Fed. Jur. Outline I.

JUDICIAL GATEKEEPING
A. Functions of Art III 1. Define the scope of federal authority vs. state authority- federal courts are restricted to addressing only Cases and Controversies under the US Constitution. a. Cases meant federal questions b. Controverises meant diversity cases 2. Separation of powers within the federal Govt 3. Define the power of the federal courts a. Congress has the power to create new federal courts b. Judges are not controlled by Congress, instead they are appointed by the President. 4. Division between the SC & the lower federal courts a. Original jurisdiction cases- there are only 8 options (cases where an actual state is a party, cases where a foreign govt is a party, treaties, etc) b. Appellate jurisdiction SCs ability to review decisions of the lower federal courts, but Congress can enact exceptions to this jurisdiction. B. Background a. Marbury v. Madison- this case really gave the SC all of its power. 3 essential rules: 1. SC can review the Executive Branch 2. Judicial Review exists 3. The Supremacy of the SC b. Only Cases & Controversy- Art III requires all s to have standing. Standing is governed by the SCs prudence rules. What are these rules? 1. Hayburns case Fed. Court judges refused to comply with federal statutes requiring them to review Revolutionary War vet benefits. SC said this was more executive in nature & refused to hear the case. RULE: the federal courts can not take on non-judicial duties, they must remain neutral. 2. Advisory Opinions President Washington asked the SC for an advisory opinion (US had treaty with France) about taking sides in a war between France & England. SC refused to rule on it. RULE: the SC should not offer advisory opinions about areas strictly under the cover of the Executive branch (foreign policy). Policy arguments against offering Advisory Opinions: a. Courts should only rule on concrete facts. b. The public would respect to the role of the courts as they became more political c. Advisory opinions take the courts focus away from their main duties d. Over reliance on the courts would cause a shift in our system of checks & balances it would reduce the power of the Legislative branch. e. Advisory Opinions would make judges more political and less independent. f. Any advisory opinions could be simply disregarded by the legislature or executive branches
Taxpayer Cases

3. Adversness & Standing RULE: parties must have a personal stake in cases to sue. Parties must have DIRECT injury for standing. All taxpayer cases fall Frothingham v. Mellon taxpayer case. Federal statute grants aid to states for health of mothers. claimed the federal statute invaded states rights and caused her specific a injury because it misused her tax dollars. SC held : taxpayer lacked

standing. The injury was minimal & unmeasurable. SC says test for taxpayer standing is: 1) must show how the federal statute in unconstitutional 2) must prove a DIRECT INJURY 3) there can be not injury common to all other taxpayers. Policy argument: if you allowed all taxpayers to bring cases to challenge federal expenditures, it would greatly reduce the function of judicial review. But in 1968, SC allowed taxpayer challenge to federal aid to church schools ( Flast v. Cohen). SC said the taxpayer could prove the statute violated the Constitutions bar against mixing of church & state, and support direct injury. 4. Ripeness & Concreteness RULE: No contingency cases. No premature litigation. No future harms cases. United Public Workers v. Mitchell- fed. employees were banned from making political contributions under a federal Act. Employees claims injury to their constitutional rights of freedom of speech. SC said this was nothing more than asking for an advisory opinion. Hypothetical threats are not enough to achieve standing. Later the SC says there are exceptions to Ripeness rule: cases where the injury is recurring & evading review. 5. Administrative Questions- RULE: SC will not interfere in administrative rulings Federal Radio Comm. v. G.E. corporation challenging a federal agencys denial of their renewal of broadcasting licenses. SC says no because this would require the federal courts to step into the role of a federal agency. SC adds there is no adversity & thus no standing either. 6. Political Questions RULE: the SC must leave political questions to the executive & Legislative branches. Colegrove v. Green- SC refused to step in & decide the constitutionality of unequal apportionment of congressional seats. SC said that was a political, not judical question to be decided internally within a state. Baker v. Carr SC upheld federal courts authority to determine the constitutionality of electoral districts for state legislators. Key: SC 1) can answer questions about federal judicarys relationship to the States. 2) But the federal courts can not answer political questions about the federal courts relationship to other federal branches. KEY to political questions: When the States action violate ones 14 th Adm. rights & require a definition of those rights, the federal courts have a right to step in, especially if the States offer no other remedy.

C. Judicial Review- Marbury v. Madison History: Marbury filed a writ of mandamus directly with the Supreme Court to force Madison SOS to honor his judicial appointment by outgoing President Adams. Statute ( 13) Judiciary Act of 1789 allowed the SC to issue writs of mandamus. He says the Judiciary act 1789 is unconstitutional- Congress added to the SCs jurisdiction. Yet the Constitution does not allow that. Therefore, the act is unconstitutional. SC can not simply assume jurisdiction. Article 3. Section 2 defines cases that can be heard in the SC. Marbury does not fit. Marshall says (Article 3) gives the SC appellate jurisdiction but not original jurisdiction. KEY: Congress can not expand the SCs jurisdiction that is prohibited in the Constitution. If Congress wants to change the SCs jurisdiction it will need to amend the Constitution. Leals 5 principals from Marbury: 1. Federal courts have judicial review over the executives non-discretionary decisions. Once the President exercises discretion, his actions are subject to review. 2. Only the people can resolve misconduct of the Executive Branch 3. Art III creates SC supremacy, Congress can not increase the jurisdiction of the SC 4. Give federal judges the power to declare legislation unconstitutional 5. SC is the supreme authority on the Constitution D. Justiciability & Standing (limits on federal court authority) = GATEKEEPING OF SC Purpose of these limits: to maintain separation of powers 1. Warth v. Seldin about standing, Does the party have the right to come into federal court? The Injury Requirement- must prove INJURY IN FACT
First 3 from Art III & 4/5 from the Prudence Requirement

Leals Requirements for Standing : 1. must allege injury or future injury 2. must allege injury that is traceable back to s conduct 3. must allege favorable ruling will allow redressability 4. can only assert his own rights, not the rights of others. 5. must raise a claim within a zone defined by Congress as having standing Warth v. Seldin

SC will not hear cases unless standing exists as case or controversy under art. III. Standing is not possible without: 1. There must be direct & immediate injury to the plaintiff for standing. A. The Plaintiff must have a personal stake in the case (Baker v. Carr) B. Example: statute making it a crime to be a member of a group is direct to a member, but it is not direct to a non-member. Only the member can have standing. C. Injury does not have to be economic or criminal in nature. Could be aesthetic. (US v. SCRAP) 2. The plaintiff must show the defendants conduct directly caused the injury: A. The plaintiff must be able to prove the injuries (constitutional violation) is a direct result of the defendants actions and B. That a judicial decision will give the plaintiff relief sought.

KEY to Warth v. Seldin: Plaintiffs claiming constitutional violation by zoning statute designed to prevent lower to middle income residents in a certain area, must show more than simple fact that the housing was too expensive for them to purchase to prove direct injury and direct cause of injury in fact. Plaintiff required proving that without the zoning statute in place that he would have been able to afford housing in zoned area (this would prove that he would actually benefit by a judicial decision in his favor. There can be no broad, general guessing about it. Rochester residents can not assert the rights of other people not before the court have been violated (e.g. people who would have moved to Penfield had exclusionary zoning not been practiced. Purpose behind Injury in fact requirement: keep 2 types of cases out of the courts: 1) Non-individualized harm- Harm is not unique to the individualized person. Person must prove they were injured beyond the average person. 2) Third Party rights or claims- Harm is to a third party, not even before the court. Leals rules from Warth: 1. Taxpayer can not sue because harm is not unique to them 2. Associations can sue if members are injured 3. Injury must be alleged 4. Injury must be directly caused by 5. Judicial redress must be possible

Standing = who is proper party? Ripeness & Mootness = when can it be brought?

See sister case to Warth: Adolf Lyons v. City of Los Angeles 2. Abbott Labs v. Gardner- Premature Litigation Congress amends FDA to require prescription labeling. Drug companies file sue before Act goes into effect. SC says this is premature litigation. There is no standing since there is no direct or immediate injury. The claims are not ripe. Asking for an injunction would simply be premature. Drug companies asked for advisory opinion under the Declared Judgment Act, if they did comply so Abbott defines how far away must a harm be to gain standing? If your harm is substantial higher likelihood that your case is ripe If your harm is more spectative higher likelihood you can gain standing 3. US Parole Commission v. Geraghty- Mootness s personal stake completely went away before he got to court Facts: Federal Parole Comm. enacts new parole guidelines. Geraghty was denied parole. He files a class action suit on the behalf of federal prisoners. During his appeal, he is released. Parole Comm. argues that the claim is now, moot! Other prisoners move to have themselves substituted in to the case for Geraghty. History: Flast decision says Art III limits fed judicial jurisdiction to cases or controversies. Purpose of this to: 1) preserve the requirement that cases are true adversary between parties 2) prevent judicial intervention into other branches of the govt Mootness has 2 requirements: 1) live controversy & 2) Personal stake in cases

Issue: whether or not an appeal of a trial courts denial of class certification does not become moot because the named partys case became moot? Holding:(An exception to the mootness doctrine) No, standing occurs at the commencement of the litigation and mootness of the named partys will not end if the claim is (RELATION BACK DOCTRINE) Capable of repetition, yet evading review. Leals Rules: 1) must have a personal stake 2) But, class members still have live controversories, the mootness of the named does not make the entire class action moot. 4. Baker v. Carr Political question RULE: No moot or hypothetical injuries. However, injury is not hypothetical under asserts injury under 1983 that constitutional rights were deprived under the color of law. Tennessee voters seek a reapportionment of state assembly districts, the districts had not been reapportioned since 1901. Leals Rules: 1) Claims brought under the Guaranty clause (Art IV 4 providing all US citizens a right to a Republican form of govt) are political questions, but claims brought under 1983s equal protection clause are justiciable. E. Congressional Power to curtail jurisdiction

1. Sheldon v. Sill- Congress can withhold from any court (that it created) jurisdiction over
particular areas. Courts created by statute can have no jurisdiction except for jurisdiction laid-out in the statute. FACTS: Sill (resident of NY) filed suit in Michigan Circuit Court to recover bond & mortgage from Sheldon (resident of Michigan) after it had been assigned to him by Hastings (President of the Bank of Michigan). Sheldon claimed that the federal courts had no jurisdiction over the controversy since the bond & mortgage was created between two residents of the same state (leaving no diversity). The Circuit Court ruled that it had no jurisdiction. HOLDING: The Circuit Court does not have jurisdiction over this case. Because: 11 of the Judiciary Act requires the federal courts not exercise jurisidiction over promissory notes unless there is a foreign bills of exchanges are involved. Art. III only creates the SC & leaves it to Congress to form any lower courts while 2 requires cases or controversies between citizens of different states. Had the Constitution created inferior courts, Congress would not be able to restrict them. But, the Constitution did not create inferior courts, only the SC. However, Congress can define/restrict jurisdiction of courts it created. Courts created by statute have their jurisdiction defined by that statute. ISSUE: Whether or not the federal courts have jurisdiction over all cases before them? RULES: 1.Art. III creates only the SC, it is up to Congress to create inferior courts & define their jurisdiction. Congress has not given all Art III powers to fed courts. 2.Congress can withhold jurisdiction from inferior courts. 3.Courts created by statute have no jurisdiction other jurisdiction conferred by the statute.

2. Ex Parte McCardle Congress can not destroy jurisdiction of the Supreme Court, but it may limit & regulate it. Congress limited SC jurisdiction over habeas corpus cases in South during Reconstruction. CONGRESSIONAL POWER TO CURTAIL JURISIDCTIONCONGRESS CAN CREATE EXCEPTIONS & REGULATIONS TO THE SCS APPELLATE JURISIDCTION

FACTS: McCardle (Mississippi newspaper editor, who published articles that caused public resistance & violence to Reconstruction imprisoned for incendiary & libelous articles) appealed a habeas corpus petition to the SC under the 1867 Act, Congress enacted legislation destroying the Courts appellate jurisdiction in habeas corpus cases. ISSUE: Whether or not Congress can repeal the SCs appellate jurisdiction? HOLDING: Yes. While the SC gets its jurisdiction from the Constitution, Congress can make exceptions & regulations of the SCs jurisdiction. Congress has limited the SCs appellate jurisdiction in habeas corpus cases under the 1867 Act, not other habeas corpus cases. The SC can not rule on cases where its jurisdiction has been repealed by Congress. The SC does not have jurisdiction in this case. RULES: 1. While the SC gets its appellate jurisdiction from the Constitution, Congress may enact regulations and limits to that power. with such exceptions and under such regulations as Congress shall make. 2. The SCs appellate jurisdiction has been affirmatively described; any negation of that jurisdiction is implied. 3. While Congress can not limit the SCs jurisdiction granted in the Constitution, Congress is responsible for granting the SC additional jurisdiction. 4. The SC can not question the motivation of Congressional acts. WHY THIS CASE IS IMPORTANT: The decision came during post-Civil War Reconstruction. The SC had hinted that it might strike down some of the Reconstruction enactments. So, Congress started stripping the Court of some of its powers. President Andrew Johnson vetoed Congress actions, but Congress overrode him. Afterwards, Congress impeached him. It was Congress attempt to limit the SCs power to rule on very controversial issues. F. Judicial Power Outside Article III 1. Northern Pipeline Construction Co. v. Marathon Pipe Line Co.- Art. I judges were given the powers of Art II judges, but none of the Art III protections Class Notes & Preview: Under Art. III 1, two important points: 1) One Supreme Court & 2) Congress can set up inferior courts (Sentence #2 lifetime appointment provided good behavior and no chance of decreased salary for federal judges. Founding Fathers put this in place to reduce risks of King George atmosphere. In England, King George would simply remove any judges who disagreed with him or better yetthe Kings word was the law. Congress has created non-Art. III courts: 1) Tax Courts 2) Administrative tribunals agency driven courts (legislative or Art. I courts)
NORTHERN PIPELINE CONSTRUCTION CO. v. MARATHON PIPE LINE CO. (1982)

FACTS: In 1978, Congress revised the Bankruptcy laws. Prior to the Act, federal district courts served as bankruptcy courts and used a Referee system. Decisions were appellable to the district courts. Bankruptcy courts exercised Summary and Plenary jurisdiction. Under the Act, the referee system was dissolved and each judicial district created its own separate Bankruptcy Court with expanded jurisdiction. Summary & Plenary jurisdiction distinctions were eliminated and the new courts were given complete jurisdiction under Title 11 & granting the district courts appellate jurisdiction over the bankruptcy courts. Different from the protected salaries & lifetime appointments of federal judges provided in Art. III, the bankruptcy judges were appointed by the President to 14 year terms, subject to removal by the judicial council of the circuit, and their salaries were set by statute (subject to adjustment). In Jan. 1980, Northern Pipeline Construction Co filed a petition for reorganization in Minnesotas Bankruptcy Court. In March 1980, Northern filed suit against Marathon for breach on contract & warranty, misrepresentation, coercion, & duress. Marathon challenged the Act on the grounds that it unconstitutionally gave Art. III powers to judges who lacked the normal Art. III powers (lifetime appointment & protected salaries). The US govt intervened in the case to defend the constitutionality of the statute. ISSUE: Whether or not the assignment by Congress to bankruptcy judges of the jurisdiction granted in the Bankruptcy Act of 1978 violates Art. III? HOLDING: Bankruptcy judges are not Art. III judges. The Constitution gives Congress the powers to create courts outside the scope of Art. III. Congress can not give Art. I courts Art III. Powers. To do so, would allow Congress to manipulate the Judiciary. Court looks at the only four times when may Congress may give an Art I court Art. III powers: 4 situations where Art. I courts are allowed: When Congress can create courts (Art I) with Art III powers 1) Territories When any US preventative (Puerto Rico) is in the transition to statehood. Thus, whatever can be heard in a state court can be heard in an Art. I court. 2) Military courts Art. II authorities the creation of these courts under the Presidents powers as Commander and Chief. 3) Public Rights case by US citizens against the US govt under the Public Rights Doctrine goes to The Courts of Claims 4) Adjunct Court US Magistrate Courts, they are designed to deal with specific criminal matters In the case at hand, the Congressional created Bankruptcy Court did not exceed the attributes of Art. III courts. Therefore, judges of bankruptcy courts are vested with all of the powers of a court of equity, law, and admiralty, except that they may not enjoin another court or punish a criminal contempt not committed in the presence of the judge of the court. KEY: SC says Congress has removed the Art. III powers from Bankruptcy Courts, so it is acceptable for the Bankruptcy Court to exercise jurisdiction in this case. RULES: 1. When Congress creates a substantive federal right, it possesses substantial discretion to prescribe the manner in which that right may be adjudicated- including the assignment to an adjunct of some functions historically performed by judges. (Congress can create non Art. III courts and give them the same powers as an Art. III court in some limited situations).

2. The functions of any congressionally created adjunct courts must be limited so as to preserve the essential attributes of the Art. III courts. (Congress can not give non Art. III courts essentially the same powers as Art. III Courts).

2. National Mutual Insurance Co. v. Tidewater Transfer Co.- Congress can control federal jurisdiction. Statute creating federal diversity for DC is constitutional (well within Congress Art. I powers) FACTS: A D.C. corporation sues a Virginia corporation over an insurance contract in a Maryland
District Court, with jurisdiction resting only on diversity of citizenship. No federal issue existed. However, Congress (using its Art. I powers) granted district courts original jurisdiction in civil cases involving DC residents and citizens of other states under 28 U.SC.S 4 (1) where the amount in controversy exceeded $3,000. (The statute created federal diversity for DC citizens). The District Court dismissed the case by ruling that while diversity was achieved under the statute, that federal diversity was not met under the Constitution. Therefore, the statute was unconstitutional. The Circuit Court affirmed the District Court decision. The Supreme Court reversed the decision, ruling that the statute was constitutional as a permissible exercise of Congressional Art. I powers.

