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Federal CourtsProfessor Struve

Spring 2002

FEDERAL COURTS
I.

BackgroundDevelopment of the Federal System

Art. III 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services a Compensation, which shall not be diminished during their Continuance in
Office.
Art. III 2:The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of
admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens of another State; between
Citizens of different States; between Citizens of the same State claiming Lands under the Grants of
different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall
be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
Art. VI: The Constitution, and the Laws of the United States which shall be made in Pursuance thereof,
and all treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
A. Federalists believed that a strong national government was necessary to solve the problems that arose
under the Articles of Confederation. Part of this national government was the idea of a federal
judiciaryalthough decisions about the judiciary were ancillary to decisions about other federal
powers.
B. Why have a federal judiciary?
1. Concern that state courts would not administer federal law
2. Desire for uniform interpretation of federal law
3. Need to protect individual liberties
4. Need to solve conflicts between states
C. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.
1. This structure came about as a result of the Madisonian Compromise.
2. Delegates had agreed to the establishment of one supreme court but were mixed on the question
of inferior federal courts. Rutledge argued they were not necessary, as cases could be heard in
state tribunals, and on appeal, in the S.Ct. Madison argued that unless inferior federal tribunals
were dispersed throughout the Republic with final jurisdiction in many cases, appeals would be
multiplied to a most oppressive degree.
3. After Rutledges proposal to strike inferior tribunals from the article, Madison moved a
compromise resolution, which provided that the National Legislature should be empowered to
institute inferior tribunals. Madison believed there was a distinction between establishing such
tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them.
D. Independence of the Federal Judiciary
1. Relates to the discussion of parity between federal and state courts.
2. Art. III 1: Life tenure and salary protection

Leah Bartelt

Federal CourtsProfessor Struve


Spring 2002

3. Power is judicial onlydelegates rejected a suggestions that judges should sit with the executive
on a committee to determine the constitutionality of laws.
E. Types of Jurisdiction
1. Four broad categories
a. Enforcing federal authority
b. Relating to foreign affairs
c. Providing interstate umpire
d. Provide impartial tribunal when state court might be biased
2. Three types of federal question jurisdiction
a. Federal statute gives a right of action
b. Federal statute implies a right of action
c. Federal law forms an element of analysis as to state law
3. Original vs. appellate jurisdiction: appellate jurisdiction as to law and fact was an issue during the
ratification debates. Courts nonetheless were given this power.
F. Basic themes of these issues (and the course)
1. Separation of powerswhat should be the role of federal courts in relation to other branches of
government. Comes up in debates over Congressional regulation of the courts, abstention,
justiciability, and federal common law.
2. Federalismwhat should be the relationship of the federal courts to state courts. Here, the
debate over parity becomes central. Comes up in debates over SCT review of state court
decisions, federal HC review.
II.

The Nature of the Federal Judicial Function

A. Judicial Review
1. Marbury v. Madison (1803)
a. Context: In 1801, the outgoing Adams administration created 42 five-year Justice of the
Peace offices in D.C as a patronage move. This came after Congress had passed the
Midnight Judges act creating 16 new circuit court positions. Congress quickly confirms the
appointments to all these courts (positions are filled mostly by Federalists), but the executive
is unable to deliver some of the commissions to the newly-appointed Justices before Adams
term of office expires. When Jefferson takes office, he directs Madison (Sec. of State) to stop
delivery of the commissions, and the next year, Congress repeals the law creating the new
circuit court judgeships. The repeal and the prohibition on delivering the commissions were
among the moves that the new Republican Congress and Executive took to asserts its power
vis--vis the federal courts.
b. Issues presented
(1) Whether Marbury had a vested legal right to his commission as a Justice of the Peace.
Yes
(2) Whether the laws of the US afforded him a remedy.
(3) Whether he was entitled to the remedy he was seeking.
c. Existence of a Remedy?
(1) If the laws furnish no remedy for the violation of a vested legal right, then the
government of the US is not really one of laws.
(2) The important question of whether the legality of an act of the head of a department is
examinable in a court of justice or not, must always depend on the nature of that act:
Where the heads of departments are the political or confidential agents of the executive,
merely to execute the will of a President, or rather to act in case in which the executive
possesses a constitutional or legal discretion, those acts are only politically examinable.
But where a specific duty is assigned by law, and individual rights depend upon the

