appeal under the Collateral Order Doctrine.
A) See Mitchell & Cohen (allowing IA over a collateral issue to the main case, that is too
important to be denied, and too independent to be reviewed on appeal).
V) Crawford: Even where a cause of action requires a showing of discriminatory intent (e.g.
- retaliation under the 1st Am), the objective test is all that is required for qualified immunity
determination. Bare allegations of malice won‟t survive summary jmt.
VI) Application of the Objective Reasonableness Test to the IV Am:
A) Anderson: An officer who conducted an illegal search will be given immunity from suit if
a reasonable officer would have believed that the specific illegal actions comported to the
IV Am. Graham - objective reasonableness is the test for excessive force.
VII) Procedure:
A) First, the trial court determines whether the officers‟ conduct violated a “clearly
established constitutional/statutory right.”
i) Would a RPP in same circumstances as D know of the right?
B) Second, the trial court will order limited discovery specific to the case.
C) Third, would a reasonable official in the same circumstances as the D know that the D‟s
specific conduct violated the clearly established right?
VIII) Clearly Established Rights:
A) Substantive Due Process - Can‟t be “mere negligence.” It must be “reckless
indifference” or “shocking the conscious.” Sacramento; Cochran.
B) VIII Am - Only applies when someone is injured while incarcerated.
i) Prohibition against infliction of unnecessary and wanton pain or maliciously &
sadistically harming someone is a clearly established right. (Denial of medical trmt -
Estelle; Leaving prisoner tied to post in the son - Hope - No case on point necessary).
C) First Am - Protection from retaliation is a clearly established right. Wallace. Violation of
the establishment clause; however, may not be clearly established. Bunting (VMI case -
inj. Arg was moot b/c students graduated, vacated the injunction; damages - QI) P41
IX) QI & Liability of private persons under §1983
A) Private people who satisfy “state action” req‟t by Adickes; Dennis; Luger; Marsh; etc.
DO NOT receive qualified immunity.
i) Therefore, it doesn‟t matter if it is a clearly established right when you sue a
private person. See Richardson (public function - private jailors can‟t claim QI);
Toussie (Adickes - private citizen conspired w/ zoning board, no QI). See p. 44.
Governmental Immunity to § 1983 claims
I) Monell: NYC was firing women in the public school system when they got pregnant.
A) Cities are liable under § 1983 “When execution of a government‟s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the govt. as an entity is responsible.”
i) Policy or Custom - You need to show a pattern or practice of doing the harmful
act. (Edict or act includes legislative enactment . . . but, can‟t sue city council).
ii) City can‟t be liable solely by virtue that its employee harmed someone
B) No Edelman problem b/c you‟re seeking city money, not state money.
C) Therefore, you can name the city, mayor (in official capacity), etc and get $ damages
from the city. There is no heightened pleading requirement.
i) If you sue the same people in their individual capacity, the court must enter into a
qualified immunity analysis. (Wood - Must plead w/ particularity when QI is an
option). You must surpass Harlow/Anderson to sue them.
II) Will - Can‟t sue a state (or official in official capacity) b/c XI Am.
III) Hafer - Can sue a state official in his individual capacity ($ from that person‟s bank acct).
A) They can also claim official immunity.
IV) Owen: City manager fired chief. City councilmen defamed chief. Chief asked for a
hearing (b/f he was fired) and never got it. Sued City manager and councilmen in official
capacity
A) If P sued them in their official capacity, he would have had to show that a reasonably
prudent councilman would know that denying a city employee the opportunity to be
heard was the violation of a clearly established constitutional right (Sinderman).
i) Since it wasn‟t clearly established yet, just sue in official capacity.
B) This was an “edicts or acts” case. Act of defaming/firing him.
C) HELD - City could not claim qualified immunity of its officers, even though the
individuals in their individual capacity could have done so.
i) Otherwise, Con law would be frozen in time b/c individuals can claim QI. If
cities could also, Con law could never change b/c a suit couldn‟t be maintained.
V) Pembaur: Cops attempted to execute a warrant against 2 employees of a doctor. Doctor
locked door. Cops called prosecutor & asked what to do. He said, “Break door & get „em.”
This was a violation of the Fourth Amendment.
A) Violation was done pursuant to a final policymaker‟s order. As final policymaker, he
could make official govt. policy and did so by his edicts and acts.
B) NOTE, prosecutor couldn‟t have been sued b/c not clearly est. right, yet. This case did
make it a clearly est. right, though. (Also, total immunity wouldn‟t apply here).
VI) Prapotnik: P is an employee (architect) for St. Louis‟s CDA. P takes outside work
(which is prohibited), and he is suspended by the Head of the CDA. Then P appeals to the
Commission and wins (his boss is ticked off). Then, P was transferred to another dep‟t (same
pay, but it is a dead-end job). Finally laid-off. Appeal to Comm‟n stayed pending trial.