HOLDING: Congress is empowered to put federally administered justice within the reach of the citizens of DC against citizens of another state. Chief Justice Marshall once ruled that DC was not a state and could not achieve federal diversity. The SC says DC is still not a state within the meaning of Art III and thus, Congress is empowered to give DC statutory diversity because Congress is responsible for DCs welfare. RULES: 1) Congress has been exclusive jurisdiction for the welfare of DC including the power the create remedies for DC citizens to adjudicate claims against citizens of other states. 2) DC Courts are Art III courts pursuant to the jurisdiction granted Congress under Art I. 3) Congress can open or grant federal diversity to groups or citizens who would be without other means of obtaining diversity of citizenship.

CHAPTER 1 SUMMARY = WAYS TO KEEP CASES OUT OF FEDERAL COURTS Purpose for gatekeeping: Respect of the separation of powers 1. Marbury v. Madison: Supreme Court has judicial review, but it is limited. Supreme Court only has original jurisdiction in federal question or diversity cases, and in appellate cases from states highest courts or lower federal courts. 2. Warth v. Seldin: Art III requires cases or controversies: so Standing is a must to get into a federal court: must allege injury or future injury: a. direct & immediate injury 8

must allege injury that is traceable back to s conduct must allege favorable ruling will allow redressability can only assert his own rights, not the rights of others. must raise a claim within a zone defined by Congress as having standing

3. Supreme Court will not hear cases that are: A. Advisory Opinions- must have concrete facts or claims: Hayburns Case B. Not Adverse- not concrete facts or claims. 1. Personal stake and direct harm. Mellon case. 2. No taxpayer cases unless can prove unique injury: Flast case. C. Premature or hypothetical litigation : no future harms/no contingency cases: Abbott Laboratories v. Garner D. Not Ripe: no claims for harms that have not occurred : United Public Workers v. Mitchell E. Moot 1. must have live controversies 2. must have a personal stake 3. Exception to Mootness: Cases falling under the Relation Back Doctrine: Capable of repetition, yet evading review.: US Parole Comm. v. Geraghty F. Administrative Questions leave this to the other branches of govt: Federal Radio Comm. v. General Electric G. Political Questions : Baker v. Carr 4. Congress can curtail federal Jurisdiction A. Sheldon v. Sill: The lower federal Courts are all created by Congress. Congress can withhold from any court (that it created) jurisdiction over particular areas. Courts created by statute can have no jurisdiction except for jurisdiction laid-out in the statute. B. Ex Parte McCardle: Congress can not destroy jurisdiction of the Supreme Court, but it may limit & regulate it. Congress can create exceptions & regulations to the SCs Appellate jurisdiction. 5. Judicial Power Outside of Art III A. Northern Pipeline Construction Co. v. Marathon Pipe Line Co.- Congress has the power to create federal courts outside the authority of Art. III., but those courts will not have all the same powers as Art III courts. Art. I judges were given the powers of Art II judges, but none of the Art III protections. 9

4 situations where Congress may create Art. I courts : 1) Territories When any US preventative (Puerto Rico) is in the transition to statehood. Thus, whatever can be heard in a state court can be heard in an Art. I court. 2) Military courts Art. II authorities the creation of these courts under the Presidents powers as Commander and Chief. 3) Public Rights case by US citizens against the US govt under the Public Rights Doctrine goes to The Courts of Claims 4) Adjunct Court US Magistrate Courts, they are designed to deal with specific criminal matters B. National Mutual Insurance Co. v. Tidewater Transfer Co.: Congress can control federal jurisdiction. Statute creating federal diversity for DC is constitutional (well within Congress Art. I powers) ___________________________________________________________________________ II. FEDERAL QUESTION CASES (another way that federal jurisdiction is limited) A. Identifying Federal Question Cases Case, a party must have: To start any Federal Question 1) a constitutional provision giving jurisdiction (i.e. Art III) 1. 2) Osborn v. Bank of the enacted US - The Constitution onlygiving requires that federal law be an a federal statute by Congress jurisdiction ingredient in the cause of action (i.e. 1331) Did Congress have the right to create a national bank and give federal judges the power to This is from the arising US Constitution language govern these cases? Must the caseunder rest on the a federal law? Holding: NO. SC said the case must have some federal statute tied to it. Pre-1331, court looks to the fact that federal legislative Failure to satisfy both theseto requirements in a is a federal charter created bank and givesof it ability sue or be sued,results so the charter violation of well plead ingredient of the banks case complaint rule. (another example of (a) Note this means that even on a contract suit with the bank, there is potential FQ jurisdiction from a constitutional point of view since a law of the US created the bank and gives it the ability to sue, and that law may be an issue in the case (see US v. Planters Bank of Georgia FQ jurisdiction available in suit over a note held by the US bank) Cause of Action = Facts + Liability Law + Remedies Law The remedies law was usually the federal statute 2. Louisville & Nashville Railroad Co. v. Mottley The basic rule: in determining Federal Question, look only to allegations in a well-pleaded complaint. You cannot create a Federal Question by anticipating a defense anticipation of a defense to breach of settlement agreement based on impossibility caused by new federal law does not confer Federal Question jurisdiction) A simple breach of contract is not a federal question. As part of the well pleaded complaint rule: can not complain an anticipatory position., based on a federal defense. This is not 10

well-pleaded. The lower courts (hearing this case) should have picked up on the lack of SMJ. (It is their duty) Because they missed that point, the SC dismisses the case.
FACTS: Mottley (a husband & wife/citizens of Kentucky) were injured in 1871 by the negligence of
Mottley- no FQ when in anticipatory declarationsnot well plead complaint the Louisville & Nashville Railroad. As a release from future claims, the railroad offered the Mottleys an express contract for life-long free rail passes. The railroad honored this contract up until 1907, when Congress enactment legislation that prohibited free rail passes and transportation. Mottley brought suit (for specific performance) against the railroad in the Circuit Court for the Western District of Kentucky. Mottley argued 1) that the Act did not really prohibit the giving of free passes. 2) Next, they argued that if the Act was construed to prohibit free rail passes that it violated the Fifth Amendment because it deprives them of their property without due process of law. Mottley demurred the case and the Circuit Court overruled the demurrer. Mottley, then appealed directly to the Supreme Court.

ISSUE: Whether or not the Supreme Court has jurisdiction when no federal question exists in a case? HOLDING: It is improper to plead that a defense under federal law was anticipated, reversed the judgment and remanded to the circuit court with instructions to dismiss the action for lack of federal question jurisdiction.

RULES: 1) It is the duty of the U.S. Supreme Court to see to it that the jurisdiction of a circuit court, which is defined and limited by statute, is not exceeded. 2) A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States 3.
Skelly- No FQ when its a remedial statute to create jurisdiction

Skelly Oil Co. v. Phillips Petroleum Co. -cant anticipate defenses to get FQ when seeking Declaratory Judgment (DJ). Again, a case must have, on its face, a well plead complaint. (a) Basic point: same rules apply for DJ as for coercive suits if the suit could be brought as a coercive action, it may be brought as a DJ action; if it couldnt, then it cant (b) Thus, the FDJA has not broadened SMJ
FACTS: Phillips contracted to buy gas from Skelly for resale to Michigan-Wisconsin Pipeline. Each contract gave the seller the right to terminate the contract if Michigan-Wisconsin failed to secure a certificate of public convenience and necessity for construction and operation of its pipe line from the Federal Power Commission. Notice of termination was to be delivered after Dec 1, 1946, but before the issuance of the certificate. On Nov. 30, 1946, the Commission ordered the certificate be issued. On Dec 2, Skelly gave notice of termination. Phillips sued for a declaratory judgment arguing that the contracts were still in effect because the certificate was obtained before termination. The District Court and Court of Appeals agreed with Phillips.

ISSUES: Whether or not the suit arose under the Constitution, laws, or treaties of the US so as to provide declaratory relief under the Federal Declaratory Judgment Act? HOLDING: This is a basic contract dispute; there is no federal question present. Judgment is vacated and cause was remanded for one of the parties. However, the judgment was reversed and dismissed as to the other parties because the matter did not arise under the federal law. Therefore, the Supreme Court did not have jurisdiction over the matter. 11

RULES: 1. While Congress can extend remedies offered by the federal courts, it can not extend the jurisdiction of the federal courts. 2. A plaintiffs claim must present a federal question unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose. (Mottley case) 3. A question arising out of the Constitution is required to give the federal courts jurisdiction over a matter. 4. Harms v. Eliscu This case satisfied the well plead complaint rule, in that it dealt directly with a claim under the federal copyright law ( 1338). The problem was that the claim was not over infringement, instead it was a suit to set aside a license. This is not a federal Question, this belongs in state court. KEY; for there to be a federal Question, the remedy one is seeking must exist under a federal statute. If your remedy exists at a state level, you must go there first. RULE: One must look at the statute in defining the violation, if there is no violation of the federal statute, then there is no federal question involved.
FACTS: was asking for equitable recovery. Typically, state courts handle equitable remedies. Look at the federal statute involved (Copyright Act), it does not include remedies for simple breaches of contract.

OVERVIEW: Plaintiff sued defendants for copyright infringement. Plaintiff alleged its own New York
incorporation and did not allege the citizenship of defendants. Defendants moved to dismiss the complaint for failure to state a claim on which relief could be granted and for lack of federal jurisdiction, which was granted. On appeal, the court held that the district court was correct when it treated jurisdictional issue as turning solely on whether the complaint alleged any act or threat of copyright infringement. The plaintiff did not do so in its complaint and, therefore, plaintiff did not have a proper action. OUTCOME: The court affirmed the ruling of the district court, citing the fact that the plaintiff did not allege an act or threat of copyright infringement.

RULES: 1. Infringement, as used in copyright law, does not include everything that may impair the value of the copyright; it is doing one or more of those things which 1 of the Act, 17 U.S.C.S. 1, reserves exclusively to the copyright owner. 2. The United States Supreme Court has long given a narrower meaning to the "arising under" language in statutes defining the jurisdiction of the lower federal courts. 3. The Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy. For courts of a state may try questions of title, and may construe and enforce contracts relating to patents. 4. Even though a claim is created by state law, a case may "arise under" a law of the United States if the complaint discloses a need for determining the meaning or application of such a law. 5. In the absence of express statute, federal law may govern what might seem an issue of local law because the federal interest is dominant. 6. An action "arises under" the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction, 17 U.S.C.S. 101, or asserts a claim requiring construction of the Act, or, at the very least and perhaps more doubtfully, presents a case where a distinctive 12

policy of the Act requires that federal principles control the disposition of the claim. The general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this last test. 5. Merrell Dow Pharmaceuticals v. Thompson Bendectin birth defect case. Dow wanted case removed to federal court. Congress did not create a cause of action in the FFDCA. So, the (Dow) could not use the FFDCA as grounds for removal to the federal courts. The Act left no private actions available, only the FDA commissioner could file suit for a violation of the Act. Therefore, Dows claim rested in state court.
FACTS: Petitioner sought review of judgment of United States Court of Appeals for Sixth Circuit reversing order denying respondents' motion to remand to state forum their consolidated cases alleging tort claims and violation of Federal Food, Drug, and Cosmetic Act, 21 U.S.C.S. 301 et seq. (1982 ed. and Supp. III). OVERVIEW: Respondents sued petitioner in state court. Each respondent, alleging that a child suffered birth defects due to the mother's ingestion of a drug made by petitioner, requested damages on tort theories and for violation of the Federal Food, Drug, and Cosmetic Act (FFDC), 21 U.S.C.S. 301 et seq. (1982 ed. and Supp. III). Petitioner had the cases removed to federal court, the cases were consolidated, and respondents moved to remand to state court. The district court denied the motion, but the appellate court reversed. The parties agreed there was no federal cause of action for FFDC violations. On appeal, the Court held that federal question jurisdiction was lacking because a complaint using a federal statute as an element of a state cause of action, when there was no private federal cause of action under the statute, did not state a claim arising under federal law. The judgment was affirmed.

OUTCOME: The Court affirmed judgment reversing order denying motion to remand to state forum where federal question jurisdiction was lacking because complaint using federal statute as element of state cause of action, when there was no private federal cause of action under statute, did not state claim arising under federal law. RULES: 1. The question whether a claim "arises under" federal law must be determined by reference to the "well-pleaded complaint." A defense that raises a federal question is inadequate to confer federal jurisdiction. Since a defendant may remove a case only if the claim could have been brought in federal court, 28 U.S.C.S. 1441(b), moreover, the question for removal jurisdiction must also be determined by reference to the "wellpleaded complaint." 2. The mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. 3. The congressional determination that there should be no federal remedy for the violation of a federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal-question jurisdiction. 4. A complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim arising under the Constitution, laws, or treaties of the US. 1331 B. The Ability to bring tag along state claims into federal court along with your federal claim (under Supplemental/Pendent jurisdiction) is limited. 1. Finley v. US case was eventually overruled by enactment of 1367. Pendent jurisdiction is now called ancillary or supplemental jurisdiction. 13

Facts: Finleys husband & kids were killed when their plane crashed at the San Diego airport into power lines. She sues power company & city under 1346. Later she finds out that the FAA was really responsible for the crash. She amends her petition and refiles in federal court. She wanted to include a non federal defendant in the case with the FAA under pendent jurisdiction. Issue: Can a federal court exert pendant jurisdiction over a non federal defendant? Holding: NO. However, this was overruled later by the enactment of 1367 (Supplemental jurisdiction). Courts are forced to apply the Gibbs Test. Basic Rule: Court can exercise jurisdiction over state law claims where there is a federal law case or controversy at issue (e.g., a FQ) (UMW v. Gibbs suit against union for both federal-law and state law claims; court establishes the Gibbs test for hearing federal law and state law claims together) The Gibbs Test: A federal court can hear a state claim if: (a) The federal claim is substantial (b) The claims are the type that would ordinarily be expected to be heard in one action; this means the case involves: (i) A common nucleus of operative fact, and (ii) Is the type of suit that would be expected to be brought in one action RULE: 1367 allows a party to bring a non federal claim into federal court along with its federal question provided the claims are derived from a common nucleus of operative facts. How pendent jurisdiction works? 1. files claim in federal court under 1331 (federal question) 2. If the would like to tag a non federal question claim along with the federal question it may provided there is a common nucleus of facts. 2 Examples of Ancillary jurisdiction 1. v.
(federal question under 1331)

OR

2.

v.

1 (cross claims arising out of the 2 set of facts tied to 1331 claim)

(contract issue- non federal claim)

3rd party CHAPTER 2 IDENTIFYING FEDERAL QUESTION CASES (another example of gatekeeping over the federal courts 1. To bring a cause of actions into federal court, a claim must have: A. A Constitutional provision giving the federal court jurisdiction (i.e. Art III) B. A federal statute enacted by Congress giving the court jurisdiction (i.e. 1331) 2. Failure to meet these two requirements violates the Well-Pleaded Complaint Rule. Without satisfaction of the Well-Pleaded Complaint Rule, a federal court can not exercise jurisdiction. 14

3. Osborn v. Bank of the US : the case must have some federal statute tied to it. Federal law must be an ingredient in the cause of action. 4. Louisville & Nashville Railroad v. Mottley : To decide if a federal question is present, the courts can only look at the complaint (& make certain the complaint complies with the Well-Pleaded Complaint Rule). No claims based upon a anticaptory defense. 5. Skelly Oil v. Phillips Petroleum : A can not ask for declaratory relief under the Federal Declaratory Judgment Act unless there is actually a federal question involved. Contract disputes are not federal questions. Filing a claim under the FDJA that is not a federal question violates the Well-Pleaded Complaint Rule. 6. Harms v. Eliscu : While there are federal statutes (like the Copyright Act) that are exclusively federal questions, any claims for remedy must fall directly under the federal statute to comply with the Well-Pleaded Complaint Rule. If the claim is actually a contract dispute, and not actually a case of infringement, then there is no federal question involved. 7. Merrell Dow Pharmaceuticals v. Thompson : can not ask for remedy under a federal statute that is restricted to only claims by a federal agency only. If the federal statute only provides for public actions (claims brought by a federal agency), a can not bring a private cause of action. Such a claim would violate the Well-Pleaded Complaint Rule. Thus, no federal Question is present. 8. Finley v. US : Tag along non federal claims are acceptable. 1367 overrules this case and allows supplemental/ancillary jurisdiction. Non federal question claims can be brought along with federal question claims in federal court provided the claims are derived from a common nucleus of operative facts. __________________________________________________________________________

III.

THE DIVERISTY JURISDICTION & THE APPROPRIATE FEDERAL FORUM (another way to keep cases out of the federal courts) While Chapters 1 & 2 deal with 1331 (federal question) cases, Chapter 3 is about 1332 (diversity) cases 1332 believed to have been designed to protect s against states interests (local prejudice). There have been many attempts to abolish 1332: Arguments Against Diversity Arguments For Diversity a. Costly 1. prejudice would favor in-staters b. it clogs federal courts 2. Outcomes of federal cases will c. would free federal judges become more uniform- bad argument from hearing Erie cases because there will only be a shift where cases are filed w/o 1332 Central Rules of diversity: 15

1. 2.

Complete diversity of the parties is required : Strawbridge Non citizens are ok for diversity purposes: Sadat

A. The Determination of Citizenship 1. Sadat v. Mertes- citizenship is determined by where ones domicile is at the time the claims commences; to be a citizen under 1332, a party must be a citizen of the US & a state, too; foreign nationals are covered under 1332. Facts: Sadat was foreign national involved in car accident. He wanted to bring negligence claim but he had trouble declaring where his citizen was to bring suit in state court. Therefore, he filed in federal court claiming that under 1332 he should be allowed to suit as a foreign national. Issues: Can someone who is not a citizen of one of the United States bring suit under 1332? If not, where do foreign nationals bring suits? Holding: Sadat did not have diversity, but he was allowed to bring suit as a foreign national in federal court Leal Rules: 1. Citizenship is determined by domicile at the time the suit commences. 2. State citizenship = domicile 3. To establish a domicile of choice a person generally must be physically present at the location and intend to make that place his home for the time at least. 4. A domicile once established continues until it is superseded by a new domicile. 5. State citizenship = citizen of the US & of that state 6. 1332 covers foreign nationals B. Complete Diversity & Ancillary Jurisdiction- Note that Art. III does not require complete diversity. It was not until enactment of 1332 that complete diversity became are requirement. 1. Strawbridge v. Curtiss complete diversity is a must for diversity cases. Federal diversity can only exist in 2 situations: A. a party is an alien B. citizens of different states HYPO: (Tx) 1 (FL) 2 (Tx) = No diveristy

2. Treinies v. Sunshine Mining Co. Diversity under the interpleader statute may not be complete diversity, but they must be statutorily (sufficient) diverse : Diversity of citizenship is the basis of jurisdiction under 1335 (the federal interpleader statute). When compared with 1332, 1335 does not require complete diversity. RULE: if a case is filed under federal interpleader, it does not have to comply with 1332s complete diversity requirement. 16

 1332 (Basic diversity statute) complete diversity & $75K

vs.