Leah Bartelt

Federal CourtsProfessor Struve


Spring 2002

performance of that duty, it seems equally clear that the individual who considers himself
injured, has a right to resort to the laws of his country for a remedy.
(3) This case is not a discretionary action and is therefore justiciable.
d. Entitled to the Remedy?
(1) Depends on the nature of the writ and the power of the court.
(2) A writ is a command that an executive officer or court take a particular action, and is
available only if a party has no other remedy. Whether a court can tell the executive
branch to do something depends on the nature of the action is has taken and would take in
response. If it is justiciable, then mandamus is appropriate.
(3) The power of the SCT to issue such a writ depends on its grants of authority. Two
sources:
(a) Constitutional
(b) Statutory-- 13 of the Judiciary act. Under the Act, the Court can issue the writ.
(4) But, does the act provide a jurisdiction that conflicts with Art. III? The statute authorizes
the ordering of a writ, and Marbury has asked the SCT to issue the writ as part of its
original jurisdiction. But, the constitution defines the SCTs original jurisdiction, and it
does not include the ordering of writs to government officials. Art. III is a ceiling on
jurisdiction, above which Congress cannot confer jurisdiction. Any other reading of Art.
III would render its 2d sentence surplusage, and that cannot be allowed. Therefore, the
SCT does not have jurisdiction to issue writs under original jurisdiction.
e. Does SCT have power to issue a write when that jurisdiction is conferred by an
unconstitutional statute? Brings up question of judicial review
2. Judicial Review and its justifications
a. US has a written constitution. This means courts cannot enforce laws that violate it.
Otherwise, what good is it?
[There is an argument that the Constitution could be no more than a guide for legislators
judicial review does not need to come part-and-parcel with a written constitution.]
b. Judicial review comes from courts power to decide cases and controversies; if a case
presents a question of enforcement under a statute, courts must evaluate whether the statute
can be enforced.
[Could Marbury be read to stand for something more? Here, the court decided much more
than just the question in front of it, and definitely did not seek to avoid the constitutional
question, even though it was never raised. Marbury seems to be the first public rights case.]
c. Art. III affords judicial power to all cases arising under the constitution. Necessarily, this
means court should address any constitutional question in the cases before it.
Marshall believes this grant gives the courts the final word on what the constitution
means.
d. Supremacy Clauseenforcing the Constitution as the Supreme Law of the Land requires the
court to check whether statutes also sought to be enforced conform with constitutional
requirements.
3. Public Rights Model of Litigation
a. Describes the function of courts as something other than an incident of the power to resolve
particular, ongoing disputes between identified litigants (private rights model).
b. Three aspects:
(1) Questions the importance of requiring that the plaintiff have a personal stake in the
outcome of a lawsuit.
(2) Argues that the judiciary should not be viewed as a mere settler of disputes, but rather as
an institution with a distinctive capacity to declare and explicate public values.
(3) Defends the exercise by courts of broad remedial powers in cases challenging the
operating of public institutions.
c. Support:
Leah Bartelt

Federal CourtsProfessor Struve


Spring 2002

(1) Marbury, and Marshalls repeated emphasis that a written constitution imposes limits on
every organ of the statewelds judicial review to the political axiom of limited
government.
(2) The increase in governmental regulation has created diffuse rights shared by large groups
and new legal relationships that are hard to capture in traditional, private law terms.
(3) Substantial expansion of constitutional rights, especially under the Warren Court.
(4) Increasingly pervasive conception of constitutional rights not as shields against
governmental coercion, but as swords authorizing the award of affirmative relief to
redress injury to constitutionally protected interests.
B. Advisory Opinions
1. The prohibition against advisory opinions have been termed the oldest and most consistent thread
in the federal law of justiciability
2. Correspondence of the Justices: The lines of separation drawn by the Constitution between the
three departments of governmenttheir being in certain respects checks upon each otherand
our being judges of a court in the law resortare considerations which afford strong arguments
against the propriety of our extrajudicially deciding the questions alluded to.
3. The prohibition against advisory opinions rests mostly on policies implicit in Article III.
4. When does an advisory opinion happen?
a. Any judgment subject to review by a coequal branch of government
b. Advice to a coequal branch of government prior to the other branchs contemplated action
c. SCT review of any state judgment for which there is or may be an adequate and independent
state ground
d. Any opinion, or portion thereof, not truly necessary to the disposition of the case at bar
(dicta)
e. Any decision on the merits of a case that is moot or unripe or in which one of the parties
lacks standing
(a)&(b)constitutional. (c)(d)&(e)function of judicial discretion
5. Declaratory Judgments (exception to prohibition on advisory opinions):
a. Act of 1934 authorizes the federal courts to issue declaratory judgments establishing the
rights and legal relations of any interested party seeking such declaration in a case of actual
controversy.
b. Essential question when approaching this doctrine is whether the situation presents an actual
controversy or case. Case must be concrete and not hypothetical.
c. Purpose of the DJ Act was to prevent parties from accumulating damages; if rights are
determined earlier, it minimizes the social welfare lost in the controversy.
d. Calderon v. Ashmus (1998): suit seeking a determination of whether prisons in California had
180 days or 1 year to file HC petitions was not a case or controversy under Article III to
allow for a declaratory judgement to be rendered. The actual concrete controversy was
whether the prisoner was entitled to HC relief, but he had not presented that questionhe had
tried to carve out a collateral legal issue. For a DJ to be justiciable, it must seek a ruling
capable of resolving the entire, underlying case.
6. Advisory opinions may be available in state court
C. Finality Requirement
1. Federal court judicial power only extends to cases that can be determined with finalitycases
that can receive final determinations on legal questions.
2. Final means the case cannot be revisited by other branches of government.
3. Hayburns Case (1792)