A) S Ct - Monell test isn‟t met for § 1983 liability.
i) Held - Comm‟n had the final policymaking authority, not the officials who fired
him/transferred him; therefore, their actions couldn‟t bind the city.
VII) Failure to Train cases:
A) Tuttle: A single incident can‟t be used to infer a failure to train.
B) Canton v. Harris: For a failure to train case to survive, the city‟s failure must arise to that
of “deliberate indifference” to the rights of others whom the police are in contact with.
VIII) Ways to prove “Official Municipal Policy” under § 1983: (NO punitives in Monell)
A) Official Policy - A single act by the legislative body is the official govt. policy. Owen
(denial of due process to architect). See Monell; Newport (council Br K - violate 1st)
i) NOTE, the body that sets out the policy is the “final policymaker,” not the official
who carries it out.
B) Custom (unwritten law) - A widespread practice (not authorized by written law) that is so
permanent and well settled as to constitute a “custom or usage” or unwritten law.
i) For example, there could be a long running practice of delegating final
policymaking authority to someone else, which could fall under “custom.”
(1) There can be no “first time” act liability.
(2) Spell - P showed that the custom was to hire bad-ass cops and ignore complaints
when they were logged against the cops. $1M verdict. (Not failure to train).
C) ONLY Individuals with final policymaking authority can cause the city to be liable.
(Edicts & acts of officials can only bind a city if the official was the final policymaker)
Pembaur. See also Spikes (DA locked up man b/f election, one act bound city).
i) USE STATE LAW for determining whether an official is the final policymaker.
Pembaur
ii) Also, ratification by the final policymaker can make an act by someone else
official policy. Approve of a subordinate‟s action/decision and the basis for it.
(1) San Antonio case: Man was unlawfully arrested on a golf course and wrote city
council and police dept. about it. This wasn‟t enough for ratification.
iii) A state official is not a final policymaker for a local municipality. McMillan.
D) Delegation of final policymaking authority by the policymaker (edicts & acts). This can
either be expressly done or done by custom. Prapotnik. See also Jett (Issue was whether
school board had delegated right to transfer teachers to the superintendent).
E) Failure to train: Deliberate indifference by the local govt. to the rights of those who the
police come into contact with. Canton (Seems as though there must be a policy of
inadequate training or failure to respond to several complaints).
i) A single incident of inadequate training/screening employees will not be enough
to infer deliberate indifference by the city. Tuttle.
ii) Brown - Deliberate indifference in hiring. (Deputy had battery charges, drunk b/f
hired). Not a sufficient nexus to show that he would hurt someone on the job.
(1) Failure to train? Likely to come into contact w/ people, wasn‟t trained (should‟ve
been trained for arrest). 5th Cir - This did rise to Deliberate Indifference to Rts.
(2) CAUSATION CASE. BIG. Obvious of the actual rights violated.
iii) City has done its job if it trains officers about things that are likely to occur. They
don‟t have to cover every contingency. Shreveport (crossing guard shoots guy).
Ch. 6 - Abstention - This is where you make money by driving the other side nuts.
*Power of federal court to throw your case out and decide it (stay or dismiss) when it has
jurisdiction. Extraordinary and narrow doctrine to be used in exceptional circumstances.
**3 forms of abstention: Pullman; Burger; & Younger
I) Colorado River: § 1345 case by US seeking declaratory jmt against 1,000s of citizens over
water rights. A defendant filed suit in state court against US & made mtn to stay fed action.
McCarran act had previously waived immunity of the US in state court.
A) 42 USC 1738 - Once a state ct enters jmt, it is binding on a federal proceeding.
i) No such statute for federal jmts in state courts.
B) Issue - Can fed ct stay b/c of parallel litigation in state court? (Same as dismissal - 1738).
C) None of the forms of abstention were met, but the court still allowed a stay to be ordered.
i) Ct allowed dismissal b/c of the consideration of several factors (exceptional circs)
(1) Problems when a state and fed ct both assume jurisdiction over a res.
(2) Relative inconvenience of the federal forum,
(3) The need to avoid piecemeal litigation (although it has always been allowed)
(4) The order in which state federal suits were filed.
(5) Whether there was a vexatious or reactive reasoning behind the invocation of the
federal proceeding. Conseco Fin.
(6) Whether there is a federal question. Moses H. Cone.
ii) McCarran Amendment showed Congress‟ intent to avoid piecemeal adjudication.
D) Suits involving a res - jurisdiction goes to whichever first invoked jurisdiction over it.
i) Otherwise, there is no prohibition against concurrent litigation. See
(1) Klein - Parallel litigation in state and federal court alone isn‟t a basis for
abstention (fed ct has an “unflagging obligation to hear cases”); But . . .