1335 (Federal Interpleader statute) not complete diversity & claim over $500

Interpleader is common in shareholder and estate cases. Interpleader cases are where multiple parties state claims to property. The party holder property asks the court to help them resolved the dispute and turn-over the property to the right party. IMPORTANT: how 1335 interpleader works versus FRCP Rule 22 interpleader: Statutory Interpleader ( 1335) vs. Rule Interpleader (FRCP Rule 22) 1. Only 1 must be diverse from 1. Must have complete diversity 2. $500 amount of controversy 2. Shareholder must be diverse from all parties 3. $75K =amount in controversy Facts: An uncontroversial case of incomplete (but statutorily sufficient) diversity is presented when the (the interpleading party) is a citizen of state A & the defendants (the interpleaded parties) are citizens of states A, B, and C. The Court held that under the Interpleader Act, 28 U.S.C.S. 41(26), only diversity of citizenship between claimants is required. 3. Owen Equipment & Erection Co. v. Kroger- Impleader (3rd party claim). When an impleader action destroys the diversity between the parties, then ancillary jurisdiction is not available. Facts: Woman, Kroeger, brings a wrongful death action in federal court against a of diverse citizenship and then amended her complaint to include an impleaded third-party , Owens even though they were citizens of the same state. Issue: Can a federal court exercise ancillary jurisdiction over a s claim against a third party who is a citizen of the same state in a diversity case? Holding: NO. Ancillary jurisdiction is not that broad. 1332 requires complete diversity. Despite an agreement (Impleader) between the parties, SMJ can not be conferred by an agreement in District Court. 4. American Fire & Casualty Co. v. Finn. more Gatekeeping. SC says that 1441s intent was to reduce the number of cases removed to federal courts. Under 1441, if any claims could be held as separate and independent and removable to a federal court, then otherwise non-removable claims may be removed to the federal district courts. However, this only works if the federal district court could exercise original jurisdiction other the separate and independent claim to begin with. However, Finn limits the use of 1441 1. Originally, 1332 was designed to apply to natural persons only. Eventually, this changed and corporations were seen as entities like natural persons. So corporations, under 1332(c), are citizens of states where 1) they are incorporated and 2) where they maintain a principal place of business. 2. Suddenly under Finn, corporations could not enjoy the same exception to diversity that they had once had. 17

Facts: SC denied removal under 1441 in a suit by a Texas citizen agasint two out of state insurance companies and their local agent, who was also a citizen of Texas. The complaint had alleged that the two companies were alternatively liable for fire loss or that the agent was liable for failing to keep the property insured. Holding: The SC held that the claims against the diverse and non diverse parties were not separate and independent, because there had only been a single wrong to the a failure to pay compensation for the loss of the property. Under 28 U.S.C.S. 1441(c), a separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of action. Removal under 1441(c) is authorized only when there is a separate and independent claim or cause of action. Where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under 28 U.S.C.S. 1441(c). Impact of Finn: very few case are removable under 1441 C. Corporations & Associations are not treated the same as corporations or natural persons for diversity purposes. If a corporation is incorporated in all 50 states, chances are they can not file diversity suits, forced to file in state courts Purpose of 1331 & 1332 was to narrow the ways to get into federal court CRITICAL: what are the attritibutes necessary to get an association into federal court? Never look at the labels, follow the attritibutes! 1. Carden v. Arkoma Associates Partnerships citizenship is not based upon the general partners citizenship, instead it is based on all partners citizenship. Complete diversity is required between the parties to get into federal court. But, associations are treated like corporations for diversity purposes.
FACTS: Arkoma (Plaintiff - was a limited partnership under Arizona law) brought suit for a contract dispute in the U.S. District Court for the Eastern District of Louisiana, claiming diversity of parties for federal jurisdiction. Carden and Limes (Defendants- were citizens of Louisiana) moved to dismiss the suit because one of Arkomas limited partners was a citizen of Louisiana. When the ruling was appealed, the 5th Circuit & Court of Appeals found complete diversity citing that Arkomas citizenship must be determined based on the citizenship of the general partner, not the limited partners. Supreme Court reverses & remands case stating that complete diversity does not exist in this case.(rules against Arkoma)

ISSUE: Whether or not, in a suit brought by a limited partnership, the citizenship of the limited partners must be taken into account to determine diversity of citizenship among the parties? HOLDING: YES, each partner of a limited partnership must be diverse from the opposing party to support federal diversity in federal court.

Rules: 1. While the General rule that corporations are citizens of the state where they are incorporated is firm, that same rule does not necessarily apply to other forms of business entities (i.e. limited partnerships & associations). The rules for determining citizenship of a corporation are not the same as the rules for determining citizenship of other forms of business entities in diversity cases. 2. Citizenship for diversity purposes of associations and limited partnerships is determined by the citizenship of each member, not the member who exerts the most control. 18

Other Rules: 1. Supreme Court has held that local governments are citizens of a particular state under 1332. However, it has held that counties and school districts are not citizens. 2. 1348 of the Judicial Code says national banks are citizens of the States in which they are respectively located. Court held that federally incorporated credit union is citizen of the state in which it is incorporated. 2. Kelly v. US Steel Corp. The general rule is that corporations citizenship is based on: 1) where the corporation is incorporated & 2) where the corporation has its principal place of business. However, Kelly suggest that courts should apply a balancing test to decide which of these approached to apply.
FACTS: From a series of cases, brought by citizens of Pennsylvania, from the Western District Court for Pennsylvania where judgment was for the defendant (US Steel Corp) because no diversity of citizenship existed. Under 1332 (c) & 1441, a corporations citizenship if based on : 1) where the corporation is incorporated or 2) where the corporation has its principal place of business. The General Rule for (principal place of business) PPB is: Corporation gets charter in one state yet does all of its business operations in another state. ISSUE: Whether or not the US Steel Corporation has its principal place of business in Pennsylvania? HOLDING: YES, US Steels Nerve Center is Pennsylvania, not NYC. The Operation Policy Committee sits and conducts business in Pennsylvania. The Board of Directors has delegated most tasks to the Committee. The Committee appoints most of the officers. 16 of 17 VPs are located in Pennsylvania. 34% of US Steels employees are located in Pennsylvania. There are some less important factors that lead to the conclusion that Pennsylvania is the PPB. There are 25 times more employees located in Pennsylvania as are located in NYC. More than 1/3 of corporate property is located in Pennsylvania, as opposed to NYCs less than 1%. KEY: Pennsylvania is where the day-to-day operations are conducted.

RULES: 1. The court looks at the factors used to decide where a corporations principal place of business is? (the PPB test) a. Place where shareholders meet is not PPB. b. Place where the Board of Directors meet is insufficient to be the PPB. c. Place where physical activity is carried on is not adequate to meet the PPB test. d. The PPB should be the Nerve Center of a corporation. e. Where a corporation files its tax return is not PPB. HYPO: Oil company, based in Houston, purchases a vinery in Napa. Are they citizens of TX or California? Answer: both, but you must break down the nerve center test 3. Majewski v. NY Central Railroad Co. overrules the Forum doctrine. Enactment of 1958 amendment ( 1332(c)) sets in place the multistate incorporation rule. Multistate incorporation rule provides corporations are deemed to be citizens where they are being sued. In other words, corporations incorporated in multiple states are citizens if they incorporated in that state where the suit is filed. Therefore, there can not be diversity in those cases. 19

ISSUE: Whether or not a court can transfer a federal case when such a transfer would destroy diversity between the parties? HOLDING: No, the court can not transfer a federal case based on diversity of parties to a forum which would destroy the diversity. This case could not be brought in Michigan because there would be no diversity of the parties. NY Central RR was a citizen of Michigan, while Majewski was, too! At the commencement of the cause, there was diversity of the parties: Majewski (Michigan) and NY Central RR (Illinois).When NY Central RR asked for the case to be transferred to Michigan, there was no authority for such a transfer and the effect of the transfer would destroy diversity of the parties. The Illinois court may deny NY Central RRs motion to dismiss and return the case back to the original Illinois court.

RULES: 1. A corporation is a citizen of any state in which it is incorporated. 2. If a P sues a corporation in his own state who is incorporated in other states, there is no diversity. 3. Under 1404 (a), for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 4. Bottom of page 281 Multi-state incorporated corporations are deemed to be citizens where they are being sued. 4. Diesing v. Vaughn Wood Products, Inc. - Under 1441, a corporation is a citizen of any State by which it has been (BOTH) incorporated and of the State where it has its principal place of business. When a corporation is only a citizen of another state from the one where it is incorporated, there can not be diversity. Even if a corporation has its principal place of businss located in a different state, it is not a a citizen of that state unless it is incorporated there, too!
FACTS: Diesing, a citizen of Nebraska & president of the Vaughan Wood Products (a corporation chartered under Nebraska law) won a judgment against the Vaughan for attorney fees ($102K) in Nebraska county court. Vaughns principal and only place of business is in Virginia. Diesing goes to Virginia to levy (collect) on Nebraska judgment. Diesing attempted to use the Nebraska ruling (under the Full faith and credit clause of 28 U.S.C. 1738) to secure another judgment against the Vaughn in Virginia, alleging that Vaughan Wood Products was a citizen of Virginia under 1332 (c) ISSUE: Whether or not diversity of parties can be achieved when a Defendants principal place of business rests in a different state from the state where the Defendant is incorporated? HOLDING: NO, there is no diversity in this case, the Court is without jurisdiction, and the motion to dismiss in granted. Diesing and Vaughan Wood Products are citizens of Nebraska. Vaughan is not incorporate in any other state. Vaughan is not a multi-state incorporated defendant; instead it is a multi-state citizenship defendant. The Court has long held that diversity can exist when dealing with multi-state incorporation defendants. Such defendants voluntarily become citizens of states where they incorporate under state law. The purpose of 1332 was to restrict federal diversity, not expand it. To allow diversity in these case would allow every Nebraska citizen and every citizen of any other state to sue Vaughan in Virginia. However, Vaughan may not be incorporated in those other states. Such an interpretation of 1332 would be unfair to Vaughan because it would allow citizens to sue in Virginia (on diversity grounds) despite Vaughan not doing business in their states.

RULES: 1. Under 1441, a corporation is a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. 2. Under 1332 (c), the corporation does not by having its principal place of business in a state other than the state of incorporation become a corporate entity of that state; it 20

merely becomes a citizen of that state for the purpose of diversity of citizenship when jurisdiction in a federal court is invoked. 5. Smith v. Sperling court attempts to realign the parties. When shareholders suit officers of a corporation for alleged misconduct, the corporation does not become the plaintiff in the case. Diversity remains in cases where a shareholder brings suit against management for waste.
Smith (NY) (shareholder) - Sperling (Calif) (director) - Warner Bros. (Delaware Corp) - United States Pictures (Delaware Corp)

FACTS: Stockholders derivative suit filed in California based on diversity of citizenship alleged fraudulent waste of assets of Warner Bros. Pictures (WB). Sperling (D) was the son-in-law of a Warner Bros director and president of United States Pictures. The suit alleged Uniteds deals with WB were unfair to WB. No demand on the directors of WB was made since the majority of the Board of Directors approved the contracts between WB & United. KEY: It is argued that since the stockholder (Smith) basically is trying to enforce the rights of the corporation (WB), then the corporation (WB) becomes the plaintiff in this case because their interests are not antagonistic. If this turned out to be true, then there would be no diversity in this case per Strawbridge. (it would be one Delaware corporation versus another Delaware corporation). If there had been evidence of fraud by the officers of the corporation, instead of simply bad business judgment, then the officers (management) would have been antagonistic to that of the corporation. Since there was no evidence of fraud or misconduct, the corporation become the and no diversity rests in this case. Court applies Erie Doctrine and asserts state law over the case. If there were issues of fraud, then federal law would apply. However, since there are no issues of fraud, state law applies. ISSUE: Whether or not diversity is maintained when a stockholder asserts a stockholder derivative suit? Does a target corporation become the plaintiff in a stockholders derivative suit? HOLDING: No, the target company of a derivative suit does not realign to the plaintiff side and therefore, does not destroy diversity of the parties.

Court says the test is antagonism. Look at the pleadings, if there is antagonism, then there is diversity. If no antagonism, there no diversity. RULES: 1. In stockholder derivative suits; whenever the management of a company refuses to take action to undo a business transaction or whenever it so solidly approves it that any demand to rescind would be futile, antagonism is evident. Therefore, it is proper for the target company to remain as a defendant for purposes of determining diversity of the parties 2. Absent collusion, there is diversity jurisdiction when the real collision of issues. Diversity jurisdiction exists in derivative suits where the stockholder and company management disagree. Therefore, the target company can not be realigned as a plaintiff. 6. The Jurisdictional Amount a. Synder v. Harris the federal courts can not bend 1332 diversity requirement of the amount in controversy for class action suits. There can be no 21

aggregation of claims to achieve diversity. When there are two or more claims, they must meet the jurisdictional amount on their own.
FACTS: 1332 grants federal jurisdiction when suits are between citizens of different states and the amount in controversy exceeds $10,000. (Snyder) brings suit against - BODs of Missouri Fidelity Union Trust Life Insurance Co. in Eastern District of Missouri alleging that they sold their shares of company stock at amount far in excess of fair market value, in order to obtain complete control of the company and under Missouri law, the amount in excess should be distributed to the shareholders. Diversity alleged by despite amount of controversy was only $8740. However, argues that that amount will increase when other stockholder file based on the class action suit. (Potential amount in controversy would be $1.2 million then).Coburn alleges that the D billed and illegally collected a city franchise tax from Coburn & others. Coburn damages were only $7.81. But he alleges more than 18,000 potential s in class action. Amount in controversy is unknown, but believed to exceed the $10,000 requirement. ISSUE: Whether or not separate and distinct claims presented by and for various claimants in a class action may be added together to provide the $10,000 jurisdictional amount in controversy? HOLDING: No. There can be no aggregation of claims in class action suits to satisfy the jurisdictional amount required for diversity.

RULE: When there are two or more s, they must independently satisfy the jurisdictional amount required for diversity. Note: counterclaims can not be included to satisfy the amount in controversy 7. VENUE PROBLEMS: The Place of Trail & the Supreme Courts Original Jurisdiction. The 3 threshold requirements for all federal cases: 1. SMJ 2. PJ- M/C required & service is necessary 3. Venue a. In criminal cases, venue is proper where offense occurred b. Interpleader cases= venue is proper where one or more of the resides a. 1391 The federal venue statute : 1. Diversity cases: a. where any resides b. where a substantial part of the events or omissions giving rise to the claim occurred. c. Where the is subject to PJ (only a fallback provision) 2. Federal Question cases: a. the resides or b. where claim arose 3. Any corporation is deemed to reside in any district where it is subject to PJ at the commencement of the case. 4. An alien can be sued in any district.

22

b.

1441 actions filed in state courts are removable to federal district courts located within the state where the action was filed.

c. FNC- 1404(a) By consent or stipulation of the parties, transfer to another division is possible at the courts discretion. However, the law of the original forum will apply after the transfer.

