I. SOVEREIGN IMMUNITY & THE 11TH AMENDMENT
What is the proper role of sovereign immunity in the US constitutional structure?
What is the proper allocation of liability between government entities and government officers?
Is it important that federal courts and federal law remedies be available?
11th Amendment: The judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any foreign state.
no suits in federal courts against state governments in law, equity, or admiralty, by a state‟s own citizens, by
citizens of another state, or by citizens of foreign countries.
no suits in state court against state gov‟t without their consent. Alden v Maine.
Art. III, Sec 2: Judicial power shall extend to all cases in law & equity arising
under this Constitution [federal question jurisdiction]
the laws of the US & treaties made, or which shall be made, under their authority; -- [federal Q jurisdiction]
to all cases affecting ambassadors, public ministers & consuls; --
to all cases of admiralty & maritime jurisdiction; --
to controversies to which the United States shall be a party; --
to controversies between two or more states; --
--between a state and Citizens of another state; -- [Chisholm v GA – sovereign immunity issue]
Between citizens of different states; -- [diversity jurisdiction]
Between citizens of the same state claiming lands under grants of diff states, and
Between a state, or the citizens thereof, and foreign states, citizens, or subjects [sovereign immunity issue]
Original jurisdiction: in all cases affecting ambassadors, other public ministers & consuls, and those in which a
State shall be a party
Appellate jurisdiction: all others, with such exceptions and under such regulations as Congress shall make
Judiciary Act of 1789
SCOTUS has original jurisdiction in cases between states & citizens of another state/foreign states. Used in
Chisholm v Georgia.
Basis for Sovereign Immunity
1. Sovereign immunity is about the ability to sue the state. Arises when the federal gov‟t has regulated the state
and required it to do something. If the state doesn‟t, can you sue the state for that? Or, if state violates
someone‟s constitutional rights, can they sue the state for that?
2. Pro sovereign immunity:
a. Save state $ in defending itself from suit. Protect state treasuries.
b. Predates the Constitution
c. Puts trust in state gov‟t – assumes they will follow constitution & fed law
d. Can correct state gov‟ts through elections, not lawsuits
3. Con sovereign immunity:
a. Not found in the text of Constitution, possibly not intended by framers
b. Makes state government unaccountable
c. Leaves people with no remedy – state gov‟t can violate Constitution and not be held liable
i. State gov‟t could interfere with a contract in violation of contracts clause of Constitution
ii. State gov‟t could imprison you without allowing you to challenge it
iii. State gov‟t could take your property w/out due process of law
d. Elections aren‟t enough to correct state governments
e. If broadly applied, it prohibits all modern civil rights cases against states.
a. Pre-Constitution: state could assert sovereign immunity defense on state law claims when sued in state
b. Constitution: Article III. Judiciary Act of 1789
c. Chisholm v Georgia, 1793
d. 11th Amendment, 1798
e. Civil War & Reconstruction
f. 1875 – general federal question jurisdiction created.
5. Debate about whether Art. III §2 (granting fed court jurisdiction over controversies between a state and citizens
of another state) took away state sovereign immunity. Now that there are federal courts, would states have
immunity when sued there? 3 positions:
a. Marshall, Madison, Hamilton: Art. III §2 didn‟t take away state sovereign immunity; states could only
be sued if consented. (This is now true per 11th amendment). These wanted Constitution to be ratified.
i. Madison argued that states could sue as plaintiffs in fed court but couldn‟t be sued as
b. It did take away state sovereign immunity. These didn‟t want Constitution ratified. Mason, Patrick
c. It did take away state sovereign immunity and should, because state gov‟t‟s should be held
accountable. Randolph, Pickering.
d. In Chisholm v Georgia: p1010, 1793, SCOTUS resolved this debate and held that Art. III §2 did take
away sovereign immunity, the state of Georgia could be sued by citizens of South Carolina (on state
law contract claim).
i. Basis: language of Art. III §2.
e. Negative reaction to Chisholm 11th Amendment
6. 11th Amendment passed in 1798.
a. Textually, 11th Amendment overturned Chisholm: citizens of one state can‟t sue another state. 11th
Amendment states that Art. III §2 does not take away sovereign immunity.
b. Also interpreted to prohibit citizens from suing their own state even in cases arising under federal law
or Constitution. Hans v Louisiana 1890 p1010-16: citizens of Louisiana can‟t sue Louisiana on their
claim that the state constitutional amendment (disclaiming state‟s obligations to pay bond interest)
violates federal Constitution (Art. I §10).
i. Basis: principles of sovereign immunity – would be anomalous to allow states to be sued by
ii. Under Hans, citizen can‟t use the Constitution as a sword.
iii. But he can use it as a shield by violating the law, getting the state to sue him, then defending by
saying that the state is violating the Constitution.
7. Interpretations of the 11th Amendment. What does the 11th amendment mean?
a. It is a restriction on the subject matter jurisdiction of fed courts, barring all suits against state
i. Scalia, Kennedy, Thomas, O‟Connor, Rehnquist
ii. The fact that this issue can be raised for the first time on appeal (Edelman v Jordan) makes it
look like a jurisdictional bar.
iii. Problems with this argument: sovereign immunity can be waived (normally jurisdictional bars
can‟t be waived), Court doesn‟t have to raise sovereign immunity sua sponte (like it has to
raise other apparent problems with subject matter jurisdiction); text is only about suits against
state by citizens of other state (the Chisholm issue); Congress is allowed to abrogate sovereign
immunity through legislation and normally wouldn‟t allow Congress to overrule a const‟l right
iv. Advantage of this argument: clear rule that federal courts may not hear suits against state
gov‟t‟s regardless of the citizenship of the plaintiffs; federalism
v. Seminole Tribe: state sovereign immunity is a const‟l right of states.
b. It is a restriction on subject matter jurisdiction of fed courts but only insofar as it precludes cases
brought against states founded solely on diversity jurisdiction. 11th amendment doesn‟t bar suits against
states based on federal question jurisdiction. 11th amendment restricts diversity jurisdiction of federal
i. Stevens, Souter, Ginsburg, Breyer
ii. Brennan‟s dissent in Atascadero State Hospital v Scanlon, 1985, p1022
iii. Field supports this view
iv. Means that sovereign immunity only matters in state law cases.
v. Problems: inconsistent with
1. Alden v Maine (prohibiting states from being sued in state courts too)
2. Hans v LA – (federal question case held barred by 11th amendment)
3. per Larson, it‟s only in federal law cases that sovereign immunity matters, it doesn‟t
matter in state law cases.
c. It reinstates the common law immunity from suit enjoyed by states prior to Art. III and perhaps prior to
Chisholm. 11th amendment doesn‟t bar suits against states by citizens of another state; states still have
just common law immunity to those suits.
i. States have a common law immunity that Congress can lift. Brennan adopts this theory (after
abandoning the diversity theory) in Union Gas.
8. Is sovereign immunity based on the Constitution or federal common law?
a. If Constitution, Congress can‟t overrule it.
i. This is current doctrine.
b. If federal common law, Congress can overrule it. J. Iredell (dissenting in Chisholm) said that Congress
could pass a statute authorizing citizens to sue other states. Hans court relies on this.
i. Field thinks this.
c. Court leaves question unanswered bc at the time Congress was not passing statutes telling states what
to do and authorizing citizens to sue states for failure to do so.
9. If sovereign immunity is denied, it‟s immediately appealable. Puerto Rico Aqueduct & Sewer Authority v
Metcalf & Eddy.
a. For collateral orders to be immediately reviewable, they must (1) conclusively determine the disputed
issue, (2) resolve an important issue completely separate from merits of the action, and (3) be
effectively reviewable on appeal from a final judgment.
b. Allowing immediate appeal of denial of sovereign immunity protects state from having to defend
against a suit, which goes beyond just protecting it from liability.
10. Summary of Suits Barred
a. State can‟t be sued by citizens of another state. 11th Amendment overruling Chisholm. Based on text of
i. Indian tribes can‟t sue state governments in federal court w/out state consent. Seminole Tribe.
b. State can‟t be sued by its own citizens even in cases arising under federal law or Constitution. Hans v
c. States can‟t be sued in admiralty.
d. States can‟t be sued by foreign nations. Monaco v Mississippi: not based on text of amendment, but on
e. States can‟t be sued by Indian tribes. Seminole Tribe.
f. States can‟t be sued in state court w/out their consent. Alden v Maine.
g. States can‟t be named as defendants in federal administrative agency proceedings. Federal Maritime
Commission v South Carolina State Ports Authority.
h. The only way a citizen can hold the state accountable is by violating the law and getting the state to sue
him then can use the Constitution defensively.
i. Exception: Ex Parte Young – where the penalties for violating the state law are so high that you
can‟t actually challenge it, it‟s unconstitutional
i. Usually suits against state universities are barred.
j. Suits against cities/counties where the money judgment has to be paid from state treasury.
k. Suits against agencies of state governments are barred – state dept of health / treasury.
l. Suits against local officials who can be deemed to be state officials. McMillian v Monroe County
Alabama (county sheriff was a state official under Alabama constitution)
11. Summary of Suits Allowed
a. US gov‟t can sue a state in federal court. US v Mississippi.
b. States can sue other states in federal court if suing to protect its own interest (P state can‟t be suing to
collect debts owed to individual citizens).
c. Claims against states coming to SCOTUS through appellate jurisdiction. (11th amendment only bars
original jurisdiction suits)
d. States can be sued in bankruptcy proceedings to discharge debts since they are in rem. Tennessee
student assistance corps v Hood. States can be sued in bankruptcy because 11th amendment doesn‟t
apply to bankruptcy at all. Central VA Community College v Katz.
e. Cities/counties/municipalities can be sued. 11th amendment doesn‟t protect them from suit even where
the state cooperates in regional compacts – Lake County Estates v Tahoe Regional Planning Agency)
i. Exception: cities/counties/municipalities can‟t be sued in federal court if there is so much state
involvement that the claim basically runs against the state. Pennhurst.
ii. Can sue counties. Lincoln County v Luning, 1890.
iii. Can sue school boards and cities.
iv. This is important because
f. Suits against school districts.
g. In state court, citizens of one state can sue another state. 11th amendment applies in federal courts only.
Nevada v Hall 1979, p1046
12. For state boards, corporations, and other entities, it‟s unclear if they get 11th amendment protection. Factors:
a. Will judgment against entity come out of state treasury?
b. Does state gov‟t control the entity‟s decisions/actions?
c. Does state executive branch / legislature appoint the policymakers?
d. Does the state law characterize the entity as state agency rather than a subdivision?
e. If yes probably protected by 11th amendment.
Ways Around the 11th Amendment: Suits against State Officers
General rule: you can get around the 11th amendment by naming a state officer as the defendant rather than the
state. Osborn v Bank of US. Suits against state officers not barred by 11th amendment.
Limitations: ability to actually sue the state officer depends on the type of relief sought.
1. Suits Against State officers for injunctive relief
a. Ex Parte Young: The 11th amendment does not bar suits against state officers for injunctive relief (to
enjoin violations of federal law), even where the injunction will bar implementing an official state
policy. A state can be sued in federal court for prospective relief by naming the appropriate state officer
as the defendant.
i. Rationale: state officers have no authority to violate the Constitution and federal laws, so when
they do so, they are stripped of state authority and thus suits against them are not precluded by
the 11th amendment.
ii. This holds even if there is an alternate remedy available, that an individual could violate the
law and then use Constitution as a shield, if the penalty for violation of law is so high that no
one would actually challenge it.
iii. Next official to hold the title will be held to this injunction as well.
iv. The officer is stripped of official capacity when a constitutional or federal statutory violation
1. but officer not stripped of official capacity when a mere contract or tort violation
alleged. Larson v Domestic & Foreign Commerce Corps, 1949, Supp p38
a. note that Larson doesn‟t matter much anymore because the federal gov‟t has
waived its immunity in the court of claims/federal circuit and under the Tucker
Act, where it agreed to be sued for torts/contracts
b. Pro EPY:
i. Allows for the primary method of limiting the effect of the 11th amendment and ensuring state
compliance with federal law
ii. Common law always distinguishes between a principal and its agent
c. Criticism of EPY:
i. Creates a fictional distinction between state & its officers
ii. Still infringes on state sovereignty when an injunction against a state policy is granted.
iii. Puts federal judges in charge of state policy
d. Interaction with “state action” requirement of 14th amendment: though the illegally acting state officer
is stripped of state authority for purposes of 11th amendment, he is still state action for purposes of 14th
e. Three-Judge Court Act was passed (see p1028) bc of negative response to Ex Parte Young.
i. Repealed in 1976
ii. Rule: when attacking a state statute as unconstitutional and seeking an injunction against it,
must have a 3-judge court. Direct review of the 3-judge panel SCOTUS on appeal
(mandatory that SCOTUS hear it, which led to many summary affirmances).
f. Federal statutes in response to EPY:
i. Prohibited federal district courts from enjoining state taxes or rate orders unless there is no
speedy remedy in the states.
2. Suits against state officers for monetary relief
a. Rule: 11th amendment bars an award of monetary relief from the state treasury even when the
individual officer is the named defendant in the lawsuit. Ford Motor Co v Dept of Treasury 1945,
b. Must also overcome individual officers‟ immunities under the common law.
c. Complexities of rule:
i. Suits against officers in their individual capacities are not barred by 11th amendment -- 11th
amendment does not bar suits against state officers for money damages to be paid out of the
officers‟ own pockets, even when the damages are retrospective compensation for past harms.
Rationale: 11th amendment doesn‟t care about anything but state treasuries.
1. irrelevant that state may/will indemnify the officer (can‟t allow state to invoke 11th
amendment by state‟s choice to indemnify)
2. suits against state officers in their official capacities under 1983 are barred. Will v
Michigan Dept of Police.
3. When is a suit against an officer in his official rather than individual capacity? Look
not at the capacity the officer was acting in when did the injury, but the capacity in
which the officer is being sued.
a. Hafer v Melo: officer could be sued, suit not barred by 11th amendment, where
she was sued for firing individuals for their political aff; in indiv capacity.
b. Official capacity suits are attempts to sue gov‟t entity by naming the officer as
a D. That the officer was acting in an official capacity isn‟t enough to make it
an official capacity suit.
c. Personal capacity suits try to impose individual liability on gov‟t officer for
actions taken under color of state law.
ii. 11th amendment does not bar federal court from granting an injunction against a state officer
even though compliance will cost the state treasury $$$ in the future. Prospective/ancillary
relief OK. Graham v Richardson.
iii. 11th amendment bars federal court from awarding retroactive relief (damages to compensate for
past injuries) when they will be paid by the state treasury, even if an individual officer is
named. 11th amendment prohibits all awards of retroactive damages to be paid from state
treasury. Back pay / equitable restitution is barred because they are basically like damages.
1. Edelman v Jordan, 1974, p1029: 11th amendment didn‟t bar federal court injunction
ordering states to comply with federal welfare guidelines in future, but did bar the
injunction ordering state to give back payments of all welfare funds previously
improperly withheld. Ancillary relief (money the state must pay in the course of
complying with a future order) is not barred by the 11th amendment.
2. Determining whether monetary relief is prospective or retroactive is hard
a. Milliken v. Bradley 1977, p1041: upheld a school desegregation order
requiring the expenditure of state funds for educational aspects of a
desegregation plan, including several remedial and compensatory education
programs – found it prospective and not barred by 11th amendment.
b. Frew v Hawkins: state officials can be sued to enforce the terms of a consent
iv. Ancillary relief not barred, per Edelman.
1. Attorneys‟ fees to successful civil rights plaintiffs are ancillary and not barred by 11th
amendment – state can be required to pay.
2. Quern v Jordan: order requiring state to send letters to victorious Edelman P class a
notice that they were denied money and how to collect it via administrative procedures
– not barred by 11th amendment because ancillary to the prospective relief already
ordered by court.
a. Similar measure not allowed in Green v Mansour because the Ps never won on
the merits (state changed its policies in time), so there was no prospective
relief for the thing to be ancillary to
3. Suits against Federal Government to Get your Property back
a. Analogous to Ex Parte Young
b. If a P claims that the US gov‟t wrongfully took his property and names an officer as a defendant, a
federal court must decide the issue. If the federal gov‟t did wrongfully take the property, then the
officer you sue is stripped of his official capacity & can be sued. P has a right to get own property back
from US gov‟t. US v Lee 1882, FSupp p36. Land v Dollar 1947, FSupp 36
c. If name as D a fed gov‟t official + allege that property is wrongfully taken/withheld hearing on the
merits. Can use the gov‟t and get your property back.
4. Summary of Suits against state officers:
a. Step 1: What is the alleged violation?
i. Constitutional? Officer stripped, can be sued under EPY
ii. Federal statutory? Officer stripped, can be sued under EPY
iii. Tort/contract? Officer not stripped, can‟t be sued, see Larson
iv. State constitutional or statutory provision? EPY doesn‟t really apply – state doesn‟t have to
provide any sort of relief. Eerie says that state remedies apply to state law violations; states can
pass constitutional provisions with no remedy for violation.
b. Step 2: What is the relief requested
i. Return of own property? Allowed. Lee and Land v Dollar.
ii. Back pay or Restitution? Forbidden. Edelman v Jordan.
iii. Specific performance of contract? Forbidden.
c. Step 3: Consider other available forums of relief
i. Could you sue in court of claims? (Tucker Act allows you to sue fed gov‟t for torts/contracts)
1. if so, then you might not get to sue to get your property back in a case like Lee. Malone
– court said being able to sue for money was enough.
2. might not be a taking at all if you have a remedy in claims court.
ii. Does the state have tax refund suits? If so, can‟t sue in fed court to gen an injunction against
them as unconstitutional
5. Exceptions to Ex Parte Young
a. Can‟t sue a state officer in federal court on pendent state law claims. Can‟t bring an Ex Parte Young
style suit (for injunction against state officer) based on state law. A federal court can‟t enjoin a state
official on the basis of state law.
i. Pendent jurisdiction / supplemental jurisdiction allows a federal court to hear state law claims
that otherwise wouldn‟t be within its subject matters jurisdiction if those claims arise from a
common nucleus of operative fact with a claim already in court‟s jurisdiction. 28 USC §1367.
United Mine Workers v Gibbs.
ii. Before Pennhurst, federal courts would hear state law claims against state officers that arose
from same matter as federal law claims.
iii. Pennhurst State School v Halderman 1984, p1046, Federal courts are barred by 11th
amendment from enjoining state officers from violating state law
1. rationale: a claim that state officials violated state law in their official duties is a claim
against the state, barred by 11th amendment
2. SCOTUS first said it couldn‟t be done on the basis of this federal law-- held that state
not required to comply with Congressional statute on the disabled bc Congress hadn‟t
required compliance with conditions in federal grants with clear and unequivocal
enough conditions. Should have done constitutional avoidance canon and should‟ve
decided on state law instead.
3. Next time, SCOTUS held that 11th amendment bars relief against state officers on basis
of state law.
a. Rationale: federalism / state sovereignty.
iv. Criticisms of Pennhurst:
1. Ex Parte Young rationale should apply and officers should be stripped of their official
capacity if they are violating state law
2. Forces cases out of federal courts, makes federal court less attractive for plaintiffs.
Litigant can take it all to state court and lose federal forum; or, if split into 2 suits at
same time, risks having res judicata apply in federal forum if state court decides for D
first. Can‟t go to state court on state law claim first and then get back into federal court
on federal claim – will be barred bc you could have brought the fed claim in state
a. If you want 1 lawsuit: go to state court with state & fed claims
b. If you want 2 lawsuits: go to federal court first.
3. To decide whether the state is sovereign from state law claims, should look to state law
per Erie. (Field thinks this.)
v. Ways to get around Pennhurst and bring injunction against state officer in federal court for
violating state statute:
1. allege that state officer violates a state law that creates a nondiscretionary duty or acts
in excess of lawful authority.
2. argue that the state law gives a liberty/property interest protected by due process clause
of 15th amendment. Construe the state law claim as a federal claim.
vi. Pennhurst rule only comes up when a state is the defendant, because it‟s an 11th amendment
issue. Where state is not a party, federal courts interpret state law.
b. Can‟t sue a state officer to enforce federal statute that contains comprehensive enforcement
i. Seminole Tribe v Florida: tribe sued FL governor (and others) to enforce the Indian Gaming
Regulatory Act which requires states to negotiate with tribes in good faith toward a compact.
Court didn‟t allow EPY injunction against the governor because Congress has prescribed a
details remedial scheme (negotiation & submitting claims to mediator) for enforcing the
statutorily created right
ii. Problems with this: Young was based on stripping, not on whether there was a remedial
scheme. Now will require asking whether Congress intended to supplant federal court EPY
suits by creating alternative enforcement mechanisms.
c. Can‟t sue state officer to quiet title to submerged lands possibly can‟t sue where there is a state
i. Idaho v Coeur d’Alene Tribe: suit by tribe against state for quiet title of submerged river lands
barred by 11th amendment, and suit against state officials barred because state‟s sovereign
interest in land and waters would be really affected – would bar the state‟s officers from
exercising any gov‟t authority over those lands.
1. Could be a huge cutback on EPYoung by saying can only bring EPY suit if there is no
other forum available.
2. Probably just an outlier.
ii. Problem: tribe has no federal court remedy because can‟t sue state OR officers, and federal
courts are supposed to decide issues between tribes & gov‟t.
6. Recent cases show EPYoung still valid.
a. Verizon MD, Inc v Public Service Commission, p1132, 2002 – EPYoung suit allowed. Test: ask
whether complaint alleges ongoing violation of federal law and seeks prospective relief.
b. Frew v Hawkins, p1133, 2004 – Can bring EPYoung style suit to get an injunction requiring state
officials to comply with a consent decree (where the decree is based on fed law)
Ways around the 11th Amendment: Waiver / Consent
Edelman: Illinois didn‟t consent to suit just by participating in program where fed gov‟t provides assistance for
operation by state of system of public aid
Paden v Terminal Ry Co: state did consent to suit by operating interstate railroad
Edelman: state can‟t constructively consent to surrender of const‟l rights. Congress / fed gov‟t has to be explicit if it
is requiring state to consent to be sued.
For a state to consent to suit (waive 11th amendment) in state statute or const‟l provision, it must specify that the
state wants to subject itself to suit in federal court. It‟s not enough to say it consents in being sued in general – have
to say which forum. Atascadero State Hospital.
A state can‟t create a cause of action limiting it to only its state courts – the state can‟t keep fed courts from hearing
claims on the law via diversity jurisdiction, because that would be discrimination against fed courts (and fed courts
have to interpret state law as state would anyway);
But under Smith v Reeves, when a state consent to suit, thereby waiving sovereign immunity, it can do so for its
1. State can waive its immunity and consent to be sued in federal court. Atascadero State Hosp v Scanlon.
a. This is odd because normally can‟t consent to get around subject matter jurisdiction limits.
b. If waives, the state can be sued directly in federal court, even for retroactive relief to be paid from state
2. The test for whether a state has waived its immunity is stringent:
a. State must say by express language and overwhelming implications from text. When state consents
to suit via statute or const‟l amendment, it will be narrowly construed.
3. Two types of waivers:
a. Explicit: state expressly agrees to be sued in federal courts
i. Waiver of immunity to be sued in state court doesn‟t count for federal court.
ii. General waiver of sovereign immunity is not enough. Atascadero State Hospital.
b. Constructive: rarely will be found to be sufficient.
i. Current law - Constructive waiver is not normally allowed as a way to waive constitutional
rights. Edelman v Jordan. Constructive waiver will be found only if Congress clearly &
unequivocally states its intent to make states liable in fed court under given statute for
engaging in a particular activity and then state voluntarily chooses to engage in that
1. it‟s unclear if a state as D removing a case from state to federal court constitutes
waiver. Lapides v Board of Regents: a state‟ choice to remove a case from state to
federal court is a waiver of immunity where there are state law claims and the state
has waived its immunity as to these claims in state court.
a. Seems likely that if state removes the case to fed court, it is waiving its
2. it‟s unclear whether a state‟s participation in pre-trial proceedings constitutes a
ii. Before, constructive waivers were found more frequently.
1. Parden v Terminal Railway of Alabama: state‟s choice to operate an interstate
railroad (and thus be an employer) in light of Federal Employers‟ Liability Act was
constructive consent to suit in fed court, even though state explicitly said it didn‟t
consent to be sued
a. Rationale: states surrendered part of their sovereignty when they ratified
the Constitution & granted Congress power to regulate commerce.
Congress through Commerce Power conditioned the right to operate
interstate railroad on being sued in fed court. Where states are engaging in
option, for-profit, acting-like-private-entity activity, they can be regulated.
b. After this and until Union Gas, the rule was that Congress operating within
any of its power can lift state immunity.
iii. Then they were cut back on:
1. Employees of the Dept of Public Health & Welfare v Dept of Public Health &
Welfare: no constructive waiver here because states had no choice whether to
operate public service agency or not, plus no clear indication from Congress that it
meant to make states liable under Fair Labor Standards Act (it wasn‟t a clear
indication because it said “employer can be sued” and “states are employers” but
should have said “states can be sued”)
a. Majority calls 11th amendment a constitutional right. That‟s why they
require a clear statement – never want to override constitutional right
w/out a super clear statement from Congress.
b. Brennan concurrence says 11th amendment applies only in diversity suits.
(He changes theories in Union Gas)
c. Marshall concurring says if it‟s a constitutional right, it can‟t be lifted by
Congress. Congress‟s clear statement to take away immunity means states
have consented to suit.
d. After: Congress amended the statute to make it clear that states were
suable usery, decided as a 10th amendment case that Congress didn‟t
have the power to do this.
2. Edelman v Jordan: no constructive waiver here even where states choose to
participate in SSA program where receives fed $ and must comply with fed
standards, bc Congress didn‟t clearly want to allow suits against states in fed
courts when states choose to get fed $
3. Welch v TX Dept of Highways & public Transport; explicitly overruled Parden –
no constructive waiver bc Congress hadn‟t clearly expressed its intention to allow
states to be sued in fed court under Jones Act (parallel to FELA)
iv. Then basically done away with:
1. College Savings Bank v. Florida Prepaid Postsecondary Expense Board: p1083 -
no constructive waiver of the 11th amendment. Overrules Parden and theory of
constructive waiver of immunity. No waiver even though state engaged in for-
profit, optional activity.
4. Other: Congress can require states to consent to suit through:
a. Approval of interstate compact. a state can be required through an interstate compact to consent to
being sued. FSupp p77 Pett v TN/MO Bridge Comm’n. States can only do interstate compacts if
they are approved by Congress.
b. Spending clause. SD v Dole.
c. Rule: Where Congress gives a gift/gratuity to states in exchange for their consent to suit/giving up
immunity, constructive consent is allowed.
d. From class notes – ways to get real state consent:
ii. Spending clause
iii. In state court
iv. Constructive waiver
v. Suits by other states
vi. Suits by fed gov‟t
vii. Section 5 of 14th amendment
Ways Around the 11th Amendment: Suits Pursuant to Federal Laws – Congressional Abrogation
§1: No state shall make or enforce any law which shall abridge the privileges & immunities of the citizens of
the US, nor shall any state deprive any person of life, liberty, or property, w/out due process of law, nor deny
to any person within its jurisdiction the equal protection of the laws.
§5: the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
1. Does Congress have the authority to override the 11th amendment and make states su-able in federal court
through federal statutes?
a. If 11th amendment is a strict limit on subject matter jurisdiction, then Congress should not be able
to get around that. Congress can‟t expand jurisdiction beyond limits created by Constitution.
b. Other views of 11th amendment that would allow Congress to make states suable:
i. If 11th amendment is interpreted as prohibiting only diversity suits against states in fed
ii. If 11th amendment is a limit on federal judiciary‟s powers and not Congress‟s authority
iii. If 11th amendment just restates common law immunity prior to Chisholm
2. Law prior to current law was that Congress could authorize suits against states when acting pursuant to non-§5-
of-14th-amendment as long as the federal law, in its text, clearly & expressly permits federal court jurisdiction
over state governments – as long as there was a clear statement.
a. Atascadero State Hospital v Scanlon: Court did not allow Rehabilitation Act of 1973 to abrogate
state sovereign immunity because even though leg history indicated that Congress intended for
states to be liable, Congress was not sufficiently explicit about its desire to make states liable in fed
courts. There has to be a clear statement in the text itself – in the legislative history is not enough.
i. This was in tension with Parden where less of a clear statement was required (possibly
because it was more of a constructive consent case)
b. Pennsylvania v Union Gas Co 1989: Congress may authorize suits against states as long as the law
does so expressly in its text. Here Congress appropriately abrogated state sovereign immunity
through the Commerce Clause. Held that Congress could override the 11th amendment pursuant to
any of its constitutional powers as long as the law was explicit in its text in authorizing suits
against state gov‟ts. This statute permitted damages actions against states in fed court pursuant to
Congress acting under commerce clause.
i. Rationale of plurality – this followed from Fitzpatrick – states basically consented when
they ratified the constitution and gave commerce power to Congress. This was based on
consent, not on there being a clear statement.
ii. Brennan adopts theory that state sovereign immunity is not constitutionally required but is
a common law doctrine that Congress can lift.