Leah Bartelt

Federal CourtsProfessor Struve


Spring 2002

a. Invalid Pensions Act of 1792 made courts an integral part of the process of review pension
petitions; their determinations would then be passed on to the War Dept., and Secretary of
War could withhold the award of a pension.
b. Case decided on grounds unrelated to finality AG could not bring case ex officio
(1) AG had no personal stake in the outcome of the case; could not just bring suit on behalf
of an underprivileged class.
(2) Contrast to Sprangler: Govt status as an intervenor in the case was authorized by statute;
thus, it had a sufficient stake to keep the case alive once the putative plaintiffs graduated.
c. But issue was addressed by some of the courts hearing the case.
d. Themes:
(1) Judicial independence: If decisions are subject to revision by executive branch members,
than the decisions are no more than advisory opinions on behalf of the executive.
(2) Properly judicial functions: Legislative and exec branches cannot assign to Judicial
branch that which is not properly judicial. Because these court decisions are subject to
consideration of the Secretary and revision of the legislature, the functions outlined in the
act are not properly judicial. Allowing such revision is inconsistent with the judicial
power bested in courts and outlined in the Constitution. [SOP args]
judges do not have to completely refuse to hear the case, but they cannot do so as judges
must do so in their individual capacity as commissioners.
e. Why were the functions non-judicial?
(1) Parties were not adverse
(2) Government cannot sue itself (But see U.S. v. Nixon (holding that the mere assertion of
a claim of an intro-branch dispute without more, has never operated to defeat federal
jurisdiction; justiciability does not depend on such a surface inquiry) must look at
whether parties in actuality are adverse.
(3) Decisions were subject to executive revision
(4) Decisions were subject to any type of revision. Allowing final judgments to be revised by
Congress violates the grant of judicial power in the Constitution. Just as the Court cannot
decide controversies that are not final, Congress cannot overturn final decisions of courts.
Plaut v. Spendthrift Farm (1995): federal statute directing federal courts to reopen final
judgments in private lawsuits violated Art. III and the separation of power. In enacting
the statute, Congress had trenched on judicial power. The framers wished to insulate final
judicial judgments from legislative revision.
f. If functions are non-judicial but are carried out by courts anyway, Art. III courts cannot take
review of them.
4. How final does the decision have to be?
a. Tutun v. U.S. (1926): Circuit courts have jurisdiction to review DC orders regarding
immigration petitions. Whether a proceeding is a case or controversy depends on the nature
of the proceeding. Because this is clearly a case when it is in front of the DC, even though the
decision may not have preclusive effect, it satisfies the requirements of being a case. See also
Patent cases, where there are due process reasons for the decisions to not be preclusive, but
the adjudication is still a judicial function.
b. U.S. v. Jones (1886): SCT can review decisions of the U.S. Court of Claims. Courts
decisions are properly judicial given that the determinations are not subject to review by the
executive branch. Even though there is no guaranteed that the money will actually be paid by
the government, the adjudication of the claim is still judicial. There is never a guarantee that
a judgment will be paid, but the decision still stands. As long as the decision cannot be
overturned, even if it cannot be effectuated, it is still a judicial decision.
D. Standing

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Federal CourtsProfessor Struve


Spring 2002

1. Article III basis for standing doctrine


a. Case or Controversy Limitationtextual
b. Emphasis on SOPlimited role of courts in a democratic society; standing rules limit a court
to its proper role vis--vis the other branches
BUT, the broader the doctrine, the smaller the courts jurisdiction; therefore, judicial
branch becomes too small in comparison to the others.
2. Requirements for standing
a. Constitutional:
(1) Injury (must be imminent)
(2) Causation: did defendants conduct cause the injury?
(3) Redressability: will the courts decision towards the defendant take away the injury?
b. Prudential:
(1) Cannot assert rights on behalf of third party
(2) Zone of interests
3. Party asserting standing (usually P) has burden of proving standing requirements.
4. Allen v. Wright (1984)
a. Facts: Plaintiffs are parents of black children who were attending public schools. They
challenge the IRS rules under which school are given tax-exempt status. They argue that
racially discriminatory private schools are still receiving tax-exempt status because the rules
do not sufficiently determine whether a school is in fact non-discriminatory.
b. Relief sought: DJ; injunction ordering better enforcement; order for more effective guidelines
c. Held: Plaintiffs do not have standing to bring the action because they can show no actual
injury. Their children did not try to get into the schools and were rejected, thereby suffering a
stigmatic injury. And the claim that there is a lower quality of education in public schools
because they are not properly integrated is not fairly traceable to the IRS actions.
d. Analysis:
(1) Injury
(a) Stigmaticcourt finds this to be a generalized grievance that anyone in the country
could have asserted. The plaintiffs only injury is that they recognize that the
government is not following the law. In order to have a specific grievance under this
theory, plaintiffs would have had to apply to the discriminatory public schools and be
turned down.
(b) Inability to attend an integrated public schoolwhile this would have been sufficient
injury to confer standing, the chain of causation is too attenuated.
(2) Causationlink between IRS rules and the segregated schools is too attenuated to be a
cause.
e. Dissent: basic economic theory shows the plaintiffs causation theory works out.
f. Struve complaints with this case: Standing inquiry happened too early. If court had allowed
plaintiffs to introduce evidence on the question of class certification, there might have been a
stronger argument for standing. The courts real problem in this case seems to be the weak
argument for certification, not the weak argument for standing.
g. Contrast Allen to Norwood: Latter plaintiffs were not kicked out on standing. Court
distinguishes Allen on theory that these plaintiffs were not already part of a desegregation
order. Thus, there do not have a standing argument based on previous legal ties to the case.
5. Lujan v. Defenders of Wildlife (1992)
a. Held: DOW does not have standing to bring suit against Dept. of Interior for possible
extinction in Egypt and Sri Lanka. Although two members filed affidavits asserting they
would be injured by missing out on seeing animals in those two countries, they have no
intention of visiting them anytime soon and cannot rely on their past visits for the source of
the injury.