(2) Kerotest - Same suit & parties in two fed courts, avoid duplication.
II) Declaratory Judgment suits:
A) Will: Mandamus action that got a very deferential std of review . . . not good law.
B) Moses H. Cone: P filed state court breach of contract action. D then filed pursuant to
diversity jurisdiction in federal court for a declaratory jmt seeking arbitration.
i) Ct - No abstention. Ct should weigh Colo. River, not use it as a checklist.
(1) Look to see if there are “exceptional circs” under Colo. River to surrender Juris.
(2) High federal interest in arbitration.
ii) Donovan - State court can‟t enjoin a federal court
C) Wilton: In suits for declaratory jmt, federal courts have discretion whether to defer to
duplicative state proceedings. Do not apply Colo. River.
i) If seeking any damages at all (e.g. - Decl Jmt + restitution), can‟t use Wilton. Am
Guar. & Liab. Ins. Co.
ii) Quackenbush: If seeking damages, federal court can‟t dismiss . . . they can,
however, order a stay (same effect due to § 1738).
D) Conseco Fin. (5th Cir): Filed suit in federal court to compel arbitration. This WAS NOT
the same as seeking a declaratory jmt; therefore, Colo. River did apply.
i) “Vexatious or reactive nature in invoking federal jurisdiction may influence the
decision to grant/deny stay.” See Moses H. Cone.
III) Rooker-Feldman Abstention: You can‟t file suit in federal court for the review of a state
court judgment. 2 Reasons:
A) §1738 says the final jmt of state court are res judicata on fed ct.
B) §1257 provides for an appeal to the US S Ct after State S Ct
C) Exxon-Mobile: Concurrent litigation in state/fed court. Exxon got a $400M verdict in
state court, and then sought to dismiss its fed suit.
i) Ct - Rooker-Feldman won‟t apply. It only applies when you file in federal court
after the state court has entered a jmt; however, §1738 did apply.
IV) Burford Abstention: If a state has a high, complicated regulatory scheme in an area where
there is a high state interest and a federal claim is intertwined with state claims, the federal
court can dismiss.
A) E.g. - Texas‟ oil industry had its own admin system for handling disputes over oil fields.
V) Pullman Abstention: Applies when there is Federal Question jurisdiction and an unclear
issue of state law. (Some argue this is like an “exhaustion of remedies” req‟t).
A) Pullman: Texas RR Comm‟n entered a decree requiring white conductors in cars.
i) Today - under § 1331, § 1983 (state action b/c RR) seeking injunction against the
order and prospective relief. Defendants - Officials of Comm‟n in official capacity.
(1) Can‟t bring state law claim for injunction under state law in fed ct. Pennhurst.
(2) Standing - RR sued, but wanted to argue rights of black E/ees.
(a) 3d party standing would fail b/c blacks aren‟t hindered. (They intervened).
ii) Ct Held - Abstain so that litigation can be filed against the Texas RR Comm‟n in
state court and the unclear questions of state law can be litigated in order to avoid
needlessly answering questions of Con law.
(1) State should interpret their law before the federal court system
(2) Shouldn‟t address sensitive social policy issues. (HAHA - Frankfurter).
iii) Constantineau - No Pullman abstention when the state law is clear.
B) England: LA medical ass‟n required chiropractors to meet medical stds. Sued under PDP
i) When the case must go to state court b/c of an unclear question of state law, you
can file an England certificate so that the federal issues won‟t be decided; rather, the
state court just construes its state law in light of Con limits.
(1) This means the federal issues can still be heard in federal court.
C) Claims under the state‟s Constitution and the Federal Constitution: Reetz and
Constantineau.
i) “Abstention is not proper if the fed and state constitutional provisions are
identical (even if the state could decide the issue), but abstention is justified if there is
a unique state constitutional provision & a state court interpretation could made a
federal decision unnecessary.” CHEMERISKY (Reetz - AK fishing prof of its Con).
D) Certification of an unclear issue to the state supreme court.
i) MRAP 20: Ct of App and USSC can certify a question if the MSSCT has yet to
rule on it, and it is a determinative issue of state law.
(1) If in district court, you must get it to 5th Cir to do this.
(2) IA under §1292(b) - “Controlling Q of law as to which there is substantial ground
for difference of opinion & that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.”
VI) Younger Doctrine - Generally, a federal court may not enjoin a pending state criminal
prosecution. See also § 2283‟s three exceptions.