3. Current law: Congress may authorize suits against state governments only when it is acting pursuant to (1) §5
of the 14th amendment, Seminole Tribe, or (2) the Bankruptcy power.
a. Seminole Tribe v Florida: overruled Pennsylvania v Union Gas. Federal statute (IGRA) authorizing
suits against states (as an enforcement mechanism for their not engaging in good faith negotiations
with Indian tribes re gaming) unconstitutional. Congress may authorize suits against states only
when acting pursuant to §5 of 14th amendment. Here Congress had passed IGRA per the Indian
commerce clause. Even when Constitution gives Congress full law-making authority over an area
(like Indian commerce), the 11th amendment is still a bar – Article I can‟t expand Article III like it
did in Union Gas.
i. The effect of Seminole Tribe is to cut down on Congress‟s ability to regulate states, since
one of the best way to regulate states and ensure their compliance with fed law is to allow
b. Rationale: §5 is different than other of Congress‟s powers because it was meant as a limit on states;
the 14th amendment came later and modifies the 11th amendment; the Court‟s role is to protect state
sovereignty from congressional encroachment.
i. State sovereign immunity is a constitutional right of states.
c. Early groundwork for Seminole - Fitzpatrick v Bitzer 1976: Congress applied Title VII of Civil
Rights Act (prohibiting employment discrim and allowing fed courts to give $ damages against
states found to have engaged in employment discim bc of race, color, religion, etc. ) to the states
under §5 of 14th.
i. Rationale: 11th amendment & sovereign immunity are limited by the 14th amendment
which came after. The 14th amendment expanded fed power at the expense of the states and
fundamentally changed the balance of power between fed gov‟t and states
ii. This laid the foundation for Seminole to say that ONLY under §5 of 14th could Congress
abrogate sov. Imm.
d. Hutto v Finney: states may be sue for attorneys‟ fees pursuant to 24 USC §1988 (statute allowing
successful plaintiffs in civil rights cases to recover attorneys‟ fees), even though there is no explicit
authorization of suits against states. Court found them appropriate bc of clear congressional intent
to include states and statutory language showing that all defendants should get attorneys‟ fees
e. More recently, Court requires Congress‟s intent to be very explicit to override state sovereign
immunity pursuant to 14th amendment:
i. Quern v Jordan: Although §1983 was adopted pursuant to §5 of the 14th amendment, there
was insufficient indication of an express congressional desire to make state gov‟t‟s liable
under the statute. §1983 does not abrogate the 11th amendment.
1. arguably this part of the holding was unwarranted bc had already decided that
requiring state to send notices to denied welfare applicants was not a violation of
2. later this was extended in Will v Michigan to say that states may not even be sued
in state court under §1983 because “person” in §1983 doesn‟t cover states.
ii. But the clarity doesn‟t have to be in the text of statute; can be in the legislative history.
f. Which statutes were passed pursuant to §5 of 14th Amendment? What can Congress do under §5 of
the 14th Amendment?
i. Test - City of Boerne v Flores: congruence & proportionality. Pursuant to §5, Congress
may act only to prevent or remedy rights recognized by courts; Congress can‟t create new
rights or expand the scope of rights under the 14th amendment – can only remedy violations
and enforce the 14th amendment as is. Law must be narrowly tailored to solving
constitutional violations; the law must be proportionate & congruent to the injury or const‟l
violation it is preventing/remedying.
1. Holding: Religious Freedom Restoration Act unconstitutional, exceeded scope of
Congress‟s §5 powers. Congress adopted it to overturn Oregon v Smith (which
held that free exercise of religion clause couldn‟t be used to challenge neutral laws
of general applicability) – it requires that gov‟t actions be necessary to achieve a
compelling purpose to stand up to a free exercise challenge. Unconstitutional bc
RFRA expanded the scope of the right and wasn‟t proportionate or congruent as a
preventing or remedial measure.
2. to find out if state gov‟t can be sued for violating a fed law that authorizes suits
against state gov‟ts, ask:
a. alleging a constitutional violation? US v Georgia, see below
i. if so, state can be sued
ii. need pattern of constitutional violation by state
iii. if alleging due process as const‟l violation, need a lack of other
b. discrimination dealing with intermed/heightened scrutiny or fundamental
i. If so, state can probably be sued.
c. Discrimination with rational basis review or non-fundamental right?
i. State probably can‟t be sued unless shows pervasive record of
ii. Federal law was not a valid exercise of power under §5 of 14th in:
1. Florida Prepaid Postsecondary Education Expense Board v College Savings
Bank: private company sued Florida for patent infringement under federal patent
law that authorized suits against state gov‟ts for patent infringement. Holding: law
not a valid exercise of power under §5 of 14th because not proportionate or
congruent to remedy const‟l violations.
a. no pattern of constitutional violations / patent infringement by states, state
infringing a patent is a deprivation of property but is only a due process
violation if it doesn‟t provide any remedies. Need a pattern of state
2. College Savings Bank v Florida Prepaid, p1103, 1999: legislation not valid under
§5 of 14th. Due process not at issue here because false advertising doesn‟t amount
to a deprivation of property.
3. Kimel v Florida Board of Regents, p1108, 2000: ADEA claims against state by
state employees. ADEA is an express authorization of suit against states, but not a
valid exercise of Congress‟s power under §5 of 14th.
a. Age discrimination only gets rational basis review; no pattern of
unconstitutional behavior; legislation disproportionate burden
4. Univ of Alabama v Garrett, 2001, p11108: Title 1 of ADA prohibiting
employment discrimination against the disabled & requiring reasonable
accommodations by state employers
a. Disability discrimination only gets rational basis.
b. Disproportionate and Not congruent to preventing/remedying const‟l
c. No pattern of state discrimination in employment against disabled
iii. Federal law WAS a valid exercise of Congress‟s power under §5 of 14th in these cases, all
dealing with fundamental rights/discrimination that gets heightened scrutiny
1. Nevada Dept of Human Resources v Hibbs: FMLA (Family medical Leave Act)
fits w/in §5 and can be used to sue state gov‟ts. Protects against gender-based
discrimination (intermediate scrutiny) and narrowly tailored to intersection of work
a. Even though no pattern of unconstitutional gender discrim cited. More just
a history of state laws discriminating against women. Here, the allegation
is of de facto discrimination which usually isn‟t a const‟l violation because
need intent to discriminate under Washington v Davis.
2. Tennessee v Lane: disabled crim D who lacked courthouse access sued state under
Title II of ADA which prohibits state & local gov‟ts from discriminating against
ppl with disabilities in gov‟t programs, services, activities. Title II falls under §5 of
a. Fundamental right of access to courts – heightened judicial scrutiny
b. Record of violations in public services/access
3. US v Georgia: paraplegic in prison sued under Title II of ADA bc of inaccessible
facilities in prison.
a. Allowed under §5 bc alleged const‟l violation - Cruel & unusual
1. Suing a state under 1983 in state court is NOT a way around the 11th amendment operating in federal court.
a. Neither a state nor its officials are “persons” under 1983. Will v Michigan Dept of State Police,
1989, p1042. Congress did not intend to make states liable when it passed 1983. A state officer
acting in his official capacity isn‟t a “person” under 1983 (thus can‟t be sued under 1983) UNLESS
you are asking for injunctive, prospective relief as allowed by Ex Parte Young.
2. Bankruptcy exception: States agreed at the founding not to assert sovereign immunity in bankruptcy
proceedings. Central VA Community College v Katz, 2006, p1086. Congress‟s exclusive power under Art.
I, §8, Cl. 4 to establish uniform laws re bankruptcy was understood at the time to overcome state
The 11th Amendment in State Courts & Agencies
1. 11th Amendment applies in state courts. Congress does not have the power (under Art. I of Constitution) to
make states su-able in state courts. Alden v Maine: state employees suing state in state court under Federal fair
labor standards act.
a. Rationale: state sov immunity is constitutionally based – has to be immunity in both courts;
comity/parity – states do have to follow the law; 10th amendment arg – if state could be sued in
state court, it would allow Congress to commandeer state leg and exec
b. Effect: State can assert sovereign immunity in state court.
c. Dissent: a state can‟t be sovereign with respect to a federal law claim, Supremacy Clause trumps.
2. 11th Amendment applies in federal agency adjudications. Federal Maritime Commission v SC State Ports
Authority, 2002, p1085. A state is immune from state adjudication.
How Sovereign Immunity Relates to the 10th Amendment
1. 10th amendment is another limitation on federal power over states. Printz, NY v US, Lopez, Morrison
2. What does the 10th amendment mean? Timeline of interpretations
a. It was historically called a truism that what is reserved to the states is everything not explicitly given to
b. Later the 10th Amendment was given some meaning. Test: whether the federal gov‟t is legislating in an
area of integral state operations, in areas of traditional gov‟t functions. Nat’l League of Cities v Usery
(on extension of max hours & min wage laws to all state employees)
c. The Usery test was overturned in Garcia v SA Metro Transit Authority: states are represented in
Congress and don‟t need this type of protection from federal encroachment..
i. MF thinks Usery has survived somewhat because there are certain core state areas (like
location of state capital) that Congress couldn‟t interfere with.
ii. This wasn‟t really the death of federalism because Congress only regulates in small detached
spheres and states fill up everything else and have concurrent power too.
d. Current test: NY v US and Printz: Commandeering: fed gov‟t can‟t commandeer a state legislative or
executive into doing federal business, but can force state judicial officers to do so (Testa v Katt)
i. Printz: Fed gov‟t can‟t conscript state officers (sheriffs) into enforcing the Brady Act (re
firearms) even for a limited period of time. Fed gov‟t can‟t use state executive officials to run
federal programs. Rationale:
1. accountability – people need to know who is responsible
2. money – federal gov‟t must make states bear costs
3. state dignity
ii. Criticisms of commandeering:
1. fed gov‟t can commandeer state judiciary officers into enforcing federal statutes, so
why treat state executives any different?
iii. Ways to get around Printz:
1. Congress can legislate using its conditional spending power – will give states $ if they
enforce X federal law.
a. This is also a way to get around the 11th amendment: Congress can condition
its money on requiring states to consent to suit – as long as it‟s explicit
2. De minimum exception – if it‟s a very small commandeering of states
3. Preemption power: If it‟s an area of federal power, Congress can offer the states the
chance to enforce the federal law if they want, otherwise the federal gov‟t will do it.
4. There‟s no 10th amendment problem with federal gov‟t prohibiting states from doing
something (Reno v Conden – fed gov‟t prohibiting states from selling citizens‟ data to
private companies, under Commerce Clause)
3. 10th Amendment says “no regulation” – Congress can‟t make this rule at all. 11th amendment says “no suits by
individuals against the states.” In between is a gap: if federal regulation is allowed by the 10th amendment but a
suit for violation by the state, then the state has to follow the law but just can‟t be sued. Only solution is for US
(Solicitor General) to sue the non-complying state.
II. CONSTITUTIONAL LIMITS ON THE ALLOCATION OF JURISDICTION
How much, if at all, should Congress be able to add to or subtract from the federal court jurisdiction prescribed in
Article III of Constitution?
Is Article III the floor, ceiling, both, or neither, or federal court jurisdiction?
Can Congress deny the federal courts power to hear certain types of cases?
AEDPA is an example of this – limits ability to bring successive habeas petitions, for inst. upheld
Restrictions on ability of fed courts to hear habeas challenges brought by those detained as enemy
combatants is another example Hamdan said that only applied prospectively Congress amended to
apply retroactively too
Limit jurisdiction in lower fed courts:
Art. III, Sec 2: Judicial power shall extend to all cases in law & equity arising
under this Constitution [federal question jurisdiction]
the laws of the US & treaties made, or which shall be made, under their authority; -- [federal Q jurisdiction]
to all cases affecting ambassadors, public ministers & consuls; --
to all cases of admiralty & maritime jurisdiction; --
to controversies to which the United States shall be a party; --
to controversies between two or more states; --
--between a state and Citizens of another state; -- [Chisholm v GA – sovereign immunity issue]
Between citizens of different states; -- [diversity jurisdiction]
Between citizens of the same state claiming lands under grants of diff states, and
Between a state, or the citizens thereof, and foreign states, citizens, or subjects [sovereign immunity issue]
Original jurisdiction: in all cases affecting ambassadors, other public ministers & consuls, and those in which a
State shall be a party
Appellate jurisdiction: all others, with such exceptions and under such regulations as Congress shall make
Judiciary Act of 1789, §25, appendix in Supplement, pA10
Final state court judgment can be re-examined and reversed/affirmed in SCOTUS on writ of error if:
It decides a federal statute or treaty is invalid, or
Decides a statute is constitutional or not against federal law, or
Decides against a litigant (title, right, privilege, or exemption) claimed under a clause of the Constitution,
treaty, or federal statute.
Federal courts have the jurisdiction to decide whether statutes denying authority/jurisdiction to federal courts are
constitutional. Marbury v Madison.
When they are interpreting jurisdiction-stripping legislation, SCOTUS reads the legislation narrowly.
Webster v Doe p270-4: statute was clear on precluding statutory claims, but if Congress wants to preclude
constitutional claims it must be clearer
SCOTUS jurisdiction in general must be specifically granted affirmatively by Congress. Constitutional text isn‟t
enough. Today any federal question litigated in state courts can get to SCOTUS; any question litigated in lower fed
1. Congress‟s power to limit appellate review in Supreme Court (taking away what‟s in Article III, assuming
some other court would still be able to hear the claim).
a. Current law: There is no consensus on constitutionality of restrictions on SCOTUS jurisdiction.
Congress has never robustly attempted this.
b. Argument that Congress CAN:
i. Text: Exceptions & Regulations clause of Article III: “Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as
the Congress shall make.”
ii. Framers‟ intent: they intended Congress to control judiciary‟s power. First Congress
passed Judiciary Act of 1789 which gave SCOTUS only the appellate review of certain
claims – not everything it would‟ve been allowed under Art. III.
iii. Precedent - Ex Parte McCardle, p263-8, 1868: Congress passed a statute repealing
SCOTUS‟s authority under prior statute to do appellate review of writs of habeas corpus,
specifically to prevent SCOTUS from hearing McCardle‟s case. SCOTUS held that it now
lacked jurisdiction because Congress had authority to create exceptions & regulations to
Court‟s appellate jurisdiction.
1. This means that Congress can prevent SCOTUS review of const‟l issues. It‟s
irrelevant that Congress intends to change substantive law by limiting jurisdiction
– SCOTUS can‟t inquire into motives of leg.
2. Congress can repeal jurisdiction in the middle of a case and the Court can‟t go
3. Boumediene (holding: prisoners in Guantanamo have habeas corpus, suspension
clause applies and habeas can‟t be withdrawn by Congress without an adequate
substitute provided)- overrules this strict interpretation of mcCardle. In
Boumediene (Supp p187) the holding was that Congress can‟t strip the Court of
jurisdiction. Congress can‟t take away all remedies (habeas corpus) without
providing an an alternative.
a. This supports the view that there are limits to Congress‟s power under
exceptions & regulations, and that McCardle is only OK because there was
an adequate substitute.
b. BUT the Suspension Clause doesn‟t technically apply to McCardle bc was
a state prisoner. If the suspension clause does apply to states, then there is
no way to distinguish Boumediene and McCardle and Boumediene would
have to be a limit on McCardle.
iv. Policy arguments:
1. it‟s a check on power of unelected judiciary
c. Argument that Congress CAN‟T:
i. Text: Congress could only make exceptions/regulations regarding SCOTUS review of facts
– Congress can‟t limit SCOTUS review of law
ii. Exceptions & Regulations clause gives Congress power to limit jurisdiction but can‟t do so
in a way that is unconstitutional
iii. Precedent – Ex Parte McCardle: SCOTUS still had authority to hear McCardle‟s claim,
their review wasn‟t completely precluded by Congress. So this is different from any
current attempts to completely take away SCOTUS review.
1. McCardle only means that if there are two statutory grounds for SCOTUS
jurisdiction, it‟s OK for Congress to repeal one of them.
a. This was supported by Ex parte Yerger which the next year confirmed that
SCOTUS did still have that one path of jurisdiction.
b. Also supported by Felkin v Turpin, upholding constitutionality of Title I of
1996 AEDPA (prohibiting state prisoners from bringing successive habeas
corpus petitions unless get CoA approval and precluding all SCOTUS
review of CoA approval/denial) because the law did not preclude ALL
SCOTUS review of petitions from prisoners denied ability to make a
successive petition. SCOTUS could still hear original habeas petitions.
i. Problem: super unlikely to SCOTUS will grant an original habeas
ii. Felker stands for proposition that even if remaining path of
SCOTUS review if super unlikely, it‟s enough.
c. This was supported in Boumediene, which was also habeas.
iv. Policy args:
1. purpose of constitution isn‟t just to protect majority rule in democracy, but to
promote substantive values
2. limiting the review freezes prior SCOTUS decisions, which may be OK
3. but limiting review might also encourages state leg & state courts to disregard
prior SCOTUS decisions, which would be bad
4. Congress can‟t use its power to control jurisdiction in a way that violates other
const‟l provisions – ie
a. by undermining the Court‟s essential function in the constitutional system
of government, or
ii. By undermining the Court‟s function of ensuring supremacy of fed
law, thus making state law more supreme than fed law
iii. If Congress could enact an unconstitutional statute & immunize it
from judicial review – would undermine marbury and all of
iv. Essential functions of SCOTUS that must remain intact are: (i)
uniformity – having one body say what national law is, and (ii)
conformity – ensuring that there is one version of federal law
b. by infringing specific constitutional rights
i. ex if Congress passed a law prohibiting SCOTUS from hearing
appeals by a minority group
c. can argue this stems from even a limited reading of Marbury v Madison:
courts can‟t be required to render a decision inconsistent with the
5. can argue that Congress won‟t actually totally strip federal courts of jurisdiction
because federal courts are needed to carry out federal programs.
2. Congress‟s power to limit jurisdiction of the lower federal courts (taking away what‟s in Article III)
a. Current law: unclear whether Congress can pass a statute precluding lower federal courts from
hearing certain challenges
b. Arg 1: Federal Courts must have the full judicial power – lower federal courts created by Congress
must have the full judicial power described in Art. III
i. This is definitely wrong b/c lower federal courts have never had full power under Art. III,
even since Judiciary Act of 1789
ii. This would make all restrictions, including amount in controversy requirements, unconst‟l
iii. Art. III §2 is the maximum of jurisdiction, not the minimum.
1. Federal courts are optional; from the beginning (judiciary Act of 1789) not
everything was vested somewhere (example: under Section 25 of Judiciary Act, if
the state court was overprotective of the federal right, there would be no appeal to
2. Sheldon v Sill confirms this.
c. Arg 2: Congressional discretion to decide jurisdiction – Congress has discretion under Art III to
decide whether to create lower fed courts or not, so can also define their jurisdiction.
i. Sheldon v Sill: 1850 – Judiciary Act didn‟t allow fed court to have diversity jurisdiction
where it was based on an assignment of debt to create diversity jurisdiction. This restriction
on diversity jurisdiction was created by Congress but not in Article III. SCOTUS held that
it was valid because Congress can withhold from courts whatever it wants.
1. takes the view that Art. III is a ceiling/maximum, not the minimum.
2. Rule of Sheldon: since Congress can create lore fed courts or not, it‟s up to them
what to put in them within the Art. III §2 list.
ii. Kline v Burke Construction Co.
iii. Lauf v E.G. Shinner & Co.
iv. Counterarg: none of these precedents are about Congress identifying particular const‟l
rights and denying federal court jurisdiction over claims of gov‟t infringement.
v. This argument is made by Wexsler – fine for Congress to have full control of jurisdiction-
stripping because Congress can‟t make the courts act unconstitutionally. Marbury. This is
enough to protect courts because
1. Congress can‟t give courts just part of a controversy (Congress has to give courts
the whole case, including constitutional defenses, which allows Constitution to
serve as a shield though not a sword – compare Ex Parte Young which lets
Constitution be a sword), and
2. if Congress strips jurisdiction it is stuck with precedents in place freezing
d. Arg 3: Constitutional requirement for some federal courts – the existence of lower federal courts is
required at least for some types of claims
i. Martin v Hunter’s Lessee – Justice Story in dicta. See p277. Based on text of Art. III
saying the judicial power “shall” be vested; this mean sit has to be vested somewhere.
Lower federal courts thus must exist at least for all matters that can‟t be heard in state court
and that can‟t be heard in SCOTUS on original jurisdiction.
1. examples: writs of habeas for federal prisoners or writs of mandamus compelling
performance by fed officers, see Tarble’s case. Tarble’s case prevents state courts
form granting habeas to federal prisoners.
ii. This theory was invoked by the lower court in Eisentrager v Forrestal – state court could
not and SCOTUS could not on original jurisdiction hear this habeas petition by individual
imprisoned by US military authorities in Germany. Though lower fed court did not have
jurisdiction under habeas statue bc prisoner not in jurisdiction of the court, DC Circuit said
that complete lack of jurisdiction by any court was unconstitutional.
1. SCOTUS overruled this (and said it was OK for no court to have jurisdiction over
this habeas claim) in Johnson v Eisentrager.
iii. Alternative to Story‟s approach:
1. Akhil Amar: Story is only right re categories of cases where the text says federal
judicial power must extend to ALL cases (arising under Const & federal law,
ambassadors, public ministers, admiralty, maritime jurisdiction)
2. Prof Eisenberg: existence of lower federal courts is no longer optional, bc of
volume of litigation and SCOTUS can‟t do it all. So must have lower fed courts
now. Some things must be put in lower fed courts because when Constitution was
passed there was an expectation that everything involving federal interests would
be reviewed by the SCOTUS and now that‟s impossible, so must put things in
lower fed courts.
3. Prof. Sager: lower fed courts must exist where otherwise SCOTUS review would
be impossible; fed court must exist to hear const‟l challenges to state gov‟t actions,
to keep the state courts in line
4. due process argument that state courts must be able to hear matters where the
effect of jurisdiction stripping would mean no court available on the claim at all
e. Arg 4: Specific constitutional limits: Congress has discretion to create federal courts and to
determine their jurisdiction, but Congress can‟t restrict their jurisdiction in a way that violates other
const‟l provisions. Independent unconstitutionality.
i. Jurisdiction-stripping legislation that excludes particular classes of litigants from
jurisdiction, identified by the nature of the constitutional claim (ex – abortion), having an
impact only on the class of litigants who would assert that right, and motivated by
congressional hostility to the underlying constitutional right involved, should be subject to
same strict scrutiny as other substantive regulation of the subject matter.
ii. Another version of this arg - Congress can‟t restrict jurisdiction to deny due process of law.
There are some kinds of cases to which access to the courts can‟t as a matter of due process
1. ex: by saying blacks can‟t appeal their cases
2. ex: by saying that no court, state or fed, could hear the claim
iii. ex: Johnson v Robison – Court refused to interpret a statute limiting review of fed agency
decisions so as to foreclose all judicial review
iv. Could make a due process argument if:
1. fed court jurisdiction is limited and state courts would refuse to hear the fed const‟l
2. fed court jurisdiction is limited and state courts are precluded from hearing the
matter by federal law. Ex: habeas petitions or federal prisoners or mandamus of
federal officers. This could violate either Art. III (see above argument) or due
process (this arg)
v. Field thinks this is right – that Congress can‟t use a jurisdiction-stripping statute to bring
about something that would otherwise be unconstitutional. See Hamdan.
3. Congress‟s power to add to federal court jurisdiction beyond what‟s in Article III
a. Congress can‟t increase SCOTUS‟s original jurisdiction. What is listed in Art.III §2 as the
SCOTUS‟s original jurisdiction is the maximum. Marbury v Madison. It‟s also not a minimum,
because Congress has passed statutes taking away original jurisdiction to be tried in lower courts
instead (example: controversies between 2 states)
b. By analogy, it‟s been stated / held that Congress can‟t increase federal court jurisdiction to include
things not in Art. III (like suits between aliens and other aliens).
c. General rule is that Congress can‟t assign to Art. III courts additional duties beyond deciding Ar.
III cases & controversies.
4. Congress‟ s power to limit remedies that federal courts may grant
a. Remedies deemed const‟l rules can‟t be modified by Congress.
b. But for other remedies, it‟s unclear.
i. If there‟s a right, does there have to be a remedy? Webster v Doe.
1. No, Congress can create a statutory right and provide no remedy. Congress can
make a statute unreviewable.
2. But it would be a federal const‟l question if there were a right with no remedy at
all… would be a problem if Congress passed a statute precluding constitutional
claims. So the Court either infers a remedy to avoid this constitutional problem or
reads the statute narrowly not to preclude review of constitutional questions.
3. Boumediene v Bush.
a. Congress can‟t discriminate against constitutional claims when it enacts jurisdictional legislation.
6. Congress has power to take things out of federal court jurisdiction and put them into legislative courts (one that
don‟t have life tenure or salary protection) – Article I courts. Permissible for:
a. US possessions & territories
b. Military matters – UCMJ
i. See LJ Supp p60
ii. Military courts preside over offenses committed by military officers
c. Civil disputes between the US & private citizens – bc of sovereign immunity, the US doesn‟t have
to agree to be sued anywhere
d. Criminal matters / disputes between private citizens where legislative court is an adjunct to federal
The Power and Duty of State Courts to Hear Federal Questions
Can Congress compel state courts to hear federal law matters? => Can Congress put stuff in state courts?
1. Power: Authority for state courts to hear federal law matters
a. State courts have authority to decide questions of federal law unless a federal statute mandates
exclusive federal court jurisdiction. Gulf Shore Oil v Mobil Oil Co.
b. There is a strong presumption in favor of concurrent jurisdiction between state & fed courts – Tafflin v
Levitt. Generally when Congress enacts a statute and doesn‟t say exclusively where it‟s reviewable, it
can be reviewed & enforced in both state & fed courts.
c. Exception: state courts don‟t have the power to discharge officers from federal custody – can‟t release
prisoners on federal habeas claim. Tarble’s case, p65-67. State can‟t do federal habeas corpus.
i. This is a federal common law rule created by SCOTUS. Congress could override it.
ii. One arg in support of this rule is that once the state court releases the federal prisoner, he/she
stays released under the case gets up to SCOTUS.
d. Exception: state courts don‟t have the power to issue writs of mandamus (affirmative injunctions
requiring the subject to do something) against federal officers. McClung v Silliman p67-70.
i. Rationale: it would be reverse commandeering of federal gov‟t by state.
e. Open question: does a state court have the power to issue an injunction against a federal officer?
i. See FSupp p85 Problem of Suing a military officer
ii. It‟s unclear if Tarble’s case extends to injunctions.
2. Duty: MUST state courts hear federal law claims?
a. State courts can‟t discriminate against federal claims. Testa v Katt.
i. 2 possible readings of testa:
1. broad: state courts have to enforce federal law, can‟t discriminate against federal law
a. This seems obvious insofar as originally it was argued at framing that there
was no need for lower federal courts at all bc state courts could do it all;
obviously this was contemplating that state courts would be enforcing fed law.
2. narrower: if there is an analogous state law, they definitely have to take the federal
case bc they can‟t discriminate against the federal suit. If there is no analogous state
law, the question is open. This won‟t arise very much in practice bc all states have
courts of general jurisdiction.
b. A state court can‟t apply a state law defense to defeat a federal law claim. Howlett v Rose p35: state
law of sovereign immunity could not be used by state court to deny recovery under §1983.
i. Unclear though from Howlett what a valid excuse that would permit state court to refuse to
hear a federal law matter would be.
c. A state court can‟t use a jurisdictional rule to dissociate itself form a federal law claim because it
dislikes the federal right or cause of action.
i. Haywood v Drown LJ Supp p2-24: NY passed a law saying no jurisdiction in state court for
money claims against state correctional officers – trying to get around §1983 enforcement in
state courts .
d. Compare this to 10th amendment jurisprudence saying Congress can‟t commandeer state executive or
legislature. NY v US, Printz.
i. Can argue that “commandeering” state judiciary is different (and allowed) because is required
to ensure supremacy of federal law
3. Must state courts follow federal procedures?
a. If a state court is hearing a case arising under federal law & the federal law expressly specifies the
procedures to be used, then states must follow it. Dice v Akron, Canton, & Youngstown Railroad:
FELA expressly provided for procedure of jury trials, so state courts hearing cases under FELA had to
provide for jury trials.
i. These were the FELA cases.
ii. Brown v Western Railway Co of Alabama, 1949, p60: SCOTUS said the FELA complaint was
allowed to go forward in state law even though state had said the complaint was insufficient.
iii. FELA cases might be outliers because Court is attempting to do workers‟ compensation where
Congress has preferred negligence actions.
b. If federal law does not clearly provide procedures, state courts are not obligated to follow federal
procedural rules as long as the state procedures don‟t unduly burden the federal rights.
i. Example of state court not having to follow federal procedure - Johnson v Fankell: states don‟t
have to allow interlocutory appeals for the denial of immunity in suits against gov‟t officials
under §1983. (though SCOTUS had ruled in Mitchell v Forsyth that trial court denial of
immunity is subject to interlocutory appeal in fed courts).
1. Rationale: denial of interlocutory review not likely to be outcome determinative &
Congress didn‟t mention it in the federal statute, §1983.
ii. Example of state court having to follow federal procedure – Felder v Casey, p56-63: State
notice of claim rule (requiring claims against gov‟t to be filed within 120 days of incident)
couldn‟t be used as a reason to deny relief under §1983.