CHAPTER III RECAP: WAYS THE FEDERAL COURTS USE DIVERISTY & VENUE TO GATE-KEEP 1. 1332 (Diversity) intended to reduce the amount of cases filed in federal courts 2. Sadat v. Mertes: Citizenship is determined by where ones domicile is at the time the claims commences; to be a citizen under 1332, a party must be a citizen of the US & a state, too; foreign nationals are covered under 1332 . 3. Strawbridge v. Curtiss: 1332 makes complete diversity a must. 4. Treinies v. Sunshine Mining Co. Diversity under the interpleader statute may not be complete diversity, but they must be statutorily (sufficient) diverse : Diversity of citizenship is the basis of jurisdiction under 1335 (the federal interpleader statute). When compared with 1332, 1335 does not require complete diversity. RULE: if a case is filed under federal interpleader, it does not have to comply with 1332s complete diversity requirement. $500 for 1335 case vs. $75K for 1332 case 5. Owen Equipment & Erection Co. v. Kroger- Impleader (3rd party claim). When an impleader action destroys the diversity between the parties, then ancillary jurisdiction is not available. 6. American Fire & Casuality v. Finn : Under 1441, if any claims could be held as separate and independent and removable to a federal court, then otherwise nonremovable claims may be removed to the federal district courts. However, this only works if the federal district court could exercise original jurisdiction other the separate and independent claim to begin with. However, Finn limits the use of 1441 1. Originally, 1332 was designed to apply to natural persons only. Eventually, this changed and corporations were seen as entities like natural persons. So corporations, under 1332(c), are citizens of states where 1) they are incorporated and 2) where they maintain a principal place of business. 2. Suddenly under Finn, corporations could not enjoy the same exception to diversity that they had once had. 7. Corporations are treated differently from natural person in terms of diversity: intent is to reduce the amount of cases filed in federal courts. 23

A. Carden v. Arkoma Associates Partnerships citizenship is not based upon the general partners citizenship, instead it is based on all partners citizenship. Complete diversity is required between the parties to get into federal court. But, associations are treated like corporations for diversity purposes. 1. Supreme Court has held that local governments are citizens of a particular state under 1332. However, it has held that counties and school districts are not citizens. 2. 1348 of the Judicial Code says national banks are citizens of the States in which they are respectively located. Court held that federally incorporated credit union is citizen of the state in which it is incorporated. B. Kelly v. US Steel Corp. The general rule is that corporations citizenship is based on: 1) where the corporation is incorporated & 2) where the corporation has its principal place of business. However, Kelly suggest that courts should apply a balancing test to decide which of these approached to apply. Leal says look at the attributes. Always does PPB analysis. C. Majewski v. NY Central Railroad Co. overrules the Forum doctrine. Enactment of 1958 amendment ( 1332(c)) sets in place the multistate incorporation rule. Multistate incorporation rule provides corporations are deemed to be citizens where they are being sued. In other words, corporations incorporated in multiple states are citizens if they incorporated in that state where the suit is filed. Therefore, there can not be diversity in those cases. D. Diesing v. Vaughn Wood Products, Inc . - Under 1441, a corporation is a citizen of any State by which it has been (BOTH) incorporated and of the State where it has its principal place of business. When a corporation is only a citizen of another state from the one where it is incorporated, there can not be diversity. Even if a corporation has its principal place of business located in a different state, it is not a citizen of that state unless it is incorporated there, too! E. Smith v. Sperling court attempts to realign the parties. When shareholders suit officers of a corporation for alleged misconduct, the corporation does not become the plaintiff in the case. Diversity remains in cases where a shareholder brings suit against management for waste. Court says the test is antagonism. Look at the pleadings, if there is antagonism, then there is diversity. If no antagonism, there no diversity. 8. Synder v. Harris the federal courts can not bend 1332 diversity requirement of the amount in controversy for class action suits. There can be no aggregation of claims to achieve diversity. When there are two or more claims, they must meet the jurisdictional amount on their own. 9. Venue in federal courts: A. 1391 The federal venue statute : 1. Diversity cases: 24

a. where any resides b. where a substantial part of the events or omissions giving rise to the claim occurred. c. Where the is subject to PJ (only a fallback provision) 2. Federal Question cases: a. the resides or b. where claim arose 3. Any corporation is deemed to reside in any district where it is subject to PJ at the commencement of the case. 4. An alien can be sued in any district. B. 1441 actions filed in state courts are removable to federal district courts located within the state where the action was filed. C. FNC- 1404(a) By consent or stipulation of the parties, transfer to another division is possible at the courts discretion. However, the law of the original forum will apply after the transfer.

IV.

THE APPLICABLE LAW When there are conflicts of law, which law applies? A. The Erie Doctrine When exercising diversity jurisdiction ( 1332), the federal judge is to hear state law issues If federal & state law are the same, application will not matter If there is a conflict, then Erie kicks in: KEY: federal law will only kick in when there is a federal statute present. Outcome-determinative Test: is there an overriding federal interest. If yes= federal law applies. If not = state law applied In Swift v. Tyson; federal judges could create federal common law (contrary to the Federal Judiciary Act of 1789). Impact: federal CL would create uniformity in the law. However, Judiciary Act of 1789 34, says federal judges should apply state laws unless Congress enacted specific statutes & 1652 says the same thing.

In diversity suits: if federal judge looks at which law to apply: 1) apply federal law Or 2) apply state law If the federal & state law are in conflict: I) Is there a federal statute on point: A. Yes apply it or B. No- apply Erie 25

II)

Outcome determinative test A. YES B. NO Overriding federal interest? A. Yes= create or apply federal CL B. NO- Erie Applies

III)

2. Erie Railroad Co. v. Tompkins

FACTS: Tompkins ( from Penn.) brought negligence action against The Erie Railroad Company (NY) in the Southern District Court of NY under diversity jurisdiction after he was injured when a protruding door from a moving train struck him as he walked near railroad tracks. He was rightfully on the premises as a licensee because of a beaten path that ran aside the train track. Erie argued that it only owed Tompkins the same duty of care as if he were a trespasser and application of Penn. state law. Under Penn. law, persons walking besides railroad tracks are trespassers and the railroad maintains no liability. 1)Tompkins = trespasser 2)Penn law applicable under 34 of the Federal Judiciary Act of 1789 (now 1652) - which states that unless federal statute or the Constitution provide otherwise, state law is applicable in cases of CL. 3)As trespasser under Penn law = no duty to Tompkins 4)No liability Tompkins argued that Penn. courts did not support such a rule and because no Penn. statute governed this area that the federal court could decide the duty & liability as a matter of general law. 1)No Penn. exists over trespassers 2)Case should be decided under federal CL Procedural History: Trial judge refused to rule that the applicable law precluded recovery. The Circuit Court affirmed that the court did not need to decided whether Penn. state law was as argued by the parties, instead the case should be decided under federal CL. The Court ruled in favor of Tompkins, placing liability on the Erie Railroad Co. ISSUES: 1) Whether or not the Swift v. Tyson decision should be overruled? 2) Whether or not the federal court should apply state law in diversity cases or apply federal CL? HOLDING: Swift v. Tyson is overturned. There is no longer federal CL. In diversity cases, the federal court should follow federal civil procedure, but it should apply substantive state law when deciding the case. Application of 34 offends the US Constitution. RULES: 1. There is no federal CL. 2. The Swift doctrine is overturned. 3. When deciding diversity cases, federal courts must apply substantive state law.

3. Guaranty Trust Co. v. York

FACTS: - Guaranty Trust (trustee and creditor) moved to enforce the rights of note holders and itself of Van Sweringen Corp. in a plan to purchase outstanding shares of Van Sweringens stock to help it meet the corporations obligations. York ( who was a donee of a Van Sweringen note holder/ who had rejected Guarantys offer to buy back Van Sweringens note) filed a suit in equity

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in New York District Court alleging that Guaranty failed to protect the interests of fellow note holders and failed to disclose Guarantys own self-interests in the purchase. Court notes that it has a policy of applying state law in federal diversity jurisdiction cases, whether the case is a case at law or a suit in equity. Over the last 100 years, this rule was thought to be purely declaratory, now it is strictly followed. 1. Purpose of this rule: to provide uniform equitable relief. 2. In the Judiciary Act of 1789, Congress gave the federal courts cognizance of equity suits. 3. But Congress never gave and federal courts never seized the power to create substantive rights by denying state law. (IF a state law existed, federal courts could not override it) ISSUES: 1)Whether or not, when statute of limits barred recovery in State court, could a federal court provide an equitable remedy in diversity jurisdiction cases? 2)Can federal courts overlook state laws that govern remedies at the state level in equity cases? 3)Is state law governing the statute of limitations a Procedural or Substance type issue? HOLDING: No. Federal Courts may not offer equitable relief in diversity jurisdiction cases that is not already offered by state law. It is immaterial whether or not statute of limitations issues are either Procedural or Substantive. The Erie doctrine has universal application to diversity cases, whether they are cases at law or cases in equity. Federal diversity cases must follow applicable state law. The sole purpose of the diversity jurisdiction is to prevent local bias. To allow out-of-state litigants another remedy (via federal diversity suits) would swing the scales of justice the opposite way. RULES: 1)The Erie doctrine applies to all diversity cases in federal courts. The federal court must decide diversity cases based upon applicable sate law. 2)In equity cases, state law is applicable as to substantive rights and remedies. 3)A plaintiff may not bring equity suit in federal court under diversity, if applicable state law prevents recovery through a statute of limitations provision.

4) TEST: outcome determinative test- courts will not stick to labels on substantive or procedural law. Procedural laws tell us how to apply the law. Here, NY SOL law is substantive. Thus, under the test, Federal court can not overlook the impact of the state law. 4. Hanna v. Plumer
FACTS: Ohio resident files suit against the executor of a deceased Massachusetts man for injuries from an auto accident in South Carolina in Massachusetts federal District Court under diversity jurisdiction. served under FRCP 4 (d) (1) by serving the summons & complaint on the deceased mans spouse. However, this service did not comply with Mass. state law requiring service to only be upon the deceased or his executor. Mass. District Court and Court of Appeals ruled that the service was invalid under Mass. state law and dismissed the case. ISSUES: 1)Whether or not service of the parties must comply with Federal Rules of Civil Procedure [4 (d) (1)] in diversity jurisdiction cases? 2)Does the Federal Rules of Civil Procedure [4 (d) (1)] governing service exceed congressional powers? HOLDING: No. Rule 4 (d) (1) defining service under the Federal Rules of Civil Procedure does not exceed congressional powers under the Rules Enabling Act 2072 or constitutional bounds and it is the standard for service in all diversity cases. State laws governing service of process are not applicable in federal diversity cases. The test is whether or not a federal court regulates practice or

27

procedure. If the courts do regulate the practice, then federal law applies. If the court does not regulate the practice, then state law applies. The Outcome-determination of Erie was never meant to apply to procedural rules. Erie was designed to prevent forum shopping and inequitable administration of justice. Erie never dealt with a federal rule; it resolved the dispute of what substantive law applied to that case. RULES:

1) Under 2072 (The Rules Enabling Act), service of process must comply with the Federal Rule of Civil Procedure - Rule 4 in diversity cases. 2) The Erie Doctrine only applies to substantive law, not procedural law, in diversity cases. 3) The Erie Rule may not void a federal rule. 5. Klaxon Co. v. Stentor Electric Mfg. Co.
FACTS: In 1918, respondent (NY) transferred its entire business to petitioner (Delaware). Agreement formed whereby petitioner agreed to continue to manufacture and sale the respondents patented devices to the best of its efforts. In turn, the respondent would receive a share of the petitioners profits. Agreement was executed in NY and assets transferred to NY. Respondent business was dissolved in 1919. Respondent filed diversity jurisdiction suit in Delaware District Court for failing to perform its best efforts.In 1939, Respondent won recovery for $100K, and then asked for interest on their recovery under NY state law ( 480). District court agreed and awarded the interest stating this was a case governed by NY state law. Circuit court affirmed District Court decision. ISSUES: 1)Whether or not in diversity case, the federal courts must follow conflicts of laws prevailing in the states in which they sit? 2)Whether or not 480 of NY Civ Pro Act is applicable to an action in the federal court in Delaware? HOLDING: YES. When

there are conflicts is substantive state law in diversity jurisdiction cases, the federal court should apply the substantive state law from the state where the court resides. This is a breach of contract issue which normally is a
substantive state law matter. Outcome of the case should be based on the place of performance.

Erie extends to conflicts of law. Whenever, there is a conflict of two different states law on a
subject in a diversity case, the state law where the federal court is located should be applied to the case. Otherwise, the equal administration of justice would to be served. Any lack of uniformity created by this notion is acceptable under the states rights to set their own laws. RULES:

1. Whenever, there is a conflict of two different states law on a subject in a diversity case, the state law where the federal court is located should be applied to the case.
2. Erie extends to conflicts of law

B. The Federal Common Law 1. Clearfield Trust Co. v. US- court goes back and says despite Erie, there is some federal common law. There is federal CL on commercial paper. 28

FACTS: In 1936, a check was drawn on the US Treasury through the Federal Reserve Bank of Philadelphia to the order of Clair A Barner for $24.20 for services rendered by Barner to the Works Progress Adm. An unknown party forged Barners name on the check and used it to pay for cash & goods at J.C. Penny. J.C. Penny then endorsed it over to Clearfield Trust Co. who endorsed it over to the Federal Reserve Bank. Neither Clearfield nor J.C Penny had any knowledge of the forgery. The forgery only became apparent once Barner reported to WPA tat he did not receive a check and once the US Treasury asked Clearfield for reimbursement for the forged check. US govt brought suit against Clearfield as a express guaranty of prior endorsements under 24(1) of the Judicial Code (now 1345) The District Court held the rights of the parties should be decided under Penn. law. & since the US govt unreasonably delayed giving notice of the forgery to Clearfield that it was barred from recovery. The Circuit court reversed. ISSUE: Does the Erie Doctrine apply conflicts of law cases that do not rest on diversity jurisdiction? HOLDING: No, federal courts are free to decide non-diversity cases upon federal common law. The SC agrees with the Circuit Court that Erie does not apply to this case. The check issued was done so under federal law and authority, governed by federal commercial paper law, not state law. Anytime the US govt issues money it does so under its direct Constitutional powers. State law has no application here. Since there was no federal law specifically on-point on the subject, it is acceptable for federal courts to create their own common law answer for this case. When state law sets in conflict with federal commercial paper law, the federal courts are free from application of state law. Application of the state law would create a lack of uniformity. The court can fashion its answer after Swift v. Tyson RULES:

When a non-diversity case with conflicts of law exists between federal common law and state law, the federal common law is applicable.

2.

Bank of America v. Parnell federal CL applies only to public cases, not to private cases involving commercial paper
FACTS: Bank of America () alleged diversity in suit in Western District Court of Penn. against Parnell (), Rocco, the First National Bank in Indiana, & the Federal Reserve Bank of Cleveland for converting 73 Home Owners Loan Corp. Bonds which belonged to Bank of America . The bonds were bearer bonds with maturity in 1952, but they had been called on May 1, 1944. On May 2, 1944, the bonds disappeared. In 1952, Parnell presented the bonds to the First National Bank for Rocco. The First National Bank then presented the bonds to the Federal Reserve Ban in Cleveland for payment. Cashiers checks were issued to all the paying parties. The trial issue was whether or not Parnell and Rocco took the bonds in good faith, without knowledge or notice of the defect in title. The TC ruled for the petitioner. The Circuit Court relied on Clearfield Trust case, holding that the federal law places a burden of proof on the petitioner to show notice & lack of good faith by the respondents. The court found no evidence of bad faith by First National Bank since the bonds were not overdue as a matter of federal law when presented to it & the court entered judgment for the First National Bank. The Court found evidence of bad faith by Parnell but ordered a new trial because of bad instructions ISSUE: Whether or not federal common law applies disputes between private parties in commercial paper cases? HOLDING: NO. Private transactions, between private parties, are covered by state law, instead of federal common law. The Circuit case wrongly decided that Clearfield Trust was controlling in this case. Clearfield was about US govt securities generated by the US govt under the Constitution. This case deals with securities between private parties. For that reason, it is different from Clearfield.

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That is not to say that all commercial paper cases between private parties are beyond federal court jurisdiction. However, this was a private transaction between private parties. Therefore, state law should apply under Erie. Here, Penn. state law should apply, not federal common law. RULES:

Where transactions are among private parties involving commercial paper; state law applies, not federal common law.
DISSENT: Clearfield does apply to all commercial paper transactions, public & private. The Court creates a non-uniform law.

3.

Banco Nacional De Cuba v. Sabbatino Cases involving the Act of State doctrine are uniquely within federal CL & Erie does not apply.
FACTS: Farr, Whitlock, & Co, American commodity broker, contracted to purchase sugar from a Cuban corporation (subsidiary of CAV) which was owned mostly by Americans . After Eisenhower ordered a reduction in imports of Cuban sugar and on the day the sugar was being loaded abroad a ship destined for the US, the Cuban govt seized all property of certain US companies, including CAV. Farr, Whitlock, & Co. entered into a contract with a Cuban agency, who assigned its rights to Banco Nacional de Cuba. Banco Nacional de Cuba sued Farr, Whitlock, and Sabbatino (Receiver of CAV) to establish its right to the contract price. District Court held that it was entitled to disregard the expropriation decree because it was retaliatory, discriminatory, etc. The COA affirmed. The Acts of State doctrine is not created in the Constitution or international law. Instead it arises out of the separation of powers doctrine between the Executive and Judicial branches of government. It is based on the concept that judicial rulings on the acts of foreign govts may impact the Executive branchs power over foreign policy. The doctrine is uniquely federal in nature. If left to the states, they may have several different versions creating conflicts of interests for the entire country. (It would be like having no federal policy on the subject .if states were allowed to form policy). The court never considered the Acts of State rule when deciding Erie. ISSUE: Whether or not federal courts could reverse the act of state doctrine, precluding the courts from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory? HOLDING: Yes. The federal courts may step in and set aside the rule on the Acts of State doctrine. Federal courts have been able to create common law when dealing with federal interests, federal statutes, and interstate commerce outside of state boundaries. In Hinderlider v. LaPlata River Co., the SC said that the federal powers have the power to decide cases involving interstate commerce that develop on the water outside state boundaries. This approach could be changed by Congress. But, for now, cases involving the act of state doctrine are uniquely federal in nature. RULES: Cases

involving the Act of State doctrine are uniquely within federal

common law.
NOTE: In reaction to Sabbatino, Congress enacted the Hickenlooper Adm. forbidding US courts to invoke the act of state doctrine without executive prodding in any case of foreign confiscation of property.

4.

Transamerica Mortgage Advisors, Inc. v. Lewis- Its acceptable for federal courts to step in and create solutions when federal statutes leave gaps
FACTS: The Investment Advisers Act of 1940 was enacted to deal with abuses in the Investment advisors industry. Lewis, shareholder Mortgage Trust of America Trust, brought suit against , Transamerica Mortgage Advisors, in Federal District Court alleging fraud and breaches of fiduciary duty. The TC ruled the Investment Advisers Act of 1940 gave no grounds for relief and ruled for

30

Transamerica. However, the COA reversed for Lewis. Nowhere in the Act is there expressly relief given for victims of Act violators. However, 209 of the Act allows the SEC to bring suit for violations. It was argued that since the clients of investment firms are the intended beneficiaries of the Act, it is therefore implied that the courts can offer these clients relief under the Act. ISSUE: Whether or not The Investment Advisers Act of 1940 creates a private cause of action for damages or other relief for parties who allege they have been harmed by advisors in violation of the Act? HOLDING:YES. The Act does create a limited private remedy to void contracts with investment advisors, but it does not create any type of cause of action for damages. To decide whether or not a statute creates a cause of action is a question of statutory construction. The court must look at Congress intent to decide whether or not a cause of action is created. - HOLDING: Congress did not intend there to be monetary damages in private causes of action under this Act. If they did, they would have said so. - HOLDING: 206 was designed to prohibit certain behavior by a financial advisor, but it was not designed to create damages on the behalf of the victims. RULES: 1) The federal courts can create causes of actions and remedies under federal statutes based upon Congress intent. 2) Where statute expressly provides a particular remedy or remedies, a court must be cautious of reading others into it. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.