A) Dombrowski (1965): Criminal statute punishing Communist Behavior.
i) First time federal court enjoined a state court‟s pending prosecution.
ii) Rationale - Bad Faith prosecution (series of prosecutions brought w/out
expectation of bringing about a conviction).
iii) Also had a 1st Am overbreadth exception, but it was later overruled by Younger. \
B) Younger (1971): Harris is being prosecuted under CA‟s Syndicalism Act for handing out
Communist handbills. Others tried to intervene saying they were afraid to teach Marxism
in school. T Ct - Ordered the injunction. S Ct - Should have abstained.
i) As a matter of Federalism, fed ct should not enjoin a state criminal prosecution
pending at the time the federal suit for injunction is brought; unless exceptional circs
give rise to irreparable harm.
(1) Exceptional Circumstances - Bad Faith - Pursuing a series of prosecutions w/out
expectation of bringing about a conviction
(a) Here, no series of bad faith prosecutions; therefore, exception won‟t apply.
(b) Merely prosecuting someone w/ uncon statute isn‟t enough. Cameron;
Jeanette - Can‟t get injunction just b/c law is unconstitutional.
(c) Merely defending yourself against such a statute isn‟t irreparable harm.
(2) Also, you can get an injunction when the law is “patently unconstitutional in
every line, sentence, and paragraph, and in whatever manner and against
whomever an effort might be made to apply it.” (This has never been found).
C) Samuels: Can‟t get around Younger by filing for a declaratory jmt.
D) Perez: Younger applies to all aspects of state case. Can‟t get evid. declared inadmissible
E) Mitchum: Civil case by state in state ct attempting to declare a bookstore a nuisance.
Owner of the filed in federal court to enjoin the state proceeding.
i) First time the court addressed §2283 - “A Fed Ct may not grant an injunction to
stay state court proceedings EXCEPT as:
(1) Expressly provided by Congress,
(a) Doesn‟t have to “expressly authorize injunction” to qualify (E.g. - § 1983)
(2) Where necessary in aid of its jurisdiction, or
(3) To protect or effectuate its judgements.
ii) Ct - § 1983 is a proper “expressly authorized” exception to § 2283, but you must
still show “exceptional circumstances” under Younger to get the injunction.
F) Federal Suit was filed before the State prosecution was begun
i) Steffel: Couple Protesting Vietnam War by passing out handbills in a private
shopping center. Warned - left; warned 2d time - cop is called; one left, the other
didn‟t and the one who stayed was arrested. The one who left filed a § 1983 suit
asking for declaratory jmt declaring the law to be unconstitutional.
(1) Standing - Prosecution was clearly threatened; therefore, it wasn‟t speculative.
(a) If sue b/f threatened, ask in depo, “If my client did this, would your arrest.”
(b) This is important b/c you need to sue b/f the prosecution is started.
(2) HELD - Declaratory Jmt b/f the state prosecution begins doesn‟t invoke Younger
(a) Must have standing.
(3) Problem - How do you enforce the declaratory jmt? See Doran.
ii) Hicks: Deep throat. Pending criminal prosecution against employees. Their
defense is that it is obscene. Owner of theatre filed in fed court arguing 1st Am.
(1) Derivative Preclusion - Unlike Steffel, the interests of the Employees and the
Owners were identical. B/c the interests were identical, the criminal suit against
the employees was imputed to Owners.
(2) 2d Holding - Even if a state court prosecution is filed after the § 1983 suit is filed,
if “no proceedings of substance on the merits” in federal court have been had,
Younger will still apply. (E.g. - if cops would‟ve arrested Steffel, Younger).
iii) Doran: Law forbade nude dancing. 2 clubs challenged law in federal court w/out
violating the law. 1 club violated the law and employees were arrested.
(1) Pending suit against the one company will not be imputed against the other two.
(a) Lawyer should have told them NOT to violate the law. See Hicks (imputed).
(2) Declaratory JMT may be enforced by a preliminary injunction “pending a
decision on the merits.” (1) Irreparable harm & (2) likely to win on merits.
iv) Huffman: Even if trial court proceedings are over, you can‟t get a federal
injunction if there is a state appeal pending . . . enjoining a state proceeding.
v) Wooley v. Maynard: Convicted twice (taping license plate). Suit in federal court.
(1) B/c they didn‟t seek an appeal under state court, there was no Huffman problem.
(2) Also, no Rooker-Feldman problem (seeking prospective relief, not review of a
state court decision). No res judicata.
G) Pending Civil Suits in State Courts in relation to Younger
i) Trainor: State could‟ve proceeded criminally; instead, they proceeded civilly for
the recovery of welfare funds fraudulently obtained by the D.
(1) Court extended Younger to suits (1) where the state is a party and (2) is
“vindicating important state interests.” Also, this was a “quasi-criminal suit.”
ii) Judice: Never received process b/c of sewer service but still put in contempt.
(1) Court applied Younger (required abstention) even though the state wasn‟t a party.