1. rationale: burdens the exercise of the federal right in a way inconsistent with
compensatory aims of federal civil rights law
2. Other examples – federal claims raised by defendants in criminal cases
a. Jackson v Denno – SCOTUS requiring state court to use a separate evidentiary
hearing to determine whether confession made voluntarily
b. Chapman v California – SCOTUS requiring state courts to use “harmless
beyond a reasonable doubt” standard for deciding whether prosecutors‟
comment on failure to testify was OK or not
i. State courts don‟t have to follow federal procedures when hearing fed law claims unless:
1. Congress specifies procedure in the federal statute, or
2. application of state procedure would be outcome determinative, or
3. application of state procedure would burden the exercise of federal rights.
Can Congress take stuff out of state courts?
1. Congress CAN make exceptions to jurisdiction of state courts (which is normally decided by state law) by
taking things out of state courts and putting them exclusively in federal courts – example: patents, copyrights.
2. Per Supremacy Clause, Congress can‟t deprive state courts of jurisdiction over constitutional questions before
them in the ordinary course of litigation authorized by state law
III. APPELLATE REVIEW OF STATE COURT DECISIONS
Without SCOTUS review of state court decisions, states would be free to disregard federal statutes & the
Constitution. Usually state court decisions aren‟t reviewable in the lower fed courts.
SCOTUS may decide only questions of federal law – the Court has no authority to decide matters of state law when
reviewing decisions of state courts. State courts are ultimate interpreters of state law.
Overview: Supreme Court is final arbiter of meaning of federal law; state court is final arbiter of meaning of state
Note: the 11th amendment doesn‟t constrain the jurisdiction of SCOTUS to hear cases on appeal from state courts,
even where the state is a party. McKesson Corp.
Supreme Court Review of Federal Questions
1. Authority for Supreme Court to review state court judgments
a. Not in Constitution.
b. Judiciary Act of 1789, §25: SCOTUS has authority to review state court decisions that ruled against
federal law or federal gov‟t interests:
i. Where state court declared invalid a federal statute or treaty or an act of the US
ii. Where state court ruled against any title, right, privilege, or exemption claimed under fed law
iii. Where highest state court ruled in favor of a state statue or state authority when there was a
challenge based on federal law
c. Martin v Hunter’s Lessee: establishes SCOTUS‟s constitutional authority to review state court
judgments, based on:
i. Constitution presumed that SCOTUS would be able to review state court decisions; Congress
had option to create lower federal courts or not; if they didn‟t and if SCOTUS couldn‟t review
state court decisions, it would be limited to only the few things in its original jurisdiction
ii. Constitution was based on the fact that state prejudices and interests might be a problem
iii. SCOTUS review of state court necessary to ensure uniformity in interpretation of federal law
iv. Being able to remove to federal court is not enough to ensure that a D can use the Constitution
and federal law for his protection . The power of removal is an exercise of appellate
jurisdiction and not original jurisdiction (per J. Story) – this is as much a problem for
sovereignty as SCOTUS review of state court judgment
v. Note that the basis for the decision was the SCOTUS‟s interpretation of state law, which seems
to violate Murdock and §25 of the Judiciary Act‟s last sentence which was in place at the time
and said SCOTUS could only review state court judgment‟s federal law claims
1. but really it‟s right because if SCOTUS hadn‟t reviewed the VA law issue, then VA
would have been able to say they didn‟t‟ violate a treaty (which is SCOTUS‟s job) – so
SCOTUS can protect its jurisdiction by reviewing state law to the extent necessary to
make sure the state law is rightly applied and its jurisdiction is not wrongly evaded
d. State criminal defendants can seek SCOTUS review when they claim their conviction violates the
Constitution. Cohens v Virginia.
e. Statutory authority is 28 USC §1257: SCOTUS may review the “final judgments or decrees rendered
by the highest court of a State in which review of a decision could be had.”
2. Limitations on Supreme Court review of state court judgments
a. SCOTUS can only review questions of federal law. This makes sense because the whole point of being
able to hear appeals from state courts is based on upholding & interpreting federal law.
b. Murdock v City of Memphis, 1875: SCOTUS held that it could review only questions of federal law and
that the decisions of the state‟s highest court are final on questions of state law.
i. §25 of Judiciary Act of 1789 originally had a last sentence that limited review of state court
decisions to federal questions; this was deleted in 1867
ii. Regardless of that change which seemed to indicate that SCOTUS could review whole case,
really SCOTUS can still only review questions of federal law – SCOTUS says repeal meant
iii. Note that SCOTUS decided Martin v Hunter’s Lessee on the basis of state law, so might have
been a violation of §25 of judiciary act
iv. If this had come out the other way, the system would have been unworkable: the meaning of
state law would depend on whether or not the issue made it to SCOTUS or stopped at state
c. Bush v Gore 2000: Majority said there were equal protection problems with proceeding with a count of
uncounted votes absent set standards (would be arbitrary treatment of voters in violation of
fundamental right), and that based on Florida law‟s provision for ending by December 12, there was no
time to remand to Florida to devise a procedure that would get rid of the equal protection problem.
i. Some Dissent said there was no significant federal issue raised so SCOTUS shouldn‟t have
reviewed the case at all; others said even if there is a significant federal issue by way of equal
protection, the right remedy was to remand to Florida courts to decide for themselves
ii. Criticisms: Really the equal protection holding was crap. SCOTUS then decided for the state,
instead of remanding to state, that the state‟s most important interest was in meeting the Dec 12
deadline. This was a usurpation of state‟s ability to interpret its own state laws, looks like a
violation of Murdock.
iii. Majority said that even though the state supreme court is the final arbiter, the federal
Constitution says that the state legislature is the one with the power to appoint electors (Ar. II,
§1, clause 2). So per the federal Constitution, the SCOTUS has to listen to what the state
d. Exception to SCOTUS inability to review state law issues: When state law is integrally intertwined
with a federal question, as when the federal Constitution protects a right created by state law. It can be
hard to tell what is a state question versus a federal question.
i. In these cases, SCOTUS can review state court decisions as to state law to ensure the
protection of federal rights.
ii. Ex: Indiana ex rel. Anderson v Brand: the claim was violation by local gov‟t/state of Art. I §10
(Constitutional prohibition saying no state shall pass any law impairing the obligation of
contracts); main issue was whether there was a contract under state law (re teacher
employment) – Court decided the question, finding there was a contract under state law.
1. Court decided that it had jurisdiction to review the state law (Teacher Tenure Act)
because had to ensure that constitutional provision (Art. I §10, contracts clause) not
become a dead letter. Though whether there is a contract is a state law issue that the
state should decide under Murdock, if the state gets to decide that then the state gets to
circumvent the federal constitutional contract clause by just saying a contract was
2. where state is trying to cheat (to call something state law and get around following
federal law), the SCOTUS will step in. State can look at state law in order to protect
constitutional rights, as in Martin v Hunter’s Lessee. SCOTUS doesn‟t actually say the
state is cheating on the state law – just says that since it‟s federal issue, SCOTUS gets
to interpret how state law was at the time (ie when the contract allegedly made here),
though state supreme court could always change that later.
iii. Ex: Standard Oil Co of California v Johnson, p83-88: state law taxing gasoline sales
exempting US gov‟t and its department; SCOTUS concluded that army exchanges are
instrumentalities of the US and should be exempt under CA law. Court avoided the
constitutional question (that it was unconst‟l for CA to tax federal military base exchanges)
1. SCOTUS has jurisdiction because it‟s a state determination of a federal question –
state used federal law to decide whether Army exchanges fit within the state statute
2. SCOTUS could have instead decided this on the constitutional issue, of whether it was
unconstitutional for CA to tax the fed gov‟t entity (not on CA‟ s interpretation of its
own state statute via federal law)
3. this is basically a remote federal premise case – if you can say the state supreme
court decided on state law but really was thinking about the constitutionality / decided
as they did bc they thought it was required under the fed Const, then SCOTUS can
review apparent state law decision.
a. Another example of remote federal premise case: State Tax Commission v Van
Cott, 1939, p86; California v Byers 1971, p87
iv. Hart & Wechsler: federal law is interstitial in nature. Congress acts in the background of all the
state law. Federal law operates on top of state laws, with state rules in the background. (p149
v. This would arise under Contracts Clause (Art. I §10) (deciding whether there was a contract
under state law) and due process clause (14th amendment) (deciding whether the state law gives
you a property right)
vi. Rule from class: SCOTUS doesn‟t have to follow state law if it thinks the state is bypassing a
fed const‟l requirement (if it thinks the state is cheating): Bush v Gore, Ward v Love County,
Indiana ex rel Brand, Martin v Hunter’s Lessee
1. if SCOTUS can say that the past law that controls and is relevant, then the SCOTUS
can take away the need to rely on state supreme court as would otherwise be required
vii. Dependent state ground rule – Minnesota National Tea: when state‟s interpretation of its
own law is that it wants the state law to be the same as federal law, then it‟s a dependent state
law and the SCOTUS can review it because reversing the federal law will reverse the state
ground and the case. State law totally dependent on federal law counts as federal law.
1. These state laws pegged to federal laws are reviewable by SCOTUS on appeal from
state court judgments. But should they also be federal questions for purposes of federal
jurisdiction in lower district courts? This is disputed. Field doesn‟t think so because if
it‟s a federal Q for lower courts, they have to hear it; SCOTUS can decide whether to
grant cert or not.
3. Finality: What is a final judgment of the state‟s highest court?
i. Efficiency – no unnecessary judgments
ii. Promotes fully developed record
iii. Promotes federalism
4. Adequate & independent state law grounds: What constitutes adequate & independent state law grounds of
decision preventing SCOTUS review?
a. General rule: SCOTUS won‟t hear a case if the decision of the state‟s highest court is supported by a
state law rationale that is independent of federal law and adequate to sustain the result. The Court must
decline to hear the case if its reversal of the state court‟s federal law ruling will not change the outcome
of the case because the result is independently supported by the state court‟s decision on state law
i. That is, for SCOTUS to have jurisdiction over the state court action, one of the federal
questions must have been raised and presented to the state court, must have been necessary to
the state court‟s decision, and state court must have decided against the P on the federal law
1. if state court was right on the federal issue SCOTUS will affirm.
2. if state court was wrong on the federal issue ask if there were adequate &
independent state grounds? If not, then SCOTUS will reverse.
ii. This rule is not really constitutionally based (except prohibition on advisory opinions bc of
“case or controversy” requirement), it is federal procedural common law.
b. Murdock v City of Memphis: SCOTUS said it lacked jurisdiction because was an issue of state property
c. Test for deciding whether SCOTUS can hear the federal claims: if SCOTUS reverses on the federal
ground (because per Murdock, it can‟t look at the state ground at all) and the result won‟t change when
remanded to state, then it would be an advisory opinion by SCOTUS and no jurisdiction.
d. Rationales for the rule:
i. Prohibition against advisory opinions – if reversing the state court‟s interpretation of federal
law would do nothing to the result, it would be an advisory opinion
ii. Keeps Court from doing unnecessary constitutional rulings – avoids constitutional questions
iii. Harmony/federalism – minimizes federal review of state court decisions, thus reducing friction
iv. Conserves SCOTUS‟s finite resources
v. SCOTUS is for correct judgments/outcomes, not revising opinions
e. Problems with / criticisms of the rule:
i. Permits unreviewed, conflicting interpretations of federal law
ii. Invites state courts to try to immunize their decisions from federal court review by relying on
state law grounds
f. Effect on gay marriage case, for example: if you don‟t want the SCOTUS to review it, decide on state
law only. If you do want the SCOTUS to review it, decide on federal law only (and if you lose on
federal law, you can re-instate the result via state law on remand.
i. Rule: state law ground is adequate is reversing state court‟s ruling on the federal issue won‟t
change the outcome
ii. A state law is inadequate if it is unconstitutional. Staub v City of Baxley.
iii. A state law is inadequate if there is no support for the decision in the record. Ward v Board of
Commissioners of Love County – state court ruled that Native Americans couldn‟t recover their
taxes paid under duress bc of state law preventing person who voluntarily paid taxes from
recovering. SCOTUS reversed because the decision that the taxes were paid voluntarily was
w/out support in the record.
1. it‟s unclear whether the ruling that it would be a 14th amendment violation of due
process not to give the money back is based on state law or federal law.
iv. When is a failure to comply with state procedures adequate?
1. General rule: decisions on state procedural bases are adequate and sufficient to prevent
SCOTUS review of substantive const‟l / fed law questions. Michigan v Tyler.
2. Exception: state procedural rules are inadequate if they deny due process (bc state law
can‟t be adequate if it‟s unconst‟l).
3. Exception: trivial state rules (where only minimal state interest implicated) can‟t
prevent vindication of important federal const‟l rights. SCOTUS will grant review
even though state procedures weren‟t followed if the rule burdens the assertion of
federal rights w/out significantly advancing any important state policy
a. Rogers v AL
b. Henry v MS: on trial counsel‟s failure to comply with local rule requiring
contemporaneous objection. SCOTUS said a procedural ground should be
deemed an ASG only if it serves a legitimate state interest, and SCOTUS is in
charge of deciding whether the procedural forfeiture serves a legit state
i. Effect: state substantive & procedural grounds are treated differently.
Any state substantive ground is enough to preclude SCOTUS review if
case wouldn‟t come out differently. But a state procedural ground is
only enough is it serves a legit state interest or if the attorney
deliberately bypassed the rule.
ii. This was the height of leniency for breaking state procedural rules
iii. What constitutes a legitimate state interest?
1. Douglas v AL: no legit state interest in procedural rule
requiring attorney who had already objected & been overruled
3 times to object again at the time the confession to which he
objected was being introduced into evidence
2. Parker v North Carolina: there is a legit state interest in
procedural rule requiring objection to grand jury composition
(based on race) to be made in a motion to quash indictment at
time of indictment
3. Wainwright v Sykes, Murray v Carrier – legit state interest in
habeas procedural rules
4. Exception: state can‟t manufacture procedural rules to preclude SCOTUS review.
a. NAACP v Alabama ex rel Patterson: state made up a procedural rule that the
only way to challenge contempt order (NAACP was held in contempt for
failure to turn over membership lists) was through writ of mandamus.
5. State procedural rules aren‟t adequate if they are inconsistently followed by state
a. NAACP v Alabama ex rel Flowers, 1964, p118: state procedural rule said that
if the complaint alleges 1 claim that is without merit, it won‟t hear the rest of
the claims; SCOTUS said state had to hear the case, procedural ground not
6. Lee v Kemna: state procedural rule requiring motions for continuance to be in writing
didn‟t bar fed ct consideration of const‟l claims (on habeas).
7. A state procedural rule that is discretionary rather than mandatory can‟t be an adequate
state ground foreclosing federal court review.
a. Williams v Georgia: state procedural rule re when claim of racial
discrimination had to be raised. SCOTUS found that state had discretion over
the issue state admitted it was wrong on remand, state court quoted 10th
amendment SCOTUS denied cert. see supplement.
8. Summary: state procedural rule is adequate unless it
a. Violates Constitution
b. Fails to serve legit state interest
c. Used by state court to frustrate a hearing on fed const‟l claim, as when
i. state creates a novel procedural rule
ii. uses a procedural rule that it doesn‟t consistently follow
iii. employs a discretionary procedural rule
i. Rule: a state ground is independent if it is based entirely on state law and is not tied to federal
law. State highest court must have relied on the state ground explicitly as a basis for its ruling.
ii. A state ground is not independent if the state law incorporates federal law.
1. South Dakota v Neville
2. Delaware v Prouse
3. When it‟s unclear whether the state law ground was meant to incorporate federal law
or whether it was intended to be an independent basis for the decision
a. Approaches prior to Michigan v Long: presumption that discussion of state law
made it an independent ground, or analyzed opinion to see what SCOTUS
thought state court intended, or would require state court to clarify what it
meant, or presumed that it wasn‟t an independent state ground unless the state
court expressly so stated
b. Michigan v Long: Rule – SCOTUS will presume that there is not a state law
basis for a decision unless the state‟s highest court provides a clear statement
that its decision was grounded on state law. Michigan Supreme Court found a
search & seizure unconst‟l. SCOTUS reviewed it because it was unclear
whether Michigan Sup Ct was relying on Michigan Constitution or on federal
Constitution. Now SCOTUS will review state court decisions unless there is a
plain statement from state‟s highest court that its decision was based on
independent state law grounds .
i. Advantages of this rule:
1. federalism – encourages states to adopt independent state law
doctrines, like under their constitution – allows state courts to
provide more expansive rights protection than under
Constitution & insulate that from federal review
ii. Criticisms of this rule:
1. creates a strong presumption in favor of SCOTUS jurisdiction,
whereas normally the presumption should be against SCOTUS
review. Would be more in line with normal SCOTUS policies
to let state clarify what is relying on and possibly obviate the
need for SCOTUS to rule on fed const‟l issue at all
2. some thing SCOTUS is setting itself up to reverse state
supreme court decisions that are more liberal in protecting
3. leads to basically advisory opinions by SCOTUS because on
remand state courts reinstate their prior judgments relying
totally on state court grounds – waste of SCOTUS time
iii. Note: the SCOTUS later made an exception for the silent opinion (one
where state supreme court affirms lower court w/out opinion)
Supreme Court review of State Factual Findings
Can the Supreme Court review state factual findings? Does it violate Murdock for SCOTUS to decide facts?
Normally Yes, but there are exceptions (ways around Murdock such that SCOTUS can review facts):
1. SCOTUS can review state factual finding where state is finding the facts in a way to cut off the federal rights.
a. Ex: SCOTUS reviewed state factual findings in Ward v Love County where the state was cheating on
the facts (saying the Indian tribe had paid taxes voluntarily when really they hadn‟t).
b. Ex: Martin’s Lessee.
2. SCOTUS can review state factual findings where the state statute may be unconstitutionally overbroad.
a. Cox v Louisiana: SCOTUS reviews the facts to see whether there really was a breach of the peace /
whether the conduct was protected under the federal 1st amendment. SCOTUS has a right to
independently examine the whole record where the federal Constitution is at issue (FN8).
i. State said conduct violated breach of peace statute. SCOTUS said it was protected by 1st
amendment. So statute was unconstitutionally overbroad and penalizes constitutionally
protected conduct. So the statute is unconstitutional.
b. Ex: where state courts find particular books/movies obscene, SCOTUS usually reviews the state
findings of fact.
c. Note: SCOTUS‟s being able to really review the facts is essential – in Cox there was a video, in other
cases they get the books or movies.
3. SCOTUS can review state factual findings per the no evidence rule, where the statute is unconstitutionally
a. Ex: Thompson v Louisville – D convicted of breach of peace under state law for dancing alone with a
broom. SCOTUS can review facts to say there is no evidence he was actually disturbing the peace.
Statute too vague.
b. Ex: Woolworth sit ins.
Constitutionally Required Remedies in State Court
Can SCOTUS require state courts to give certain remedies where a plaintiff in state court is seeking to assert his
federal rights there?
1. SCOTUS can order a remedy if lack of a certain remedy for a violation of fed constitution would be a violation
of due process. McKesson Corp v Division of Alcoholic Bev and Tobacco, 1990, p1133: SCOTUS said state‟s
denial of repayment of taxes was wrong; prospective relief alone is not enough. If the state penalizes taxpayers
for not paying taxes on time (thus requiring them to pay first, litigate later), the Due Process clause of 14th
amendment requires states to afford taxpayers a meaningful opportunity to secure postpayment relief for taxes
already paid pursuant to a scheme ultimately found unconstitutional.
a. Compare Edelman, where Ps didn‟t get back benefits, only declaratory & injunctive relief. This is
different because it is akin to getting your own property back. This is more like Lee and Land.
b. Also like Ward v Love County where SCOTUS said state had to provide a remedy (had to pay back the
taxes bc they were paid out of coercion, not voluntarily)
c. Similar case: Reich v Collins – SCOTUS ordered state to repay taxes to P (who paid them, then the tax
was found to be unconstitutional, then state said he could not have a postdeprivation remedy because
they had just invented a predeprivation remedy). State can‟t change its procedures in midstream to
avoid giving a remedy.
2. SCOTUS can also order state court to take jurisdiction of a case (in order to provide a remedy) if not having
jurisdiction would be a constitutional violation. General Oil v Crain 1908, p1142: SCOTUS can order state
court to hear the case against the state officials (despite a state statute forbidding such actions) because (at the
time, prior to EPYoung) these suits were barred in federal court. If they were also barred in state court, then
Constitution / 14th amendment would not be enforced.
a. This goes against the principle that we take state courts as we find them.
Can SCOTUS require state courts to give certain remedies where a defendant in state court is seeking to assert his
federal rights there?
3. Jackson v Denno 1964, p1149: SCOTUS found state criminal procedure unconstitutional (where it made jury
decide whether confession voluntary or not happen at same time as deciding guilt or not) and ordered the
remedy of a factual hearing on voluntariness of confession, or a new trial.
a. Note: this was like the imposition of a federal procedure on states, since this is what happened in
federal criminal trials.
b. This also happened in Chapman v California, where SCOTUS said that state rule for deciding whether
prosecutors‟ comment on failure to testify was OK had to be harmless error beyond a reasonable doubt,
rather than just harmless error.
IV. FEDERAL HABEAS CORPUS: Federal Court Collateral Review of Criminal Convictions
28 USC 2254: A person who claims to be held in custody by a state gov‟t in violation of federal law (Constitution,
laws, or treaties) can file a civil lawsuit in federal court seeking a writ of habeas corpus.
28 USC 2255: Same for federal prisoners under 28 USC 2255. (This has been around since Judiciary Act of 1789).
Actually a venue provision requiring fed prisoners to bring habeas challenge in the sentencing court (rather than the
court in district where being held). This (requiring you to go to diff venue) is not a suspension of the writ of habeas
because if you lose in 2255 you can still go to regular habeas 2254.
Constitution: Art. I §9 cl. 2: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it.
1. Normal rules of res judicata & finality don‟t apply to habeas proceedings, state or fed.
2. Two common scenarios:
a. The convicting court decides a federal constitutional claim against the D and the D alleges should be
relitigated in fed court.
b. The convicting court did not decide on a federal constitutional claim that the D alleges should now be
heard for the first time in federal court on habeas.
i. Pro habeas: there are structural differences between fed & state courts
1. Brown v Allen
ii. Anti habeas: it reflects a distrust of state courts – state courts should be trusted to protect fed
1. Stone v Powell
b. Separation of powers.
i. It is federal statutes, not Constitution, that creates the right to habeas
ii. How should SCOTUS interpret the h.c. statutes?
iii. Bator: Congress wanted to provide a federal court remedy solely in instances where state courts
lacked jurisdiction to try
iv. Peller: Congress intended to let state prisoners relitigate their constitutional claims in federal
c. Purpose of constitutional rights in the criminal justice system
i. Just to protect innocent? Then habeas should only be for the arguably innocent.
ii. Serves another purpose (controlling cops, protecting individual privacy & dignity)? Then
habeas should be available more broadly.
d. Nature of litigation – importance of finality and revisions in the course of litigation
i. Anti habeas: prolongs litigation and undermines finality in criminal justice, thus undermining
deterrence & rehabilitation
2. floodgates -- makes it hard for the meritorious ones to be granted
ii. Pro habeas: correct errors by state courts, assures legitimacy to litigants, encourages
innovation, no adverse effect on federal dist court dockets
4. Habeas & war on terror:
a. Rasul v Bush: federal courts have jurisdiction to hear habeas petitions by Guantanamo detainees
b. Detainee Treatment Act: Guantanamo detainees don‟t get habeas, they must go through military
commissions, then seek review in DC Circuit
c. Hamdan v Rumsfeld: SCOTUS held that DTA applies prospectively, not retroactively to petitions
already pending in fed courts when the law was enacted
d. Military Commissions Act of 2006: DTA (no habeas for detainees) applies retroactively
e. Boumediene v Bush:
5. Uses of habeas
a. State custody
b. Federal custody, 28 USC 2255
c. Civil confinement in an institution
d. Deportation order
e. Extradition order
f. Executive detention
g. Conviction by military court
h. Denial of parole
i. To bring a person to testify (rarely)
6. Habeas Timeline
a. Pre-Constitution: common law right, provision in colonial charters, or provision in colonial statutes
b. Constitutional Convention:
i. Pinckney proposed a provisions ensuring the availability of habeas
ii. Instead the Suspensions Clause was adopted, preventing suspension of the writ without
creating a federal const‟l right to habeas.
c. Judiciary Act of 1789: federal courts can grant habeas to federal prisoners. SCOTUS could still review
const‟ality of state criminal convictions on direct appeal. Cohens v VA
d. Post-Civil War: federal courts can grant habeas to state prisoners. 28 USC 2241-2255
i. Initially used only when D alleged that sentencing court lacked jurisdiction this expanded
ii. Frank v Magnum, 1915: habeas corpus is available whenever the state „supplying no corrective
process, deprives the accused of his life or liberty without due process of law.‟ So could grant
h.c. even without allegation of lack of jurisdiction, but not where state provided adequate
e. After WW2:
i. Application of Bill of Rights to state through incorporation process – this meant states had
more constitutional liberties to violate
ii. Advancement of and attention to civil rights in general
iii. Increased litigation meant SCOTUS review not enough to remedy all allegedly unconst‟l
f. Warren Court
i. Broad: Allowed habeas petitions to relitigate all const‟l claims in federal court. Brown v Allen
ii. Broad: Individual would be barred from raising matters not litigated in state court only if it
could be demonstrated that the individual had deliberately bypassed state procedures. Fay v
1. good result: one result of this system was that state courts started enforcing federal
constitutional claims better and more frequently. It also encouraged states to institute
their own state post-conviction proceedings so they would have a bite at the apple.
2. bad result: lots of petitions filed, needle-in-haystack to find meritorious ones
g. Burger Court:
i. Narrow: No relitigation of 4th amendment exclusionary claims if the state provided a full & fair
hearing. Stone v Powell.
ii. Narrow: Petitioner can raise a matter not previously litigated only if there was proof of good
cause for the omission & prejudice to not being able to raise the issue pursuant to habeas
corpus (cause & prejudice). Wainwright v Sykes
h. Rehnquist Court:
i. Narrow: An unsuccessful habeas petitioner can bring a subsequent petition only if he/she can
demonstrate good cause for not having raised the issue earlier & prejudice to not being heard or
a likelihood of actual innocence. McClesky v Zant.
ii. Narrow: habeas petitioners generally only may assert rights that existed as of the time of their
conviction. Teague v Lane.
iii. Bad result: cutting back on habeas sends message to state courts that they no longer have to so
rigorously enforce fed const‟l rights. (When Stone v Powell came down, for instance, it sent the
message that states didn‟t have to enforce 4th amendment as much because there was no
review). Also leads to states cutting back on their own state post-conviction proceedings.
i. Statute of limitations: 1 year. 28 USC 2244(d)
1. in capital cases: 6 month period of limitations if state provides adequate representation
in collateral proceedings
ii. no successive habeas petitions unless a CoA approves it. CoA can only allow it if
1. petitioner shows either that the claim relies on a new rule of const‟l law that applies
retroactively (and only the SCOTUS can determine if something applies retroactively,
Tyler v Cain) or
2. if the factual predicate for the claim could not have been discovered previously & the
facts underlying the claim would be sufficient to establish by clear & convincing
evidence that no reasonable factfinder would have found the applicant guilty of the
iii. scope of review: no habeas awarded to a state prisoner solely because a state court misapplied
established const‟l principles to the facts of the case. Relief only where state court determine
was contrary to, or involved an unreasonable application of clearly established federal law as
determined by the SCOTUS. 28 USC §2254(d).
iv. deference to state court fact-finding: determine of facts by state court shall be presumed to be
correct. Applicant has burden of rebutting the presumption of correctness by clear &
convincing evidence. 28 USC §2254(e).
v. Congress‟s rationale for passing AEDPA: to avoid repeat hearings, give more respect to state
courts, speed up death penalty
vi. Things not mentioned in AEDPA are covered by prior law; AEDPA builds on top of Rehnquist
7. Current Procedures in 28 USC §2241-56
a. SCOTUS, district courts, circuit courts can grant habeas petitions.
i. AEDPA: successive petitions can only be allowed with approval of CoA. Review of denial not
reviewable in SCOTUS. Felder v Turpin: this restriction allowed because isn‟t a total
preclusion of SCOTUS review – SCOTUS can still grant review via original petitions for
habeas (though very rarely done)
b. Petition must be in writing, signed, verified by petitioner. 28 USC §2242. Should name the
c. Scope: Federal court may grant h.c. petition if it concludes that the person is held in custody in
violation of the Constitution, laws, or treaties of the United States. 28 USC §2254(a), §2255.
d. Exhaustion: State prisoners can bring h.c. petition only if they have exhausted all available state
remedies. 28 USC §2254(b).
e. Successive petitions: if previous petition filed presenting the same issues (and current petition presents
no new ones), federal court doesn‟t have to hear it.
i. Before, McCleskey v Zant: successive habeas petitions can‟t be brought unless inmate can
show cause (for not presenting the issue in the first petition) and prejudice (to not having the
successive petition heard).
ii. Now, under AEDPA: no successive petitions unless approved by CoA, which can only approve
1. claim relies on a retroactive, new rule of const‟l law, or
2. factual predicate for claim couldn‟t have been discovered earlier and facts are
sufficient to show by clear & convincing evidence that no reasonable factfinder would
have found applicant guilty of underlying offense
f. Venue: state prisoners file in federal district court where being held
i. if file in wrong district court, the court can transfer to the right court. The statute on forum is a
venue statute, not a restriction on subject matter jurisdiction. Braden v 30th Judicial Circuit
Court of Kentucky (1973)
ii. federal prisoners file with the court that imposed the sentence. 28 USC §2255 (instead of where
they are being held)
g. Discovery: federal judges have discretion over whether to allow discovery at all and what discovery to
permit. Not common in habeas cases.
h. Statute of Limitations: AEDPA (1996) imposes 1-year SOL on filing habeas petitions. 28 USC
i. The clock starts running from the latest of:
1. date judgment final on direct review, including denial of cert petition by SCOTUS
2. date an impediment to filing the application bc of state action in violation of law /
Constitution is removed
3. date on which newly recognized const‟l right asserted was initially recognized by
SCOTUS if that right is made retroactively applicable to cases on collateral review
4. factual predicate of claim could‟ve been discovered through due diligence
ii. The time during which a properly filed application for state post-conviction or other collateral
review is pending doesn‟t count toward period of limitation.