C. Remedies Against Govt Officials 1. Monroe v. Pape 1983 cases against govts for violation of constitutional rights 1983 is no jurisdictional statute, creates a cause of action for a person, acting under the color of law, is liable only 1331 or 1343 can give federal jurisdiction but under an exception to 1983, cant attack state court judgment 1983 was direct reaction to KKK, law enforcement was ineffective to control violence ( 1983 designed to change relationship between federal govt & state govt). Senate & Congress wanted federal courts to step in and cure the states weaknesses. For almost 50 years, there was no 1983 litigation because Southern judges bowed down to the KKK Monroe v. Pape signaled a change to all that IN 1978, 1983 litigation got even bigger because Congress amended the Act to allow recovery for AFs

FACTS: Case involves question of the construction of R.S. 1979, 42 U.S.C. 1983 Every person subjects themselves, under the color of law, to liability when they deprives another of their Constitutional rights. Monroe alleges that 13 Chicago police officers broke into his home in early AM (CONDUCTING A WARRANTLESS SEARCH), forced them from bed, and made them stand naked in the living room while the police ransacked the entire house. (Emptying drawers and ripping mattress covers.) Monroe further alleges that he was taken to the police station & detained for over 10 hours (DESPITE THTER BEING NO ARREST WARRANT served upon him) and interrogated about a two day old murder. He asserts that he was not taken before a magistrate or allowed to phone his

31

family or attorney and eventually was released from jail without charges being filed. He asserts that all of this was done under the color of the statutes, ordinariness, regulations, customs, and usages of Illinois & the City of Chicago. Monroe claimed federal jurisdiction under R.S. 1979, 28 U.S.C. 1343 & 28 U.S.C. 1331. The City of Chicago moved to have the case dismissed on the grounds that it was not liable under the Civil Rights Acts or for acts committed in performance of its govt functions. All s moved to have the case dismissed alleging the complaint alleged no cause of action under those Acts or under the US Constitution. The District Court dismissed. The COA affirmed. The Monroe's claims the invasion & search of their home was warrantless and the arrest & detention of Mr. Monroe without warrant and w/o arraignment was a deprivation of their rights, privileges, or immunities under the Constitution as defined under R.S. 1979. Purpose of 1979: was designed to create a federal provision enforcing peoples 14th Adm. rights and giving grounds for prosecuting for violations of peoples 14th Adm. rights. Allegations of a deprivation under the color of state authority is enough to constitute a violation of R.S. 1979. And the 14th Adm. protects persons from unreasonable searches and seizures by the States. The federal courts have the power to enforce the 14th Adm, especially when such violation is a result of State action. ISSUE: Whether or not Congress intended to give parties a remedy to any deprivation of their constitutional rights, privileges, or immunities by an officials abuse of his position? HOLDING: YES, Congress did intend to give parties a remedy for any deprivation of their constitutional rights, privileges, or immunities by an officials abuse of his position. It is argued that police were not operating under the color of the law when they violated the Constitution or any other laws. (The state gives the police no extra power to violate others rights under the color of law). In fact, the more appropriate remedy to redress such a violation is under Illinois state law for violence done to a person. Illinois state law prevents such redress. The Court looks at the purpose behind 1979: 1. 1979 was meant to override state laws which endanger the rights or privileges of colored people 2. 1979 provided a remedy where state law was inadequate. 3. 1979 provided a federal remedy where state remedy, might be adequate in appearance, but inadequate in practice. Congress found that often remedies offered by state laws were not enforced by courts or juries in certain statesallowing for violations of persons 14th Adm rights under the color of State authority.

RULES: 1. Under 1979, a person need not pursue a state remedy before seeking a federal remedy. 2. The creation of state law barring the violation of ones Constitutional Rights does not prevent that person from bringing an action in federal courts for such a violation. 3. A State or local govt can not be held liable for inaction in cases involving 14th Adm violations. 2. Monell v. Dept. Social Services
FACTS: Petitioners were a class of female employees of the Department of Social Services and the Board of Education of the city of NY. The female employees sued the Services and the Board under 1983, claiming that the Services and the Board, as a matter of official policy, compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. They additionally sued the Department Commissioner, the Chancellor of the Board, the city of NY and its mayor. The T/C denied their complaint because the damages they sought would ultimately come from the city of NY and to hold otherwise would circumvent the immunity conferred on municipalities from private lawsuits by Monroe v. Pape.

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Analysis: The court stated that in Monroe, the Court held that Congress did not undertake to bring municipal corporations within the meaning of 1983. This holding came from an inference drawn from Congress rejection of the Sherman Amendment to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor to 1983. That amendment imposed liability to municipal corporations for damage done to the person or property of its inhabitants by private person riotously and tumultuously assembled. The holding also came from inferences drawn from the House of Representatives when it voted the amendment down on the premise that Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law. The Court pointed out, however, that a fresh analysis of the views both for and against the amendment shows that Monroe incorrectly equated the obligation of local units to keep the peace by creating police forces with the imposition of civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment. The Court also alluded to the doctrine of sovereign immunity, which puts no limit on the power of the federal courts to enforce the Constitution against municipalities that violated it & indicated that noting said during the Sherman debates would have prevented holding a municipality liable under 1 of the Civil Rights Act for its own violation of the 14th Amendment. The court stated that what remains to establish is whether 1 was intended to cover legal as well as natural persons. The Court mentioned Rep. Bingham, who while discussing 1 of the bill said that he drafted 1 of the 14th Amendment while thinking of Barron v. Mayor of Baltimore, the case where the city took private property w/o compensation & offered no redress for the wrong. Hence, Court held, takings by cities would be redressable under 1 of the bill. In further support of this argument, the Court stated that by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of statutory and constitutional analysis. It added that, two years prior the debates on Civil Rights Act, in Cowles v. Mercer County, the principle that corporations were to be treated as natural persons was applied to municipalities by way of Louisville v. Letson (1844). The Court held that a municipality cannot be held liable on the principle of respondeat superior as creation of federal law in this regard would have raised all the constitutional problems associated with obligation to keep the peace, an obligation that Congress did not impose because it is unconstitutional. However, it held that the language of 1984 compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. HOLDING: The Supreme Court reversed the appellate court's decision, finding that municipal corporations were persons who could be sued under the statute when execution of an official government policy or custom inflicted the constitutional violation, but municipal corporations could not be liable under a respondeat superior theory. Petitioners' claims involved an official policy and required reversal. RULES: The United States Supreme Court (the Court) overruled Monroe v. Pape, 365 U.S. 167, insofar as it held that local governments are wholly immune from suit under 42 U.S.C.S. 1983. However, the Court upheld Monroe v. Pape, 365 U.S. 167, insofar as it held that the doctrine of respondeat superior is not a basis for rendering municipalities liable under 42 U.S.C.S. 1983 for the constitutional torts of their employees.

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 The Supreme Court of the United States has decided repeatedly that Congress can impose no duty on a state officer.

The language of 42 U.S.C.S. 1983, read against the background of legislative history, compels the
conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.

A local government may not be sued under 42 U.S.C.S. 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 42 U.S.C.S. 1983.

3. Narcotics

Bivens v. Six Unknown Named Agents of Federal Bureau of

CASE SUMMARY

PROCEDURAL POSTURE: Petitioner appealed a judgment of the United States Court of Appeals for the Second Circuit, which affirmed the dismissal of petitioner's suit for damages against respondents, agents of the Federal Bureau of Narcotics, who were alleged to have conducted an unlawful search and arrest in violation of U.S. Const. amend. IV. OVERVIEW: The federal agents argued that petitioner's right to damages for an invasion of the state-created right to privacy was available only in a state court applying state law. Thus, respondents asserted, they would stand before state law as private citizens if a constitutional violation was found. The court disagreed, saying that the relationship between federal agents, acting unconstitutionally, and a private citizen differed from that between private citizens. Because agents had a far greater capacity for harm, the Court reasoned, the Fourth Amendment limited the exercise of federal power. The Court explained that the Amendment did not proscribe only those acts engaged in by private citizens that were condemned by state law, that the interests of state laws regulating invasion of privacy and the Amendment's guarantee against unreasonable searches could be inconsistent, and that the awarding of damages to petitioner following a violation of the Amendment by federal agents was a remedy normally available in the federal courts. OUTCOME: The judgment affirming the dismissal of petitioner's suit for damages against the federal agents in federal court was reversed and remanded, because a federal remedy for an unlawful search and arrest allegedly in violation of the Fourth Amendment was not limited to conduct condemned by state law.
HN2

A violation of the Fourth Amendment protection against unreasonable searches and seizures by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. U.S. Const. amend. IV operates as a limitation upon the exercise of federal power regardless of whether the state in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.

HN3

HN4

Where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.

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4.

Tarbles Case
CASE SUMMARY

PROCEDURAL POSTURE: The United States brought a writ of error challenging a judgment of the Supreme Court of Wisconsin, which affirmed the order of a court commissioner discharging an enlisted soldier. Petitioner, the father of the enlisted soldier, had filed a habeas corpus proceeding seeking the discharge of the soldier on the basis that the soldier was under the age of 18 at the time of his enlistment and that he enlisted without his father's consent. OVERVIEW: The soldier apparently enlisted in the United States Army under a different name when he was under the age of 18. The soldier was being held in custody and confinement by an Army lieutenant under charges of desertion. The father filed a petition for habeas corpus. The commissioner held that the soldier was illegally imprisoned and detained by the lieutenant and commanded that the soldier be discharged from custody. The state supreme court affirmed. The Court reversed the judgment granting the writ. The Court held that the commissioner lacked jurisdiction to issue the writ of habeas corpus because the soldier was held by an officer of the United States, under the authority of the United States. The Court found that within the territorial limits of each state, there were two spheres of government, the state government and the federal government. Both were separate and distinct, except that the United States was supreme when any conflict arose. OUTCOME: The Court reversed the judgment.
HN1

No State can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government. More Like This Headnote

Constitutional Law > Supremacy Clause

HN2

Although a state is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the General government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States, is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye. More Like This Headnote

Constitutional Law > Supremacy Clause

HN3

The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. More Like This Headnote

Constitutional Law > Supremacy Clause

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HN4

In the sphere of action assigned to the federal government, it should be supreme and strong enough to execute its own laws by its own tribunals, without interruption from a State, or from State authorities. The judicial power conferred extends to all cases arising under the Constitution, and thus embraces every legislative act of Congress, whether passed in pursuance of it, or in disregard of its provisions. The Constitution is under the view of the tribunals of the United States when any act of Congress is brought before them for consideration. More Like This Headnote

Constitutional Law > Supremacy Clause

HN5

Because there is a distinct and independent character of the state and National governments, within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful supremacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, and in the regulation of which neither can interfere with the other. More Like This Headnote

Constitutional Law > Congressional Duties & Powers > War Powers Clause
HN6

Among the powers assigned to the National government, is the power "to raise and support armies," and the power "to provide for the government and regulation of the land and naval forces." The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offences, and prescribe their punishment. No interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. More Like This
Headnote

Constitutional Law > Supremacy Clause Criminal Law & Procedure > Habeas Corpus > Habeas Corpus Procedure
HN7

State judges and state courts, authorized by laws of their states to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of the government. If such fact appears upon the application the writ should be refused. If it does not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, in formation in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States and to exclude the suspicion of imposition or oppression on his part. More Like This Headnote

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D. Federal Law in State Courts 1. Dice v. Akron, Canton & Youngstown Railroad Co.

IV RECAP OF ERIE ISSUES AND FEDERAL COMMON LAW 1. When there is a conflict between a federal and state law; the court must conduct this test: A. is there a federal statute on point? 1. If YES = apply that federal statute 2. If NO = apply the Erie doctrine, state substantive law applies B. Apply the Outcome Determinative Test. 1. If YES = create or apply federal CL 2. If NO = apply Erie C. Is there an overriding federal interest involved? 1. If YES = create or apply federal CL 2. Erie applies 2. In diversity suits, substantive state law should apply by the federal court. Erie says there is no federal common, overturning Swift. 3. Federal Courts can not provide equitable relief in diversity cases, if substantive state law (i.e. SOL) would have barred such relief. We must apply the Outcome determinative test: if the outcome would have been different in state court= the court must apply Erie: if the outcome would have not changed = the court can create or use federal common law. Guaranty Trust Co. v. York. 4. In diversity cases, where Erie applies, it is not state procedural law that applies, but rather federal procedure law applies. Specifically, service of a party must comply with FRCP 4, not the state law on service. Hanna v. Plumer 5. In diversity case, where there are conflicts of law between the two state laws involved, the state law (where the federal court rests) applies. Erie extends to conflicts of law. Klaxon Co. v. Stentor Electric 6. There are some exceptions to Erie: A. There is federal common law in cases of commercial paper. When a non-diversity cases have conflicts of law between the federal common law and state law, the federal common law should apply. Clearfield Trust Co. v. US

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B. In diversity cases where there is transactions among private parties involving commercial paper; state law applies, not federal common law. Bank of America v. Parnell C. Cases involving the Act of State doctrine are uniquely within federal common law and Erie does not apply. Banco Nacional De Cuba v. Sabbatino D. Federal Courts may step in and fill in gaps (provide remedies) where federal statutes suggest a remedy. It may only be done if there was a clear intent by Congress to allow a remedy. Transamerica Mortgage Advisors v. Lewis 7. Federal Courts can side step state courts (& their state law, even in diversity cases) and provide remedies against government officials. A. In diversity cases, 1983 cases are not subject to Erie and may directly to federal court. Under 1979 and 1983, Congress intended to create a private cause of action for individuals allowing them by bypass the state courts to seek remedies. Enactments by states barring recovery of Constitutional Rights before exhaust options in state courts have no impact on parties going directly to federal court to recovery for violations of Constitutional rights. Monroe v. Pape B. Exception to Monroe: local governments are immune to 1983 claims because they are part of the state under the 11th Amendment. Monroe v. Pape does not apply to local governments. But it does apply to counties and municipalities because they are not part of the state under the 11 th Amendment. Monell v. Dept. of Social Services. 1. Exception: State officers may be sued: Under Ex Parte Young, state officers are stripped of their offical roles when they violate 1983 under the color of law, such cases are not against the state within the meaning of the 11th Amendment. C. Federal common law can be overruled by the enactment of a federal statute unless the federal common law is inferred from the Constitution, as it is in 1983. Law Enforcement officials can be sued for violation of a partys constitutional rights when acting under the color of the law. Federal Courts can provide a remedy. Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics D. States have no power to control federal officers. State courts can not issue writ of habeas corpus on federal Army officers. A federal court , typically may not intervene into a state judicial matter, however; if the case involves the assertion of federal supremacy, the federal court may intervene into the state case. When a state judge over steps his/her authority (prevents a writ of habeas corpus to federal courts), the federal court can intervene in the case. Tarbles Case 8. State courts are required to use federal procedures in adjudicating federal claims (i.e. Federal Employers Liability Act). Dice v. Akron, Canton & Youngstown R.R. Co. 38

_____________________________________________________________________________________ V. SOVEREIGN IMMUNITY ISSUES A. The 11th Adm. & Sovereign Immunity 1. Hans v. Louisiana
FACTS:Louisiana issued bonds in 1874, but an 1879 amendment to the state constitution stopped the payment of the interest on the bonds. Hans, a Louisiana citizen holding the bonds, sued the State in federal court, alleging the 1879 Amendment was a breach of contract under Article I 10. Hans, a citizen of Louisiana, alleges that the 11th Amendment does not prevent him from suing the State, insofar as such amendment only prohibits suits against a State by citizens of another State, or by citizens or subjects of a foreign State. The Circuit Court held that it could not exert jurisdiction over defendant Louisiana because defendant had sovereign immunity from plaintiff's claim. The State of Louisiana, argued that the federal court could not exert jurisdiction over the case because the suit was barred by the 11th Am to the U.S. Const. ISSUE: Whether or not a State can be sued in a Circuit Court by one of its own citizens based on allegations that the case arises under the Constitution or other federal law? HOLDING: NO, a State can be sued in a Circuit Court by one of its own citizens based on allegations that the case arises under the Constitution or other federal law Supreme Court held: that a citizen could not sue a state unless the state consented to jurisdiction. The Court based this decision on a historical analysis of sovereignty & the purpose behind the 11th Amendment to the U.S. Const. SC starts by saying: Article III gives the federal courts jurisdiction over courts arising under the Constitution, federal law, and treaties. States can not claim exemption from suit in federal court, if the claim actually arises under federal law or the Constitution. SC said: the Circuit Courts of the US shall have original cognizance, concurrent jurisdiction with the courts of the several states, over cases arising under the constitution, laws of the US or treaties made under that authority. The Court cautioned, however, that in earlier cases, the SC has already decided that a State cannot be sued by a citizen of another State, or a foreign State, on the mere ground that the case is one arising under the Constitution or laws of the US. Those cases similarly dealt with complaints against States laws impairing the obligation on contracts. SC turns to Chisholm v. Georgia: In support of its decision that a citizen could not sue a state unless the state consented to jurisdiction, the Court uses Chisholm v. Georgia, mentioning its reversing effect by the 11th Amendment, and Federalist 81 written by Hamilton. In Chisholm, the Court held that a State was liable to be sued by a citizen of another State, or of a foreign county. This prompted the enactment of the 11th Amendment and its subsequent ratification by the States, which granted immunity from suit to the States. To that end, the amendment actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. To that end, the 11th Adm is interpreted to hold that a state cannot be sued by a citizen of another state, or of a foreign state, on the mere ground that the case is one arising under the United States Constitution or laws.