(2) Still, there was a “high state interest in the application of the contempt process.”
iii) Moore: In cases involving “a state court proceeding in which important state
interests are involved . . . abstention is appropriate unless state law clearly bars the
interposition of the constitutional claims.” See Judice.
iv) NOPSI: FERC ordered the construction of nuclear facility. NO City Council
refused to come up w/ the money by raising energy rates.
(1) Younger doesn‟t apply in all situations where there is a pending state civil case
(2) Younger doesn‟t apply to prevent suits over state courts reviewing legislative or
executive action
(a) Younger prevents review of judicial proceedings, not legislative ones.
v) Pennzoil: JMT against Texaco in Texas state ct. Texaco filed federal suit in NY
to enjoin Pennzoil from exercising its right under Texas law to receive a supersedeas.
(1) 9-0: High state interests were at stake.
H) Application of Younger to pending state administrative proceedings
i) Middlesex County Ethics Comm.: Lawyer publicly criticized a judge and
commented on a case to the press (violation of ethics rules).
(1) Held - Abstain. Quasi-judicial proceeding that is being reviewed; very important
state interest (regulation of lawyers); and can raise 1st Am in proceeding.
ii) OH Civil Rights Comm’n: Pregnant woman was fired by Christian school, filed
suit w/ the OH Civil Rts Comm‟n. School raised 1st Am and then filed in federal ct.
(1) Affirmed the Middlesex test.
(2) “Opportunity to raise federal question” is met if you can only raise it on appeal.
iii) Younger Test - From Middlesex County
(1) Is there a quasi-judicial state proceeding in addition to federal suit?
(2) Is there an important state interest at stake? See also Judice.
(a) Or, is there a quasi-criminal case in state court? Trainor.
(3) In the course of the proceedings, can the D raise his constitutional claims?
I) Cochran‟s Cases
i) Aaron v. Target: Kelo type case. Middlesex Test was met. Abstain.
Condemnation proceedings are quasi-judicial.
(1) Also, abstention is proper so long as the federal proceedings are in their
“embryonic phase.”
(2) After you file in federal court (b/f state court proceedings are filed), you better
find a way to get to the substantive merits, and quick.
ii) What do you do w/ your declaratory judgment you got in a case like Steffel?
(1) Doran - Ask for a TRO or preliminary injunction of any state court proceedings
pending a hearing on the merits in federal court.
(a) This allows you to get beyond the embryonic stages of the federal court case
and keeps Hicks from applying.
VII) Statutory Abstention
A) 28 USC § 1341 - Tax Injunction Act.
i) “The District Courts shall not enjoin, suspend, or restrain the assessment, levy, or
collection of any tax under State law where a plain, speedy, and efficient remedy may
be had in the courts of such State.” (Everything is plain & speedy).
ii) Samuel applies (no declaratory jmt either).
iii) Even if state court says you must pay the tax b/f you challenge it, wait two years,
and you get no interest, it is still a “plain & efficient remedy” so that 1341 applies.
Great Lakes Co.
iv) Damages suits are also precluded b/c to get damages, the court must declare the
tax to be unconstitutional. Fair Assessment for Realty.
v) Hibbs: Tax credit was given to those who donated $ to religious schools. Sought
injunction in federal court based on the Establishment clause (standing?)
(1) S Ct - § 1341 won‟t apply b/c it wasn‟t a tax assessment that was attempting to be
enjoined. This lawsuit is challenging a tax credit & a deduction.
(a) § 1341 doesn‟t apply to all taxation schemes.
vi) Tax v. Fee - You can enjoin a fee, but you can‟t enjoin a tax. Home Builders
(1) Tax is defined to sustain flow of money to the govt., fees are linked towards
regulatory schemes;
(2) Tax is usually imposed by state or city; fees are usually imposed by an agency as
a quid pro quo for the cost of regulation.
(a) E.g. - $5 fee for handicap stickers. For cost of having them, by agency - fee.
(b) Henderson - 5th Cir vanity plate case where money goes to several adoption
agencies. Although agency reg, still called tax (deny fed of juris). On Cert.
B) 28 USC § 2283 - Anti-Injunction Act. Also, note the effect of 28 USC § 1738.
i) “A Federal Court may not grant an injunction to stay proceedings in a state court
except
(1) as expressly authorized by Act of Congress (e.g. - Mitchum), or
(2) where necessary in aid of its jurisdiction, or
(3) to protect or effectuate its judgments (relitigation exception).”
ii) Atlantic Coast Line: Union was picketing around RR yard. RR used Rwy Labor
Act to invoke federal jurisdiction. Fed ct refused to enjoin picketing. RR then went
to state ct and got an injunction. Case went to S Ct - “You can‟t stop them from
picketing.” On remand, state court refused to follow the S Ct‟s command & ordered
an injunction, again. Union then went to fed ct to enjoin the RR from exercising its
state court injunction b/c it violated the federal injunction put in place by the S Ct.