1. but the clock is running while the petition for cert is pending at the SCOTUS on review
of state post-conviction (though the clock doesn‟t run on petition for cert at SCOTUS
on direct review)
iii. SOL is tolled while state postconviction proceedings are pending but not while federal habeas
petition is pending. Duncan v Walker (2001)
1. this is a problem if file federal habeas petition and many months later it is dismissed
for failure to exhaust state procedures, etc.
2. in Lawrence v Florida (2007) the SCOTUS assumed without deciding that there is
equitable tolling in such a situation.
iv. SOL in capital cases: 6 months if the state has established adequate system for providing
attorneys for post-conviction proceedings. 28 USC §2261. only Arizona. Inmates can‟t seek a
system-wide determination of whether a state is complying.
i. Remedies: release from custody or release unless a new trial held w/in a certain period of time. 28 USC
j. Review: final order is subject to review on appeal in CoA, but a state prisoner can only have denied
habeas reviewed if the federal district court or CoA judge issues a certificate of appealability
i. Before it was a certificate of probable cause – if the applicant has made substantial showing of
the denial of a const‟l right
ii. Miller-El v Cockrell: certificate of appealability should be granted if reasonable jurists could
debate whether the petition should have been granted. (2003) – not supposed to be a review of
the merits. Must decide whether there is a debatable issue.
8. Requirement of Custody
9. Requirement of Exhaustion of State Procedures
a. Rule: Petitioners in state custody must exhaust all available state court procedures prior to seeking
federal court review. No habeas corpus during trial, appeals, or state post-conviction proceedings.
b. Mixed Petitions Rule: Rose v Lundy (1982) a petition containing both exhausted & unexhausted claims
must be dismissed
c. 28 USC 2254(b)(1)
d. Basis: judicially created rule by SCOTUS now in habeas statutes
i. Ex Parte Royall 1886: fed court should not entertain habeas claim until after state courts had an
opportunity to hear it
1. Rationale: deference to state courts, comity
ii. 28 USC §2254(b): app for writ of h.c. of state prisoner shall not be granted unless it appears
that (A) the applicant has exhausted remedies available in the state courts, or (B)(i) there is an
absence of available state corrective process or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant
e. Rationale: prevents fed courts from interfering with ongoing state criminal prosecutions; equity; comity
i. Like Younger v Harris – shouldn‟t‟ interfere with pending state crim prosecutions
f. What state court procedures must be used for state remedies to be deemed exhausted?
i. Rule: petition must pursue all available state court remedies. Exhaustion requirement isn‟t
fulfilled if there is an available state court proceeding that might provide the relief sought by
ii. Ex of state procedures that must be exhausted:
1. Including claims in a petition for discretionary review by state‟s highest court is a
procedural rule; failing to do it is an exhaustion problem.
2. state habeas procedures for issues not raised on direct appeal in state court
iii. Ex of procedure that does not have to be exhausted:
1. seeking SCOTUS review: Fay v Noia
2. denial of cert by SCOTUS: Brown v Allen
3. state habeas mechanisms, as long as the issues to be raised in the federal habeas
petition has been presented and decided by state courts on direct appeal. Brown v
iv. Exception to exhaustion requirement: §2254(b) - if circumstances render state process
ineffective to protect rights of prisoner – if the state process is so clearly deficient that efforts
to get redress are futile
g. What must be presented to the state courts in order for the exhaustion requirement to be met?
i. Rule: the same federal claim/matter raised in the habeas petition must have been presented to
the state court or the matter will be dismiss for failure to exhaust (if there is still available a
state proceeding where it can be raised)
ii. NO exception for patently unconstitutional state laws or statutes; still must argue this to state
court before bringing it in fed court. (This is different from Younger v Harris where there is an
exception for patently unconts‟l)
h. When are petitions deemed sufficient to meet exhaustion requirements?
i. Rule: Mixed petitions (with exhausted & unexhausted claims both) must be dismissed. Rose v
Lundy. Habeas claim must present ONLY exhausted claims.
1. Before, the rule was that federal court could dismiss the unexhausted claims and hear
the exhausted ones.
2. Rationale: to encourage habeas petitions to litigate all their claims in state court,
leading to more complete records in state court.
3. Problem: hurts pro se litigants.
ii. If Rose v Lundy is invoked and fed dist court dismisses a mixed petition:
1. can refile in fed court with only exhausted claims, pursue unexhausted ones in state
court, then hope to bring a second habeas for unexhausted claims.
a. Problem: Rose v Lundy suggested the successive petition would be dismissed
for abuse of the writ.
2. hold exhausted claims & return to state court on unexhausted claims only, then join
those with exhausted ones in fed court
a. Problem: long delay before exhausted claims are ruled on
3. refile habeas petition with just the exhausted claims
a. Problem: this foreclose the chance to present the other claims in a future
4. Field says fed dist court could really just strike/ignore the unexhausted claims and hear
the exhausted ones rather than dismissing the whole mixed petition.
a. Or, could ask for fed judge to hold his exhausted claims in abeyance while
goes to exhaust the unexhausted ones. Rhines v Weber, p841. Requirements for
getting an abeyance/stay: (1) good cause for failure to exhaust claims in state
court, and (2) meritorious claims. 30-60day stay. (1) good cause is something
less than “cause and prejudice”
i. Open question: whether state governments can waive prisoners‟ obligation to exhaust state court
i. Rationale for allowing state to waive the exhaustion requirement: point of exhaustion
requirement is to reduce state-fed friction; if state consents, there is no friction
ii. Granberry v Greer: SCOTUS said fed court can raise exhaustion issue on its own even if state
gov‟t hasn‟t (because it wants to waive it, for instance), but in some cases waiver could allow
unexhausted claims to be heard in habeas
j. Cannot get around exhaustion requirement by bringing a federal §1983 suit instead (given that 1983
doesn‟t require exhausting state administrative or judicial remedies)
i. Preiser v Rodriguez: habeas is the exclusive remedy when state prisoners seek release from
custody. Can‟t use 1983 when a state prisoner is seeking immediate or speedier release from
prison (like reinstatement of good time credits)
ii. Heck v Humphrey: Preiser extended – prisoner may not bring a §1983 suit which would
recover damages for a conviction unless the conviction has been overturned on appeal or
iii. But can bring 1983 suit to challenge execution methods/procedures, since not seeking to
challenge the sentence/punishment/conviction itself. Hill v McDonough, Nelson v Campbell.
10. Prohibition against Successive Habeas Petitions
i. §2244(a) provides that a judge need not entertain a petition for h.c. when legality of detention
has been determined by a federal court/judge on a prior application for a writ of h.c. and
petition presents no new ground and the judge/court is satisfied that the ends of justice will not
be served by such inquiry.
ii. This was interpreted in Sanders v US to say that successive h.c. petition should be denied only
1. same ground was presented before and D lost on it
2. prior h.c. petition was decided on the merits, and
3. ends of justice would not be served by reaching the merits of this petition
4. if the successive petition presented new grounds for relief, the 2nd habeas could be
denied if an abuse of the writ had occurred (ie if deliberately withheld the ground of
relief the first time, etc.)
iii. Addition in 1977 Habeas Rules: if successive petition did prevent a new ground, fed dist court
could dismiss it if failure of D to assert the grounds in prior petition was an abuse of the writ.
iv. Dist judge always had discretion to allow the successive petition. Never obligated to dismiss.
b. Current Rule: Must show cause & prejudice before fed dist court can hear a successive petition
i. McCleskey v Zant (1991) D can file a successive habeas petition only if the individual can
show cause & prejudice from earlier omission of the issue. This is an application of the
Wainwright v Sykes standard to determine if there‟s been an abuse of the writ.
c. AEDPA: Can file a successive petition only if get permission from CoA, the grant/denial of which is
i. Felker v Turpin: this limit on SCOTUS jurisdiction is constitutional because SCOTUS could
still review habeas corpus petitions in original jurisdiction
ii. CoA can only grant permission for successive petition if:
1. applicant shows that claim relies on a new rule of const‟l law made retroactive to cases
on collateral review by SCOTUS that was previously unavailable.
a. Tyler v Cain: SCOTUS ruled that only a decision by SCOTUS can make a
decision retroactive for purposes of allowing a successive habeas
i. In Tyler, it was held that Cage rule (holding certain jury instructions
unconst‟l) was not retroactive to cases on collateral review – since not
made retroactive, petitioner didn‟t fit within this exception so couldn‟t
get CoA to grant his petition for a successive habeas.
b. After Tyler and in AEDPA world, the best way for SCOTUS to make a rule
retroactive is to do so on a first habeas petition (where AEDPA doesn‟t even
apply); normally SCOTUS won‟t be able to find something retroactive when
they announce the rule because it would be dictum
2. or if the factual predicate for the claim couldn‟t have been discovered previously
through the exercise of due diligence and the facts underlying the claim (if proven)
would be enough to establish by clear & convincing evidence that, but or the const‟l
error, no reasonable factfinder would have found the applicant guilty of the underlying
d. Rationale for McClesky and AEDPA rules:
ii. To stop delaying esp capital cases
e. Problem with current rule:
i. Some prisoners will never get a hearing on their constitutional claim – injustice
11. Requirement of Timely Filing: Statute of Limitations
a. Before: no SOL
b. AEDPA: 1-year SOL.
c. Fed court can raise SOL issue sua sponte, but isn‟t required to do so. Day v McDonough.
d. Tolling of SOL:
i. Clock doesn‟t run towards 1 year when:
1. state post-conviction or other collateral relief are pending. Has to be properly filed, but
is still properly filed even if the claims are procedurally barred. But they aren‟t
properly filed if they are untimely.
a. If in state court collateral relief petition isn‟t appealed but dismissed and then
re-filed in appellate court, the period of time between the lower dismissal and
the re-filing in higher up court is tolled
ii. Clock does run towards 1 year when:
1. federal habeas petition is pending. Duncan v Walker.
2. petition for cert is pending. Lawrence v Florida.
3. SCOTUS finds a new rule of criminal procedure, even if hasn‟t ruled it to apply
retroactively yet. Dodd v US 2005, p921 – that the rule is retroactive is a prerequisite to
even being considered, it doesn‟t determine the date at which SOL runs (the date of the
substantive SCOTUS decision determines that)
e. Federal court can stay proceedings to permit exhaustion of state remedies, but isn‟t required to do so
and should only do it if good cause for failure to exhaust. Rhines v Weber: fed dist court took 18
months to tell D that 8 of his 35 constitutional claims hadn‟t been exhausted, issued a stay so he could
exhaust his unexhausted claims in state court without losing ability to bring them to fed court bc of
SOL SCOTUS said dist court retained that authority to issue stays.
i. SCOTUS said only appropriate to issue stay where there was good cause for petitioner‟s failure
to exhaust state claims in state court
f. Unclear whether fed court can grant equitable tolling to avoid SOL. SCOTUS has said that if equitable
tolling is allowed, would only be if (1) petition shoes he was pursuing his rights diligently, and (2)
some extraordinary circumstance stood in her way
What Issues Can be Brought in Habeas
Once you establish custody, exhaustion of state remedies, timeliness, successive petition bars, what claims can you
make in the federal habeas proceeding?
1. What non-constitutional claims? Non-constitutional claims usually can‟t be raised on habeas. Rule: Can bring
in habeas a non-constitutional claim for error that amounts to “a fundamental defect which inherently results in
a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure.”
Hill v US (made applicable to state habeas petitioners in Reed v Farley 1994, p830).
a. Dissent in Reed v Farley thought the standard for state petitioners should be lower because if Congress
made a federal law applicable to state court criminal proceedings, that is significant.
b. Note that in a 2255 proceeding, all the laws / everything happening in the federal criminal trial is a
federal law. But you can‟t litigate everything on 2255 collateral review; can only litigate what is crucial
to fundamental fairness.
2. What Constitutional claims?
a. Background rule is that once constitutional rights are declared, they apply to all pending & future
litigation. But how do they apply to final convictions later challenged in habeas?
i. The classic rule is that once the SCOTUS says it‟s the law, it‟s the law even on collateral
review. Gideon. As more constitutional rules recognized in Warren Court, there was more
applying of them in collateral review to overturn convictions.
1. Harlan objected to this because he thought the Warren court rules were not ones the
SCOTUS should be making at all, but rather legislative-type rules. Said SCOTUS
should not be creating rules that don‟t apply completely retroactively. Harlan said later
that SCOTUS decisions should always apply on direct review and not on habeas.
b. Before Teague: Court would decide new rules that would apply to current and future petitioners, then
later would decide if it could apply retroactively to others.
c. Current Rule: Doctrine of non-retroactivity: When a habeas petition asks a federal court to create a new
rule recognizing a const‟l right, the court may not decide the petition unless it is a right that would be
applied retroactively. Retroactivity is a threshold question. Teague v Lane. An individual can‟t present
a claim on habeas review unless either it is already established (not new) or it is a right that would have
i. First fed court asks whether it is a new rule. If it‟s a new rule, then the court won‟t decide it at
all on the merits.
i. Determine the date on which D‟s conviction became final.
ii. On that date, would a state court have felt compelled to conclude that the rule was required by
the Constitution? (This answers - Is it a new right?) Definition of “new constitutional rights”: a
case announces a new rule when it breaks new ground or imposes a new obligation on the
States or federal government… A case announces new rule if the result was not dictated by
precedent existing at the time the defendant‟s conviction became final.
1. if it could have come out differently, it‟s not a “new” rule
2. federal judge basically has to ask at the time of the state conviction, was it
unreasonable for the state judge to have decided the way he/she did?
iii. If so, the Court can‟t even announce the rule on habeas UNLESS one of the exceptions applies:
1. new rule places certain kinds of primary, private conduct beyond the power of the
criminal law making to prescribe (ex: flag-burning or having an abortion)
2. new rule adopts a procedure that is implicit in the concept of ordered liberty –
watershed rules of criminal procedure that make the likelihood of accurate conviction
unlikely (Gideon) - this is super narrow exception.
e. Most criminal procedure rights are not retroactive. Court generally defines “new rule” expansively and
instances where new-rule-applies-retroactively to be few.
f. Cases where Teague blocked habeas claim because if granted, the announced rule would not be
i. Two cases where the D tried to rely on a later SCOTUS case recognizing a crim procedure
right SCOTUS didn‟t allow relying on that later-announced rule because it was not
retroactive (announced a new rule)
ii. Butler v McKellar: habeas claim relying on Arizona v Roberson (5th amendment bars certain
questioning), SCOTUS said Arizona was a new rule not retroactive (even though the Court
upon deciding Arizona said it wasn‟t a new rule)
iii. Sawyer v Smith: habeas claim relying on Caldwell (prosecutors can‟t emphasize that jury‟s
decision will be reviewed), SCOTUS said Caldwell was a new rule not retroactive
g. Cases where Teague didn‟t block habeas because petition not seeking recognition of a new rule:
i. Stringer v Black: D convicted, SCOTUS declared jury instruction language unconst‟lly vague,
but it was not a new rule / was dictated enough by precedent, so D could rely on it in habeas
1. Rule: the application of a rule to different circumstances does not create a new rule
where the application is a logical and foreseeable extension of the law.
2. see also Bousley v US: Teague applies to criminal procedure rules decided by
SCOTUS, but does not apply to SCOTUS interpretation of meaning of criminal
statutes enacted by Congress. When SCOTUS interprets a statute to say what it means,
it always meant that and thus is per se retroactive.
h. Effect of Teague: habeas can virtually never be used to recognize new constitutional rights. Almost
everything is a “new” rule because not much is ever definitely dictated by precedent. If the habeas
petitioner is arguing for what the SCOTUS says is a “new rule,” he can‟t litigate it on habeas. A
prisoner no longer has the ability to argue for “new” federal rights in habeas. New developments in the
law won‟t happen on habeas.
i. Field thinks Teague was unnecessary because Wainwright, Murray, and Stone had already
made it hard to get federal habeas corpus relief.
i. Rationale for Teague:
i. Upholds finality of convictions
ii. Minimizes fed court intrusion into state courts
iii. Ensure that gradual developments in the law aren‟t used to upset valid final state decisions
Problems: federal interest in upholding the Constitution is dampened; individuals will be punished
because of timing – will be punished in unconstitutional ways bc they were convicted just days before
the procedure was found to be unconstitutional
k. AEDPA codifies Teague: §2254(d)(1): h.c. can be granted on a claim that the trial court misapplied the
law only if the adjudication of the claim resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established federal law, as determined by the SCOTUS:
i. No new rules can be asserted on habeas
ii. Relief can only be granted on SCOTUS decisions clearly establishing rights
l. Note that state courts can give broader retroactive effect to SCOTUS decisions than federal habeas
courts. Danforth v MN, LJ Supp p178.
3. NEW LITIGATION OF LAW: When can a D present issues not raised at the time of trial?
a. If habeas petition raises an issue not raised in state court, the issue is whether the state procedural
default is an adequate & independent state ground precluding federal court from hearing & deciding the
b. This is similar to the rule about whether there is an adequate & independent state ground barring
SCOTUS appellate review of state court decisions.
c. Warren Court: a D could raise matters not argued in state courts unless could show deliberate bypass of
state court procedures; strong presumption that procedural default would not bar fed habeas review
i. Fay v Noia (1963): co-Ds failure to appeal up through state channel was a procedural default
but didn‟t bar habeas review (his co-Ds had appealed and their confessions were found to be
voluntary). At time of filing habeas, petitioner only has to have exhausted the remedies
currently available to him. Only deliberate bypass of state procedures is a waiver of right to
bring a federal claim. (Factually, here, it was a very deliberate bypass but SCOTUS says it
wasn‟t bc he was threatened w death penalty if he appealed & it was his lawyer‟s decision)
1. this means that the adequate & independent state ground rule that bars SCOTUS
review of state court judgments does NOT extend to what federal courts can hear on
habeas. This limits the adequate e& independent state ground rule to appellate
jurisdiction, not original.
2. SCOTUS read the history of habeas as saying that if a fed habeas court (like in Ex
Parte Royall or Frank v Magnum) didn‟t hear the habeas case it was out of comity &
exhaustion of remedies, not because it couldn‟t
3. Rationale: no federalism problem in habeas corpus; state interests are not offended at
all because state‟s interest in its procedures is satisfied by the fact that D gets no state
4. This is a different standard for how deliberate the bypass has to be than in Henry v MS
which was about adequate & indep state grounds for denying SCOTUS review of state
court decision. Field thinks Henry modifies Fay.
ii. This was a change from the law before, which was under Daniels v Allen 1953, that held that a
procedural default (failure to file on time failure to exhaust state remedies, untimely appeal
waiver of claims) foreclosed habeas review.
d. Burger court: D could present matters not raised at trial ONLY IF could show actual innocence or good
cause (for default, for the noncompliance with the state procedural rule) + prejudice (to fed court‟s
refusal to hear the matter)(prejudice to not having fed court review)(prejudice resulting from the
alleged constitutional violation)
i. Wainwright v Sykes: Deliberate bypass of Fay overruled. D raised on state appeal an issue not
presented at trial, state court on post-conviction review refused to rule on it bc not raised at trial
and thus deemed waived; whether to allow it to be raised in habeas didn‟t depend on just
whether there was deliberate bypass
1. Exception: for total miscarriage of justice / the obviously innocent. (But this seems just
ii. Rationale for overruling Fay deliberate bypass:
1. Fay test does not sufficiently encourage Ds to raise all of their objections at the time of
trial – encourages sandbagging
a. Counter: real sandbagging would be deliberate bypass under Fay, lots of
reasons not to sandbag (get 2 bites at apple, avoid D spending tons of time in
jail, D has burden of proof & no right to counsel on habeas)
2. maximize efficiency
3. serve the interests of justice
4. make sure the state court trial is the main event, not a tryout on the way to fed habeas
e. Fay and Wainwright are based on different assumptions:
i. Diff assumptions about the likely reasons for procedural default in state court
1. Fay: inadvertence or error
2. Wainwright: strategic reason or sandbagging
ii. Diff assumptions about fairness of binding defendants by strategic choices made by their
1. Fay: D‟s constitutional rights shouldn‟t be forfeited by his lawyer‟s mistake
2. Wainwright: it is appropriate to bind individuals to their counsel‟s choices
iii. Diff assumptions about importance of ensuring compliance with state procedures
1. Fay thought ensuring constitutional rights more important than state procedures
2. Wainwright: enforcing state court procedural rules more important
iv. A main difference in Fay and Wainwright is who has the burden – in Fay, the state had to show
deliberate bypass. In Wainwright, the D has to show cause & prejudice.
f. Current rule: Coleman v Thompson – 1991 – Fay explicitly overturned. All procedural defaults are to
be evaluated under cause & prejudice test or showing of likelihood of actual innocence.
g. OVERVIEW -- Test for whether a state procedural ground is enough to block fed habeas review of the
claim unlitigated bc of state procedural block:
i. State procedural ground doesn‟t block litigation of claim in fed habeas if it‟s inadequate – see
ii. State procedural ground doesn‟t block litigation of claim in fed habeas if (i) cause & prejudice
under Wainwright, or (ii) actual innocence under Schlup
i. Novelty of claim is NOT CAUSE. Thinking objecting to something is useless isn‟t cause
where could have reasonably anticipated / thought about the objection. Engle v Isaac:
procedural default= failure to object at trial to jury instruction. Claimed cause = thinking it was
futile because the instruction had never been ruled unconstitutional. This cause was not
ii. Exception: Novelty of claim can be cause in very limited circumstances. Not objecting to
something because the constitutional claim is so novel that its legal basis isn‟t reasonably
available to counsel (could never anticipate it) IS cause: Reed v Ross.
1. This exception is narrow, only works if:
a. Subsequent SCOTUS decision explicitly overrules precedent
b. Subsequent SCOTUS decision overturns a longstanding & widespread practice
the Court hadn‟t spoken on
c. Subsequent SCOTUS decision disapproves a practice the Court has arguably
sanctioned in other cases
2. Note: to rely on SCOTUS decision subsequent to conviction, must pass Teague test
iii. Test for cause: some objective factor external to the defense impeded counsel‟s efforts to
comply with the state‟s procedural rule. Murray v Carrier.
1. Field thinks the right test should be that tactical/strategic errors made for the benefit of
defendant should not be cause. Attorney oversight / inadvertence should be cause.
iv. Examples of cause:
1. factual or legal basis not reasonably available to counsel, Reed v Ross
2. interference by state officials making compliance impracticable, a Brady violation
(prosecution failing to overturn the evidence they have to, withholding exculpatory
3. primary method - ineffective assistance of counsel, Murray v Carrier: Procedural
default = D attorney left out an issue from the notice of appeal, which under state law
meant it was waived, state courts refused to hear it;
a. Strickland v Washington (1984)-presumption that attorney‟s decisions do not
reflect ineffective assistance. Test for IAC: counsel‟s errors were so serious as
to deprive D of a fair trial (a trial whose result is reliable) & but for counsel‟s
errors there is reasonable probability that results in case would be different
b. this has to be presented on state post-conviction review. Edwards v Carpenter
(2000) – procedurally defaulted IAC claim can serve as cause to excuse
procedural default only if habeas petition satisfied cause & prejudice standard
with respect to ineffective assistance of counsel claim. Prisoner must exhaust
state remedies re claim of IAC that is being presented as cause & prejudice for
procedural default of another const‟l claim
c. Note that for federal prisoners bringing a §2255 collateral action, they can
bring a 6th amendment ineffective assistance of counsel claim for the first time
in habeas without having to show cause at all for not having brought it on
direct appeal. Massaro v US 2003, p878. Field thinks this should apply to state
4. One example where cause found - Lee v Kemna (2002): cause for procedural default
found. Procedural default = not putting motion for continuance bc of disappearance of
key witnesses in writing with affidavit; Cause = following the rule would not have
made nay difference because that‟s not why Judge denied it (denied it bc he had
another trial the next day and daughter in hospital), nothing in state law required
following the rule in the unexpected witness disappearance scenario; D had
substantially complied orally
a. They didn‟t invoke AEDPA 2254(e) which says that no new evidentiary
hearing unless facts underlying it are sufficient to establish by clear &
convincing evidence that but for const‟l error, no reasonable factfinder
would‟ve found the applicant guilty.
b. This suggests that AEDPA is only used if there is not an adequate state
procedural ground. Here, there wasn‟t an ASG so Court doesn‟t discuss
5. Another case where cause was found – Osborne : defense counsel objected to
constitutionally erroneous jury instructions but not again at a different time, was
allowed to bring it on habeas
a. Rule from Osborn: a D‟s failure to comply with firmly established & regularly
followed rule is inadequate state ground ONLY when state has no legitimate
interest in the rule‟s enforcement case-by-case adjudication of whether the
rule was substantially complied with or not
v. Example of NOT cause: attorney oversight or inadvertence. Murray v Carrier, where D‟s
attorney left out a ground of appeal on the notice to appeal and it was foreclosed not cause.
i. INNOCENCE AS ALTERNATIVE TO CAUSE:
i. Rule: as an alternative to demonstrating cause, a habeas petition can raise matters not argued in
state courts by showing he/she probably innocent of the charges.
1. Murray v Carrier: state prisoner who could show that he/she is probably actually
innocent should be able to secure relief regardless of the reason for the state court
procedural default. Comity & finality have to yield in an extraordinary case of const‟l
violation resulting in conviction of actually innocent person
2. Smith v Murray: h.c. would be available, even in the absence of demonstrating cause,
when D can show that he/she is likely actually innocent
ii. Standard when challenging sentence: Sawyer v Whitley: to show actual innocence, must show
with clear & convincing evidence that but for constitutional error at his sentencing hearing, no
reasonable juror would have found him eligible for the death penalty under applicable state
1. Stevens concurred but said test should be if the const‟l error probably resulted in a
miscarriage of justice, which is what it is for non-capital cases
2. Stevens also said that habeas petitioner challenging death sentence should also be to
challenge wrongly excluded mitigating evidence, not just improperly admitted
iii. Standard when challenging conviction: Claim of actual innocence only relevant on habeas if
petitioner is also claiming a violation of a federal right. Herrera v Collins: actual innocence is a
gateway through which habeas petition must pass to have his otherwise barred const‟l claim
considered on the merits. New evidence of actual innocence alone is not enough (though not a
majority of justices agreed with this)
1. if have claim of actual innocence based on new evidence but no constitutional claim
otherwise relief is via executive clemency. Habeas is only for constitutional
violations, not for correcting factual errors.
2. O‟Connor & Kennedy, concurring: a truly persuasive demonstration of actual
innocence would render the execution unconstitutional – but hard to know what that is.
The constitutional basis for not being executed as a truly innocent person would be 14th
amendment due process, 8th amendment cruel & unusual punishment, etc.
3. Where arguing another const‟l claim & actual innocence as a gateway: To prove actual
innocence, habeas petition must show that there was a constitutional violation that
probably resulted in the conviction of one who is actually innocent. Schlup v Delo: in
light of the new evidence, it‟s more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.
a. this rejects the standard requiring clear & convincing evidence that but for
const‟l error no reasonable juror would have convicted the person – adopted
standard is less rigorous
b. The Schlup standard was met in House v Bell 2006 p899, p945: allowed
procedurally defaulted claim of IAC to be raised. Presented evidence of actual
innocence (DNA evidence that he didn‟t do the rape, witnesses, confession
from someone else) which, had the jury heard it, no reasonable juror would
lack reasonable doubt.
i. Note: did not prove actual innocence enough for the Herrera
freestanding innocence claim. He gets habeas review bc satisfied
c. AEDPA on actual innocence is only about repeat petitions and/or relitigation
of facts. §2255 – successive habeas based on newly discovered evidence of
innocence: CoA can grant motion for successive petition if no reasonable
factfinder would have found the movant guilty of the offense
iv. For both gateway & freestanding innocence claims, how can a petitioner show it?
1. There isn‟t currently a right to access the DNA evidence the prosecution has post-
conviction. Field thinks we should make up this right, it‟s analogous to Brady. See
DA’s Office v Osborne, LJ Supp p181-185: D brought §1983 action in fed court
claiming a const‟l right of access to DNA evidence that would prove his innocence.
State procedures for DNA testing and innocence claims were adequate.
2. Troy Davis case.
v. Note: it‟s unclear whether actual innocence as a gateway is allowed for non-capital sentences
(or for allegations of innocence of the sentence, not of the crime). Still unclear whether a
petitioner can attack a non-capital sentence in habeas. Dretke v Haley (2004) – SCOTUS said it
hadn‟t ruled yet on whether the actual innocence exception applies when habeas petitioner
asserts actual innocence to challenge noncapital sentence.
vi. But Court will avoid the innocence issue if there are other nondefaulted grounds of relief.
i. Rule: to show prejudice, must show that the alleged constitutional violation affected the
outcome of the trial or the appeal – that the results probably would have been different but for
the violation of the federal law. That is, if there is other evidence of guilt (besides the stuff that
is allegedly constitutional error), then there is no prejudice.