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 The Court stated that the force and meaning of the amendment is important because it contrasts with Justice Iredells contention that what the Court sought in Chisholm was to invest the Federal Court with jurisdiction to hear cases between parties designated, that were properly susceptible of litigation in court. Alluding to the Federalist 81, the Court mentioned that Hamilton remarked that it is inherent in the nature of a States sovereignty not to be amenable to the suit of an individual w/o its consent and that there is no color to pretend that the state governments would be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith; and that contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. In that document, Hamilton claimed it would be a waste to authorize suits against the States to collect a debt, insofar as a recovery could not be done without waging war, which would be forced and unwarrantable. The Court alluded to the opinions of other persons, among which was Marshall, who stated that it would not be rational to expect a State to be dragged to the bar of the Federal Court to defend a suit, although he saw no difficulty in making a State defendant which does not prevent its being plaintiff. Nevertheless, the Court stated that it is not rational to think that when the 11th amendment was adopted, it was understood that citizens of a state could sue their own state in federal courts, while the idea of suits by citizens of other states was rejected. The Court stated that in Cohens v. Virgina, Chief Justice Marshall considered the power of the Supreme Court to review a situation wherein a State could be made a defendant in error. But this was different from entertaining a suit where the State is a defendant in an original action not within the meaning of the 11th Amendment.

2. Ex Parte Young (The Sword)

SIGNIFICANCE OF THIS CASE: It gives power (creates a sword) for the Civil War Amendments) to those whom they were designed to protect. FACTS: Minnesota citizens brought shareholders derivative suits in federal court to enjoin the enforcement of a Minnesota statute establishing maximum railroad rates allegedly confiscatory in violation of the 14th Adm. (Minn. citizens bring federal suit claiming a 14th Adm violation against state statute that raised railroad rates). Despite an injunction, the Minnesota Attorney General started state-court proceedings to enforce the statute, and he was cited for contempt. After issuing a show-cause order on the Attorney Generals petition for habeas corpus and certiorari, the Supreme Court upheld the citation in an opinion by Justice Peckham. The Supreme Court found the original petition was arising under the Constitution and the state statute was invalid. The most material objection to the suit was that the suit was in effect, a suit against the State of Minnesota. ISSUE: Whether or not the 11th Adm bars federal courts from enjoining state officials when their actions stand in violation of the Constitution or federal law? HOLDING: The Court dismissed the petitions for writs of habeas corpus and certiorari, finding that the lower court had jurisdiction to enjoin petitioner because the penalties imposed by railway acts

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raised a federal question under United States Constitution, and the injunction did not violate the Eleventh Amendment because the court enjoined petitioner and not the state. The 11th Adm. does not prevent a state official from being enjoined in federal court when his or her actions stand in violation of the Constitution or federal statute. Court says there is tons of authority to allow a state official, acting in his or her official capacity, to be enjoined by a federal court, if their actions would violate federal statute or the Constitution. The Court looks at Osborn v. US, where it held that the 11th Adm would only apply to and bar suits in which the state was a party on the record. The Court adds three other cases that hold a state officer from executing a state law in conflict with the Constitution or federal statute is allowed by the 11 th Adm. The State of Minnesota argues #1 - that its Attorney General could legally enforce the state statute if it used a mandamus under its sovereignty because Young would be bringing the action in his official capacity and not as an individual and such decision are well within his discretion when acting for the state. The Court counters with: Anytime a state official violates the Constitution or federal law, they are not acting officially for the State. Therefore, they are not acting within a States sovereign powers. Their actions are void and unconstitutional. When a state officer seeks to enforce a state law in violation of the constitution or federal law, he or she is stripped of their official authority to take such action and then accept personal liability for their actions. The state can not grant the official any immunity at that time. The State of Minnesota argues #2 the state can not be sued under the 11th Adm. The Court says that true under the general rule. However, there are exceptions. For example, the state can be stopped from an indictment or proceeding which is brought to enforce an alleged unconstitutional statute which is the subject matter in an already pending federal case. But, the federal courts can not interfere with a case already pending in a state court. The State of Minnesota argues #3 An adequate remedy exists at law and therefore, the federal court (as a court of equity) can not exercise jurisdiction over the case. That the test for constitutionally of a lawis to disobey it and allow it to be tried. The Court says this will not work. For example, if the prosecutor acted in a single violation, he may not avail himself of the opportunity to make the test. In that instances, it could be years before the constitutionally of his actions is determined. In the meantime, individuals and companies property could have been taken under the state law without due process. The Court gives a 2nd example of where this will not work. It was suggested that a company or individual could simply disobey the law to test the constitutionally of a law. The Court points out that such a person may be imprisoned for years before the constitutionally is decided. The Court discusses what if the prosecutor was to proceed against a person standing in disobeyance to the Minnesota rail rate law as a test case. The Court says this would be near impossible for a jury to decide the case. The issues are far too complicated for a jury. RULES: 1. The 11 Adm. does not prevent a state official from being held liable, if the state officials actions are in violation of the Constitution or federal law.

3. Edelman v. Jordan 41

FACTS: Jordan files class action suit in federal court, alleging that Illinois officials had been dilatory in processing applications under the joint federal-state programs for Aid to the Aged, Blind and Disabled (AABD) and had refused to make payments retroactive to the initial date of eligibility, all in violation of federal regulations under the Social Security Act and the Equal Protection Clause. The District court issued an injunction declaring the state practices in violation of federal regulations, requiring future compliance and the payment of all past benefits wrongfully withheld.The 7th Circuit Court reversed based an argument from the 11th Adm. ISSUE: Whether or not a State can be forced to pay monetary damages in federal court after violating a federal law or the Constitution? HOLDING: Supreme Court reversed the 7th Circuit decision, affirming the District Courts decision to force retroactive payment of benefits. The Court starts by stating the 11th Adm. does not bar suits against a State by its own citizens; however, this Court has held (discussing Hans v. Louisiana) that a State is immune from federal suits unless it consents to jurisdiction. Even though a State is not named a party to the action, the suit may nonetheless be barred by the 11th Adm. (Ford Motor Co. v. Dept of Treasury) - a state may invoke its sovereign immunity to prevent monetary recovery. Now the rule has evolved to: suits by private parties seeking to impose liability which is to be paid from public funds in the state treasury is barred by the 11th Adm. (Great Northern Life Insur. Co. v. Read. The 7th Circuit Court asserted, under Hans, that the 11th Adm. did allow a State to use its sovereign immunity as a defense, but it did not prevent the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The 7th Circuit combined Hans with Ex Parte Young to conclude that the 11th Adm. prevented any monetary award under equitable restitution. The petitioner argues that Ex Parte Young does not extend so far as to permit a suit which seeks the award of an accrued monetary liability which must be met from the general revenues of a State, absent consent or waiver of a States 11th Adm. Immunity. Thus, the award of the retroactive benefits by the District Court was improper. Ex Parte Young creates a sword for individuals trying to protect the Civil War Amendments. But this case is slightly different because it does not simply force a state to observe the 14th Adm. (like Ex Parte Young did), it requires the payment of benefits. The Court says this case more closely resembles the Ford Motor Co. case than Ex Parte Young because it requires the State to pay a monetary award instead of simply granting an injunction. The COA granted the award in this case because the award was equitable restitution instead of damages and capable of being tailored as to minimize disruptions of State programs. The SC says it does not need to read Ex Parte Young to indicate any form of relief may be awarded against a state officer simply based on the type of award. Previous rulings assert that equitable relief can be barred by the 11th Adm. KEY: Even equitable restitution awards have a monetary impact on States. Ex Parte Young does not make a distinction in what types of awards can be made. The District Courts decision over the petitioners challenge on the 11th Adm. goes farer than any other cases because it requires use of state public funds, not necessary tied to federal approval. Here, the courts equitable award has the same effect as any other award for damages. To uphold this position would force the SC to overrule the Ford Motor Co. decision. (An Indiana taxpayer brought a suit seeking the refund of taxes paid to the State claiming the state tax was in violation of the Constitution). Ford Motor Co seems like an equitable restitution case, too! However,

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the Court had no problem ruling the Ford case was an action against the sate and was barred by the 11th Adm. Therefore, the COA decision is overturned and the District Courts decision is affirmed. RULES: 1)The Court held while 11th Adm. does not bar a suit against a state by the state's citizens, the Court had consistently held that an unconsenting state is immune from suits brought the states' citizens as well as by citizens of another state under its sovereign immunity. 2)Because an in an action for the recovery of money from the state, the state is the real party in interest, the rule that a suit by private parties seeking to impose liability which must be paid from public funds in the state treasury was barred by U.S. Const. amend. XI applies. 3)A suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by U.S. Const. amend. XI. 4)Under the 11th Adm., a federal court is barred from awarding monetary damages to private parties in suits against States. However, the federal courts may issue injunctions in cases against States.

4. Fitzpatrick v. Bitzer
Issue: In this case, the SC examined the issue of whether, despite the 11th amendment shield granting immunity to the States, Congress has the power to authorize federal courts to enter an award against the States by enforcing the substantive provisions of the 14th Amendment. Despite the grant of immunity to the States through the 11th Amendment, this case stands for the proposition that Congress is empowered to enforce governmental limitations articulated in the provisions of the 14th Amendment in instances when State action violates the privileges or immunities of citizens of the US; when it deprives persons of life, liberty, or property w/o due process of law; or when it denies persons within their jurisdictions the equal protection of the laws. Under the power granted to it through 5 of the Fourteenth Amendment, Congress may, in determining what is "appropriate legislation" for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against states or state officials which are constitutionally impermissible in other contexts. Facts & Proc Hx: In the 1972 amendments to Title VII of the Civil Rights Act, Congress authorized Federal Courts to award money damages in favor of a private individual against a state government in instances when state action constituted employment discrimination on the basis of race, color, religion, sex, or national origin. It should be noted that the amendment to Title VII modified the definition of person to include governments, governmental agencies, and political subdivisions. Based on this amendment, Fitzpatrick sued in the US district Court for the District of Connecticut on behalf of all present and retired male employees of the State of Connecticut. They complained that certain provisions in the States statutory retirement benefit plan discriminated against them because of their sex, in violation of Title VII of the 1964 Act. The District Court held that the Connecticut State Employees Retirement Act violated Title VIIs prohibition v. sex-based employment discrimination. It entered prospective injunctive relief in favor of the petitions against the state officials. It denied petitioners request for retroactive retirement benefits and reasonable attorneys because it constituted recovery of money damages from the States treasury, which were precluded by the 11th amendment and the SCs decision in Edelman v. Jordan. The Court of Appeals for the Second Circuit found that indeed the 72 amendment to Title VII, Congress intended to authorize a private suit for back pay by state employees against the state. However, it affirmed the District Court and held that under Elderman, a private federal action for retroactive damages is not a constitutionally permissible method of enforcing Fourteenth Amendment rights. It reversed the District Court and remanded as to Attorneys fees, reasoning that such an award would have an ancilliary effect on the state treasury.

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Elderman: The GR from that case: A suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by U.S. Const. amend. XI. Discussion: The Supreme Court reversed the lower court judgment. It first stated that in regards to this case, the courts analysis begins where Elderman ended because although it is not disputed that this case is indistinguishable from Elderman and plaintiff did not have any cases supporting the premise that the State could be defendant, in this situation, the 11th amendment defense is asserted in the context of legislation passed pursuant to Congress authority under 5 of the Fourteenth Amendment. As examined in previous cases, such as Ex Parte State of Virginia, the Supreme Court observed that the amendments were intended to be limitations on power of the States and enlargement of the power of congress. It held that the prohibitions in the 14th Am are directed to the states and are restrictions to state power, exercised by any of its governmental branches. It mentioned that it is true that the State has sovereignty, but nevertheless, it cannot disregard the limitations upon it by the federal constitution. The Court also talked about the carving out phenomenon in Ex Parte State of Virginia, where the Court has sanctioned intrusions by Congress; however, such legislation was grounded on the expansion of Congress powers, resulting in the diminution of state sovereignty. In that vein, it held that Congress enacted the Civil Rights Act of 1964 pursuant to the authority granted to it by 5 of the Fourteenth Amendment, which provided that Congress had the power to enforce, by appropriate legislation, the substantive provisions of the Fourteenth Amendment. The Court reasoned that a state's sovereignty was necessarily limited by the enforcement provisions of 5 of the Fourteenth Amendment because, when Congress acted pursuant to that section, it was exercising legislative authority that was plenary within the terms of its constitutional grant, and was exercising that authority under one section of a constitutional amendment whose other sections, by their own terms, embodied limitations on state authority. The Court did not look at the issue of attorneys fees because it follows from this opinion that Congress exercise of power is not bared by the 11th amendment. OUTCOME: The Court reversed the lower court's judgment.

B. Offical & Congressional Immunities 1. Harlow v. Fitzgerald

PROCEDURAL HISTORY: The District Court, denying a motion for summary judgment upheld the legal sufficiency of Fitzgeralds Bivens claim and ruled that the defendants were not absolutely immune from suit. The Court of Appeals dismissed an appeal, and the Supreme Court granted certiorari. FACTS: Suit for civil damages petitioners Bryce Harlow and Alexander Butterfiled are alleged to have participated in a conspiracy to violate the constitutional and statutory rights of the respondent Fitzgerald. Respondent avers that petitioners entered the conspiracy in their capacities as senior White House aides to former President Richard M. Nixon. ISSUE: The issue in this case is the scope of the immunity available to the senior aides and advisers of the President of the United States in a suit for a damages based upon their official acts. COURTS REASOING: Our decisions have recognized immunity defenses of two kinds. For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of "absolute immunity."

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 Petitioners argue that they are entitled to a blanket protection of absolute

immunity as an incident of their offices as Presidential aides. "The greater power of high officials," we reasoned, "affords a greater potential for a regime of lawless conduct." We concluded that it would be "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under [42 U.S.C.] 1983 and suits brought directly under the Constitution against federal officials." Having decided in Butz that Members of the Cabinet ordinarily enjoy only qualified
immunity from suit, we conclude today that it would be equally untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House.

Members of the Cabinet are direct subordinates of the President, frequently

with greater responsibilities, both to the President and to the Nation, than White House staff. The considerations that supported our decision in Butz apply with equal force to
this case.

It is no disparagement of the offices held by petitioners to hold that

Presidential aides, like Members of the Cabinet, generally are entitled only to a qualified immunity.

In Gravel we endorsed the view that "it is literally impossible ... for Members of
Congress to perform their legislative tasks without the help of aides and assistants" and that "the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos...." Petitioners contend that the rationale of Gravel mandates a similar "derivative" immunity for the chief aides of the President of the United States.

Moreover, in general our cases have followed a "functional" approach to

immunity law. In Gravel, for example, we emphasized that Senators and their aides were

absolutely immune only when performing "acts legislative in nature," and not when taking other acts even "in their official capacity."

RULE OF LAW: In order to establish entitlement to absolute immunity, presidential aide must first show that responsibilities of his office embraced function so sensitive as to require total shield from liability; he then must demonstrate that he was discharging protected function when performing act for which liability is asserted. HOLDING: Even if they cannot establish that their official functions require absolute immunity, petitioners assert that public policy at least mandates an application of the qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial. We agree. We conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

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The judgment of the Court of Appeals is vacated, and the case is remanded for further action consistent with this opinion.

RECAP OF THE 11TH AMENDMENT & SOVEREIGN IMMUNITY 1. In Chisholm v. Georgia, the SC asserted original jurisdiction under Art. III, Section to allow citizens of Georgia to bring suit against the State of Georgia. The reaction by the public was so swift that the 11th Amendment was enacted very quickly. The 11th Amendment bars any suits against one of the States of the United States by citizens of another state, citizens of that state, or any foreign states. 2. The Total Inclusion Theory. While there has been confusion about the intent of the 11 th Adm., the SC said there can be no suits brought by in-state citizens against a state even based on federal question jurisdiction. Based on Art. III, not the 11 th Adm. Hans v. Louisiana. 3. The Congressional Abrogation Theory states that Congress, through legislation, may abrogate whatever constitutional protection of sovereign immunity may exist. Congress may use the 14th Adm., section 5 to supercede state sovereign immunity by subjecting the states to suit in federal court for violations of federal statutes enacted to enforce that amendment, but only when there is clear intent to do so by Congress.(Abrogation is possible only with a clear showing of Congress intent to override the 11th Amendment). Fitzpatrick v. Bitzer 4. The Sword. State officials are not protected under the 11 th Amendments sovereign immunity when they violation constitutional rights under the color of the law. They are stripped of their authority and protection when doing so, and are subject to suit. Federal Courts may enjoin state officials for violating a federal law. Federal Courts can issue injunctions against state officials violating federal laws under the color of the law. Ex Parte Young 5. While the 11th Amendment does not bar a suit against a state by the states citizens, unconsenting states are immuned from suits by state citizens. Suit by private parties seeking to impose liability which must be paid with public state funds in barred by the 11 th Amendment. Also, the defense of the 11th Amendment may be raised for the first time at appeal. Edelman v. Jordan Note: Prospective relief is acceptable, but retroactive relief is not . Federal courts may issue injunctions against state officials violating a federal law, but they may not permit recovery from damages. The Court issued prospective relief and prohibited retroactive relief. 6. Executive Branch officials and members of Congress enjoy immunity from suit. Presidential aides enjoy immunity up to a certain point. They must prove that: 1) the function of their office is so sensitive that it requires complete immunity from suit and 2) they were acting within the scope of their office. Harlow v. Fitzgerald 46

___________________________________________________________________________________ VI. THE ABSTENTION DOCTRINE Where Federal Courts should abstent from ruling in cases A. The Pullman Doctrine 1. Railroad Commission v. Pullman Co.