(1) S Ct - § 1738 applied to bar the federal injunction sought by the union.
(a) There was no jmt to effectuate.
iii) Parson Steel: Parson sued bank in state & fed ct. Fed - JMT for bank; then the
state court found the bank liable for $4M (Bank argued res judicata, state ct refused)
(1) § 1738 applied to prevent the Bank from getting a federal injunction after the state
court went to judgment . . . if state court reaches JMT, you‟re out of luck.
(2) If bank sought injunction BEFORE the state court JMT, “effectuate its judgment.”
(3) NOTE, the latest case wins . . . X sues Y in state A (X wins). Y sues X in state B
(X should win b/c FFC, but Y won). X sues Y in state C (Y should win b/c . . .
The latest case controls). Should‟ve appealed the state B case to keep the case
alive. Treinas.
iv) Vendo Co.: Man sold vending company to Vendo & signed a no-compete clause,
which he violated. Vendo sued in state court for damages. Man sued in fed ct
claiming clause violated anti-trust law (atty. let this case remain dormant). Vendo got
$7M verdict in state court. Man then got fed court to enjoin the state ct‟s jmt.
(1) Clayton Anti-trust Act is not an “express authorization to enjoin state ct.” No inj.
v) Imperial County: Man sold water to people in Mexico. County passed a law
prohibiting sale of water out of the county. County got injunction in state court
pursuant to this law to keep man from selling water. Buyers of water sought an
injunction in federal court saying this violated the commerce clause.
(1) Held - If P in a federal suit seeking an injunction is a “stranger” to state court
litigation, § 2283 won‟t apply.
vi) Chick Kam Choo: P‟s suit in federal court was dismissed (some b/c of forum non
conveniens). P then filed same suit in state court. D sought an injunction “to
effectuate the federal court‟s previous judgment.”
(1) §2283‟s relitigation exception will not apply to the claims not actually litigated in
federal court.
(a) The issue of whether Texas state courts were an appropriate forum for some
of the claims had not been litigated (nor the merits on those claims).
(b) Therefore, if you can‟t enjoin the state court action b/c of § 2283, you can
only attempt to argue res judicata in state court based on state law.
Stranger to the state court litigation filing in federal court
Gottfried (6th Cir): Ms. Gottfried wants to picket an abortion facility, which is in a doctor‟s
home. In 1985, the abortion facility got a state court injunction prohibiting any first amendment
activity around the abortion center. State court injunction applied to all named defendants,
unnamed defendants acting in concert w/ named defendants, and anyone w/ notice of the
injunction. Ms. Gottfried was 10 yrs old when this injunction was entered and not a party.
Ms. Gottfried brought a §1983 suit to enjoin the state court action and for $200K.
Forms of Abstention to Discuss:
- § 2283 - Won‟t apply to prevent an injunction b/c (1) §1983 is an express exception to §
2283 & (2) Gottfried wasn‟t a party to the earlier injunction (she was a stranger). Imperial
County v. Munoz.
- Younger - Won‟t apply b/c (1) there is no ongoing state litigation against Gottfried & (2)
Gottfried was a stranger to the earlier injunction. Imperial County v. Munoz.
- Colorado River - No ongoing state litigation w/ which to balance the 5 interests.
- Rooker Feldman - Doctrine can‟t apply to someone who wasn‟t in the original litigation . . .
can‟t “appeal” a decision where you weren‟t a party.
- Pullman - DID APPLY. Ct analogized the injunction to a state statute and applied the
doctrine. Where a state court‟s interpretation of an unclear issue of state law can prevent the
federal court from needlessly answering a constitutional question, the state should interpret it.
o Applies even though Gottfried wasn‟t a party to the injunction.
Grisham Park, People in a community are protesting a liquor store. Owner seeks an injunction
and damages to stop the picketing. Gets the injunction, Ds still pending. Grisham Park then files
in fed ct for an injunction (Hunt case) against sheriff (enforcer), judge, & owner.
- § 1983 - Ct held the owner was amenable to § 1983 b/c of Adickes. Debatable.
- Rooker-Feldman won‟t apply b/c there is no final jmt in state court when fed suit was filed.
- § 2283 won‟t apply b/c it is a 1983 suit and Mitchum applies.
- § 1783 won‟t apply b/c there hadn‟t been a final decision of the state court for which res
judicata would take effect.
- Younger DID APPLY. There was a statute that criminalized interference with business. The
owner‟s injunction helped further the statute‟s purpose; therefore, the pending state litigation
was “quasi-criminal” in nature so that Younger would apply. Citing Trainor.