1. Standard: basically harmless error – if the constitutional error was harmless because
there was other evidence of guilt, then no prob. Problem with this is that you will never
know what the jury actually convicted the D on, whether it was the other guilt evidence
or the constitutionally problematic guilt evidence.
ii. US v Frady: can show prejudice by showing that the results in the case likely would have been
difference absent the constitutional/federal law violation
4. RELITIGATION OF LAW: When may a D relitigate issues on habeas that were raised and decided in state
a. Note: if the first habeas is dismissed w/out adjudication on the merits for failure to exhaust state
remedies, the second one brought after exhaustion is not a second/successive petition. Slack v
McDaniel 2000 p921.
b. Warren Court: Constitutional claim could be raised on habeas even though raised, fully litigated, and
decided in state court. Brown v Allen. Exception to normal res judicata and collateral estoppel. IT
doesn‟t matter what the state court‟s holdings were; the federal habeas court is not bound by them.
i. Rationale: purpose of habeas is to remedy state court disregard of fed const‟l rights
ii. Also allowed for federal prisoners convicted in federal trial. Kaufman v US.
iii. West v Wright 1991: 3 justices wanted to overrule Brown v Allen and only allow relitigation is
petition was denied a full & fair hearing in state court.
iv. Reaction to Brown v Allen:
1. Prof Bator says habeas was only supposed to be about whether the convicting court
had jurisdiction or not. Bases his argument on Frank v Magnum (no habeas where state
fully heard the claim already), Moore v Dempsey.
2. Prof Reitz says habeas was always broader than what Bator says
3. There is dispute about whether Brown was a huge clarification or a huge innovation.
c. Exception to Brown v Allen:
i. Claims that state court improperly failed to exclude evidence as being illegal search/seizure
product (4th amendment claims) can‟t be relitigated on habeas if the state court provided a full
& fair opportunity for a hearing. Stone v Powell 1976, p814-30. Only the opportunity has to be
there, the D doesn‟t have to have actually taken advantage of it. Now can only get 4th
amendment claim heard if state court refuses to hear the 4th amendment claim completely.
1. Rationale: exclusionary rule claims are not about the accuracy of state court fact-
finding. The rationale behind 4th amendment is to deter illegal cop practices, and
allowing this claim on habeas wouldn‟t deter cop practices. Comity: no reason to think
state court judges won‟t uphold 4th amendment as much as federal judges.
ii. Criticisms of Brown v Allen:
1. separation of powers – Court went beyond its judicial role in saying that certain claims
couldn‟t be heard on habeas review where federal statutes make habeas available for
any const‟l right.
a. No matter what Congress intended habeas for originally, there is no indication
that it intended 4th amendment to be treated differently
2. expressly assumes parity between state & fed
3. wrongly assumes that allowing 4th amendment claims on habeas would serve no
4. bad result: since state courts knew they wouldn‟t be overseen by fed courts in habeas,
state courts didn‟t have to protect 4th amendment as much
d. The Stone v Powell exception to Brown v Allen has not been extended to other const‟l rights. Other
constitutional rights that can be raised even though raised, litigated, and lost on in state court:
i. racial composition of grand juries discrimination claim. Rose v Mitchell 1979, p829. Rational:
calls the whole integrity of the judicial system into question, is not as costly as exclusionary
rule, represents more compelling interests
ii. constitutionality of jury instructions on standard of proof. Jackson v Virginia:
iii. 6th amendment IAC claim even when claiming that the attorney failed to raise a 4th amendment
claim. Kimmelman v Morrison:
iv. 5th amendment Miranda violations. Winthrow v Williams 1993, p829
1. Rationale: 5th amendment/Miranda is about reliability of the facts (the confession),
whereas 4th amendment isn‟t, wouldn‟t increase efficiency because can still raise a
voluntariness claim re confession
e. Note: habeas petitioner can‟t challenge prior convictions on habeas where they are the basis for
receiving an enhanced sentence. Daniels v US (2001) for federal prisoners, extended to state prisoners
in Lackawanna County Dist Atty v Coss (2001).
i. Exceptions: if no appointed counsel (Gideon right to counsel violation), or possibly if there
was no review of conviction 1 available to D
f. Under AEDPA 28 USC 2244(b), can only bring a second habeas petition if get CoA approval first.
g. Failure to assert in a first habeas petition a claim that wasn‟t ripe then doesn‟t make the second habeas
petition a successive one. Panetti v Quarterman 2007, p925: D‟s claim that is mentally incompetent to
be executed wasn‟t ripe at time he filed first habeas so can bring a second petition claiming it
h. Standard for granting relief on such relitigated claims: AEDPA: fed court can grant habeas only if the
state court decision was contrary to, or involved an unreasonable application of clearly established
federal law, as determined by the Supreme Court.” §2254(d)(1)
i. Terry Williams v Taylor, 2000 p846: habeas petitioner got habeas review of 6th amendment
IAC claim bc state supreme court‟s decision (finding insufficient prejudice) was contrary to &
unreasonable application of fed law (and that fed law of Strickland was clearly established at
the time). State supreme court used wrong standard (contrary to) and their prejudice analysis
was unreasonable bc didn‟t look at all the mitigating evidence in weighing it against guilt.
ii. Contrary to & unreasonable application are independent bases for habeas relief (note Stevens
and O‟Connor disagree on this in Terry Williams)
1. “contrary to” clearly established federal law = substantially different from relevant
Supreme Court precedent. State court decision is contrary to fed law if it contradicts a
SCOTUS decision / applies a different rule or reaches a different result on facts
2. “unreasonable application of clearly established federal law” = objectively
unreasonable (not merely incorrect) application of the correct rule to the facts of the
a. This means that incorrect state court judgments will stand (this was
O‟Connor‟s opinion in Terry Williams) – Field says could argue that this
amounts to an unconst‟l suspension of writ of h.c.
iii. Applications of this standard:
1. Bell v Cone, 2002, p864: No habeas allowed because state court decision (on IAC) not
contrary to law and not an unreasonable application of fed law. Here, state court was
wrong but reasonable and their decision stood.
2. Lockyer v Andrade
5. FACTS: When may a federal court conduct independent fact-finding? When can facts be retried on habeas?
a. Before: fed court had power to hold a new trial but usually should accept trial court‟s factual
determination unless vital flaw found; where record affords adequate opportunity to weigh sufficiency
of allegations & evidence and no unusual circumstances, repeating trial isn‟t required. Brown v Allen
b. Warren Court: Townsend v Sain: Fed courts have power to hold new factual hearings when facts are in
dispute and the D did not receive a full & fair hearing in state court. Fed court MUST grant new
evidentiary hearing if
i. Merits of factual dispute not resolved in state hearing
ii. State factual determination is not fairly supported by record as a whole
iii. Fact-finding procedure used by state court not adequate to afford full & fair hearing
iv. Substantial allegation of newly discovered evidence
v. Material facts not adequately developed at state court hearing
vi. State trier of fact didn‟t afford habeas applicant a full & fair hearing
c. AEDPA: 2254(d) application for writ won‟t be granted with respect to a claim adjudicated on the
merits in state court unless (2) decision was based on an unreasonable determination of facts in light of
d. AEDPA: §2254(e): determination of fact by state court is presumed correct. Habeas petitioner has
burden of rebutting that presumption by clear & convincing evidence. Fed court cannot hold
evidentiary hearing on a claim not factually developed in state court unless petitioner shows
i. Claim relies on
1. new rule of const‟l law made retroactive on collateral review by SCOTUS that was
previously unavailable, or
2. factual predicate couldn‟t have been discovered by the exercise of due diligence, AND
ii. facts underlying the claim would be sufficient to establish by clear & convincing evidence that
but for const‟l error, no reasonable factfinder would have found applicant guilty of underlying
iii. This is very restrictive: Michael Wayne Williams v Taylor 2000, p901– Michael Williams
sought evidentiary hearing for factual thing not raised in state court; diligence depends on
whether prisoner made a reasonable attempt in light of info available at the time to investigate
and pursue claims in state court, it doesn‟t matter if those efforts would have been
unsuccessful, still had to do them.
1. Rule – to trigger AEDPA‟s restrictions on prior unlitigated facts, there has to be some
FAULT on the habeas petitioner‟s part – if due diligence could not have discovered the
claim, then it‟s not barred. This helps pro se prisoners.
iv. An additional requirement when factual matters are NOT decided at state court, can only get a
factual hearing on habeas if habeas petitioner shows cause & prejudice .
1. Keeney v Tamayo-Reyes
2. Rationale: finality, full factual development in state court, uniformity because is same
test as other areas of habeas
3. Dissent: cause & prejudice should only be for deciding if and when a habeas petitioner
gets something reviewed by fed court, not what the standard is
e. AEDPA is a jurisdictional limitation on fed judicial power – must be raised by fed court itself even if
not raised by state
i. Sumner v Mata: habeas court must in written opinion write which of the statutory factors were
f. Must decide whether something is law or fact. 2254(e) applies only to facts, NOT to questions of law &
not to mixed questions of law and fact
i. For mixed questions of law & fact, Brown v Allen is still controlling
ii. Miller v Fenton: voluntariness of a confession is a legal question – federal court should decide
it de novo; but the subsidiary facts (how long the questioning lasted, cop practices) are matters
of fact and 2254(e) applies
iii. Thompson v Keohane: whether a person is in custody for purpose of Miranda warning
requirement is a question of law, not fact. De novo review in habeas.
Current Test for foreclosure (per Field)
-is there an adequate state ground? Lee v Kemna
-if not, look to AEEDPA –
-is there was no fault on your part in failing to litigate the facts (if there was cause & prejudice for it)? Then
you get an evidentiary hearing.
-if there was fault on your part, then §2254(e)(2)(a) is triggered and must have either a new retroactive rule
or undiscoverable facts
6. What is the standard of review on habeas?
a. Standard for reversing a conviction on habeas: must reverse only if the constitutional error had a
substantial & injurious effect or influence in determining the jury‟s verdict. Brecht v Abrahamson
1993, p833. This is hard for D to prove
i. Rationales: federalism, comity, constitutional obligations of state & federal courts
ii. This standard is harder for D than the standard for reversing a conviction on direct appeal,
Chapman - which is reversal for a constitutional error unless it was harmless beyond a
reasonable doubt (hard for state to prove this, which leads to lots of reversals)
b. Brecht standard survives after AEDPA
7. AEDPA and capital cases: B39-41 - §2261-64
8. Habeas in Executive Detention
a. Boumediene holds that prisoners in Guantanamo have habeas corpus rights. Suspension clause applies
to them. Military commissions not a satisfactory substitute
i. This seems to limit McCardle - though they are diff because one is state and one is federal
prisoners, if we assume the Suspension clause applies to state prisoners just like to federal
ones, then McCardle is limited to its narrow holding that it was only OK to take away
jurisdiction bc there was an alternative
b. Habeas for people outside the US? Factors in deciding it applied in Guantanamo-
i. De facto sovereignty
ii. Detention by US officers
iii. Citizenship of detainees
iv. How much process before enemy combatant/detainee determination
v. Site where held, captured, where crime committed
vi. Practicalities of providing habeas- is it a war zone or not – hostile foreign power?
c. There is still no habeas for completely extra-territorial stuff. US can detain foreign citizens abroad
w/out habeas in an eisentrager situation.
i. DC Circuit said Bagram air force base fit here too
V. CHOICE OF LAW IN THE FEDERAL SYSTEM, Federal Common law
1. Federal common law: legally binding federal law developed by fed courts in the absence of directly
controlling constitutional or statutory provisions
a. Field: FCL = any rule of federal law created by a court when the substance of that rule is not clearly
suggested by federal enactments, constitutional or congressional. Field‟s definition is basically
2. Presumption against FCL
a. Rules of Decision Act, in Judiciary Act of 1789: in the absence of positive federal law, fed courts must
apply state law: “the laws of the several states, except where the Constitution or treaties of the United
States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil
actions in the courts of the United States, in cases where they apply”
i. Counterarg: can argue that textually the Rules of Decision Act allows for FCL because
wherever FCL exists is not a “case where [state law] applies”
b. Separation of powers: courts have only the authority that Congress gives. No statute gives Congress the
right to create FCL (in crim prosecutions at least)
c. Federalism: if courts create FCL, it infringes on states
d. Erie v Tompkins 1938: there is no federal general common law
i. Overruling Swift v Tyson: SCOTUS held that Rules of Decision act only required the
application of state constitutional or statutory law, not state common law
3. Limited scope of federal common law – see more below #6
a. Specific areas (see general thematic areas below)
i. Rights & duties of federal gov‟t
1. Clearfield Trust 1941, p131 - where transactions involve banking and the rights of US
re commercial paper
a. Counterarg to Clearfield: fed court had authority to make FCL but should not
have made a new rule, should have incorporated state law
2. Little Lake Misere: where fed gov‟t‟s interest in real property is at stake
3. Airplanes – Kohr
4. [railroad, patent, antitrust]
5. FCL should determine liability of contractor providing military equipment to fed gov‟t.
Boyle v United Technologies, p136-47. Uniquely federal interest in obtaining
equipment for the military and the application of state tort law would impair this
ii. International law
iii. Conflicts among states.
1. Hinderlinder, decided same day as Erie.
v. Preclusive effect of fed court judgments in other fed courts, Semtek
b. Reasons for FCL in certain areas
i. Gaps in the law – necessity (ex: SCOTUS original jurisdiction to hear disputes between states)
ii. To fulfill congressional intent
iii. To protect the interests of the fed gov‟t
4. Policy args
i. Bad for federalism: creating FCL displaces state laws
ii. Good for federalism: creating FCL keeps state law from frustrating fed interests
b. Separation of powers:
i. Bad for SOP: only Congress, not courts, can decide existence & content of fed laws
ii. Good SOP: developing FCL is part of judicial role in some cases; helps fulfill congressional
5. Choice of Law in Diversity cases
a. Once SCOTUS held that federal courts should apply state law (and not federal common law) in
diversity cases, courts had to decide which state‟s law to apply
b. Old rule: In diversity cases, in the absence of a state statutory or const‟l provision or a particular local
interest, federal courts should make federal common law. Swift v Tyson 1842: Rules of Decision Act
only required applying positive state law (constitutional and statutory), not state common law
i. Rationale: uniformity (esp re commercial transactions)
ii. Under this rule for 100 years fed courts developed FCL in torts, contracts, commercial law.
Real property left to state common law.
iii. Criticisms of Swift:
1. lack of uniformity between state & federal courts – fed courts & state courts applied
2. forum shopping
a. Black & White Taxicab v Brown & Yellow taxicab
3. there actually are no generally true legal principles for fed courts to find and apply; no
iv. Counterargs to criticisms of Swift: Congress could have legislated to fix the problems by
preventing corporations from doing the Back & White Taxicab thing and by allowing
defendant‟s to remove from state to fed court even in their own state
c. New rule: In diversity cases, federal courts apply state law, including state common law. Unless there
is a federal constitutional, treaty, or statutory provision, state law controls. Erie v Tompkins 1938
1. Charles Warren‟s research showed that Rules of Decision Act “law of the states” didn‟t
just mean constitutional or statutory but also common law
a. Counterarg: Warren wrong. Even if Warren right, Congress should overrule
Court‟s Swift interpretation of statute Rules of Decision Act, not Court itself.
See Ritz-Holt-LaRue thesis in class notes.
2. Swift had not led to uniformity unfairness & forum-shopping. Discrimination by
noncitizens against citizens – equal protection problems. Result in case depended on
citizenship of parties
a. Noncitizen gets to choose forum. Defendant citizen can only remove from
state to federal court if a P could have brought it there EXCEPT that he can‟t
remove in his home state.
3. Constitutional separation of powers: courts had taken powers not granted them
a. Counterarg: not a problem because in making fed common law, court is
supposed to be doing what it thinks Congress would want.
4. Constitutional federalism problem: court in declaring unwritten common law is doing
more than what Congress even would be allowed to do. Fed courts are thus acting
outside of the federal power entirely. Congress has no power to declare substantive
rules of common law applicable in states that are unwritten. This also cuts down on
state‟s ability to make these laws, becomes a 10th amendment problem.
a. Counterargs: Congress has broad powers, under Art. I Necessary & Proper
b. Counterarg: if Court has power to make substantive fed common law rules for
disputes between states & admiralty (which are under Art. III), then judicial
power extending to diversity in Art III also includes the right o make fed
common law for those
i. BUT if this were part of fed court‟s power under Art III, it would be
an expansion of Congress‟ “necessary & proper” powers. Henry
Friendly said this would expand Congress‟s powers on a small Art III
d. Note that Erie applies only to substantive law. Federal courts can apply federal procedural laws.
i. Must first decide whether a rule is substantive or procedural
e. Effect of Erie: can‟t make FCL just because it‟s a diversity case. Art III giving jurisdiction over
diversity cases to fed court is not enough to give them authority to make FCL.
f. Test for deciding what law to apply – when to apply federal or state law in diversity cases
i. Is there a conflict? If not, apply both. If there is a conflict
1. is there a valid federal statute or rule of procedure (FRCP) on point?
a. If yes, apply federal law even if there is conflicting state law. Hanna v
b. If not
c. Similar question (but re what law to apply in state courts) arose in Semtek Int’l
v Lockheed Martin: on what law to apply re res judicata effect of prior fed
court decision. SCOTUS said there is no federal positive law on point for
preclusive effect of a federal dist court action. Then decided that the federal
common law governs the question, then decides the appropriate FCL is to
incorporate state law.
2. is the application of state law likely to determine the outcome of the suit?
a. If not use state law
b. If so
c. Guaranty Trust co v NY 1985: Instead of focusing on substance-procedure (re
state statute of limitations), should ask whether the state law in question is
likely to determine outcome of the case.
d. State laws found to be outcome determinative:
i. Burden of proof: Palmer v Hoffman
ii. State law making an unsuccessful P liable for D‟s attorney costs:
Cohen v Beneficial Finance Loan Corp
3. is there an overriding federal interest justifying the application of federal law?
a. Byrd v Blue Ridge Rural Electric: fed law allowed jury trial, state law allowed
bench trial, overriding federal interest in 7th amendment and jury trial rights
made that apply
g. Issues in applying Erie: How should a fed court determine the content of a state‟s law?
i. If state‟s highest court has ruled/ interpreted the state law, federal court must apply that.
ii. If state‟s highest court has not yet rule / interpreted the state law, federal court must try to
predict how state‟s highest court would decide the case. Does not have to follow lower state
1. Old law – had to follow lower state courts‟ ruling. Fidelity Union Trust Co v Field.
2. Current rule – If there is no decision by highest court, federal courts must apply what
they find to be the state law after giving proper regard to relevant rulings of other
courts of the state, by sitting as a state court basically. Commissioner of IRS v Bosch.
3. Example: Fed court in diversity should follow the conflicts of law principles that the
state court in that state would apply. Klaxon. There is no federal common law conflict
of laws principle.
a. Criticisms: encourages forum-shopping among federal courts (parties will go
to the fed court in a state where the state conflict of law principle requires
applying the best law for them). Field thinks there should be a federal common
law of conflict of laws. Klaxon is not constitutionally required, it could come
b. Transferring venue can‟t get around this. When there is a transfer of venue
pursuant to 28 USC §1404(a), the court to which the matter is transferred must
apply the choice of law rules that would have been followed in initial court.
i. When the defendant moves for transfer of venue - Van Dusen v
ii. When the plaintiff moves for transfer of venue – Ferens v John Deeres
c. Anomalous example of Klaxon: Griffin v McCoach: Klaxon required the TX
fed dist court to apply TX conflict of laws which led it to apply TX law, even
though the only way the TX fed dist court had jurisdiction was because of the
Federal Interpleader Act. A TX state court never would have actually had
d. Problem with Klaxon is where multidistrict litigation is consolidated, then P
loses the advantages he sought by filing in a certain district. Example: Kohr v
iii. So Erie increased forum-shopping between federal courts in different states.
iv. Klaxon also increased forum-shopping between district courts in different states, because
though D can remove from state court to federal court, he can‟t get out of the state where it is
h. Erie also applies in non-diversity cases: when a federal court is hearing a case that has a pendent state
claim, it must apply state law even though it‟s a federal question (not a diversity) case.
i. If fed court doesn‟t know what the state law is, it can:
i. Decline jurisdiction (but they have a duty)
ii. Abstain / stay litigation until declaratory judgment issued from state
iii. Certify question to highest local state court, especially where the question is novel & state law
6. Three general areas where FCL has been created
a. [claim preclusive effect of a fed court judgment in a diversity case is a federal common law issue. See
b. [railroad, patent, antitrust]
c. Where FCL is necessary to protect the interests of the federal gov‟t
i. Ex: to protect fed proprietary interests in cases involving US gov‟t; to protect fed interests in
cases between private parties (though this is more rare), to uphold fed interest in int‟l law, to
resolve conflicts among the states
ii. Note: Federal Tort Claims Act creates liability against US for actions that would be torts in the
states where they occur. 28 USC 1346(b). (except for injuries incurred by armed forces
personnel pursuant to service)
iii. Example: in regulation of nation‟s airways. Kohr v. Allegheny Airways FSupp 156. This case
showed that it is hard to know what issues should be governed by FCL or by state law – could
have gone either way.
iv. 2-part test to decide whether to create FCL to safeguard federal interests:
1. is the issue before the court properly subject to the exercise of federal power?
2. if so, in light of competing fed/state interests, is it good policy to adopt a fed
substantive rule to govern?
a. Does the underlying purpose of a const‟l or statutory provision warrant
b. Clearfield Trust Co v US 1943: fed gov‟t sued Clearfield trust for a bad check.
FCL, not state law, to determine whether fed gov‟t‟s delay in notifying the
trust precluded it from recovering. Rule: the rights & duties of the US on
commercial paper it issues are governed by FCL, not local law.
i. Rationale: need for a uniform rule
c. US v Little Lake Misere: state law can‟t be used to abrogate fed gov‟t contracts
that acquire land for public uses. FCL necessary to protect the interests of the
US and to effectuate congress‟s purpose in enacting the statute authorizing the
acquisition of the land
d. Basically FCL should be made where proprietary interest of the US (contract,
property, torts) at stake
e. For disputes between states, it is good policy because neither state‟s law can be
chosen to apply. Hinderlinder v La Plata River – dispute between state re
3. then, what should the content of FCL be?
a. Can base it on state law, “incorporated state law”
b. Can create a totally new rule
c. If it‟s clear what Congress would have wanted, they must do that.
d. Test: balancing test for deciding whether to incorporate state law or make new
rule. US v Kimbell Foods. Need for uniformity, whether incorporating state
law would frustrate fed objectives, whether fed rule would disrupt commercial
relationships based on state law
e. Examples of where Ct decided it should be FCL, not state rule:
i. DeSylva v Ballentine: state law should be incorporated (not a new rule
created) on deciding whether illegitimate children are children under
fed copyright laws, bc fed gov‟t has no particular interest in family
ii. Little Lake Misere: state law on the land contracts run counter to fed
gov‟t‟s interest and shouldn‟t be applied
iii. Hinderlinder and disputes between states
f. Examples where state law governs – Federal Tort Claims Act. There is no
federal tort law, state law is incorporated.
v. A different way to state this test:
1. AUTHORITY - is there authority to make FCL?
a. Fed gov‟t is one of limited authority. Fed gov‟t has to have authority to act. A
statute or const‟l provision has to authorize fed courts to make FCL.
b. This is not hard – it is easy to find authorization.
c. One place there is NOT authority to make FCL is under the Dormant
Commerce Clause, which says states are able to regulate in an area of
interstate commerce where Congress hasn‟t regulated. In DCC, the only
options are state law or no law – there is no authority to make FCL.
2. CHOICE - Should court make FCL or incorporate state law?
a. Once fed court makes FCL in an area, it‟s precedent for same situation in the
future just like a fed statute.
b. Is there a need of uniformity? Is it more important to fit in with already-made
c. Wallis v Pan Am
d. When you decide that state law should applies, look to state supreme court for
that definition. Erie.
2 ways that state law could be operating in federal court:
*state law operating by its own force = Erie. But if Congress really wanted to, it could legislate over this too. This
is more strictly state-law-dominated
*state law operating by choice = Step 2 of Clearfield. Feds have more control over this type (could choose to make
FCL instead of incorporating state law).
d. To effectuate congressional intent – when FCL is needed to fulfill Congress‟s purposes in adopting a
i. Ex: when Congress intends courts to develop FCL
1. Textile Workers Union of America v Lincoln Mills of Alabama 1957: Taft Hartley Act
granted jurisdiction to fed courts to decide disputes under union contracts in industries
affecting interstate commerce; statute didn‟t say what substantive law to apply.
SCOTUS said Congress intended for FCL to be developed and apply.
2. ERISA (Employee Retirement & Income Security Act)
3. Sherman Antitrust Act (first 2 sections)
4. Alien Tort Statute
5. FELA – federal law governs the validity of employee releases (signed to exculpate
employer from liability under FELA) – interstitial lawmaking, Court filling in the gaps
of a comprehensive statutory scheme consistent with Congress‟s intention
ii. Ex: where court infers a private right of action for fulfilling congressional intent
iii. Ex: statute of limitations in a federal statute. If the federal statute is silent on the SOL, the
federal court can make one up. Hoosier. Other options: if Congress is silent, there is no SOL,
or the state one applies, or an analogous federal statute‟s SOL applies.
e. Private rights of action
i. Court usually doesn‟t create a cause of action (a private right of action) without express
1. Bivens is the most important exception to this. Bivens actions: Creation of a cause of
action for $ damages directly under const‟l provisions against fed gov‟t officers who
violate federal rights. SEE BELOW SECTION ON BIVENS.
ii. Court will only create a cause of action (a private right of action) w/out express statutory
authorization where necessary to fulfill congressional intent.
1. Ex: where statute authorizes money damages but not a right of action to bring suit for
2. old Test: where necessary to effectuate congressional intent. Borak. Where there is a
federally created cause of action, courts will imply remedies so the statute will fulfill
the congressional purpose.
3. 3 approaches:
a. (1) Most lenient - Court willing to create a private right of action where it
would help effectuate the purpose of a statute and if no legislative history went
against it. J. I. Case Co. v Borak: Securities Exchange Act gave exclusive
jurisdiction to fed courts but didn‟t create a cause of action. Court allowed
private right of action because said that was the best way to accomplish the
purposes of the statute.
b. (2) Less lenient – Court required detailed inquiry into generalized
congressional intent. Cort v Ash. 4-part test for deciding whether private rights
of action should be implied:
i. If the P one of the class for whose benefit the statute was enacted?
ii. Any indication of legislative intent to create or deny remedy (implicit
iii. Consistent with underlying purposes of legislation to imply remedy?
iv. Cause of action traditionally left to states?
v. This test usually not satisfied.
vi. One case where it was satisfied and a private right of action was
allowed: Cannon v University of Chicago 1979: Title 9 of Educational
Amendments of 1972- it worked best with purposes of the statute to
allow private rights of action; allowing Sec of Ed to withdraw funds
from University (the alternative remedy) wasn‟t a very good one
1. Powell dissented on separation of powers grounds: Congress
alone can create causes of action, courts should imply them
only in limited circumstances (super compelling evidence of
affirmative congressional intent). Wants a strict presumption
against private rights of action / remedy actions, wants
Congress to be forced to write statutes more specifically and
not pass the buck to courts.
c. (3) Least lenient – Court implies private right of action only where there is
affirmative evidence of Congress‟s intent to create a private right of action.
Touche Ross v Redington basically overruled Cort v Ash test.
4. Maine v Thiboutout p173-4: SCOTUS found a private right of action to sue under
§1983 for deprivation of welfare benefits (deprivation of property) despite Powell‟s
objection that §1983 was only for civil/personal rights, not property rights. Principle:
there can be private rights of action under §1983 for federal administrative programs
a. But if Congress passes a federal statute after 1871 (when §1983 passed) and
discusses a remedial scheme, that‟s the only remedy.
5. Alexander v Sandoval: no private right of action for enforcement of Title VI of Civil
Rights Act unless intentional discrimination. There is no private right of action for
disparate impact or unintentional discrimination.
7. Bivens : Suits in federal court for relief against federal officers
a. There is no statute creating a private right of action against fed gov‟t officers. Federal officers are not
included in §1983.
b. Injunction against federal officer to prevent future infringement of federal law: historically always
allowed, Larson v Domestic.
i. Congress amended APA to say that suits against federal agencies, officers, or employees
seeking prospective/injunctive relief (relief besides $$ damages) should not be dismissed just
bc the US is a necessary party
ii. But can‟t use §1983 to get an injunction because §1983 only for state officers.
c. Money damages against federal officer for past alleged violation of constitutional rights? Bivens: for 4th
and 14th amendment violation by fed officers. Federal court cause of action for $ damages could be
inferred directly from 4th amendment. Principle: Can get damages under the 14th amendment.
i. Before Bivens, to get $$ damages against fed officers, Ps had to use state common law tort
ii. Pre-cursor to Bivens: Bell v Hood: Court first hinted that a federal cause of action (right to sue
in fed court) against fed officers could be inferred from Constitution
iii. Rationale for Bivens: state law remedies might be inadequate/hostile to fed const‟l interest
iv. Exceptions to Bivens: No cause of action if
1. special factors counseling hesitation in the absence of affirmative action by Congress
a. Bush v Lucas – Congress was in the best position to determine what remedies
federal employees get
b. Schweiker v Chilicky – Congress created remedies under Social Security Act,
which was a special factor
c. No Bivens available for injuries that arise out of or are in the course of activity
incident to military service, no matter how severe the injury or egregious the
infringement of rights. US v Stanley: former military man sued bc of injuries
he got from US army giving him LSD without his consent. Also US gov‟t
immune from suit under FTCA (Feres doctrine).