2. England v. Louisiana State Board of Medical Examiners

B. The Burford Doctrine State Administrative Agencies & Taxes Issues 1. Burford v. Sun Oil Co. State Administrative Agencies & Taxes- Federal courts should defer from ruling when there is a complex state administrative issue involved FACTS: Sun filed in federal court because: 1) diversity of the parties & 2) Sun asserted a constitutional violation of their due process rights. Sun Oil attacks the validity of an order of the Texas Railroad Comm. granting Burford a permit to drill four oil wells on a piece of land in East Texas resting on one of the largest oil finding in North America. The oil find was part of a huge pool/reservoir resting under several land owners property including Burfords property. The Texas Railroad Comm. order was part of a regulatory system designed to improve oil & gas conversation in Texas. 1. Under Texas Property law, property owners could pump as much oil as they wanted from their wells, despite the oil being connected to a pool running under other property owners land. 2. Texas felt that allowing this approach to oil & gas rights would reduce the amount of drilling and preserve land. Constitutionally, the State of Texas has the power to enact and enforce such property programs. 1. The State designed the program to prevent past, present, & imminent evils of the production of natural gas and for the protection of public and private interests against waste. 2. Therefore, the State of Texas granted the Texas Railroad Comm. authority regulate production. The Texas Railroad Comm. works with other states to help satisfy national demand for oil & gas. The Comm. has a duty to reduce unnecessary & wasteful drilling. 47

3. The Texas Railroad Comm. attempts to control the minimum spacing between wells under Rule 37. However, it makes exceptions to prevent the confiscation of property underneath ones land by increasing or decreasing the amount of wells one is allowed to drill. In turn, the more wells drilled, the greater the decrease in pressure inside the pool and hence, the more difficult it becomes for other surface holders to extract oil from their wells. 4. The Comm. can allow the drilling of additional wells to prevent the waste of oil or gas. (oil that would not be recoverable otherwise) 5. However, the exception to Rule 37 has been abused.2/3 of the wells in Texas have been drilled under the exception. This case stemmed from Sun being upset over the Comm. allowing Burford a Rule 37 exception and the negative impact it would have on their drilling rights. ISSUE: Whether or not a federal court with jurisdiction over a case may decline to exercise jurisdiction under the doctrine of abstention? DECISION: Yes, a federal court with jurisdiction can decline to exercise jurisdiction over the case. Federal Courts should exercise the abstention doctrine, allowing Texas state courts to first rule, in Rule 37 exception cases.

Texas courts work closely with the Texas Railroad Commission to regulate the oil & gas production in Texas. In fact, Texas has carefully crafted a system between the Commission and Texas Courts to prevent confusion and inequalities in drilling and production. Federal Courts have little understanding of Texas State oil & gas law. When the federal courts have gotten involved, they have offered conflicting positions from the state law. In some instances, the federal courts have been asked to decide the exact meaning of Texas state statutes. Federal court involvement in such cases can cause increased delay in preventing injury to surface holder rights. Court quotes Pullman case, in suggesting it is probably best if the federal courts would abstent from ruling in Texas oil & gas cases. Sun argues that the federal court should review the Texas Railroad Comm.s decisions not based on any constitutional basis, but instead to decide how reasonable the Comm.s decisions are. Federal Courts should use equitable discretion in allowing Texas State Courts to rule in these cases first by exercising wise discretion. Use of the abstention doctrine to these cases will only increase the harmony between state and federal authorities without forcing Congress to become more involved.

RULE: 1. THE BURFORD DOCTRINE: A federal court, with jurisdiction, can decline to exercise jurisdiction over a case when there is a complex state administrative procedure involved. Federal Courts should exercise the abstention doctrine, allowing Texas state courts to first rule, in Rule 37 exception cases because the Texas Railroad Commission has been given exclusive jurisdiction over oil & gas cases.

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DISSENT: This decision is completely contrary to the whole purpose behind allowing jurisdiction in diversity cases. There is no reason to believe that Texas Courts will act in a reasonable or impartial manner, when deciding these cases. Federal Courts can simply use the recent decisions by the Texas Supreme Court defining waste and confiscation of property to decide these cases. If it is true that a diverse party would get the same ruling whether in a Texas State court or a federal court is great grounds for abolishing diversity jurisdiction. DIFFERENCE BETWEEN PULLMAN & BURFORD: Difference: Pullman federal question Burford no federal question dismissal of lawsuit

Procedure: remand & go to state court

2. Fair Assessment In Real Estate Assn , Inc. v. McNary

Federal Courts abstent when it comes to State Agencies & Taxes issues

OVERVIEW:

Two judicial principles that conflict each other. 1341 says federal courts must stay out of cases about state tax systems vs. Monroe v. Pape says that comity is not applicable in 1983 cases (parties has go directly to federal court to challenge the constitutionally of a state action

FACTS: brought suit in Eastern District Court of Missouri to allege damages under 42 U.S.C. 1983 claiming the state tax system was unconstitutional. Issue was there were two conflicting authorities on how to address the claim. The District Court, the 8th Circuit Court, and Supreme Court hold that such cases are barred under 28 U.S.C. Injunction Act) and the principle of Comity. Long before the enactment of 1983, the federal courts recognized a policy of federal judicial restraint in cases involving state tax systems. The Court quotes Justice Field from Dows v. Chicago in asserting that federal judicial intervention into state tax systems is detrimental to society because state governments receive their funding from those taxes. In 1937, Congress enacted 1341 providing that federal courts will not enjoin, suspend, or restrain a state tax system when a remedy is available in state court. However, in Monroe v. Pape, the Court held that comity (courtesy between political entities/ a court honoring the rulings of another court) does not apply where 1983 is involved, and that a litigant may proceed directly to federal court when seeking redress. 49

Fair Assessment in Real Estate is a non-profit corporation formed by taxpayers in St. Louis to promote equitable enforcement of property tax laws in Missouri. The Cassillys (husband & wife members of the Association) brought a 1983 claim against the county and state taxing authorities alleging equal protection and due process violations by unequal taxation of real property after recent improvements in their property.

ISSUE: Whether or not a taxpayer can bring a 1983 claim against a state tax system in federal court or does the principle of comity require the taxpayer to bring his/her claim in state court? DECISION: The principle of comity controls and prevents the court from granting damages under 1983. The court elects not to decide whether or not the comity would prohibit a claim under 1983. The Missouri state courts can address this case; there is not need for federal judicial action. Before 1341, federal courts would abstent from ruling in state tax matters when remedies existed in state court that were plain, adequate, and complete to encourage harmony between state government and the federal government.

1342 suggests that Congress never intended federal courts authority over state tax manners to be restricted. Therefore, the principle of comity (predating 1341 or 1342), was not restricted by its passage. In fact, comity remains well in tact. Look at Great Lakes Dredge & Dock Co. Huffman. While 1341 was raised as a defense in the case, the court found it unnecessary to support that position, instead the court simply abstented from ruling on that particular matter. The Court says that ruling on any state tax system would be disruptive to the state. Fair Assessment in Real Estate argues that damages are less disruptive than other forms of relief like injunctions or declaratory judgments and therefore, damages should not be barred by previous Court decisions. The Court disagrees with this argument. To hold for Fair Assessment in Real Estate would require a district court to find that the state violated their constitutional rights via the tax system. The effect of that ruling would force to make a ruling contrary to Great Lakes. Such a decision would go completely against comity. Next, the Court says that allowing such actions would be an abuse of Monroe v. Pape. Taxpayers would then be able to take cases directly to federal courts without allowing states a chance to remedy the situation. Next, ruling against Comity would only undermine (causing a chilling effect) the states ability to enforce taxes.

RULE: 1. Taxpayers are barred by the principle of Comity from asserting 1983 claims against state tax systems in federal courts. 50

2. Taxpayers must seek remedies from state tax systems in state court; provided the state tax system is plain, adequate, and complete. 3. When awarding damages in a 1983 claim against a state official for misappropriation of tax dollars that would have a chilling effect on that officials ability to perform official duties, the claim must be filed in state court first.

C. Injunctions Against Suit 1. Mitchum v. Foster - Florida bookstore asking the federal courts to grant an injunction under 1983 against a Florida prosecutor () who was granted an injunction in state court against the operation of the bookstore FACTS: Overview of case 2283 (The federal anti-injunction statute) provides that no federal court may grant an injunction against proceedings in a state court unless the case fall within one of the exceptions to 2283. In contrast, 1983 authorizes suits of equity to redress the deprivation, under the color of state law, of any rights, privileges, or immunities secured by the Constitution. Specific Facts of the case A Florida prosecuting attorney brought suit in Florida state court to close a bookstore on the grounds it created a public nuisance. The Florida state court granted the injunction, ordering the bookstore to cease its operation. The bookstore filed a 1983 claim, alleging a 1st & 14th Adm. violation, requesting declaratory and injunctive relief in the Northern District of Florida District Court to stop Florida from shutting down the bookstore. The bookstore stated that the states action was an unconstitutional application of Florida law that would cause him great & irreparable harm. Procedural History at the District Court District Court denies injunctive relief to the bookstore based on Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers case. While the case did not deal directly with the exceptions of the anti-injunction statute, the court held that 2283 states a flexible doctrine of comity and no absolute ban upon federal courts from issuing injunctions against state courts in the absence of one of the exceptions. If this were true, then 1983 being outside of the authorized exceptions to 2283, a federal court of equity would be without any power to grant relief in 1983 suits. In Younger v. Harris, the Court addressed federal intervention into pending state criminal prosecutions. In that case, the court was asked to grant an injunction against a California state courts criminal proceedings. Here, the bookstore is asking the Court to reverse Younger arguing that the injunction was in violation of the federal anti-injunction statute. The district court refused to enjoin the state court proceeding because the relief sought did not come under any of the exceptions set forth in 2283. 51

Procedural History of the Appeal On appeal, the court held that federal injunctive relief was appropriate only where: 1. the irreparable injury was both great and immediate, 2. the state law was flagrantly unconstitutional, or 3. There was a showing of bad faith that would call for equitable relief. The court added that to qualify under one of those expressly authorized exceptions, the federal law did not have to expressly reference 2283. 1. The test was whether an act of Congress, clearly creating a federal right enforceable in a federal court of equity, could be given its intended scope only by the stay of a state proceeding. The court held that 42 U.S.C.S. 1983 fell within the exception.

ISSUE: Whether or not 1983 (as an Act of Congress) falls within the authorized exceptions of 2283 (the federal anti-injunction statute), thereby allowing federal courts to grant injunctions against state proceedings when a 1983 claim is asserted? HOLDING: 1983 is an authorized exception to 2283. The Court reversed the district court's order denying injunctive relief and remanded the case for further proceedings because the statute under which the bookstore owner sought relief was an authorized exception to the Anti-Injunction Act. Even the possible unconstitutionality of a state statute "on its face" does not in itself justify an injunction against good-faith attempts to enforce it. However, the United States Supreme Court has clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances: where irreparable injury is both great and immediate, where the state law is flagrantly and patently violative of express constitutional prohibitions, or where there is a showing of bad faith, harassment, or other unusual circumstances that would call for equitable relief. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. In order to qualify under the "expressly authorized" exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. No prescribed formula is required; an authorization need not expressly refer to 28 U.S.C.S. 2283. Secondly, a federal law need not expressly authorize an injunction of a state court proceeding in order to qualify as an exception. Thirdly, in order to qualify as an "expressly authorized" exception to the anti-injunction statute, an act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding. The test is whether an act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding. RULES: 1. On its face the Anti-Injunction Act, 2283, is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. Any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to 2283 if it is to be upheld. 2. Younger v. Harris 52

FACTS: John Harris was indicted in a California state court for violation of a California law known as the California Criminial Syndicalism Act. Harris filed a complaint in Federal District Court, asking that the court enjoin Younger (the prosecuting attorney) alleging the prosecution and presence of the Act inhibited his exercise of freedom of speech and press in violation of his 1st & 14th Adm. rights. The Federal Distrcit Court held that under 2284 that it had jurisdiction and the power restrain Younger from prosecuting Harris and that the Act was void for vagueness and overbreadth in violation of the 1st & 14th Amendments. The District Court restrained Younger from further prosecution of Harris until the constitutionally of the Act is resolved. The court reversed the trial court's judgment that a state law under which defendant had been indicted was unconstitutionally vague. Because the case was still pending, the court could not enjoin the proceedings. Plaintiffs who joined in the action out of fear that their constitutional rights would be impaired did not have standing because they had not been indicted themselves. Although the statute may have challenged defendant's U.S. Const. amend. I freedom of speech rights and its enforcement might have a chilling effect on the speech of other persons, the court could not review the statute on its face. The limited circumstances under which a statute threatened great and immediate irreparable injuries were not present.

ISSUE: Whether or not the issuance of a federal injunction is a violation of 2283s notion that federal courts may not issue injunctions against state courts proceedings except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments? HOLDING: The court reversed the finding of unconstitutionality, because plaintiffs lacked standing, the action was pending in state court, and the threat to 1st Adm. freedom of speech rights was not great enough to warrant a facial challenge to the statute. The case was remanded. Persons having no fears of state prosecution except those that are imaginary or speculative are not to be accepted as appropriate plaintiffs in such cases. The normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. Irreparable injury is the traditional prerequisite to obtaining an injunction. In addition, however, in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is both great and immediate. 1. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered "irreparable" in the special legal sense of that term. 2. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. 53

A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of U.S. Const. amend. I freedoms. But this sort of "chilling effect" should not by itself justify federal intervention. Where a statute does not directly abridge free speech, but -- while regulating a subject within the state's power -- tends to have the incidental effect of inhibiting U.S. Const. amend. I rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the state from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the state believes in good faith to be punishable under its laws and the Constitution. Procedures for testing the constitutionality of a statute "on its face" and for then enjoining all action to enforce the statute until the state can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in the constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them.

RULE: 1. For a federal court to issue an injunction against a pending state court case, great and immediate irreparable injury must be present. 2. Simply alleging a state statute violates a Constitutional Amendment is not sufficient enough constitute an exception to the federal anti-injunction Act ( 2283). 3. Steffel v. Thompson

D. Pending Actions 1. Colorado River Water Conservation District v. US

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VII.

APPELLATE & COLLATERAL REVIEW IN FEDERAL COURTS A. Direct Appellate Review 1. Henry v. Mississippi

Henry (guy convicted for sexually attacking a hitchhiker in his car) - State of Mississippi (Miss. Supreme Court originally overturns Henrys conviction because of evidence obtained in illegal search of his car, but then the Miss. SC issues a 2 nd opinion reversing themselves and affirms Henrys conviction.) FACTS: Henry was convicted of disturbing the peace, by indecent proposals to and offensive contact with an 18yr old hitchhiker to whom he had given a ride. The trail judge instructed the jury you can not find the defendant guilty on the unsupported & uncorroborated testimony of the complainant alone. Henry filed a federal claim based upon his conviction from the admission of a police officers testimony introduced to corroborate the hitchhikers testimony. The Miss. Supreme Court held that the officers testimony was improperly admitted as fruit of an unlawful search and in violation of the Miss. Constitution. The evidence in question substantiated the hitchhikers testimony by showing its accuracy in a detail which could only have been seen from inside the car. (The right hand ashtray o the car was full of Dentyne chewing gum wrappers & the cigarette lighter did not function.) The police officer testified that after Henrys arrest, he went to Henrys home and secured permission from Henrys wife to look inside the car. Upon opening the car, he found that the cigarette lighter did not work and the right ashtray was full of Dentyne wrappers 9as described by the victim). Procedural History The First Opinion The Miss. Supreme Court first reversed Henrys conviction and remanded the case for a new trial. In that case, the court held Henrys wifes consent to the search of the car did not waive his constitutional protections and in effect, the testimony of the victim (the states witness) was uncorrobated without the evidence disclosed by the police officers search of Henrys car). The Miss. Supreme Court held that Henry was not properly represented by counsel (his attorney was from out of state & unfamiliar with local rule), failed to object to evidence secured by means of an illegal search at the time it was introduced. Therefore, his conviction was reversed on the basis that the evidence was illegally obtained and not properly objected to in his trial. The Court noted that Henrys counsel did move for a directed verdict at the close of the States case on the grounds of illegally obtaining evidence from a bad search. The Second Opinion 55

After the first opinion was delivered, the Miss. Supreme Court filed a Suggestion of Error, asserting that Henry was not represented by inadequate counsel. The Court withdraw its first opinion and filed a new opinion affirming Henrys conviction stating that the failure to object at the right time was a simple mistake, but binding upon the defendant, and that Henrys attorneys C-X of the states witness (the victim) should have cured any issued with tainted evidence.

The US Supreme Court steps in Grants certiorari. US Supreme Court vacates the conviction and remands for hearing the question of whether the petitioner is to be deemed to have knowingly waived the decision of his federal claim when timely objection was not made to the admission of the illegally seized evidence.

ISSUE: Whether or not the Supreme Court has direct appellate review over state courts procedural decisions? HOLDING: YES, the Supreme Court may exercise direct appellate review over a state courts procedural process provided the state procedure does not serve a legitimate state interest. If the state procedure serves a legitimate state interest, then the federal court may not exercise appellate review of the process. It is a long standing rule that federal courts will decline to review state court judgments which rests on independent & adequate state grounds, even when those judgments also decide federal questions. The Court relies on Murdock v. City of Memphis to say this principle applies not only to state substantive grounds, but also to cases involving state procedural grounds. The Court says it is important to note the difference between state substantive grounds and state procedural grounds. Where the ground involved is substantive, the determination of the federal question can not affect the disposition if the state court decision on the state law question is allowed to stand. Based upon the Murdock view of statutes giving the federal courts appellate jurisdiction, the US Supreme Court has no power to revise judgments on questions of state law. Thus, the adequate nonfederal ground doctrine is necessary to avoid advisory opinions. When a state court decision rest purely on a procedural matter, the federal courts are barred from having any appellate review of the decision. In fact, this applies even to cases where the federal court would be stepping in to assert ones federal rights. (Federal questions can be precluded in cases where the court is deciding the question of how and when defaults in compliance with state procedural rules. THE LINER RULE: (Liner v. Jafco) where we held that a state appellate courts refusal, based on mootness, to consider a federal claim, did not preclude our independent determination of the question of mootness. (in other words, the SC could step in) 1. STATE INTEREST TEST: In Liner, the Court ruled that federal court can step in except in case where the state can assert a legitimate state interest in its state court procedural process. 56

2. If the enforcement of a state courts procedural process serves a state interest, it is protected from federal appellate review. However, if it does not serve a state interest, the federal courts may intervene (review) to assert a partys federal rights. Here, the Mississippi rule requiring a contemporaneous objection to the introduction of illegal evidence does serve a legitimate state interest. The rule gives the state judge an immediate ability to correct the admission of illegal secured evidence without proceeding any further with the case. The state grounds for the rule was adequate. The Court refused to rule on Henrys substantial constitutional claim because his counsel waiver his rights. By Henrys counsel deliberately not objection in a timely manner to the evidence, he intentionally bypassed all the remedies available to him in state courts. The evidence indicates that Henrys counsel was attempting a more strategic move instead of simply making a mistake to object to the evidence obtained by the police officer. Only evidence extrinsic to the record can establish the fact of waiver, the State should have an opportunity to address this first. Case remanded back to the Mississippi Supreme Court.