Chapter 5: SMJ & Preemption
I) Well-Pleaded Rule: Federal jurisdiction (and therefore removal) can‟t be based on a
federal law defense or on the plaintiff‟s anticipation of such defense.
A) A complaint must state a federal cause of action to be removed. If it fails to raise a
federal cause of action, you can‟t remove it b/c of the possibility of the fed question.
II) But see Removal on the basis of Total Federal Preemption:
A) Removal is proper, even when the face of the complaint only alleges state claims, when:
i) The area of litigation is totally preempted (either expressly or impliedly) AND
ii) There is an exclusive federal cause of action. Beneficial Nat’l Bank.
B) This has only arisen in three scenarios:
i) Labor Management Relations Act (Avco);
ii) ERISA (and then only in the cases that must exclusively be brought in federal
court - e.g. - by a beneficiary of the plan. Met Life); and
iii) National Bank Act. Beneficial Nat’l Bank
III) Declaratory Judgments: Generally, a plaintiff may not circumvent the well-pleaded
complaint rule by seeking a declaratory jmt that the federal defense the defendant will raise is
unconstitutional or inapplicable.
A) If, but for the declaratory jmt procedure, the federal question could only arise as a
defense to a state action, the federal court lacks SMJ to hear the dec action. Skelly Oil.
B) Franchise Tax Bd: CA wanted to tax an employer‟s vacation plan. CA sought (1) $ under
state law and (2) dec jmt that ERISA didn‟t apply. Filed in state court. D tried to remove.
i) Fed claim arose ONLY as a defense . . . not enough for removal.
ii) SMJ exists if either party could have brought a federal law claim.
(1) Declaratory action can only be filed in federal court if the declaratory action
defendant could have filed in federal court based on a federal question.
C) Random Case - Where there is a pure (not a dec action + preliminary injunction which is
almost always the case) declaratory jmt in federal court to defend against an impending
state court action, it is the character of the threatened action that determines if the federal
court has jurisdiction. Wycoff.
i) This isn‟t overruled, but you can beat it by seeking prelim. Inj. See Doran.
Ch. 9: Attorney’s Fees
American Rule - Each side pays their own attorney fees. Alyeska (unless statute to opposite).
English Rule - Loser pays winner‟s fees.
I) § 1988: allows recovery of attorneys fees to the prevailing party in 1981(right to make
Ks), 1982, 1985, or 1983 case (violations while acting under color of state law).
A) Prevailing party:
i) Plaintiff - Typically, a prevailing plaintiff in the above cases will be awarded
attorney‟s fees unless there are “special circumstances.”
(1) Nominal Damages - Farrar - If you only recover “nominal damages” (e.g. - $1),
you aren‟t a prevailing plaintiff for the purposes of getting fees.
(a) There may be a “public purpose” exception.
ii) Defendant - Only when the litigation is unreasonable, frivolous, meritless, or
vexatious. Christiansburg Garment.
(1) Case was groundless w/out foundation, rather than simply when plaintiff wins.
B) Random rules
i) Successful Class Action - Typically, you get a percentage of the “common fund.”
(1) In re Rite Aide: First court to use lodestar as a guide for what % was reasonable.
ii) Successful & unsuccessful claims -
(1) Unrelated - Treat the unsuccessful claim as an independent action (no fees).
(2) Related claims - E.g. - arise from the same facts. See “Significant issue test” infra.
(a) If you succeed on a significant issue, you get fees for all your time.
iii) Administrative agencies - You may only get fees from time spent in an
administrative agency adjudication if it was useful and helped advance the litigation.
Webb.
(1) But note, if an agency‟s findings of facts are binding on the state court, they are
also binding on the federal court. Elliot.
iv) Appeals - You can also get fees for appeal. Must make a separate fee application.
C) Riverside: Cops shut down a Mexican party. § 1983 and § 1985(3) suit for Ds (no inj).
i) To beat cops, you must defeat qualified immunity under Anderson; Graham
(Objective reasonableness - violation of clearly established 4th Am rights). To beat
the city, must win under Monell (either edicts & acts or custom - pattern of conduct
well known to the final policy maker which rises to deliberate indifference).
ii) P got a $33,000 verdict. L asked for $490K, but the court awarded $245K w/out
any findings. S Ct remanded based on Hensley. T Ct then made specific findings of
fact and S Ct affirmed based on the abuse of discretion standard.
(1) Amt of fees awarded were based on the lodestar and not a contingency amt.
D) Procedure after a plaintiff prevails (You must clearly log your hours & use billing jmt):
i) P must succeed on a significant issue in the case to prevail. Garland.
(1) If your goal is to obtain an injunction, and you do so (but only get nominal
damages), Farrar won‟t apply, and you can get fees. Riley v. City of Jackson.