2. Congress had specified an alternative mechanism that Congress thought would provide
an equally effective substitute
a. Alleged alternative action by Congress not a preclusion of Bivens:
i. Davis v Passman: allowed cause of action for fired female aid who
wanted to sue congressman for gender discrimination based on 5th
amendment. Congress‟s exempting Congress members from all suits
for federal employment discrimination (under Title VII of the Civil
Rights Act of 1964) was narrowly construed by Court not to mean
foreclosing all remedies.
ii. Carlos v Green: allowed cause of action for mother of dead son who
wanted to sue federal prison officials for 8th amendment violation.
Congress‟s passing the Federal Tort Claims Act under which she could
also have recovered was not a substitute, Congress didn‟t mean FTCA
to be exclusive remedy in this circumstance.
1. Plus FTCA not a full substitute bc can‟t get as much in
damages under FTCA, no jury trial
b. Alternative action by Congress is a preclusion of Bivens:
i. Bush v Lucas: no Bivens cause of action by engineer against federal
agency which demoted which allegedly in violation of his 1st
amendment rights; alternative remedies created by Congress for
federal workers under Civil Service reform Act
1. Congress doesn‟t have to explicitly state it is passing a
statutory remedy to preclude / substitute for Bivens. Court can
infer that Congress intended that by statutory language, clear
legislative history, or even by the remedy itself.
ii. Schweiker v Chilicky: no Bivens cause of action for P denied welfare
benefits in clear violation of due process; alternative remedies created
by Congress under the Social Security Act
c. Based on this, could argue that some remedy is constitutionally required
v. Harlan‟s concurrence: should allow causes of action in fed court based on Constitution because
Court already implies causes of action for federal statutes
vi. Dissent: separation of powers means Congress, not court, should create cause of action against
federal officers. Only Congress can authorize suits for $ damages against fed officers, by
passing an analogy to §1983 for fed officers.
vii. Bivens should not have been as controversial as it was because:
1. Court is already in the business of fashioning remedies for constitutional violations: ex
– exclusionary rule
2. Court has already created a federal cause of action for enforcing the 14th amendment
via Ex Parte Young. EPYoung basically created a federal cause of action for federal
viii. Constitutional violations covered:
1. 4th amendment. Bivens.
2. 5th amendment. Davis v Passman equal protection. (even though it wasn‟t even
included under Title VII, see p215)
3. 8th Amendment. Carlson v Green. Even though FTCA was an alternative remedy
4. 1st amendment. Bush v Lucas. Court hints that it could be covered by actually doesn‟t
cover it because there are good alternatives to Bivens.
d. Limitations on Bivens:
i. Immunity – federal officer D can raise all the §1983 immunities.
ii. Constitutional limitations.
1. negligent conduct isn‟t a deprivation of due process. Daniels v Williams. Davidson v
2. random, unauthorized act of fed gov‟t officer where gov‟t provides adequate
postdeprivation remedy (where there is an adequate federal law remedy) is not a
violation of due process. Parratt v Taylor (state).
a. FTCA might be an adequate postdeprivation remedy.
b. Doesn‟t matter if adequate postdeprivation state remedy exists
e. Criticism of Bivens:
i. Separation of powers –
1. bad for SOP: only Congress can authorize suits for money damages in fed court for
violation of const‟l rights. (See Dissent)
2. good for SOP: judiciary role is to provide a remedy for violations of rights; federal
courts have to protect and enforce const‟l rights
ii. Other criticisms: state tort remedies are enough. Should be able to use constitution as a shield
but not a sword.
f. Open question: whether Bivens is constitutionally required or is federal common law (and thus can be
overturned by Congress). Bush v Lucas left this open.
i. Can argue that some remedy is constitutionally required because it‟s only OK not to have a
Bivens cause of action where another remedy has been recognized
g. Current Court wants to limit Bivens‟ expansion. Correctional services Corp v Malesko (2001):
privately operated prison can‟t be sued in a Bivens action. No more expanding Bivens to new categories
h. Bivens used against defendants other than federal officers:
i. Bivens does not extend to federal agencies. FDIC v Meyer. A federal agency is not subject to
liability for damages under Bivens. FTCA provides a cause of action directly against the fed
ii. Bivens does not extend to state governments because 11th amendment prohibits suits against
states in fed court.
1. Could argue that Bivens suits under the 14th amendment should be allowed under the
same logic that the 14th amendment abrogates state sovereign immunity under Title VII
of Civil rights Act (Fitzpatrick v Bitzer)
2. Also you don‟t need it to sue states because there is Ex parte Young and §1983.
iii. Before Monell held that local governments could be sued in §1983, there was an attempt to
make them liable / suable under Bivens. SCOTUS never decided. (Field says SCOTUS did
eventually prohibit suits against cities under Bivens)
1. open question – whether Bivens suits can be brought against municipalities based on
respondeat superior liability (liability for lower officials‟ acts) since they can‟t be sued
on that under §1983
iv. Private entity cannot be sued under Bivens. Correctional Services Corp v Malesko.
i. Procedures under Bivens:
i. If fed officer sued in state court, can remove to fed court under 28 USC 1442(a)(1).
ii. FCRP applicable. Mandamus and Venue Act of 1962 not applicable.
iii. No need to exhaust administrative remedies for a prisoner seeking only money damages under
Bivens. McCarthy v Madigan.
iv. Unclear whether prevailing P can recover attorneys‟ fees. Equal Access to Justice Act would
allow it, 28 USC 2412(b). Attorneys‟ fees may also be available under 28 USC 2812(d)(1)(A)
1. CoA says cannot recover attorneys‟ fees under 42 USC 1988.
v. Unclear if Bivens extends to suits against private individuals who act under color of state law,
similar to §1983.
Maine v Thiboutout, 173-4 – under 1983, “laws” means laws. Powell argued that 1983 was meant to apply just to
personal rights, equal civil rights, not property rights and that welfare rights (that Ps were claiming deprivation of)
were property rights. SCOTUS allows a private right of action for deprivation under this federal administrative
VI. FEDERAL QUESTION JURISDICTION: Constitutional & Statutory Scope
1. Subject matter jurisdiction:
a. State courts – general jurisdiction: hear everything unless there is a statute denying them authority.
b. Federal court – limited jurisdiction: hear only what they have been authorized to hear.
2. Need 2 things for federal courts to have jurisdiction:
a. Constitutional authorization: Art. III – 9 categories divided into 2 types:
i. authority to vindicate and enforce the powers of the fed gov‟t
1. cases arising under the Constitution, federal laws, treaties – SEE BELOW: Fed Q
2. cases in which US is a party
3. foreign policy: cases affecting ambassadors, other public ministers, consults; cases
between a state/its citizens & a foreign country/its citizens
ii. interstate umpiring
1. cases between 2 or more states
2. cases between a state & citizens of another state
3. cases between citizens of different states – SEE BELOW: Diversity
4. cases between citizens of the same state claiming land in other states
5. 11th amendment limit: cannot hear suits between a state & citizens of another
state/foreign country, or between a state and its own citizens
b. Statutory authorization – this means Congress has power over the jurisdiction of lower fed courts
i. Some legislation about a specific topic includes a provision allowing suits under it
ii. Jurisdictional statutes – 28 USC 1330-1364, incl.
1. 28 USC §1331: general federal question jurisdiction statute
2. all suits brought by the US, its agencies, or officers. 28 USC 1345. or where US its
agencies or officers are defendants, can be removed. 28 USC 1346.
3. Foreign Sovereign Immunities Act (see Verlinden) – fed courts can hear suits by an
alien against a foreign state
3. Parties can‟t consent to federal court jurisdiction.
4. Fed courts can challenge jurisdiction on their own at any point. Louisville & Nashville v Mottley.
5. Fed courts usually have concurrent jurisdiction with state courts (exception: patent, admiralty, copyright, other
things with exclusive fed jurisdiction)
a. Presumption in favor of concurrent jurisdiction: Tafflin v Levitt. Need clear language in a federal statute
to take jurisdiction away from state courts.
6. Main areas of federal court jurisdiction:
a. Federal question jurisdiction: arising under the Constitution, laws, treaties of US
b. Diversity jurisdiction: between citizens of different states
FEDERAL QUESTION JURISDICTION
a. need fed courts to enforce fed laws because of lack of parity – state courts might be hostile
b. need for uniformity in interpretation of fed law
2. Constitutional authorization: Art. III: “judicial power shall extend to all cases, in law and equity, arising under
this Constitution, the laws of the US, and treaties made, or which shall be made, under their Authority.”
a. This has been interpreted broadly, allowing federal jurisdiction whenever fed law is an important
ingredient of the case. Osborn v Bank of US (1824)
3. Statutory authorization: Congress passed a general federal question statute in 1875. 28 USC 1331: the district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
a. This has been interpreted more narrowly than the Constitutional provision.
b. Current interpretation: a cases arises under federal law if it is apparent from the face of the plaintiff‟s
complaint either (1) that the P‟s cause of action was created by federal law, or (2) that the P‟s cause of
action if based on state law, but a federal law that creates a cause of action is an essential component of
the P‟s complaint.
i. Grable & Sons Metal Products v Darue: there can be fed Q jurisdiction even in the absence of
a federal statute creating a cause of action if there is a national interest in providing a federal
forum and a federal law is an essential part of the claim.
4. Why the different interpretations of the same language (“arising under”) in constitutional authorization and
a. Pro: “original ingredient” test for Art. III would let anything in, have to limit it via statutory
authorization interpretation (Mishkin)
b. Anti: Legislative history of 1331 made it seem broad.
c. “Arising under” definitely includes (under both Art III and 1331)
i. Claims under the Constitution (except for full faith & credit clause)
ii. Claims under federal laws, including all federal statutes, administrative regulations, and federal
d. “Arising under” may or may not include:
i. State law cause of action but where federal law is an ingredient of the case.
ii. This is the issue.
5. CONSTITUTIONAL AUTHORIZATION – ART. III.: the meaning of “arising under”
a. What is allowed under the Constitution for Congress to give jurisdiction over-- Original ingredient test:
if there is an original ingredient that is a federal question in the background of the case, that is
sufficient for Congress to grant jurisdiction. Any conceivable fed interest involved (in either the
complaint or the defense) means Congress can put it in the fed courts. Osborn v Bank of US FSupp 151
& p285-88). Bank of US sued to recover the money that the state had stolen because it thought should
still be able to tax the bank of the US (despite that SCOTUS held that unconstitutional in McCulloch v
i. There was jurisdiction under federal statute creating the Bank and giving it capacity to be sued
in fed court
ii. There was jurisdiction under Art. III (it was constitutional for fed courts to have jurisdiction
over all suits involving the US Bank) because arising under means whenever a federal law
forms an ingredient of the original cause. Bank is created by federal law so any action brought
by it arises under federal law.
1. [could have said that this arises under fed law because it is challenging the McCulloch
decision, but there was a companion case called Planters Bank which was a state law
issue against the US bank]
iii. Effect of this test: Constitution permits Congress to create federal court jurisdiction whenever
federal law is a (potential?) ingredient in a case
1. note: dissent (Johnson) states the Osborn test wrong, because he states that Congress
can constitutionally grant jurisdiction anytime a federal question MIGHT arise.
Marshall actually requires that there be some federal question as an original ingredient
(not a possible ingredient)
2. dissent (Johnson) says result of this test is that a naturalized citizen (made a citizen by
a fed law) can always sue in fed court even on state law. Marshall says there has to be
something more than that (and there is in the Bank situation). Field thinks Johnson
iv. Protective jurisdiction: Osborn may be authorizing Congress to create protective jurisdiction –
jurisdiction in fed courts where necessary to protect important federal interests; so fed court
jurisdiction even over state law claims, even where there is not an original ingredient.
1. Hart & Wechsler: if Congress had power to create a substantive law in an area, there is
protective jurisdiction even if Congress did not legislate.
a. This is similar to the dissent‟s arg in Nat’l Mutual Ins Co v Tidewater (which
decided that Congress can‟t set up separate courts for District of Columbia
based on its Art I powers). Dissent said Congress can put things into Art III
jurisdiction based on its Art 1 powers.
b. narrower - Mishkin: only can have protective jurisdiction where Congress has
articulated a federal policy regulating a field
2. Arguments for it: Congress should be able to created jurisdiction whenever it possesses
power to legislate; state courts are to be distrusted
3. Arguments against it: Congress can‟t expand fed jurisdiction beyond the bounds of the
4. not considered in Verlinden since there was a federal statute
5. Textile Workers Union v Lincoln Mills p288-95: §301 of Taft Hartley Act granted
jurisdiction over breach of contract suits for violations of labor management
agreements (without creating the substantive law that governs). SCOTUS found fed
court jurisdiction bc Congress intended for fed courts to create FCL of labor-
management contracts. So cases arose under FCL and thus satisfied Art III.
a. Concurrence: not federal common law to be applied (should apply state law),
but jurisdiction granted bc of protective jurisdiction (fed interest in labor cases)
b. Dissent (Frankfurter): not federal common law and Congress can‟t give
jurisdiction to fed courts to apply state law where there is no diversity of
citizenship requirement. Protective jurisdiction unconst‟l.
b. This broad interpretation was affirmed in Verlinden BV c Central Bank of Nigeria: There was Art III
jurisdiction over the case even though there was no federal cause of action (no federal law basis for
recovery) because Congress COULD create federal ct jurisdiction for suits involving foreign commerce
i. Principle: as long as the federal law to be applied does more than merely create jurisdiction, it
is a basis for federal court jurisdiction if it is potentially important in the outcome of the
c. Another way (besides original ingredient & protective jurisdiction) to get it into fed court is to call it
state law that is incorporated into federal common law. (Bc if FCL governs, it‟s automatic fed court
jurisdiction). Wyzanski argues this.
d. Test for whether it‟s constitutionally permissible for Congress to put it in fed court jurisdiction:
i. Is there any federal law?
1. if federal substantive law is an original ingredient (complaint or defense), passes
Osborne. If it‟s just a federal jurisdictional statute but state substantive law would
apply, that might be a problem / might not pass constitutional standards.
a. Mesa v CA p300: Court may refuse to find original ingredient if the federal
statute looks unconstitutional.
2. does federal common law apply, instead of state law? If so, it passes. Wyzanski.
ii. Is there a federal interest?
1. protective jurisdiction args
6. STATUTORY AUTHORIZATION – the meaning of “arising under” for §1331 federal question jurisdiction
a. 28 USC 1338: patent / copyright
b. 28 USC 1441: removal
i. D can only remove to federal court if P could have filed there originally. Field thinks this is
c. 28 USC 1331: district courts shall have original jurisdiction of all civil actins arising under the
Constitution, laws, or treaties of the US”
d. Test: a case “arises under” fed law for §1331 if it is (1) apparent from the face of the P‟s complaint
either (2) that the P‟s cause of action was created by federal law; or, (3) if the P‟s cause of action is
based on state law, a federal law that creates a cause of action or that reflects an important national
interest is an essential component of the P‟s claim
i. Well-pleaded complaint rule: It must be clear from the face of the P‟s complaint that there is a
federal question. Federal court jurisdiction cannot be based on a federal law defense or on the
P‟s anticipation of a federal law defense. A federal law issue raised in the D‟s answer or
counterclaim is not a basis for removal of a case from state to federal court if there is no fed
question presented in P‟s complaint.
1. Louisville & Nashville Railroad v Mottley p525: breach of contract suit. No
jurisdiction under 1331 because P‟s complaint was a state law claim for breach of
contract and the federal issue (constitutionality of the taking) was only an anticipation
of a defense to be raised based on fed statute (prohibiting giving out free railroad
a. Affirmed in Franchise Tax Bd v Construction Laborers Vacation Trust
2. not even a compulsory federal counterclaim satisfies 1331
3. P can‟t get around this by:
a. by leaving out necessary federal questions in their complaint trying to defeat
removal. Franchise Tax:
b. By seeking a declaratory judgment that the federal law is unconstitutional or
inapplicable if the complaint in a lawsuit for redress would not state a federal
question. Skelly Oil v Phillips. Asking for a declaratory judgment doesn‟t
expand the possible basis of federal question jurisdiction.
i. If it‟s a declaratory judgment action, you look to the well-pleaded
action in the action that could have been brought.
ii. Franchise Tax: P (CA Franchise Tax Board, state agency) tried to
recover unpaid taxes out of the vacation fund governed by ERISA (fed
law); D trust said under ERISA that state couldn‟t seek those funds. P
filed in state court, sought the $ and a declaratory judgment that
ERISA didn‟t prohibit it from collecting. SCOTUS said D could not
remove this to fed court (comity)
Franchise Tax makes the Skelly federal declaratory judgment
rule apply to state declaratory judgments as well. So to decide
whether a state DJ action can be removed to federal court, ask
what other coercive action the D would claim (just like you
would ask for the P what other complaint he would have
made) and ask if it necessarily presents a federal question?
4. a state court suit is removable to fed court based on a claim of preemption (see ERISA
cases) if Congress created a cause of action in the allegedly preemptive statute.
Franchise Tax (no cause of action) and Metropolitan Life v Taylor (cause of action)
5. Criticisms of well-pleaded complaint rule:
a. Fed courts should be able to hear cases that turn on federal law, whether in
complaint or defense
6. Defenses of well-pleaded complaint rule:
a. Makes sure that fed court jurisdiction is determined at the beginning correctly,
and not based on what may be raised later (defensively) in litigation.
b. Makes sure that fed court will retain jurisdiction even if the D doesn‟t file an
7. Note that a D can‟t remove to federal court based on his defenses either; he can only
remove to fed court if the P could have filed there originally via a well-pleaded
complaint. D also can‟t get federal jurisdiction based on his counterclaims. Vaden v
Discover Bank, LJ Supp.
ii. Cause of action based on federal law: a case arises under federal law if it is based on a cause of
action created by federal law. There is a federal question if the P‟s complaint states a claim
under a federal law that provides a legal entitlement to a remedy.
1. Holmes: there is a federal question only when a federal law creates a cause of action. It
doesn‟t matter whether there are federal issues or laws that the case “turns on.” What
matters is whether there is a federal remedy.
a. He intended this to be exclusion
b. But it is better for inclusion. TB Harms v Eliscu – copyright action case –
really the only cause of action there was for infringement and the D wasn‟t
actually infringing on the copyright bc he wasn‟t using it (Friendly).
i. It‟s hard to tell just by reading a statute when there is a federal cause
of action. Cause of action = right to sue = remedy. Even if this were
the only test, it is not clear and creates situations (luckett) where the P
has total choice of forum.
2. See below on preemption: there are certain federal causes of action that are exclusively
federal and allow removal to federal court b/c of preemption: §301, ERISA.
3. Duke Power Co, FSupp 183: confirms that the cause of action test is better than the
“turns on” test. This was like Mottley but snuck through. Burger uses a crazy method
to get federal question jurisdiction in this case. This case could have decided whether
“turns on” fed law (Price Anderson Act re nuclear power) was enough or not, but it
didn‟t bc they found a fed cause of action.
iii. Even if the P does not allege a cause of action based on federal law, there is a federal question
if it is clear from the face of the P‟s complaint that a federal law that creates a cause of action
or that reflects an important national interest is an essential component of the P‟s state law
1. when does a state law cause of action present a federal question (for purposes of
1331)? When does the presence of a federal issue in a state law claim present a federal
2. Franchise Tax: under 1331 federal courts have jurisdiction to hear only those cases in
which a well-pleaded complaint establishes either that federal law creates the cause of
action OR that the P‟s right to relief necessarily depends on resolution of a substantial
question of federal law
3. Main rule – “turns on” test: Fed Q jurisdiction found bc right to P‟s relief depended on
construction of Constitution / law of US: Smith v Kansas City Title & Trust Co (1921):
state law cause of action by shareholders against corporation (saying corporation
couldn‟t purchase bonds bc had been issued in violation of Constitution). SCOTUS
said federal question presented because challenge to federal statute was an integral part
of P‟s complaint – his right to relief depended on the construction/application of the
Constitution or law of the US
a. This test will rarely be met, because it will be rare for the „turns on federal
law‟ test to make it past the well-pleaded complaint rule.
b. Normally the basis for fed Q jurisdiction will just be the federal cause of
c. This was also a state incorporation of federal law, basically. It is a problem to
give federal court original jurisdiction over everything in state-incorporated
4. Smith seems inconsistent with Moore v Chesapeake & Ohio Railway (1934): rail
worker sued under state law allowing remedy for injuries as long as the employer had
violated a safety law (this was state incorporation of federal law); there was a federal
safety law; key question was whether the D railroad had violated that federal safety
law. SCOTUS found no jurisdiction.
a. Note that if it was a state highest court decision on appeal at SCOTUS,
SCOTUS can review state-incorporated federal law.
5. Smith and Moore inconsistency addressed in Merrell Dow Pharm v Thompson (1986)
a. Majority: federal interest in Smith was greater (constitutionality of fed statute)
than in Moore (whether federal statute affected state tort law)
b. Dissent: Moore anomalous, Smith is right.
6. New addition to rule: It‟s not enough for federal law to be an essential component of a
state law cause of action. Federal question jurisdiction exists only if the federal law
itself creates a cause of action (even though the P doesn‟t rely on it). Merrell Dow
p538-40: no fed Q jurisdiction because fed statute (Food Drug & Cosmetic Act) did
not provide a cause of action; it‟s not enough that P claims a violation of it as part of a
state cause of action – it‟s not enough for the state law claim to turn on fed law.
a. This will bar many government benefit programs and regulatory statutes from
supporting fed Q jurisdiction since they don‟t usually create fed causes of
7. Complete rule: a P‟s state law claim must depend on a federal statute that creates a
cause of action. Smith & Merrell Dow.
8. BUT: even if there is no federal statute creating a cause of action, there can still be
federal question jurisdiction if there is an important national interest to be served by
allowing it. Grable & Sons p540-8- (2005): important federal interest in providing a
federal forum for federal tax litigation. Grable brought action to quiet title in state court
claiming D‟s title invalid (he had gotten it from IRS which seized it from Grable); D
sought to remove to fed court and was allowed. Meaning of fed statute in dispute. Nat‟l
interest in having it adjudicated in fed court because it will decide the meaning of a fed
a. This case makes it into fed jurisdiction on the Smith test.
b. Field thinks this may really only apply to quiet title actions, since they (like
injunctions) tell you to set out the nub of the controversy from the get-go, so
it‟s clear what it turns on.
c. Empire Health Choice, p548 shows how narrow Grable is but doesn‟t take it
7. Field‟s 3 ways to reform federal question jurisdiction:
a. Use Holmes‟s federal cause of action test only.
i. Pro: This would only cause Smith and Grable to come out differently.
ii. Con: if something turns on federal law, it should get into fed courts.
b. Overturn Skelly such that you can bring a declaratory judgment action that turns on federal law
c. Change the removal rules and allow removal on the basis of the D‟s well-pleaded answer.
Test for subject matter jurisdiction
Is it a constitutional claim?
a. Then there is Art III and 1331 authorization.
Is it a claim where federal law creates the cause of action? (Federal statutes, federal administrative regulations,
federal common law) – where Congress has specifically granted jurisdiction over this claim?
a. Then there is Art III (as long as it comports with Osborn or protective jurisdiction) and 1331
Is it a claim where the cause of action is under state law (contracts, torts, property, etc.) but federal law is
a. There is Art. III authorization if federal law an ingredient or if the case might turn on federal law?
i. Could Congress legislate in the area? If so then should argue protective jurisdiction under Art
b. There is 1331 authorization if:
i. Look at P‟s complaint (not D‟s defense, or P‟s declaratory judgment request)
1. P‟s cause of action was created by federal law (Holmes‟ test, Eliscu), or
2. P‟s cause of action is based on state law but either
a. “turns on fed law” : A federal law that creates a cause of action is an essential
component of claim (Smith – this is rare) OR
b. A federal law that reflects an important national interest is an essential
component of P‟s claims (Grable – might just be for quiet title)
Other issues in federal subject matter jurisdiction
1. Even if there is federal court jurisdiction (there is a substantial federal question), the fed dist court could still
dismiss it for failure to state a claim upon which relief could be granted. This is a decision on the merits and is
res judicata. Bell v Hood, FSupp 181.
a. Is dismissing something for want of a substantial federal question the same thing as having no
substantial federal question for purposes of federal court jurisdiction?
b. Field says they are diff.
2. Preemption: when there is a federal statute giving an exclusive fed cause of action, you need a preemption
principal so that P doesn‟t go to state court and get what the federal statute prohibits.
a. Can remove to federal court from state court where federal law preempts state law.
b. Federal laws / causes of action that preempt state stuff and allow for removal
i. §301: no injunctions against strikes. Exclusively a federal cause of action.
1. Avco, p557-9
ii. ERISA: same as §301. Exclusively a federal cause of action.
1. metropolitan Life
iii. Test: Intent of Congress as to whether the federal cause of action is supposed to be the
exclusive one despite the presumption that the P is the master of his claim normally. Beneficial
National Bank, p557-69.
3. Pendent / Supplemental Jurisdiction.
a. Constitutional basis: Art. III allows fed court to hear “case or controversy,” which refers to all claims
arising from the set of facts as long as some part of it meets the other requirements for fed jurisdiction
b. Ancillary + pendent jurisdiction supplemental jurisdiction now under the statute
c. Ancillary jurisdiction: authority of fed court to hear claims that otherwise wouldn‟t be w/in fed court
jurisdiction bc they arise from same set of facts
i. Pendent jurisdiction: authority of fed court to hear a state law claim raised by a P bringing
other proper fed law claims
1. Test for pendent jurisdiction: United Mine Workers v Gibbs: pendent jurisdiction exists
whenever there is a claim arising under fed law and the relationship btw that claim and
the state claim permits the conclusion that the entire action before the court comprises
but one const‟l case. The fed claim must have substance sufficient to confer subject
matter jurisdiction on the court, and the state & fed claims must arise from a common
nucleus of operative fact.
2. it‟s discretionary.
3. rationale: efficiency, judicial economy, fairness to litigants
d. Current statute for supplemental jurisdiction: 28 USC 1367 – seems to make pendent jurisdiction
mandatory, but is meant to codify gibb
i. Overrules Finley v US, which held that pendent party jurisdiction is not permitted w/out
specific statutory authorization. Statute now allows pendent party jurisdiction – the authority of
the fed court to hear claims against add‟l parties over which it wouldn‟t otherwise have
jurisdiction bc those claims arise from a common nucleus of operative facts.
e. One constitutional limit on supplemental jurisdiction created by SCOTUS: a fed court may not hear
pendent state law claims against a state gov‟t officer who has been sued for violating fed law.
Pennhurst: 11th amendment bars pendent state law claims against state gov‟t officers
4. Removal Jurisdiction – 28 USC 1441
a. Removal only if case could have been filed in federal court to begin with
i. P‟s complaint has to be either federal question or diversity
b. Only defendant can remove and only from state to federal courts
c. Limits on removal in diversity cases
i. D can‟t remove to fed court if P filed in state court in the D‟s own state in a diversity case
ii. No removal if there are specific statutory provisions prohibiting it – ex: workers‟ comp
d. How plaintiffs can prevent removal
i. Include only nonfederal questions in the complaint
ii. Include at least one nondiverse defendant (defendant whose home state the state court is in)
iii. After removal, can try to dismiss the federal courts – but then fed court has discretion over
whether to retain the state law claims or not
VIII. ABSTENTION – Fed Courts’ Deference to State Courts
ABSTENTION Because of UNCLEAR STATE LAW
1. 3 types:
a. Abstention because a state court‟s clarification of state law might avoid a federal court ruling on const‟l
b. Abstention in diversity cases bc of unclear state law. Thibodaux.
c. Abstention bc of complex state administrative proceedings. Burford.