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Federal CourtsProfessor Struve


Spring 2002

b. Relief sought: DJ that agencies are incorrect that section in question does not apply in foreign
countries; injunction requiring Secretary promulgate regulations indicating international
application.
c. Analysis:
(1) Injury is too speculative. Just because certain group members have previously visited the
animals does not mean they will do so in the future. Therefore, it does not mean they will
likely suffer from the possible loss of the animals. Must show that they are imminently
going to return to these habitats.
(2) Redressability: Even if the court orders the relief requested, the agency does not have to
abide by it. There is a question as to whether the Secretarys interpretation of the law will
be applicable to other agencies.
6. Congress ability to confer standing
a. A Congressional grant of standing does not overcome requirement that a party assert a
specific and individualized grievance.
b. Would make sense if this requirement came from Art. III, but Court has not said that.
c. This doctrine weighs against the public rights theory of litigationCourt has required that
if Congress wants to confer standing, that it must identify the injury and the class of persons
suffering from it. The requirement that citizen suit provisions be specific indicates the Court
is not viewing these suits from a public rights mindset.
d. Illustration: FEC v. Atkins (finding standing requirements satisfied in context of statute where
Congress has created right to information
e. If Court lets Congress have absolute power to confer standing, then the balance of powers is
shifted. Congress might use it to confer on the Courts power to oversee Executive branch on
issues that are no more than generalized grievances.
E. Mootness and Ripeness
1. Mootness
a. The inability of the federal judiciary to review moot cases derives from the requirement of
Art. III under which the exercise of judicial power depends upon the existence of a case or
controversy.
b. Question of mootness is a federal one.
c. If the controversy between the parties has ceased to be definite and concrete and no longer
touches the legal relations of parties having adverse legal interests, the case is moot.
d. DeFunis v. Odegaard (1974)
(1) Facts: individual suit against UW claiming that admission policies were discriminatory
seeking admission as a remedy. P was admitted pending appeal of a decision in his favor.
At time SCT case he had reached his 3d year and regardless of the decision of the court
on the merits of the admission policy, P would be allowed to graduate.
(2) Held: the controversy between P and UW was moot because there was no way P would
be taken out of the schoolhe got what he wanted by reaching his 3d year of school.
e. Exceptions to Mootness doctrine
(1) Voluntary Cessation: an action seeking prospective relief does not become moot merely
because the conduct ended if there is a possibility of recurrence. See Erie v. Paps AM
(holding case still alive even though club had ceased operation; if case were held to be
moot just because P went out of business, the city would have lost its opportunity to
appeal, and thats just not fair). Test is whether there is no reasonable expectation that
the wrong will be repeated. If D will be allowed to return to his old ways, then the case is
not moot.
(2) Capable of Repetition Yet Evading Review: prime example is cases brought by
pregnant women seeking changes in policies. Because pregnancy only lasts 9 months,
and the case could last longer than that, a doctrine that held the case to be moot one P
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Federal CourtsProfessor Struve


Spring 2002

delivered would never allow the legal challenge to be fully heard. As long as there is a
chance the case will return to the court and be fully adjudicated by a different plaintiff,
then it is not unable to be review.
f. When should the court conduct this analysis? A case or controversy clearly existed when
DeFunis filed his casesufficient to satisfy Art. III requirements. Given that an adversarial
process has already occurred (which is the idea), there is no need to throw out the case now
and leave those other opinions out there.
g. Contrast to standing analysis: Friends of the Earth: just because Ps injury can no longer be
redressed does not make the case moot. There, because the parties are still adverse and
because D may have to pay fines, case is still alive.
h. Incentives: mootness looks to whether it would be wasteful to actually decide the case,
recognizing that there has already been an outlay of sunk costs. Standing analysis looks at
whether there is no reason to waste scarce judicial resources to hear the case in the first place.
i. Cardinal Chemical: just because legal question is determined on one theory does not make
counterclaims moothigher court can always reverse on that first question, and then be
unable to render a decision on the second question because it was dismissed.
2. Ripeness
a. Plaintiffs must allege some threatened or actual injury resulting from the putatively illegal
action before a federal court may assume jurisdiction. Comes from Art. III case/controversy
requirement.
b. OShea v. Littleton (1974):
(1) Case was not ripe because plaintiffs had not suffered from any injury in the past, were not
suffering from continuing injury, and only had potential for future injury if they violated
the law, and were put in front of the evil judges.
(2) But this determination had to be made based on the courts understanding of the Ps
theories and desired relief. Because it would thrown out on ripeness before they were
able to make sufficient evidentiary submissions on injury, the court predetermined its
own holding.
(3) Also seems to conflate ripeness analysis with injunctive relief requirements:
(a) Irreparable harm
(b) Inadequate remedy at law
c. Lyons (1983): just because the damages claim is ripe does not mean the claim for injunctive
relief is ripe. If order to get an injunction, P must show he may suffer from these actions
again. Because that analysis is so speculative, court holds he cannot bring the case.
F. Political Questions
1. A controversy is nonjusticiable (involves a political question) where there is:
a. A textually demonstrable constitutional commitment of the issue to a coordinate political
department, or,
b. A lack of judicially discoverable and manageable standards for resolving it.
2. See Baker v. Carr. Other factors to consider:
a. Needs an initial policy determination from another branch
b. Runs risk of expressing a lack of respect for other branches
c. Involves unusual need for an unquestioning adherence to a political decision already made
d. Exists potential for embarrassment because of multiple pronouncements from different
branches
3. Political question doctrine exists to support the system of checks and balances. If the judicial
branch could take review of legislative functions, it would interfere the scope of legislative
power.
a. Especially in the context of impeachments, where those procedures provide the legislatures
only check on the JUDICIARY.
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Federal CourtsProfessor Struve


Spring 2002

4.