(2) 3 factor test for “success on a significant issue”:
(a) Received an enforceable judgment or consent decree (actual ct order),
(b) The decree must “materially alter” the legal relationship b/t the parties, &
(c) Decree modifies defendant‟s behavior in a way where P receives positive
benefits. Id.
ii) Lodestar = (hours * reasonably hourly rate)
iii) Johnson factors to alter the lodestar up or down.
(1) Time/labor, novelty, skill, preclusion of e/ment, usual fee, time limits, Amt, rep, +
(2) There won‟t be simply a “multiplier” added on b/c contingency. Dague.
E) Settlement: There must have been a jmt. If you settle a case w/out ever filing a
complaint, you will not get fees. Crest.
i) File consent decree with court, you are the prevailing party. Mayer.
ii) Even if you “win” the case b/c the defendant settles, the court will still hold a
hearing to determine if it was a “meritorious claim.” Daytona Beach.
(1) This prevents attys. from getting fees in “nuisance” settlements.
iii) Conditioning settlement based on waiver of atty. fees is allowed. Evans.
(1) Waiver system is unconstitutional if:
(a) City passes a law to preclude atty.‟s fees.
(b) Vindictive effort to deter lawyers from taking cases.
(c) The fee waiver has the effect of shrinking the pool of lawyers.
iv) If you “win” by bringing about a legislative change (and thus the case is mooted),
you will not receive attorney‟s fees b/c you didn‟t do it in court. Buchanan. (Ds).
(1) Buchanan and Evans are really hurting attys. who take § 1983 cases.
II) When is an attorney liable for the other attorney‟s fees?
A) Rule 11: objective bad faith. No reasonable inquiry into law or facts.
B) 28 USC § 1927: Atty. brought a multiple suits for unreasonable or vexatious purposes.
C) Inherent power of the court - Chambers - Subjective test for bad faith by the court.
III) Contingency fees
A) Dague: Can‟t automatically have a multiplier b/c atty. had a contingency fee.
B) Venegas: If get both atty. fees under § 1988 & contingency fee, you get both.
C)
IV) § 1985(3) Causes of Action (Very limited)
A) This statute prohibits two or more persons from conspiring or going “in disguise on the
highway or premises of another person for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protections of the laws . . .
B) To win a suit, P must show:
i) Conspiracy,
ii) Based on class-based animus towards race (or anything else w/ high scrutiny
under the equal protection clause). Carpenter Brotherhood.
iii) With the purpose of interfering with someone‟s rights,
iv) That are protected under the equal protection clause.
C) “Class based animus.”
i) Must be animus towards the protected class (e.g. - “all women”; not just “women
seeking an abortion”). Bray (suit against Operation Rescue).
Ch. 10, § 2: Res Judicata:
I) Habeas Corpus: Must exhaust state remedies first. If you had a full and fair opportunity
to litigate something in state court, you can‟t relitigate the issue in federal habeas proceeding.
Stone.
II) Collateral Estoppel: Issues litigated and decided. State court litigation has a collateral
estoppel effect on federal courts.
A) Allen v. McCurry: Federal P was a state defendant previously convicted. Argued in state
court that evidence was obtained by violation of 4th Am. Lost. Couldn‟t bring a habeas
action b/c of Stone. Therefore, he filed a § 1983 action for damages.
i) Ct dismissed b/c of Collateral Estoppel - Issue had already been decided. § 1738.
(1) If state held the criminal jmt had a collateral estoppel effect, the federal court
should give it that effect.
(a) See Haring - Guilty plea wasn‟t collateral estoppel in federal court b/c it
wasn‟t collateral estoppel under state law.
ii) No right to relitigate an issue in federal court that was decided in state criminal
suit.
III) Res Judicata: Parties may not litigate issues in a proceeding that could have been litigated
in a previous proceeding.
A) Migra: P filed in state court and won on a breach of K claim (breached K to fire her). P
then filed a § 1983 suit contending that her 1st Am rights were violated when she was
fired.
i) Ct - Same facts, could‟ve been raised together; therefore, she waived her right.
B) Kremer: P filed w/ a state discrimination administrative agency, lost. Filed for review w/
state court and lost again. Received an EEOC right to sue letter and filed in federal court.
i) State court‟s review of the state agency precluded P‟s suit.
C) Elliot: As a matter of comity (not res judicata), state administrative agencies findings of
fact are binding on federal courts if they would also bind the state courts.
D) Heck: In order for a plaintiff to recover damages under § 1983 for an allegedly
unconstitutional conviction or imprisonment, a plaintiff must first have the conviction or
sentence reversed on appeal or expunged by executive pardon.
i) RULE - Criminal prosecution has a preclusive effect on any civil litigation until it
is overturned.