2. Arguments against abstention
a. Congress specifies when it wants to take jurisdiction away from the federal courts it created: Anti-
Injunction Act, Tax Injunction Act, Johnson Act unconstitutional usurpation of legislation authority,
violates separation of powers
3. Arguments for abstention
a. Protects states, federalism
b. Harmony between federal & state courts
c. Example of judiciary‟s traditional equitable discretion & authority to refuse to issue injunctions where
strong policy considerations go against it
4. Pullman Abstention
a. Rule: fed court abstention is required when state law is uncertain and a state court‟s clarification of
state law might make a fed court‟s const‟l ruling unnecessary. Fed ct should send the matter to state ct
for determination of state law issue. Also need to actually have an available state remedy.
i. All will be federal constitutional, §1983 cases bc there has to be a federal const‟l question at
b. Railroad Commission of TX v Pullman (1941): TX railroad commission‟s regulation was attacked on
14th amendment and as against the railroad‟s legal authority under TX law: fed court should have
abstained and let state court decide on the state law authority issue bc if the railroad commission didn‟t
have authority, fed court wouldn‟t have to decide on the const‟l question
i. Avoid friction between state & fed courts – avoid a fed court invalidating a state law or
misinterpreting state law
a. not much friction if fed court would have decided the same way as state court,
b. more friction if state court decides that the state has authority and fed court
invalidates on const‟l grounds
c. harmony doesn‟t matter, there will always be friction
i. but maybe harmony matters
d. even if the fed court gets the state law wrong, the only prob with that is that
there will be a time period (before the state court corrects it) when the state
can‟t apply its program.
ii. reduces likelihood of erroneous interpretations of state law
a. fed courts often resolve uncertain questions of state law. Erie, pendent
b. Not likely that fed courts will err
iii. Avoid unnecessary const‟l rulings
1. counterarg: could avoid const‟l issue by letting fed court decide the state law issue
first. This was the pre-Pullman approach anyway. Siler v Louisville & Nashville
d. Further criticisms of Pullman:
i. Costs and delays
1. BUT these could be avoided by different procedures, like sending whole case to state
court, or certification of issues
ii. Field would limit it to cases where fed courts would disrupt important state policies, esp in
areas where states have created tribunals for uniform review of state regulatory agency
iii. Makes there be a cost (in terms of delay )for going to fed court
e. Limited to suits for equitable relief (injunctions). Can‟t be used for suits for damages.
f. Test for whether Pullman applies:
i. Substantial uncertainty as to meaning of state law
ii. Reasonable possibility that state court‟s clarification of state law might obviate need for fed
iii. Available state remedy – have to be able to go to state court and get the issue decided
g. Abstention not required:
i. abstention not necessary where state law patently unconst‟l
ii. abstention not necessary just bc state law challenged as being unconst‟lly vague unless there is
a substantial likelihood that the state court‟s clarification would avoid the fed const‟l ruling –
that the state court could provide a narrowing construction that would save the statute from
iii. abstention not necessary just bc state hasn‟t construed the statue under the state constitution yet
1. Wisconsin v Constantineau: no need for abstention every time the state statute has a
const‟l provision similar to fed const; that would require an exhaustion requirement
absent from 1983
h. Abstention required:
i. Where state has a const‟l provision unlike any in the fed Constitution and state court‟s
construction of it might make fed ruling unnecessary
i. Unresolved issues:
i. whether fed courts should weigh the costs of delaying a const‟l ruling in deciding whether to
1. ex – chilling free speech
ii. whether fed courts should weight economic consequences on parties
iii. whether abstention is mandatory or discretionary
1. normally treated as discretionary
iv. whether fed courts can abstain where jurisdictional statutes create exclusive fed jurisdiction
v. unclear how adequate the state procedures have to be
j. stay of case, not dismissal
k. Can be raised at any time
l. Procedure: present both state & fed claims to state court; or tell state court you are retaining the fed
m. Three things that reduce Pullman abstention, make it much less dispositive.
ii. Pennhurst-style case for enjoining a state officer on the basis of federal law; there is no
possibility of avoiding the fed question because there is no issue of state law (since Pennhurst
says fed ct can‟t enjoin a state officer on the basis of state law at all) fed court goes straight
to deciding the fed question then if loses, the P can go to state court and bring the state
claim (no res judicata bc couldn‟t‟ have brought it there at first)
1. There will still be Pullman cases despite Pennhurst because:
a. If you are suing a city it‟s outside of the 11th amendment (Pennhurst only
b. If you are suing to construe a statute under federal law (not to enjoin)
iii. Younger abstention
1. The way to get out of Younger is NOT to violate the order. Seek an injunction before
violating the state law, as long as you can get standing (for being a businessperson who
has always engaged in the conduct, for instance)
5. Thibodaux abstention
a. Rule – generally no abstention required in diversity cases. Meredith v Winter Haven: fed courts should
not abstain in diversity cases when state law is unclear
i. Rationale: point of diversity jurisdiction is to prevent state court bias against out-of-state
b. BUT abstention in diversity sometimes required:
i. Where there is an uncertain state law & an important state interest intimately involved with
gov‟t‟s sovereign prerogative, like eminent domain - Louisiana Power & Light v Thibodaux
1959, p709– abstention appropriate to allow state court to figure out whether city had authority
under state law to use eminent domain.
1. Rationale: special & peculiar nature of eminent domain, affects sovereign prerogative
2. BUT abstention not always required in eminent domain cases. Allegheny County v
Frank Mashuda: p709 - the law was clear that eminent domain was not allowed
3. Kaiser Steel Corp v WS Ranch p711: abstention required bc of vital state interest in
water, truly novel state issue, state‟s great interest in allocation of water
c. Note: Quackenbush v Allstate suggests that it‟s OK to abstain where unclear state law as long as it‟s
stayed & not dismissed.
d. Criticisms of abstention
i. Inconsistent with rationale of diversity jurisdiction – neutral fed forum for diversity cases
e. Stay of case, not dismissal
6. Burford abstention
a. Rule: when there is unclear state law & a need to defer to complex state administrative procedures
i. Do not need a constitutional question like you do in Pullman
ii. This applies to both diversity and fed Q cases
iii. Field says you do not need unclear state law
b. Burford v Sun Oil Co: complex admin machinery re oil-drilling rights; state had comprehensive system
of admin and judicial review; importance of oil & gas to TX economy
c. Dismissal of case was appropriate, not a stay
d. Burford expanded in Alabama Public Service Commission v Southern Railway (1951): abstention
(dismissal, not a stay) bc of importance of local interest (in whether railroad had to continue operating
local railroads or not) and existence of state regulatory structure
i. But no detailed regulatory structure here like in Burford.
ii. If read broadly, would conflict with §1983 bc would justify abstention whenever there is a
federal constitutional challenge to a state administrative decision that could be reviewed in
iii. But probably not going to extend this broadly bc
e. Burford refused in
i. McNeese v Board of Education: black students could bring fed court suit challenging
segregated school system w/out first invoking state‟s administrative procedures
ii. New Orleans Public Service, Inc v Council of City of New Orleans: Burford only where there is
a danger that fed court review would disrupt the state‟s attempt to ensure uniformity in
treatment of an essentially local problem. Existence of complex state admin procedures didn‟t
REQUIRE abstention. State admin system‟s purpose has to be to achieve uniformity within a
state and there must be danger that judicial review would disrupt proceedings and undermine
f. Burford limited to suits for declaratory and injunctive relief; can‟t be used in suits for $ damages.
Quackenbush v Allstate Insurance.
g. Redish‟s proposal for when to apply Burford: where no significant question of fed law involved, can do
Burford. Where there is significant question of fed law, Burford invoked only if (1) subject of
regulation is of significant and special concern to states, (2) state regulatory scheme is detailed and
complex, and (3) fed issue can‟t be resolved w/out requiring fed court to do technicalities.
7. Procedures when there is abstention
a. Burford dismiss
b. Pullman stay & retain
i. The parties need try only the state law issues in state court and can return to fed dist court to
litigate the fed const‟l issues. England v Louisiana State Board of Med Examiners: abstention
is only for postponing fed court rulings on const‟l issues, it should not foreclose fed
jurisdiction. Traditional res judicata rules don‟t apply. But unclear whether collateral estoppel
binds the fed court to state court fact-finding.
1. Rationale: fed court should do const‟l issues; fed fact-finding on constitutional issues
important – there is not really parity
ii. Steps: when court abstains
1. parties can choose to litigate everything in state court.
2. party can expressly reserve right to return to fed court for determination of fed law
questions. Might be barred from presenting fed claims in fed court later if presents
them in state courts.
iii. Problems with England:
1. hard to tell if party has waived right to return to fed court
a. should say so on the record in state court
2. state court may refuse to decide state law opinions bc of state const‟l provisions
preventing advisory opinions
a. SCOTUS has held that fed courts should dismiss the case without prejudice if
this is how state procedure is. Harris County Commissioners Court v Moore.
3. cost & delay
c. Thibodaux – same England procedure / same as Pullman, but normally there won‟t be anything left to
come back to fed court on in diversity cases once state court decides state law issue
d. Alternative to above: certification of questions to state courts
i. This might increase the frequency with which certification is used
ii. Congress could require state courts to accept certified questions under the Necessary & Proper
iii. States may not allow certified questions if they have their own case or controversy
8. District court‟s decision to abstain is immediately appealable. Quackenbush v Allstate.
a. Refusal to abstain probably not appeal until there is a final judgment
b. Standard of review on appeal: abuse of discretion
ABSTENTION to avoid interference with PENDING STATE PROCEEDINGS
1. Rule: fed courts cannot enjoin pending state court criminal proceedings, even if there is an allegation of a
const‟l violation and even though all jurisdictional & justiciability requirements are met. Younger v Harris.
a. Not based on Anti-Injnuction Act
b. Indicted in state court sought injunction in fed court on fed const‟l claims SCOTUS said no
injunction allowed. Intervenors who weren‟t being prosecuted didn‟t have ripe claims / no standing.
Harris‟s (had been indicted) was ripe but no injunction bc of equity & comity
i. Equity: courts of equity shouldn‟t restrain crim prosecution when P has adequate remedy at law
(being able to use constitution as a shield in the prosecution) and won‟t suffer irreparable
injury [Dombrowski fit within this, was going to be irreparably injured bc of repeated
prosecutions and use of the illegally seized evidence in public hearings, etc.]
1. note: they are changing the “irreparable harm” inquiry from being whether damages
would satisfy you for the harm to whether a state court can rule on it instead
ii. Comity: respect for state courts
iii. Chilling effect on 1st amendment rights not enough
2. Before Younger:
a. Some cases prevented fed court interference with ongoing state prosecutions.
i. Douglas v City of Jeannette p728: fed court dismissed suit to enjoin threatened enforcement of
city ordinance even though SCOTUS held the ordinance unconst‟l that very same day. No
injunction bc state court could also properly decide the unconstitutionality of the state statute;
could only enjoin if danger of irreparable injury
b. But some cases allowed fed court interference, esp declaratory & injunctive relief against unconst‟l
state crim laws.
i. Dombrowski v Pfister FSupp 259– injunction OK bc of need for fed action to enjoin
enforcement of overbroad statutes that might chill exercise of 1st amendment rights
1. repeated bad faith prosecutions, could never raise constitution as a shield
2. plus there was no possible limiting instruction that would make it valid
3. this was a pro- civil rights case bc lets him get an injunction/DJ before he is even
a. Field thinks not a big deal because you can‟t challenge a statute that would
definitely be unconstitutional as applied to everyone, and you could already do
this under Ex Parte Young anyway
ii. This was limited and distinguished by Younger.
1. Younger says the overbreadth / 1st amendment arg was dicta
3. Criticisms of Younger:
a. Separation of powers: court usurped legislative branch‟s powers to create a new abstention doctrine,
esp since Anti-injunction act already exists
b. Leaves crucial const‟l issues in state court with little review by SCOTUS – wrongly assumes parity
c. Normally equity isn‟t about dismissing just bc another court could entertain it
d. State court remedy not adequate bc of chilling effects and state courts can‟t provide the relief available
in fed courts
e. No comity probs – injunctions don‟t really breed friction – state judges won‟t even know that feds have
issued injunction, may welcome them if they know, would prefer to have fed just take the heat, might
respect that fed judges should interpret constitution
f. Avoiding friction is not a good reason to draft rules – defending constitution is more important
g. Doesn‟t allow the Younger-type Ps to get what they want – they really want to engage in an ongoing
course of conduct, they aren‟t ordinary criminal defendants
4. Defenses of Younger:
a. Traditional judicial power of court in equity
b. Court‟s power to fashion common law rules for fed courts
c. Proper deference and respect to state judiciaries – parity
d. Follows Douglas v City of Jeanette tradition
e. Importance of federalism, harmony
5. Rooker-Feldman doctrine prohibits fed dist courts from reviewing state court decisions. Party who loses in state
court can‟t do what would basically be an appeal of state court judgment in fed court claiming that the state
judgment violated his fed rights
a. This is limited to fed courts not reviewing completed state proceedings, where fed court proceeding not
started til after the state court one started. R-F is limited to state court losers complaining of injuries
caused by state court judgments rendered before d ct proceedings commenced and inviting d ct review
and rejection of the judgments. Exxon Mobil v Saudi Basic Industries. Fed court suit already had been
started before state court ruled.
b. Applies only when state court party is seeking to have fed court overturn state court‟s judgment. Lance
v Dennis. Nonparties to state action (even though in privity with state court party) can still bring action
6. Younger + Rooker-Feldman = while proceedings happening in state court, can‟t get injunction against them.
When state court proceedings are done, party can‟t get it reviewed in fed dist court (except via habeas).
7. Expansions of Younger:
a. Can‟t enjoin the DA from bringing the prosecution
b. Can‟t enjoin the criminal enactment
c. Can‟t enjoin using the results of the federal case
d. Declaratory judgments when there are pending state proceedings
i. Rule: a fed court can‟t provide a P with declaratory relief when he or she is subject to a
pending state court criminal prosecution. Samuels v Mackell. A DJ is as intrusive as an
injunction (younger). A person being prosecuted in state court can‟t seek a fed court DJ
invalidating the statute that is the basis for the prosecution.
ii. BUT there may be exceptions where injunction would be super intrusive but DJ OK.
iii. Criticism: injunction & DJ are diff
iv. Defenders: point of Younger is that const‟l issues should be decided by state courts when there
are pending state crim prosecutions. An DJ is like an injunction bc it can turn into an injunction
and is res judicata
e. Declaratory relief when there are no pending state proceedings at the time fed suit filed
i. Rule: fed courts may issue declaratory judgment relief if state criminal proceedings are
threatened, but not pending. Steffel v Thompson: declaratory relief could be provided by a fed
court when no ongoing state prosecution.
1. BUT must pass ripeness, mootness, and other justiciability requirements
2. note: some disagreement over whether fed court declaratory judgment has res judicata
effect in state court (field thinks it has to)
ii. BUT fed courts cannot issue declaratory relief where a state criminal proceeding is commenced
before the federal court procedures are substantially completed. Hicks v Miranda: fed suit filed
first but state authorities initiated prosecution 1 day after.
1. Criticism: makes prosecutors start proceedings as a way to remove from fed to state
2. Defense: unilateral deference to state courts
3. note: Hicks also says that summary affirmances are to be taken as seriously as full
opinions, but to get out of following a summary affirmance, can distinguish it away by
saying SCOTUS decided it on other grounds.
4. if a P is not violating the statute, Younger and Hicks don‟t apply – fed court has
jurisdiction. But has to pass justiciability. Must be a businessperson who was doing
this before and now can‟t, as in Doran.
f. State civil cases
i. Where the gov‟t is a party
1. first in quasi-criminal proceedings - Huffman v Pursue: 1975, p776- where state brings
a civil nuisance proceeding against D, D can‟t fail to appeal it up the civil system in
favor of seeking fed court relief.
2. then extended to all civil proceedings to which the state is a party – Trainor v
Hernandez 1977, p767: state brought civil suit to recover fraudulently received
welfare benefits, used an attachment statute, D challenged attachment statute in fed
court, abstention required
3. Moore v Sims: fed ct should abstain on constitutionality of statute on removal of
children from homes, as long as there are proceedings in state court to fully adjudicate
the const‟l merits
ii. Between private litigants if there is an important state interest
1. Juidice v Vail p777: fed court had to abstain where individuals seeking to challenge in
fed court the contempt proceedings brought against them by state judges. Contempt
proceedings important to state.
2. Pennzoil Co v Texaco: fed court had to abstain where company seeking to challenge in
fed court the state court‟s requirement of posting huge bond to appeal – this judicial
interest important to state too. This is like Rizzo and Lyons bc there is nothing actually
to defer to.
g. State administrative (nonjudicial) proceedings involving important state interest
i. Middlesex County Ethics Committee v Garden State Bar
ii. Ohio Civil Rights Commission v Dayton Christian School
h. Injunctive relief against state & local executive agencies like police depts. – has been suggested
i. O’Shea v Littleton: fed suit filed claiming that discrimination by municipal court system;
dismissed for ripeness but hinted at abstention too
ii. Rizzo v Goode: fed court had issued injunction against Philly police dept bc of racially
motivated police brutality and inadequate police disciplinary proceedings; SCOTUS said suit
not justiciable bc no real & immediate injury, and possibly bc of abstention (note there was a
iii. Lyons – where used choke hold, the only time he had a live case/controversy was while being
choked – no live controversy for injunction, only for damages.
iv. Rizzo and Lyons means in some cases fed court is deferring even though there is no proceeding
to defer to!
8. Where Younger abstention doesn‟t apply
a. Injunctive relief when there are no proceedings in state court
i. Rule: fed courts may issue preliminary injunctions in the absence of ongoing state prosecution.
Doran v Salem Inn: preliminary injunction against threatened prosecution allowed – fed suit
filed against ordinance, temporary restraining order denied, conduct re-started, criminal
prosecutions begun, fed dist court granted preliminary injunctive relief, SCOTUS allowed
injunction only against those threatened but not actually prosecuted. The one being criminally
prosecuted cannot get injunction bc of Younger.
1. if a P is not violating the statute, Younger and Hicks don‟t apply – fed court has
jurisdiction. But has to pass justiciability. Must be a businessperson who was doing
this before and now can‟t, as in Doran.
ii. Rule: fed courts may issue permanent injunction in the absence of pending state proceedings in
exceptional circumstances (repeated prosecutions, for ex) and as necessary to adequately
protect const‟l rights. Wooley v Maynard (license plate) – prosecuted three times, then brought
suit in fed court, SCOTUS upheld declaratory judgment saying crim statute unconst‟l and
1. BUT this may be limited and may just fit into Younger exception for bad faith
b. Fed courts don‟t have to abstain a case under Younger just because the same issue is pending before the
same courts in proceedings involving different, unrelated parties. Doran.
c. Fed courts don‟t have to abstain under Younger when there is a pending state civil case and no
important state interest. NOPSI.
d. Fed courts don‟t have to abstain where there is NO pending state criminal prosecution and one is not
started until after fed court proceedings get underway.
e. Fed courts don‟t have to abstain to (non-state) military tribunal proceedings, which US argued for in
Hamdan v Rumsfeld
f. State legislative/executive action - New Orleans Public Service Inc v New Orleans: fed court did not
have to abstain where there are pending state court civil proceedings and no important state interest at
state – the rate-setting at issue was legislative and abstention for pending civil proceedings usually is
only required re judicial proceedings
9. Exceptions to Younger: In these limited circumstance, fed courts may enjoin pending state court proceedings
a. Bad faith prosecutions, as in Dombrowski v Pfister (repeated arrested & indicted and then cases
i. Definition: when a prosecution has been brought w/out reasonable expectation of obtaining a
valid conviction – and might require showing the absence of fair state judicial proceedings
(inability to raise your const‟l claims in state court because of bias/unavailability of state
ii. Very narrow – Has never been used since Younger
iii. No bad faith found in
1. Juidice v Vail – no bad faith because no bad faith on the part of judges who issued
contempt orders, was only alleged to be bad faith by creditors.
2. No bad faith in Hicks.
3. Moore v Skims – no bad faith bc all of the claims could be presented in state
proceedings and no allegation of bias on part of judiciary
b. Patently unconstitutional laws
i. Definition: “flagrantly and patently violative of express constitutional provisions in every
clause, sentence and paragraph, and in whatever manner and against whomever an effort might
be made to apply it”
ii. Criticism: this is where should defer to state courts bc obviously they should get it right
iii. Narrow – never used.
iv. Trainor v Hernandez: state attachment law no patently unconst‟l bc not all state attachment
statutes are unconst‟l
v. Lower courts have used it to allow fed courts to enjoin state court crim proceedings that would
violate double jeopardy
c. Unavailability of an adequate state forum – where state court inadequate
i. Used to allow injunction in Gibson v Berryhill: fed ct injunction bc state board of optometry
biased bc its members would benefits by suspending licenses of optometrists
ii. Proof of bias harder when the tribunal challenged is a state court
iii. Injunction not required where very unlikely that there will be a state court to remedy the const‟l
violation. Gerstein v Pugh.
d. Waiver: younger abstention must be raised by the parties, the fed court can‟t raise it on its own
10. Anti-Injunction Act prohibits fed courts from enjoining state crim proceedings unless either:
a. Injunctions expressly authorized by Congress
i. §1983 is an express authorization for injunctions – fed courts can enjoin state courts pursuant
to §1983 suit. Mitchum v Foster.
1. but this wasn‟t enough to allow an injunction in Younger even though it was a §1983
<see below on anti-injunction act>
11. Where Younger applies, case must fit within an exception to Anti-injunction Act and an exception to Younger
a. §1983 is an exception to the Anti-Injunction Act (mitchum v foster) but not to the younger doctrine. So
for a fed court to enjoin state proceedings bc of §1983, must fit within an exception to younger.
12. Is Younger constitutionally required or federal common law?
a. If federal common law, then Congress could authorize an injunction still. (like in §1983, but clearly
that‟s not enough)
b. If constitutional, then Younger court should have decided it based on Anti-Injunction act to avoid the
constitutional question based on constitutional avoidance principle.
13. Open question – if state court D might be able to seek damages under §1983 in a fed court even when
prosecution pending in state court. Deakins v Monaghan: OK for fed courts to stay suits for money damages.
a. But if Younger is about equitable discretion, (see Quackenbush) then it probably does not apply to
claims for $ damages
b. Arg that Younger should not apply to money damage suits in fed court: Younger based on state court
being able to provide all requested relief, but in state court crim procedure, can‟t provide $ damages
14. Younger is an abdication – dismissal – not a postponement. Can only get back into fed court on habeas later.
15. Rule for declaratory judgments:
a. Fed court can give declaratory relief where there is not a pending state court crim prosecution. Steffel &
Samuels. But they can‟t give declaratory relief where state crim proceedings are initiated (after fed suit
is filed but) before substantial proceedings on the merits in fed court. Hicks.
b. “pending state court crim proceeding” = indictment or information in state court, possibly an arrest,
existence of state grand jury investigation possibly.
c. “substantial proceedings on the merits in fed courts” for Hicks
i. is NOT met by (case can still be Younger-ed)
1. Fed court denying request for temporary restraining order
ii. Is met by
1. Fed court granting a preliminary injunction
If you have violated a state statute, federal court can‟t give an injunction while the state proceedings are going on
(younger), if state proceedings start right after (Hicks), or after the state proceeding ends if you are just trying to
appeal it to fed court (Huffman).
If you haven‟t‟ violated a state statute, you can get into fed court to challenge it if you can get
ABSTENTION to avoid DUPLICATIVE LITIGATION
1. Rule: federal courts should not stay or dismiss proceedings merely because the same civil matter is being
litigated in state court. Only in truly exceptional circumstances must a fed court relinquish jurisdiction bc of
simultaneous proceedings in state court. Meredith v Winter Haven. (Kline rule of concurrent in personam
a. Exception: real property – the first court with jurisdiction over the property can enjoin other courts
form hearing the case. Codified in Anti-Injunction Act: 28 USC 2283.
b. Exception: fed courts must defer to judgment of state court under normal res judicata principles if the
state court reaches judgment first
c. BUT Colorado River Water Conservation Dist v US: fed dist court dismissal proceedings appropriate
where parallel state proceedings. Virtually unflagging obligation of fed courts to exercise jurisdiction,
so can‟t abstain / stay just bc of parallel state proceedings. Must have truly exceptions circumstances,
like here. Factors:
i. Problems that occur when a state and fed court assume jurisdiction over the same res
ii. Relative inconvenience of federal forum
iii. Need to avoid piecemeal litigation
1. in CO River, the McCarran Amendment allowing US to be a party in state court suits
over water rights showed the Congress wanted to avoid piecemeal litigation
iv. Order in which the state & federal proceedings were filed
v. This was reaffirmed in Moses H Cone Memorial Hospital v Mercury.
vi. Another added factor: whether existence of a federal question weighs heavily against
abstention. Moses H Cone.
d. Example where abstention allowed: Will v Calvert. Rationale unclear, sort of relief on Colorado River
but not really. Also problematic bc there might have been exclusive fed jurisdiction.
2. Limitation: in suits for declaratory judgments, fed courts have discretion whether to defer to duplicative state
proceedings even without exceptional circumstances of Colorado River. Wilton v Seven Falls. Declaratory
Judgment Act is discretionary.
3. Note the interaction with removal statute:
a. D sued in state court in home state can‟t remove to fed court. But can bring a suit in fed court.
4. Preclusive effect of state court judgments if the state court decides first:
a. Marrese v American Academy of Orthopaedic Surgeons: Ps lost in state court on state claims, then sued
in fed court alleging violation of fed antitrust laws (exclusive fed jurisdiction). NO dismissal based on
res judicata. State court judgment had no preclusive effect, bc preclusion only appropriate in fed courts
where it would be precluded under state laws. 28 USC 1738
i. If state court judgments have preclusive effect in situations like this where fed courts should
have exclusive jurisdiction, then it unconst‟lly robs fed courts of their jurisdiction
ii. So generally fed courts should not abstain when there is a matter of exclusive fed jurisdiction
bc the state court judgment wouldn‟t / shouldn‟t be preclusive
5. Alternatives for resolving this issue of when fed courts should abstain:
a. Race to courthouse: whichever court – state or fed – takes jurisdiction first should win
i. Problem: would lead to lots of extra litigation
b. Could require abstention for diversity cases but not require / allow it in fed Q cases
6. Procedures for Colorado River abstention
a. Stay or dismissal? Stays are preferable. Deakins v Monaghan. – especially true that suit for money
damages should be stayed and suits for injunctive relief more likely to be dismissed
b. Dist court‟s refusal to abstain is not immediately appealable. But a dist court‟s decision to abstain IS
ABSTENTION because a FEDERAL STATUTE requires it
1. Anti-Injunction Act: fed law prevents federal courts from enjoining state court proceedings (civil & criminal, so
broader than Younger) when the state proceeding starts first) unless the case fits into an exception. 28 USC
a. History: loosely adopted in 1 sentence in 1793 changed and codified in 1874 lots of exceptions to
i. Rule reaffirmed as a bar in toucey v NY Life Ins: injunction against state proceedings not
allowed even though fed court had ruled against the P on the merits in fed court
b. Congress overruled Toucey firm bar in 1948: allow fed courts to enjoin state court proceedings that
threaten to undermine earlier fed court judgments: “a court of the US may not grant an injunction to
stay proceedings in a state court except as (1) expressly authorized by an Act of Congress, or (2)
where necessary in aid of its jurisdiction or (3) to protect or effectuate its judgments”
i. But then the statute is interpreted to still be in line with Toucey:
1. Amalgamated Clothing Workers v Richman, p796: fed court couldn‟t give injunction to
union to block enforcement of state court injunction preventing them from picketing
even though NLRB stuff exclusively under fed court jurisdiction
c. This means no injunction either of proceedings or of the parties
d. Applies only if there are proceedings actually pending in state court
e. Seems to apply to prohibiting declaratory judgments also wherever injunction would be prohibited, but
hasn‟t been litigated.
f. Relationship to Younger: Anti-Injunction Act not as important now that Younger exists
i. That a case falls within an exception to the Anti Injunction Act is necessary but not sufficient
to allow a fed court to grant an injunction
g. Exceptions in Anti-Injunction Act
i. Injunctions expressly authorized by Congress
1. statute doesn‟t have to specifically say that it is an exception but it‟s helpful if there is
legislative history about it (there was in §1983 and there wasn‟t in §16 of Clayton Act)
2. Interpleader Act
3. Bankruptcy laws
4. §1983. Mitchum v Foster: §1983 counts even though doesn‟t specifically authorize
injunctions of state court proceedings bc it creates a specific and uniquely federal right
or remedy, enforceable in a fed court of equity, which could be frustrated if fed
proceeding not empowered to enjoin state proceeding
a. Compare younger
5. §16 of Clayton Act NOT an express authorization, or may be but only where pending
state court proceedings are themselves part of a pattern of baseless repetitive claims
that are an anti-competition device. Vendo Co v Lektro-Vend Corp.
ii. Injunctions necessary in aid of jurisdiction
1. where a case is removed from state court to fed court
2. where the fed court first acquires jurisdiction over a case involving disposition of real
a. this applies only in real property and NOT in personam cases. Atlantic Coast
Line Railroad v Brotherhood of Locomotive Engineers.
i. Kline rule: in cases of concurrent in personam jurisdiction, both go
forward – neither can stop the other, it‟s a race to judgment
3. an injunction isn‟t necessary in aid of jurisdiction where the SCOTUS has decided a
federal right a certain way- Atlantic bc
4. Capital Service Inc v NLRB, p796: injunction OK bc necessary in aid of D ct‟s
jurisdiction bc D ct has to be able to enforce valid NLRB orders
iii. Injunctions to protect or effectuate a fed court‟s judgment
1. the relitigation exception
2. fed courts can enjoin state proceedings if necessary to ensure the preclusive effect of
an earlier fed court decision. Prior fed court decision has to have been on the merits to
have preclusive effect. Atlantic Coast Line Railroad (didn‟t fall in this exception
because the prior fed court decision (denying an injunction) wasn‟t based on the
3. once res judicata raised and decided in state court, it‟s too late for fed court to issue an
injunction. Once state courts decides that something isn‟t res judicata (even if they are
wrong bc fed court has already decided), that is res judicata. Parsons.
a. This creates an incentive not to litigate the preclusion issue in state court,
because if you lose there on it, it will bar a subsequent fed court injunction
b. Or, once the fed court rules for you, get an injunction immediately against state
iv. Also, the Anti-Injunction act does not apply to suits brought by the US. Leiter minerals.