RULE: 1. The Supreme Court may exercise direct appellate review over a state courts procedural process provided the state procedure does not serve a legitimate state interest. If the state procedure serves a legitimate state interest, then the federal court may not exercise appellate review of the process.

2. Cox Broadcasting v. Cohn

B. Habeas Corpus & Post-Conviction Relief 1. Wainwright v. Sykes -THE "CAUSE AND PREJUDICE" TEST FOR HABEAS CORPUS REVIEW IS APPLICABLE TO TRIAL ERRORS Overview: Sykes (D) filed a writ of habeas corpus claiming that his confession had been obtained without his understanding the Miranda warnings even though his counsel had neither moved to suppress the confession nor objected to the evidence when introduced at trial. Procedural Basis: Writ of habeas corpus after a conviction for third- degree murder. Facts: Sykes (D) was convicted of third-degree murder at trial. He testified at his trial that he told his wife to summon the police on the night of the murder because he had just shot Willie Gilbert. The police arrived to find Gilbert dead from a shotgun wound. Sykes (D) approached the police and told them that he had shot Gilbert, and Sykes' (D) wife told the police the same thing. Sykes (D) was immediately arrested and taken into custody. 57

He was Mirandized, declined to speak to counsel and indicated a willingness to talk to the investigators. He then made a statement, which was later entered into evidence at trial via the testimony of the two officers who heard it. His counsel did not object to the statement being admitted, nor did his counsel move to have the statement suppressed prior to the trial. Sykes (D) appealed his conviction but, again, his counsel did not challenge the admissibility of the inculpatory statement. He then sought habeas relief in state court but was unsuccessful. He was successful in federal court, however, and the Court of Appeals held that Florida's contemporary objection rule did not bar review by way of habeas corpus.

Issue: Should a habeas petitioner who defaulted under state procedure be barred from federal habeas review absent a showing of cause and prejudice? Holding: (Rehnquist, J.) Yes. In the case of a procedural default made in the state court, a habeas petitioner should be barred from federal habeas review unless he can show cause and prejudice. That is, the petitioner is required to show good cause for the procedural defect and that the alleged violation of federal law has actually prejudiced his case. Florida's contemporaneous objection rule, like many other states,' provides a procedural method of preserving issues for appellate review. It deserves greater respect than the prior "deliberate bypass" rule would accord it. The contemporaneous objection rule serves the important function of ensuring that the record is made when the recollections of the witnesses are freshest and the judge is best able to observe the demeanor of the parties and witnesses before him. Also, the retention of the" deliberate bypass" rule encourages sandbagging by defense lawyers. Defense lawyers may deliberately decide to take their chances in state court, knowing that even if a conviction is obtained, they can always raise the federal rights violations in a federal habeas proceeding at a later time. Finally, the "deliberate bypass" rule demeans the proper role of the trial court. The trial should be considered a decisive and portentous event rather than a tryout that will, ultimately only be determined by a federal habeas corpus hearing. The" cause and prejudice" rule will make the trial the" main event" rather than a dry run. We believe that the" cause and prejudice" rule will not prevent a petitioner from seeking federal habeas relief when its denial would be a miscarriage of justice. The rule will, however, bar those defendants who, without good cause and to no actual prejudice, failed to follow proper state procedures for preserving a claim. Dissent: (Brennan, J.) The "deliberate bypass" rule has the laudable effect of disallowing federal habeas review for intentional procedural defaults, but not for inadvertent ones. It adequately protects against what the majority terms "sandbagging" and should be retained. On the other hand, the adoption of the "cause and prejudice" rule has the unhappy effect of penalizing the habeas petitioner for the incompetence or carelessness of his attorney. When such fundamental rights are involved, we should not deny the criminal defendant the chance to receive habeas review simply because his counsel negligently or carelessly did not follow proper procedures. It is especially inappropriate to penalize the habeas petitioner who was indigent and who had no real choice in selecting his defense counsel. Rule A habeas corpus petitioner can be excused from a procedural default made in the state courts only by showing good cause for the procedural default and that the violation of his federal rights actually prejudiced his case. 58

Impact of the Case: Wainwright overturned the prior rule, from Fay. Fays deliberate bypass rules generally excused failure to object, unless they were deliberate, tactical attempts to avoid raising the federal claims in the state court. This deliberate bypass rule was highly protective of petitioners, at the expense of ignoring states procedural requirements. Wainwrights new Cause & prejudice rule is much tougher on petitioners, and is based on the Courts belief that this is necessary to respect state procedures. Eventually, the Court expressly overruled Fay, applying the cause & prejudice rule to all cases of procedural default. Terms CONTEMPORANEOUS OBJECTION RULE: A rule of procedure that requires that a timely objection be made in order to preserve an issue for appellate review. HABEAS CORPUS: An independent, collateral proceeding to determine whether the prisoner is being unlawfully retained; that is, whether the prisoner has been denied his due process rights and should therefore be set free. 2. Preiser v. Rodriguez Nature of Case: Prisoners at NY state correctional facilities, who were deprived of good conduct credits as a result of disciplinary proceedings, bring suit under 1983. The prisoners sought injunction relief to compel restoration of those credits after alleging that the NY Department of Corrections acted unconstitutionally by depriving them of the credits, which in this particular case would have resulted in their immediate release. Significance of the case: 1) If a remedy is available under 1983 to state prisoners, then they would not need to seek relief in a state forum under Monroe v. Pape (1961). 2) On the other hand, if habeas corpus is only available in federal courts, then state prisoners could not seek federal intervention before first seeking and being denied relief in state courts, provided the state remedy is available and adequate. Issue: Whether or not state prisoners, seeking injunctive relief under 1983 under the Civil Rights Act, can obtain equitable relief, even though the federal habeas corpus statute ( 2254), clearly provides a specific federal remedy? Facts: Rodriguez was charged, on two separate occasions, with possession of contraband in his cell. The deputy warden decided that 120 days of Rodriguezs good conduct credits should be cancelled, and then placed Rodriguez in segregation for more than 40 days. Rodriguez then filed a petition for a writ of habeas corpus along with a 1983 complaint in District Court. He alleged that he was not really charged with possession of contraband, but instead he was punished because he refused to reveal the source of the contraband. Also, he asserts that he was given no notice prior to the warden taking the disciplinary measures. Therefore, he claims that depriving him of the good conduct credits deprived him of due process of law. 59

Procedural History The District Court upheld his claim; the Court of Appeals reversed it, stating that his case was one for habeas: Release from penal custody is not an available remedy under the Civil Rights Act. On rehearing (en banc) held the 1983 claim sustainable holding that state prisoner could bring claims relating to their confinement under federal habeas corpus or under the Civil Rights Act, & that they were not required to exhaust their claims in state courts first before pursuing federal relief. Analysis 2241 & 2254 provide that a writ of habeas corpus does not apply to prisoners unless they are held in custody in violation of the Constitution, federal statute, or treaties of the U.S. 2254 (b) specifically states that writ of habeas corpus is no available to a state prisoner unless he/she has exhausted remedies available in state courts first. The language of the statutes and common law suggest that a WHC is an attack by a person in custody upon the illegality of that custody, and the purpose of the WHC is to obtain a release from the illegal custody. Here, Rodriguez claim is well within the scope of habeas corpus. It is clear that Rodriguez could obtain complete relief via the federal habeas corpus proceedings. State prisoners seeking relief under the Civil Rights Act should be treated no differently from any other civil rights plaintiff, when the Act covers their cause of action. But the language of 1983 is not so clear on the matter. Rodriguez counsel acknowledged that state prisoners have limited relief to habeas corpus. He concedes that he really can not bring a 1983 action because Congress has specifically enacted a statute requiring state prisoners to seek relief in state courts first. To bypass Congress intent in the statute would frustrate the purpose of the statute (which was to prevent prisoners from avoiding the requirement by simply relabeling their pleadings). Thus, Congress has determined that HC is an appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement & that specific determination overrides the general terms of 1983. Rodriguez counsel argues that the purpose behind 2254(b) is to give state a chance o first correct their own mistakes. Counsel argues that this policy only applies state courts, not state administrative bodies. Courts says Rodriguezs view of 2254 (b) is too narrow. The really purpose behind 2254 is to encourage comity. (Younger v. Harris). NY state law provided an adequate remedy in this case under the NY Civil Rights Act 79 c. Rodriguezs counsel argues that limiting state prisoners to federal habeas corpus would deprive them of any damage remedy and NY state law provides no damage remedy. The Court says counsel is wrong on this point. First, Rodriguez did not seek a damage remedy. Secondly, a claim for damage relief would be outside the scope of challenging the fact or length of state prisoners. Thus, a damage action by a state prisoner could be brought under the Civil Rights Act in federal court without requiring prior exhaustion of state remedies. Rodriguez counsel makes a big deal out of several decisions allowing state prisoners to bring federal civil rights actions challenging their conditions of confinement, but all those cases did not deal with direct with federal habeas corpus. The Court says it need not explore the limits of habeas corpus as an alternative to a proper action under 1983.

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Holding/Rule: When a state prisoner is challenging the fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate or speedier release from imprisonment, his sole federal remedy is a writ of Habeas corpus. Reversed. 3. Jones v. Cunningham NATURE OF CASE: Under 2241, a federal district Court has jurisdiction to grant a writ of Habeas Corpus to any prisoner in custody in violation of the Constitution. ISSUE: Whether or not a state prisoner, who has been paroled, is in custody to the extent that a federal district Court can exercise jurisdiction, under 2241, to hear & decide his state sentence was imposed in violation of the Constitution? FACTS: In 1953, petitioner was convicted in Virginia state court to imprisonment in the state penitentiary for 10 years based on a third offense provision. In 1961, petitioner filed a petition for habeas corpus in US District Court alleging that his third offender sentence was based in part upon a 1946 larceny conviction which was invalid because his federal constitutional right to counsel was denied at the 1946 trial. The District Court denied his petition, but the 4th Circuit Court granted a certificate of probable cause and leave to appeal in forma pauperis. Before the case came to the Circuit Court, the petition was paroled. The parole board placed the petitioner in custody & control of the Parole Board and advised him to live with relatives in Georgia. The parole was subject to modification and revocation at any time. The parole restricted the petitioner from traveling, moving, or owning a car. He was subject to monthly visits and monthly reports to his parole officer. The Respondent, the Virginia Superintendent of the penitentiary asked the court to dismiss the case since the petition was no longer in prison and the case was moot. Petitioner wanted to add members of the Parole Board as respondents to the case. The Court of Appeals held the case was moot and dismissed it. SC granted certiorari. ANALYSIS: 2241 makes habeas corpus available. The definition or meaning of custody may not be restricted to imprisonment; rather it is more about restricting ones liberty. To decide this point the court had to look at common-law usages and the history of habeas corpus in England & the US. In both instances, Habeas corpus has been used to release persons held in actual, physical custody in prison or jail. But English courts have long recognized that habeas corpus can mean less than imprisonment. The test was: if there was any restriction of ones liberty. In the US, habeas corpus has not been restricted to custody only. The Respondent argues several examples where habeas corpus can not be used in parole cases because there is no restraint of liberty. In those cases, the issue of restraint of liberty had become moot. Here, the petitioners claim against the Superintendent had become moot because he was no longer in custody in Virginia. That only leaves the issue as to whether or not the petitioner is in the custody of the Parole Board. Here, the Parole Board has severely restrained the petitioners liberty (note the numerous restrictions). 61

HOLDING/RULE: A person on parole is in custody and therefore habeas corpus is available to them.

4. Peyton v. Rowe NATURE OF THE CASE: Prisoner files petition for a writ of habeas corpus under 2241(c) (3), while serving consecutive sentences, claiming that one of his future sentences seriously deprives him of his constitutional rights. 2241 (c) (3) says writs of habeas corpus may be issued by federal district courts on behalf of prisoners whose custody is in violation of the Constitution. The Court has already held in McNally v. Hill that 2241 does not authorize attacks upon consecutive sentences. ISSUE: Whether or not federal courts can review a petition for a writ of habeas corpus on behalf of a prisoner incarcerated under consecutive sentences who claims one of his future sentences is invalid because it deprives him of his constitutional rights? FACTS:
OVERVIEW: Habeas corpus proceedings. Appeal was taken from order of the United States District Court for the Western District of Virginia dismissing petition and from order of the United States District Court for the Eastern District of Virginia dismissing another petition. The Court of Appeals, reversed and remanded and certiorari was granted. The Supreme Court, Mr. Chief Justice Warren, held that prisoner serving consecutive sentences is 'in custody' under any one of them for purposes of federal habeas corpus statute, and district court may entertain petition of prisoner incarcerated under consecutive sentences who claims that sentence that he is scheduled to serve in future is constitutionally invalid.
Affirmed.

ISSUE: The question presented is whether a district court may entertain a petition for a writ of habeas
corpus from a prisoner incarcerated under consecutive sentences who claims that a sentence that he is scheduled to serve in the future is invalid because of a deprivation of rights guaranteed by the Constitution.

COURT LOOKS AT: The Court considered this issue in McNally v. Hill, and held that the habeas
corpus statute does not authorize attacks upon future consecutive sentences. We granted certiorari in this case to re-examine McNally.

FACTS: Robert Rowe and Clyde Thacker, are serving prison terms in the Virginia State Penitentiary.

In June 1963 Rowe was sentenced to 30 years' imprisonment after a jury found him guilty of rape. Subsequently, he pleaded guilty to an indictment charging him with felonious abduction with intent to defile arising from the same events which had led to the rape conviction. He was sentenced to a 20-year term on this conviction to run consecutively to the 30-year sentence. After exhausting state remedies, Rowe petitioned for a writ of habeas corpus in the United States District Court for the Western District of Virginia.

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He did not attack the rape conviction, but alleged that the conviction for felonious abduction was constitutionally defective because he had been subjected to doubt jeopardy, because his plea of guilty had been involuntary, because the indictment had failed to state an offense and because he had been inadequately represented by trial counsel. Without reaching the merits of Rowe's claims, the District Court denied relief. Applying McNally, the court found Rowe was then detained under the 30-year sentence for rape. Since he did not claim that sentence was invalid, it was held that he was not then in custody under an unconstitutionally imposed sentence within the meaning of 2241. The court concluded that it could not entertain Rowe's challenge to the conviction for felonious abduction until he was confined under the sentence imposed for that conviction. That time would not arrive until 1993. Rowe's initial plea of double jeopardy had been overruled by the trial court. Thackers case was similar.
The Court of Appeals for the Fourth Circuit reversed.

Appeals Court reasoned that this Court would no longer follow McNally, which in his view represented a 'doctrinaire approach' based on an 'old jurisdictional concept' which had been 'thoroughly rejected by the Supreme Court in recent cases. We are in complete agreement with this conclusion and the considerations underlying it.

HOLDING/ROL: Prisoners serving consecutive sentences that is in custody under any one of them for purposes of federal habeas corpus statute, and district court may entertain petition of prisoner incarcerated under consecutive sentences who claims that sentence that he is scheduled to serve in future is constitutionally invalid. REASONING: A federal jury had found McNally guilty of three counts of an indictment charging offenses
under the Motor Vehicle Theft Act. He had been sentenced to two years on the first count and four years each on the second and third counts, the sentences on the first and second counts to run concurrently and the sentence on the third consecutively. In his application in a district court for a writ of habeas corpus, McNally claimed that the indictment failed to state an offense as to the third count. He did not attack the convictions under the first and second counts. When he filed his petition he was serving under the second count. The lower courts denied relief on the merits. But this Court affirmed on a jurisdictional ground, holding that because McNally had not begun to serve the sentence on the third count--and therefore was not 'in custody' under that sentence--his petition for relief was premature:

Without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry. However, the Court of Appeals reasoned that : 'Years hence, the prisoner, at least, may be expected to give testimonial **1554 support to the allegations of his petition, but if they are false in fact, the Commonwealth of Virginia may be unable to refute them because of the unavailability of records and of the testimony of responsible officials and participants in the trial. The greater the lapse of time, the more unlikely it becomes that the state could reprosecute if retrials are held to be necessary. It

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*63 is to the great interest of the Commonwealth and to the prisoner to have these matters determined as soon as possible when there is the greatest likelihood the truth of the matter may be established. The foregoing analysis demonstrates that McNally is inconsistent with the purposes underlying the federal writ of habeas corpus. Moreover, in arriving at its decision, the Court in McNally relied in part upon an unnecessarily narrow interpretation of the habeas corpus statute. In common understanding custody comprehends respondents' status for the entire duration of their imprisonment. Practically speaking, Rowe is in custody for 50 years, or for the aggregate of his 3- and 20-year sentences. For purposes of parole eligibility, under Virginia law he is incarcerated for 50 years. Nothing on the face of 2241militates against an interpretation which views Rowe and Thacker as being in custody under the aggregate of the consecutive sentences imposed on them. Under that interpretation, they are 'in custody in violation of the Constitution' if any consecutive sentence they are scheduled to serve was imposed as the result of a deprivation of constitutional rights. We find unpersuasive the arguments made in McNally to support the narrower interpretation of the custody requirement. No prior decision of the Court was cited as clear authority for the prematurity doctrine.

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