5.

6.
7.

b. This doctrine seems to put a limit on Marbury; there seem to exist parts of the constitution
that the court should not look into should not address the constitutionality of actions of
other branches if those actions are too close are essential to the functioning of the system.
c. Political question doctrine provides a partial answer to the question of how Art. III actions
relate to Art. I and Art. II actions.
Nixon v. US (1993)
a. Facts: P alleged that his impeachment under a Rule adopted by Congress violated Art. I 3
(impeachment are supposed to be in Senate).
b. Held: Not a justiciable casepolitical question.
Textually demonstrable commitment: In Nixon, the Court found that the Constitution gave the
Senate the sole power to try impeachmentsthis shows that such procedures are not a function of
the judicial branch. If the courts may review the actions of the Senate in order to determine
whether that body tried na impeached official, it is difficult to see how the Senate would be
functioning independently and without assistance or interference.
Judicially-discoverable standards: In Nixon, the Court found that the lack of finality and the
difficulty of fashioning relief counsel against justiciability.
Other political questions: Guarantee clause questions.
III.

Congressional Control of the Distribution of Judicial Power

A. Congressional Regulation
1. Sources of Congressional Power over Federal Courts
a. Art. III 2 cl. 3: specifies that the appellate jurisdiction of the SCT shall be subject to such
Exceptions as the Congress shall make.
b. Art. III 1: provides for the vesting of federal judicial power in one SCT and in such
inferior Courts as the Congress may from time to time ordain and establish.
2. Sheldon v. Sill (1850):
a. Facts: 11 of Judiciary Act restrains Circuit Courts from taking cognizance of any suit to
recover the contents of any promissory note or other chose in action if no assignment had
been made.
b. Issue: Whether Congress has power to enact 11to limit jurisdiction of federal courts
when the Constitution would otherwise allow the Court to hear this case.
c. Held: Congress has the authority to define the bounds of jurisdiction, and can therefore
narrow it. The Constitution defines the outer limits, but does not require that federal courts
have jurisdiction up to these bounds. The Constitution has defined the limits of the judicial
power of the United States, but has not prescribed how much of it shall be exercised by the
Circuit Court; consequently, the statute which does prescribe the limits of their jurisdiction,
cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.
3. Ex Parte McCardle (1869): Statute taking away federal habeas corpus for state prisoners is
constitutional. Congress clearly limited the Courts jurisdiction and will not allow it to hear this
type of case. Acts of Congress are generally affirmative acts granting jurisdiction; the necessary
corollary is the negation of the exercise of appellate power if not granted by the statute.
4. Debates over the Power of Congress to Limit the Jurisdiction of the Federal Courts
a. Congressional Power to Exclude Cases from the Lower Federal Courts
(1) Does the holding in Sheldon v. Sill have to be right given that the exclusion clause in
Article III was put in as part of the Madisonian Compromise?
(2) Lower federal courts have never had the full extent of jurisdiction the Constitution might
allow them to have:
(a) Grant of federal question jurisdiction is rather recent
(b) Amount in controversy requirement
(c) Well-pleaded complaint rule
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Federal CourtsProfessor Struve


Spring 2002

(d) Strict requirements of diversity


(3) Justice Storys Argument
(a) Congress is obligated to vest all of the judicial power either in an original or appellate
form in some federal court
(b) If any cases described in Article III are beyond the jurisdiction of the state courts, and
thus non capable of review on appeal from a state court to the SCT, Congress would
be obligated to create inferior federal courts in order that these cases might be
entertained in some federal court.
(c) Argument is limited to the first three categories of cases described in Article IIIto
those in which the Framers used the adjective all.
(4) Contemporary supporters of Story:
(a) Clinton: Congress must allocate to the federal judiciary as a whole each and every
type of case or controversy within the scope of Article III excluding possibly only
those cases that Congress deemed to be so trivial that they would pose an
unnecessary burden.
(b) Redish & Woods: Constitution precludes state courts from exercising jurisdiction in
at least some cases in which the Constitution also requires that a court be available to
rule on claims of legal right.
(5) Internal and External RestraintsEP and 5A DP.
(a) Sheldon: no Art. III constraints on Congress power to limit lower federal court
jurisdiction.
(b) Tribe: to single out cases involving a particular category of constitutional claims for
exclusion from the federal courts imposes an impermissible burden on the underlying
constitutional right being asserted in those cases.
(6) Norris-LaGuardia Act: restricted the authority of federal courts to issue injunctions in
labor disputes; provided yellow-dog contracts would not be enforceable in federal
courts.
(a) SCT had previously found a due process right to condition employment on an
undertaking not to join a labor union.
(b) Lauf v. E.G. Shinner (1938): rejected suggestion that the Acts restrictions on federal
injunctions violated the Constitution. There can be no question of the power of
Congress thus to define and limit the jurisdiction of the inferior courts of the US.
(c) But, isnt this just giving Congress the power to redraw jurisdictional lines in part
because it dislikes certain federal court decisions?
b. Congressional Power over the SCTs Appellate Jurisdiction
(1) Congress power to limit the SCTs appellate jurisdiction is presumably subject to he
same external restraints from constitutional provisions other than Art. III, such as the DP
clause, as is the power to define the lower courts jurisdiction.
(2) Any Art. III limitations on Congress authority to create exceptions?
(a) If there were no limitations, presumably the exceptions could swallow the rule, and
there would be no jurisdiction.
(b) Hart: The measure of necessary reservation is that the exceptions must not be such as
will destroy the essential role of the SCT in the constitutional plan.
(c) Ratner: exceptions to the Courts appellate jurisdiction must not negate the Courts
essential constitutional functions of maintaining the uniformity and supremacy of
federal law. Legislation that precludes SCT review in every case involving a
particular subject is an unconstitutional encroachment.
(d) BUT, see Wechsler: I see no basis for this view and think it antithetical to the plan of
the Constitution for the Courtswhich was quite simply that the Congress would
decide from time to time how far the federal judicial institution should be used within
the limits of the federal judicial power, or, how far judicial jurisdiction should be left