1. expansion: NLRB v Nash-finch Co. p799
v. Ex Parte Young is like another exception to the Anti-Injunction Act (even though that Act
didn‟t apply)bc it allows a person about to be prosecuted in a state court to show that he will, if
the proceeding in state court isn‟t enjoined, suffer irreparable damages
vi. Field thinks the places where there are exceptions are not needed. Exceptions (injunctions
allowed) are needed in places where they aren‟t.
1. not needed in aid of removal jurisdiction bc even if state court proceeds after the case
has been removed to federal court, they will be wrong / supremacy clause means state
2. not needed to enjoin a state court to protect or effectuate a fed judgment because res
judicata would preclude it anyway
3. DO NEED to be able to enjoin where you can‟t – concurrent in personam cases. Kline.
a. Note that here a fed court can‟t enjoin the state.
b. And a state court can‟t enjoin the fed court. Donovan v Dallas, p70 – state
court can‟t enjoin parties from litigating in fed court (even if it looks like the
purpose is to thwart state court judgment)
2. Tax Injunction Act: fed law preventing fed courts form enjoining the collection of taxes under state law. 28
3. 28 USC 1342: Johnson Act: fed law preventing fed courts from enjoining, suspending, restraining, interfering
with public utility rates set by state admin agency or rate-making body where (i) jurisdiction is based on
diversity or fed const‟l claim, and (ii) the order doesn‟t interfere with interstate commerce, and (iii) order made
w reasonable notice & hearing, and (iv) plain, speedy, efficient remedy in statute
Where state suit begins first: Younger applies,, Samuels, Hicks
Where federal suit begins first: §2283 applies, younger might, Dombrowski applies, hicks applies if they
bring the state prosecution right after
Where no current violation of state statute, Steffel, Duran, presumption of fed jurisdiction, Wooley v
Res Judicata, p676
Full Faith & Credit Clause, 28 USC 1738: between state & federal courts - says to give in fed court
whatever preclusive effect the state court would give.
Field thinks that a policy of exclusive federal jurisdiction should matter and be weighed in here.
Full Faith & Credit in Constitution: between state courts –second state has to see what res judicata
effects the first state would give it
Claim preclusion: claims not litigated before but should have been (same parties or parties in privity).
Federal common law of claim preclusion, but
§1738 refers federal court to state law of claim preclusion
Issue preclusion: claims litigated and decided upon
One issue is mutuality.
1. Claim preclusion - Preclusive effect of a State court judgment on a federal issue that a 1983 plaintiff
could have raised but didn‟t in earlier state proceeding: state court judgment gets same preclusive
effect in fed court that it would have had in state court. Migra v Warren City School Dist Board of
a. But where can‟t bring claim at all in state court bc fed court has exclusive jurisdiction, no
preclusion. Marrese v American Academy of Ortho Surgeons 1985.
b. See class discussion on Pennhurst.
2. Issue preclusion – Preclusive effect of a state court judgment on a federal issue that a 1983 plaintiff
had to raise as a state court defendant in an earlier state court proceeding: state court judgment gets
same preclusive effect in fed court that it would have had in state court. Allen v McCurry.
a. Though it might be inappropriate for a state court issue decided when presented as a defense
by D in state court where fed court has exclusive fed jurisdiction to enforce the statute to be
able to preclude fed jurisdiction later. Will v Calvert Fire Ins, 1978.
3. Preclusive effect of a federal court judgment on another federal court:
a. Semtek: for federal question case, federal res judicata rules apply. For diversity, look to state
law (could choose to make FCL, but instead court incorporates state law)
i. Problems with this rule: Erie rule should really be about state law issues which can
come up in fed question cases too, not juts diversity cases.
IX. Remedies Against Government: §1983
1. 42 USC 1983 : statute that is the basis for most suits in fed court against local governments and state & local
a. Creates a cause of action against any person who, acting under color of state law, abridges rights
created by the Constitution and federal laws
b. Basis for almost all const‟l rulings arising from actions of state & local gov‟ts and their officers
c. Jurisdiction is provided by the §1331 general federal question jurisdiction statute (and §1343(3)
granting jurisdiction for suits redressing violations of fed laws providing for equal rights)
i. Limitation on jurisdiction: Rooker-Feldman doctrine: fed courts don‟t have jurisdiction under
§1983 to review judgments/decisions of state courts: state court loser can‟t claim that the state
judgment itself violates the loser‟s rights
ii. Prison Litigation Reform Act: requires that prisoners exhaust administrative remedies before
filing suits in court
d. Note: attorneys‟ fees available for prevailing Ps under §1988
e. Note: §1983 can also be brought in state courts. Fed courts do NOT have exclusive jurisdiction over
§1983 lawsuits. Maine v thiboutot. State courts must hear §1983 suits and may not apply state law
immunities as a defense. Howlett v Rose. But state court judgments will have preclusive effect in fed
2. History of §1983
a. Civil Rights Act of 1871 §1983 – to enforce the 14th amendment
b. Changed fed / state relations
c. Assumed no parity between state & fed courts
d. Reasons for increased use of §1983 since the 60s:
i. Monroe v Pape
ii. Attorneys‟ fees added
3. “Under color of state law”: Monroe v Pape
a. P has to show D acted under color of state law
b. Before Monroe v Pape
i. §1983 was only about officially authorized misconduct, customs/usages.
ii. Screws v US
c. Monroe v Pape: cop conduct not authorized by the gov‟t (house ransacked, arrested, held without
arraignment, no charges filed). Actions taken by an officer in his/her official capacity are deemed
to have occurred under color of law even if not pursuant to any official state policy and even if
they violate state law.
i. Doesn‟t matter that state also authorizes relief
ii. Frankfurter, dissenting: an officer acts under color of state law only where official state and
local policies/custom violate fed laws
d. Test: someone acts “under color of state law” if there is state action, basically. Lugar v Edmondson Oil.
i. Actions taken by an officer in his/her official capacity constitute state action, whether or not
the conduct is authorized by state law. Home Telephone & Telegraph Co v LA.
ii. Private individuals who engage in a conspiracy with gov‟t officials can be sued under §1983
because they are state actors too. Adickes v Kress & Co; Dennis v Sparks.
iii. Where private actors perform tasks traditionally provide by the gov‟t, can probably be sued as
state actors under §1983. Ex: private prison guards. Richardson v McKnight.
4. No exhaustion requirement for §1983 – relationship with habeas.
a. No need to go to state court first if const‟l violation alleged. Monroe v Pape.
i. BUT where no constitutional violation alleged (bc of the existence of adequate postdeprivation
remedies), there may not be a §1983 claim at all. Parratt v Taylor.
ii. Where P seeks postdeprivation remedies for random & unauthorized deprivation of property by
gov‟t officers, P has to go to state court. Parratt v Taylor.
b. No need to exhaust state administrative remedies. Mcneese v Board of Education. Patsy.
i. Except: Prison Litigation Reform Act created an exhaustion req before prisoners can bring
suits challenging prison conditions
c. Basis: legislative history of §1983
d. Relationship to habeas (which does have an exhaustion requirement before getting into fed court):
i. §1983 can‟t be used by individuals seeking to end / shorten their confinement. Preiser v
Rodriguez. Have to use habeas instead where challenging the fact/duration of confinement.
1. ex: where seeking restoration of good time credits, must do habeas.
2. ex where don‟t have to do habeas & can do §1983; Wilkinson v Dotson: seeking a new
parole hearing bc said use of new parole guidelines denied them due process; not
a. Osborn suggests a retreat from this: D brings §1983, wants access to DNA
evidence never tested at trial, post-conviction. If would lead to his speedier
release, it must be brought in habeas. Court assumes without deciding that this
is not barred in §1983. (§1983 denied bc state‟s procedures for turning over the
evidence were adequate, there was no real constitutional violation he was
ii. §1983 CAN be used to challenge conditions of confinement. Can also do habeas.
1. ex: prison cell too small.
2. BUT per Prison Litigation Reform Act, must exhaust available state remedies
iii. §1983 can be used to challenge the manner (not the fact of) of imposing the death penalty.
Nelson v Campbell, Hill v McDonough. Helpful but not necessary if D identifies constitutional
ways to execute him.
1. can do a stay, but there is a presumption against them
iv. §1983 can be used where seeking damages that a state postconviction/habeas wouldn‟t give
you (with Heck exception)
e. BUT where seeking to recover damages for an allegedly unconstitutional conviction / imprisonment,
there is a n exhaustion requirement: P has to get conviction/sentence reversed on appeal or expunged y
executive pardon. Heck v Humphreys (seeking damages for malicious prosecution), mainly bc the
analogous civil suit for malicious prosecution required it. This is not just an exhaustion requirement but
a denial of a cause of action completely until the conviction expunged, etc.
i. Extended in Edwards v Balisok to include prisoner litigation (seeking damages for alleged
violation of rights w/in prison admin system and taking away good time credits)
ii. NOT extended to cases where inmates challenge parole board determinations. Wilkinson v
iii. Open question whether Heck extends to suits for excessive force against cops when brought by
convicted individuals or getting beaten up by prison guards. These wouldn‟t necessarily go to
validity of conviction.
5. Municipal liability under §1983 – cities & counties
a. Prior rule - Monroe: municipal gov‟ts can‟t be sued under §1983, aren‟t persons for §1983
i. Rationale: rejected Sherman amendment which would definitely have made cities liable
b. Current rule – municipal gov‟t‟s can be sued under §1983, but only for their own unconst‟l or illegal
policies (not for acts of employees). No respondeat superior. Can only be sued for execution of official
policy/custom. Monell v Dept of Social Services
i. Rationale: re-interpretation of Sherman amendment
1. no reason to overrule Monroe‟s interpretation of legislative history
2. should not have distinguished between unauthorized acts by employees and official
policies, bc that was rejected in Monroe
3. should have respondeat superior – Stevens wants this
iii. AND municipalities do not have good faith immunity under §1983. Owen v City of
c. How to prove the existence of an official municipal policy – 5 ways --
i. Actions by the municipal legislative body are official policies. Pembaur v City of Cincinnati.
ii. Actions by municipal agencies or boards that exercise authority delegated by the municipal
legislative body. Ex – Monell.
iii. Actions by individuals with final decision-making authority in the municipality. Pembaur v
City of Cincinnati
1. this authority must be granted legislatively or be delegated from higher officials
2. look to state law to determine. It‟s a question of law for judge, not a question of fact
for jury. City of St Louis v Praprotnik
a. counterargs: should look to actual final authority in practice (brennan), single
acts of people high enough up should make city liable (stevens)
3. ex: McMillian: county official (sheriff) was really a state officer thus not a basis for
local gov‟t liability.
a. most county sheriffs are probably not municipal policymakers
b. might extend to coroners & educators who implement state law / policy
4. city is making policy when they are making a rule that they intend to be followed later,
and when it does so through a certain process (brennan in Pembaur)
iv. Show gov‟t policy of inadequate training or supervision
1. City of OK v Tuttle – one instance by a low-level official is not enough for inferring
existence of a policy, unless proof of the incident includes proof that it was caused by
an existing, unconst‟l muni policy that can be attributed to a higher-up policymaker
2. City of Canton, Ohio v Harris – demonstrating a policy of inadequate training requires
proof of deliberate indifference by the local gov‟t to the rights of the people
a. Ex of deliberate indifference: lack of instruction in use of firearms/deadly
force; where city fails to act in response to repeated complaints of cont‟l
violations by its officers
v. Show evidence of a custom (bottom-up, as opposed to a top-down policy)
6. Municipal Immunities
a. No qualified immunity for municipal governments. Can still be liable even though acted in good faith.
Owen v City of Independence.
i. Rationale: not in leg history, would frustrate purposes of §1983, would have no chilling effect
bc individual officers still have immunity
b. But municipal gov‟t‟s do have immunity to claims for punitive damages. City of Newport.
c. Municipalities can be liable for policies ruled unconstitutional that they could not have foreseen. Smith
7. Liability of Individual Officers under §1983, And Immunities
a. Individual officers get sued under §1983 because state gov‟t‟s are generally immune under 11th
amendment and municipal gov‟t‟s are not liability unless their official policy caused the unconst‟l
b. Competing interests
i. Compensation - undercut by Edelman v Jordan anyway since §1983 doesn‟t override 11th A
ii. Deterrence of unconstitutionality
iii. Encouraging performing of gov‟t duties w/out overdeterrence (Shuck‟s theory)
iv. Symbolic affirmation of rights, but limited by Carey v Piphus
c. What immunity to grant as a defense to §1983 is a question of federal law. Howlett v Rose – don‟t look
to state law immunities.
d. Denial of immunity is immediately appealable, bc it‟s immunity from suit. Mitchell v Forsyth 1985. –
not true in state court §1983 immunity claims. See Johnson v Fankell.
i. Exception: a reviewable determination (that a set of facts violates clearly established law) can
be appealed, but a “we didn‟t do it” case (issue of genuine fact) is not appealable. Johnson v
e. These immunities are the same for federal officers, for suits brought directly under the Constitution
against federal officers. See BIVENS.
f. Distinction between suits against officer in his/her individual or personal capacity – based on whether
the damages sought are from the individual officer or really against the gov‟t
i. If it‟s a suit against the individual seeking damages from the individual, he can claim
ii. If it‟s a suit really against the gov‟t, 11th amendment bars it. see hafer v Melo.
g. Absolute immunity – from all damages actions; protection from trial
i. For those performing judicial, legislative, and prosecutorial functions. For police officers
serving as witness. For the PODUS.
1. based on their FUNCTION, not the title.
ii. Rationale: allow them to carry out their functions w/out fear of suit, there are other checks on
the exercise of discretion.
1. absolute immunity to suits for $ damages for their judicial acts, even when allege they
acted maliciously. Stump v Sparkman (sterilized girl even though he didn‟t have
statutory authority to do it, had immunity)
a. does not extend to administrative or executive tasks. Forrester v White.
2. injunction: no injunction under §1983 against a judicial officer based upon
action/inaction in judicial capacity unless a declaratory decree was violated or
declaratory relief was unavailable. Federal Courts Improvement Act of 1996.
a. Overrules Pulliam v Allen, which said judges did not have absolute immunity
from §1983 injunctions
3. absolute immunity for judges for things w/in their jurisdiction. Pierson v Ray.
4. absolute immunity when acting like legislators, as when passing/enforcing bar codes.
Supreme Court of VA vs Consumers Union of US
5. federal administrative law judges get same absolute immunity. Butz.
6. this immunity is mainly from damages; there‟s no immunity from prospective relief for
1. US Congress & aides have absolute immunity to suits for damages & injunctions/DJ.
Art. I §6 of constitution.
2. Same for state legislators. Tenney v Brandhove. Bogan v Scott-Harris.
3. Does not extend to non-legislative activities.
4. this immunity is from damages, prospective, and some criminal prosecution
5. absolute immunity against §1983 injunctions for their legislative actions
1. absolute immunity for $ damages, for prosecutorial things. Imbler v Pachtman
2. Can be sued for injunctive relief. Ex Parte Young.
3. does not extend to administrative tasks – no immunity. Does not extend to statements
4. does extend to when they decide whether to indict, who/whether to prosecute, what
evidence/witnesses to present
5. does not extend to investigative tasks – get only qualified immunity. Mitchell v
6. federal agency official appearing before an administrative law judge is like a
prosecutor, gets same immunity.
vii. Cops as witnesses
1. Absolute immunity for testimony even if it‟s perjury. Briscoe v LaHue.
viii. President of the US
1. absolute immunity to suits for $ damages for acts done while carrying out the
presidency. Nixon v Fitzgerald – immunity for all actions of the office, not just ones
that are presidential tasks.
2. but no immunity for acts occurred prior to taking office. Clinton v Jones.
3. note: state governors get only good faith immunity. Scheur v Rhodes
ix. State agency when acting as legislator, making rules: gets absolute immunity. Lake Country
estates Inc v Tahoe Regional Planning
h. Good faith immunity / Qualified immunity – protection from liability, not trial
i. Only for immunity from damage suits, not suits for injunctive relief
ii. To get past summary judgment, a P should bring up lots of questions of fact. See Brousseau v
Haugen. FRCP 56
iii. Old Definition of “good faith” from Scheur v Rhodes, also used in Woodland v Strickland
1. objective- was the act reasonable? (would a reasonable officer find the action
permissible) Not immune if he knew or reasonably should have known that the action
would violate const‟l rights
2. subjective - -did the officer think it was reasonable?
a. Or if he acted with malicious intent to cause a deprivation of const‟l rights.
Wood v Strickland.
iv. Current definition of “good faith” from Harlow v Fitzgerald:
1. Gov‟t officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory
or const‟l rights of which a reasonable person should have known
2. Subjective parts of prior test discarded.
3. Effect: an official can act with malicious intent where the legal standard is objectively
unclear and still get qualified immunity
v. Current 2-step test for whether officer gets qualified immunity: Wilson v Layne, aff‟d in
Saucier v Katz. NOTE: Per Pierson (supp) now, can do either step first. No definite rule.
1. has a constitutional right been violated? If yes
a. Davis v Scherer: the only relevant inquiry is whether the federal law rights are
clearly established; doesn‟t matter if officer violates a state law that is clearly
b. Anderson v Creighton: reasonable officer must know that the specific conduct
was unconst‟l. Stevens objected that reasonableness was already built into 4th
amendment standard on unreasonable searches & seizures
c. There doesn‟t need to be a prior decision on point in order for P to show
existence of clearly established law; just have to show fair warning. Hope v
i. Though Court backed away from this in Brosseau v Haugen and
suggested that absence of cases on point was important. No prior cases
with these exact fact – no case clearly establishes that she violated the
d. When the constitutional violation alleged requires some improper motive (like
intentional violation / discrimination, etc.), there is not a heightened proof
standard. Crawford-El v Britton. Don‟t have to do it by clear & convincing
i. Ex: equal protection challenges to laws that are facially race or gender
neutral but have a discriminatory impact require proof of
ii. Ex: 1st amendment violation based on retaliation quires that retaliation
be a substantially motivating factor
2. is the const‟l right a clearly established one that a reasonable officer should know?
Would it be clear to a reasonable officer that the conduct was unlawful?
vi. Criticisms of this 2-step order:
1. Brosseau v Haugen – the Saucier order requires courts to decide difficult const‟l
questions when there is an easier way to decide (based on immunity)
2. PEARSON – courts have discretion to do the case in reverse Saucier order.
3. Bunting v Mellen: a D official who wins on qualified immunity but loses on the
constitutionality cannot appeal, so the constitutionality issue will stand.
vii. Rationale for 2-step order: limits money damages against officials but ensures development of
const‟l law. Helped to get around Younger.
viii. State governors.
1. Scheur v Rhodes (Kent state shootings)
ix. School officials
1. Wood v Strickland (suspension from school)
1. for investigative tasks
1. Wilson v Layne
2. Brousseau v Hagan
xii. Fed law enforcement
1. Saucier v Katz – excessive force but qualified immunity
xiii. Judges – for nonjudicial acts
1. US v Lanier – no qualified immunity bc reasonable person would have known it
xiv. Prison officials
2. Hope v Pelzer
xv. NOT available to private individuals acting in concert with gov‟t officers. Wyatt v
1. though they could probably still raise good faith as a defense
2. Richardson v McKnight: prison guards at privately operated prisons
3. Differences between good faith immunity & good faith defense
a. Immunity immediately appealable; defense not
b. Immunity is objective, defense is more subjective
c. Immunity is question of law for judge, defense is question of fact for
8. Liability of state gov‟t‟s under 1983.
a. Can‟t sue state governments under §1983 in fed court bc of 11th amendment. Quern v Jordan.
b. Can‟t sue state governments under §1983 in state court bc they are not “persons” under §1983. Will v
Michigan Dept of State Police. NOTE – this was when 11th amendment didn‟t apply in state courts, but
now it does under Alden v Maine.
i. Rationale: to override state gov‟t‟s immunity under 11th amendment, Congress has to be really
explicit, and §1983 isn‟t explicit enough. Counterarg: 11th amendment only applies in fed
court, not state court, so no need to analogize to it.
c. Can‟t sue state officials under §1983 in their official capacity bc it‟s really a suit against the office
when seeking damages from state treasury. Will v Michigan.
i. Can still sue state officials under §1983 for injunction. Ex Parte Young.
ii. Can still sue state officials in their official capacity for damages under §1983. Hafer v Melo.
Summary of immunity under §1983
States & state agencies immune. 11th amendment, unless consent / congressional abrogation
Individual officers at all levels have qualified immunity
Local gov‟t (muni / city / county) can be held strictly liable under §1983 but only for acts done pursuant to official
9. Violations of fed statutes actionable via §1983 – what federal laws can be enforced under §1983
a. This is important because there are lots of federal laws that do not create a cause of action, so to sue on
them in fed court you need a cause of action. And SCOTUS has made it harder to infer causes of action
from fed statutes. Usually no causes of action/remedies under:
i. Joint fed-state regulatory programs, like Wildlife & Fishing Act
ii. Resource management programs administered cooperatively by fed & state agencies
iii. Federal grant programs, like SSA, welfare, etc.
b. General rule - §1983 available for any federal law that has allegedly been violated. “and laws” in §1983
means “and laws” – all laws. Maine v Thiboutout: sued under fed laws re welfare
c. Exceptions to rule –
i. Can‟t use §1983 to enforce statutes that explicitly or implicitly preclude §1983 litigation.
1. ex: where Congress puts in the statute comprehensive enforcement mechanisms that
show an intent to preclude remedy under §1983. Middlesex County Sewerage
a. Same for comprehensive enforcement mechanisms in Education of
Handicapped Act. Smith v Robinson.
b. But just providing in the statute for administrative remedies is not
comprehensive enough to preclude §1983. Wright v City of Roanoke.
2. Presumption is that §1983 can be used. The Burden is on the D to show the fed law
ii. Can‟t use §1983 to enforce federal statutes that don‟t create rights. §1983 is available only to
enforce fed statutes that do create rights.
1. ex - Pennhurst State School and Hospital v Haldreman: fed statute, Developmentally
Disabled Assistance & Bill of Rights Act of 1975, was just a declaration of policy and
didn‟t create rights
2. Test for whether statute creates rights:
a. If the statute creates a binding obligation
b. If the interest created by the statute is sufficiently specific to be judicially
c. If the provision was intended to benefit the plaintiff
10. Violations of the constitution actionable under §1983 - when can §1983 be used for const‟l claims?
a. General rule - §1983 usually available when there is a state or local violation of the Constitution
b. Normally enforceable
i. Dormant Commerce Clause – Dennis v Higgins
c. Not necessarily enforceable
i. Preemption claims – Supremacy Clause doesn‟t create rights enforceable under §1983. To
bring a preemption claim under §1983, the P must justify the use of §1983 to enforce the
particular fed law that is alleged to preempt the state or local action
d. Not enforceable under §1983
i. Miranda violations. (though could maybe make a substantive due process claim)
ii. See below on DUE PROCESS limitations for things not enforceable
e. State procedures are relevant for procedural due process claims (Osborn) but not for Bill of Rights or
substantive due process claims. Zinermon.
f. What TORTS committed by state & local officers are const‟l violations actionable under §1983
i. Ex: excessive force by cop is tort (battery) and const‟l (cruel & unusual, deprivation of liberty
w/out due process)
ii. Ex: false arrest is tort and const‟l (4th amendment)
iii. Ex: defamation / 14th amendment due process deprivation. (NOT cognizable, see Paul v Davis)
g. 3 limitations on 14th amendment DUE PROCESS OF LAW that limit what §1983 can be brought for,
to avoid all torts coming in under §1983:
i. negligence insufficient. Denial of due process requires more than mere negligence. Daniels v
Williams (tripped on pillow case) and Davidson v Cannon (failed to protect from attack by
another prisoner). There has to be an allegation of an intentional violation by gov‟t or gov‟t
1. this seemed to overrule Parratt v Taylor
2. if no intentional violation, doesn‟t even matter that state doesn‟t provide remedies bc
there is no due process violation at all.
3. seems like deliberate indifference (in non-emergency situation) is intentional enough.
County of Sacramento v Lewis.
4. in emergency situations though, deliberate indifference / recklessness not enough.
Need shock the conscience. County of Sacramento v Lewis –high speed chase.
ii. No denial of due process if P seeks a postdeprivation remedy for loss of property as a result of
random & unauthorized act of gov‟t officer and state provides adequate postdeprivation
redress. Parratt v Taylor – hobby kit.
1. adequate state postdep process can be via state tort law. Parratt.
2. extended from negligent losses (Parratt) to intentional losses of property: no DP
violation for intentional loss of property if there is adequate postdeprivation state
remedy. Hudson v Palmer – intentional destruction of prisoner‟s property.
3. Note tension with Monroe, which says that if there is a const‟l violation (and parratt
limits this) then officers are liable under §1983 even if they are acting in random,
4. extended to apply to deprivation of liberty: Zinermon v Burch – put in state mental
hospital w/out informed consent.
5. Limitations of Parratt:
a. Applies only where P is claiming procedural due process violation (lack of
adequate process), not where claiming violation of substantive due process or a
right under Bill of Rights. When it‟s a substantive DP claim, must ask whether
the gov‟t‟s action is justified by a sufficiently important purpose to pass the
level of scrutiny.
b. Applies only where it‟s a random & unauthorized deprivation, not where it‟s
the result of official policy.
i. Zinermon (mental hospital) was an official policy, predictable, not
c. Applies only to random, unauthorized act by state employee. Logan v
6. Summary of when Paratt applies – The existence of adequate state remedy precludes a
DP claim under §1983 when
a. The P seeks postdeprivation remedy
b. For a random, unauthorized act of a gov‟t official
c. That resulted in a deprivation of liberty or property without adequate
d. The officials responsible couldn‟t‟ have provided a hearing to prevent
e. Adequate state remedies exist.
i. They can be adequate without exactly matching §1983 remedies – lack
of jury trial, etc is OK.
iii. No government duty to prevent private harms.
1. DeShaney v Winnebago County Dept of Social Services – where child beat by father
and county didn‟t prevent it
2. state only has an obligation to provide protection from private actors where the state
affirmatively limits individual‟s ability to protect him/herself – incarceration or
3. Town of Castle Rock v Gonzales
iv. [also, has to be a deprivation of something recognized by due process. Deprivation of
reputation isn‟t a liberty or property interest guaranteed by DPC. Paul v Davis – have to be
recognized by state law.
1. see also Siegert v Gilley
v. [proper standard for violation of substantive due process is whether it is an abuse of power that
shocks the conscience. County of Sacramento v Lewis]
h. Claims of excessive force by cops comes under 4th amendment, not due process. Graham v Connor.
11. Preclusion of §1983 suits in fed court by earlier state court decisions
a. FOR claims raised already in state court: State court proceedings are preclusive in subsequent fed court
§1983 litigation. 28 USC §1738 requires fed courts to give the same preclusive effect to prior state
court decisions as would the courts in the state where the decisions were rendered. There is no
exception to 28 USC §1738 for federal civil rights litigation. Allen v McCurry: state crim D challenged
evidence on 4th amendment grounds, was convicted, filed §1983 suit for money damages against
officers. He was precluded from raising the 4th amendment issue in §1983 if the state would preclude
him from doing it too.
i. State law of preclusion is what‟s determinative. Haring v Prosise – state court guilty plea
didn‟t have preclusive effect bc of Virginia state law on preclusion.
b. FOR claims NOT raised already in state court but that could have been (res judicata). Res judicata
applies in §1983. Migra v Warren City school District.
i. What about Pennhurst: Pennhurst means P can‟t bring pendent state law claims against state
officers in fed court. So might split claims into stat e& fed courts. But if state court decides
first, then under Migra, fed court can‟t decide the fed issues. Alternative: bring fed claims in
fed court first, then go to state court on state law issues afterwards.
c. State agency decisions get preclusive effect in fed §1983 cases too.
i. Judicial decisions by state affirming agency ruling is preclusive. Kremer.
ii. Unreviewed agency decision also gets preclusive effect, at least for fact-finding. Univ of TN v
d. State criminal convictions have preclusive effect until overturned: In order for a P to recover damages
for an allegedly unconst‟l conviction or imprisonment, a P must first have the conviction or sentence
reversed on appeal or expunged by executive pardon. Heck v Humphrey – prison inmate serving
sentence sued state prosecutor and investigator in fed court for $ damages for malicious prosecution.
i. Extended to decisions of prison disciplinary boards – those must also be reversed before §1983
suit. Edwards v Balisok
12. Remedies available under §1983
a. Injunctions. (but see limits – standing, can‟t enjoin muni police depts., can‟t enjoin pending state
i. For actual injuries suffered, not dignity claims. Carey v Piphus.
1. Counter: should be available to increase deterrence.
ii. Punitive damages can be recovered from individual officers but not gov‟t entities. Smith v
Wade – punitive damages available just like at common law, for reckless/callous indifference
to federally protected rights of others.
13. Where there are gaps in the law in §1983, fed courts should apply the law of the forum state as long as it‟s
constitutional. §1988. Example: statute of limitations.
a. BUT in some areas of what look like deficiencies, Court has created FCL. Ex: officer immunities,
availability of punitive damages.
b. BUT states can‟t require compliance with notice of claim laws to §1983 suits brought in state courts.
Felder v Casey.