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to the state courts, bound as they are by the Constitution as the supreme Law of the
Land. Federal courts do not pass on constitutional questions because there is a
special function bested in them to enforce the Constitution or police the other
agencies of the government. They do so rather for the reason that they must decide a
litigated issue that is otherwise within their jurisdiction and in doing so must give
effect to the supreme law of the land.
(3) US v. Klein (1871): Court held statute requiring dismissal for want of jurisdiction any
pending claims based on post-Civil War pardons to be unconstitutional.
(a) Statute did not limit jurisdiction to all of these types of case, but merely adopted a
rule of decision in causes pending. This is not an exercise of Congress exception
power. Implies that the invocation of the language of jurisdiction is not a tailsman.
See also Plaut. But see Robertson v. Seattle Audobon Society (finding that Congress
did not instruct a court in how to apply pre-existing legal standards to a pending case,
but rather amended the statute, which is permissible). Decisions in Klein and Plaut
seem to be motivated by SOP concerns.
(b) Rule of decision in question impaired the effect of a presidential pardon and thus
infringed the constitutional power of the Executive.
(c) Jurisdiction-stripping legislation enacted as a means to an end that is itself
constitutionally impermissible is not an exercise of the acknowledged power of
Congress to make exceptions and prescriptive regulations to the appellate power.
c. Congressional Power to Withdraw All Federal Jurisdiction
(1) Question: Would simultaneous restrictions on lower federal court and SCT appellate
jurisdiction in the came class or cases raise distinctive issues under Art. III?
(2) Theoretically, no, given the Judiciary Act of 1789 and its limitations on the federal
judiciary.
(3) Sager: the Constitution requires either original or appellate federal jurisdiction of
constitutional claims. These are the cases in which, in light of the history and logic of the
Constitution, there is the largest constitutional interest in adjudication by as judge with
the safeguards from political influence established by Art. II.
(4) Amar: picks up Story argument of two-tiered requirements of jurisdiction. Selective use
of the word all in Art. III 2 indicates that it require the vesting of either original or
appellate federal jurisdiction in three of the categories of cases listed. The text of Art. III
establishes two tiers of federal jurisdiction in which federal jurisdiction is mandatory in
three categories, and discretionary in the other six categories. This analysis leaves a role
for congressional discretion, as contemplated by the Madisonian Compromise, and
accords significance to Congress power to create exceptions to SCTs appellate
jurisdiction.
(5) Santa Clara Pueblo v. Martinez (1978): federal courts possess no jurisdiction over suits to
enforce the federal Indian Civil Rights Act; although suits arise under federal law,
enforcement actions can be filed only in tribal courts and there is no possibility of SCT
review. Apparently, it does not matter that the purpose of ICRA is to protect individual
Indians from arbitrary and unjust actions of tribal governments.
d. Congressional Preclusion of Both State and Federal Jurisdiction
(1) Example: Portal-to-Portal Act, eliminating claims under the FLSA.
(a) Sections 2(a) and (b) wiped out the retroactive liabilities of ERs; no ER shall be
subject to any liability or punishment under the FLSA for failure to compensate the
work at issue.
(b) Section 2(d) said no court (State, terrirorial or federal) shall have jurisdiction of nay
action or proceeding that sought to enforce any liability or impose any punishment
WRT activities that were deemed not compensible under (a) and (b).
(c) Claim that the Act destroyed vested rights in violation of 5A was rejected.
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(d) But courts held the question open to decision, despite 2(d). See Battaglia (The
exercise by Congress of its control over jurisdiction is subject to compliance with at
least the requirements of 5A. it must not so exercise that power as to deprive any
person of life, liberty, or property without due process. Regardless of whether (d)
had an independent end in itself, if one of its effects would be to deprive the
appellants of property without due process or just compensation, it would be
invalid.).
(2) Battaglia principle: Under what circumstances might a withdrawal of jurisdiction from
state and federal courts alike violate the fifth amendment.?
(a) Webster v. Doe (1988): Congress had not manifested its intent to preclude review of
constitutional challenges with sufficient clarity for the statute to be construed as
precluding such review. There is an interest in avoiding the serious constitutional
question that would arise if a federal statute were construed to deny any judicial
forum for a colorable constitutional claim.
(b) Court has strained to construe statutes to permit judicial review of constitutional
questions, even when they clearly prohibit judicial review of other questions. Court
has done this even though it has never held there is a constitutional right of access to
a judicial forum in every case involving a constitutional claim.
(c) Isnt the question of whether one has a constitutional right to judicial review bound
up with the question of whether one has a constitutional right to a remedy? Because
there are so many immunity doctrines out there, there are circumstances in which the
law provides no effective remedy for a violation of someones constitutional rights.
(3) Hart discusses this problem and how the SCT has ducked it, and finds that sovereign
immunity does not provide the strongest counter-argument to Battaglia. First, the
existence of sovereign immunity does not close off all potential remedies for violations.
Second, there are market and democratic reasons why a government might waive its
sovereign immunity to suit in certain circumstances.
(4) Nonetheless, the Court has found there to be a constitutional right to remedies in certain
circumstances: takings, coercive collection of taxes. Has not settled the question whether
the constitution mandates the availability of similar judicial protection for other rights.
(5) Hart concludes that it is a necessary postulate of constitutional government that a court
must always be available to pass on claims of constitutional right to judicial process, and
to provide such process if the claim is sustained.
(6) Fallon & Meltzer: The constitutional tradition reflects two remedial principles. First, the
idea that there should be individually effective redress for all violations of constitutional
rights is strong but not unyielding; it can sometimes be outweighed by the kinds of
practical imperatives that underlie immunity doctrines. Second, the structural principle
which demands a system of constitutional remedies adequate to keep government
generally within the bounds of the law is more unyielding in its own terms, but can
tolerate the denial of particular remedies, and sometimes of any individual redress to the
victim of a constitutional violation.
(7) Struve: the denial of individual remedies would be more of a problem if it resulted in the
branches no being kept in check.
e. Congressional Apportionment of Jurisdiction Among Federal Courts and Limitations on the
Authority of Enforcement Courts
(1) Lockerty v. Phillips (1943): Challenged Price Control Act giving exclusive jurisdiction to
hear protests to Administrators decisions to the Emergency Court of Appeals.
(a) All federal courts other than the SCT derive their jurisdiction wholly from the
exercise of the authority to ordain and establish inferior courts, conferred on
Congress.

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(b) The Congressional power to ordain and establish inferior courts includes the power
of investing them with jurisdiction either limited, concurrent, or exclusive, and of
withholding jurisdiction from them in the exact degrees and character which to
Congress may seem proper for the public good.
(c) It is plain that Congress has power to provide that the equity jurisdiction ot restrain
enforcement of the Act, or of regulations promulgated under it, be restricted to the
ECA, and, upon review of its decisions, to this Court.
(2) Yakus v. US (1944): Presented question of status of a claim of invalidity of the Price
Control Act or of a regulation as a defense to a criminal prosecution, given that
jurisdiction of such question was constrained to ECA.
(a) Question is whether the procedure for review in the ECA affords those affected a
reasonably opportunity to be heard and present evidence.
(b) Here, D can challenge the regulation; having to do it in a different court from where
he is being prosecuted is not a violation of the sixth amendment.
(c) Struve: is it fair for the defendant to be deprived of this affirmative defense during his
prosecution? Doesnt that make his case more sympathetic?
(d) Rutledge dissent: if Congress wants to avail itself of Art. III courts to prosecute
violations of the Act, it cannot limit what they are allowed to hear. Here, it turns
courts into a rubber stamp of the administrators decision. Congress has cut out the
Courts right to look at the validity of the law before sentencing someone for
violating it.
(3) Falbo: in prosecution for failure to report for military service, D cannot raise argument
that he was wrongly classified by the service must first exhaust administrative
remedies asserting this claim before it can be brought to the court.
(4) Estep: In similar case but where D had exhausted administrative remedies, court held that
D was entitled to make the defense that the local board had acted beyond its
jurisdiction. The jurisdiction of the local board is reached only if there is no basis in fact
for the classification which it gave to the registrant.
(a) Hart: in this decision, the Court was saying that Congress has power under Art. I to
direct courts created under Art. III to employ the judicial power conferred by Art. III
to convict a man of a crime and send him to jail without his ever having had a chance
to make his defenses.
B. Federal authority and state-court jurisdiction
1. Concurrent Versus Exclusive Jurisdiction
a. Federalist 82
(1) Presents question of whether jurisdiction of federal courts is supposed to be exclusive or
concurrent regarding the question of those causes which are under consideration for being
submitted to federal jurisdiction.
(2) Answer: state courts will retain the jurisdiction they now have, unless it appears to be
taken away in one of the enumerated modes.
(3) But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions
of causes of which the state courts have previous cognizance. It is not equally evident in
relation to cases which may grow out of, and be peculiar to, the constitution to be
established.
(4) Appeals: would lie from state courts to the SCT of the US. The constitution in direct
terms, gives an appellate jurisdiction to the SCT in all the enumerated cases of federal
cognizance, in which it is not to have an original one; without a single expression to
confine its operation to the inferior federal courts. Either this must be the case, or the
local courts must be excluded from a concurrent jurisdiction in matters of national
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concern, else the judiciary authority of the union may be eluded at the pleasure of every
plaintiff or prosecutor.
b. Tafflin v. Levitt (1990)
(1) Issue: whether state courts have concurrent jurisdiction over civil actions brought under
RICO.
(2) Held: They do.
(3) Analysis:
(a) Court has consistently held that state courts have inherent authority, and are thus
presumptively competent to adjudicate claims arising under the laws of the U.S.
(b) This presumption can be rebutted if Congress affirmatively ousts the state courts of
jurisdiction over a particular federal claim: must make an explicit statutory directive,
by unmistakable implication from legislative history, or by a clear incompatibility
between state-court jurisdiction and federal interests.
(4) Legislative history: no evidence that Congress even considered the question of concurrent
state court jurisdiction over RICO claims, must less any suggestion that Congress
affirmatively intended to confer exclusive jurisdiction over such claims on the federal
courts. Test is whether Congress in its deliberations may be said to have affirmatively or
unmistakably intended jurisdiction to be exclusively federal.
(5) Incompatibility: factors include the desirability of uniform interpretation, the expertise of
federal judges in federal law, and the assumed greater hospitality of federal courts to
peculiarly federal claims. If concurrent jurisdiction creates a significant danger of
inconsistent application of federal criminal law, then it should not be assumed.
(6) Scalia: it takes an affirmative act of power under the Supremacy Clause to oust the states
of jurisdictionan exercise of the power of Congress to withdraw federal claims from
state court jurisdiction. It is wrong in principle to assert that Congress can effect this
affirmative legislative act by simply talking about it with unmistakable clarity. What is
needed to oust the States of jurisdiction is Congressional action, not merely
Congressional discussion.
[MORE???? GET NOTES FROM 1/25]
c. Tarbles Case (1872): State courts cannot issue writs of habeas corpus to federal officials.
(1) Facts: Tarble sought release from military; writ of habeas corpus from Wisconsin state
courts.
(2) Held: State court lacked jurisdiction to issue the orderbecause the federal government
has plenary power over regulation of the national military, allowing a state court to issue
these writs might be used to the detriment of the public service.
(3) Federal and state governments are separate and distinct, and each supreme in their
separate spheres. Under the federal system, these spheres are not supposed to interfere
with each 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.
(4) Only the federal government could give states this type of powerit is not inherent, and
the states themselves cannot confer such jurisdiction.
d. What do Federalist 82 and other basic principles of federal jurisdiction have to say about
specific instances questioning concurrent jurisdiction?
(1) In circumstance of habeas, 82 would support arguments on both sides. If Congress did
not create lower federal courts, then writs would have to issued from state courts. Habeas
is a constitutionally protected right that must be able to be enforced somewhere. [DOES
THIS MEAN THAT JURISDICTION MUST BE CONCURRENTINHERENT TO
STATES? OR DOES IT MEAN THAT SINCE LOWER FEDERAL COURTS WERE
CREATED, STATES DO NOT HAVE SUCH JURISDICTION?]
(2) Redish & Woods: because the rule of Tarbles case bars a state court from providing
constitutionally required review when a federal officer is the defendant, it would violate

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5A to prevent the federal courts from hearing those cases. Thus, Congress power to
control the jurisdiction of lower federal courts must be limited by a 5A obligation to
provide a federal forum to protect constitutional rights where Tarbles Case prevents a
state court from acting.
e. Extensions principles of Tarbles Case:
(1) McClung v. Silliman (1821): state court lacked jurisdiction f a suit for mandamus to
compel the register of a federal land office to make a conveyance. U.S. has denied its
own courts authority to issue such a mandamuscannot let state courts do it and keep
that in place. Plus, the substantive area is one that the govt needs to controlthe federal
government must be allowed to dispose of property in its own way.
(2) Clinton v. Jones (1997): although federal court has jurisdiction to hear damages action
against he President, that answer might be different if the case were brought in state
court. It is possible that concerns with federalism, comity, and local bias against federal
officials might make a stronger case for the application of immunity.
(3) If state courts cannot hear cases regarding writs of mandamus, they cannot hear cases
bringing suit against federal officials for injunctive relief. SCT has not answered the
question, but this seems right.
(4) State courts are without power to restrain federal-court proceedings in personam actions.
2. The Obligation of State Courts to Enforce Federal Law
a. Testa v. Katt (1947): state court must hear federal law claims if courts have concurrent
jurisdiction. It does not matter if the state disagrees with the law or considers such laws
foreign to itthe plan of the constitution requires the supremacy of federal law. Under
the Supremacy Clause, federal law becomes the law of the states themselves.
b. Exceptions for Valid Excuses: a state court may refuse to accept jurisdiction of federal causes
of action in certain circumstances.
(1) Court has said that while state courts can be forbidden to discriminate against federal
causes of action, it is an open question whether they can be more straightfowardly
required to hear federal claims.
(2) Douglas: NY law can prohibit state courts from hearing actions by nonresidents against
foreign corporations in certain circumstances.
(3) Southern RR v. Mayfield (1950): doctrine of forum non conveniens, if applied without
discrimination to all nonresidents, constitutes a valid excuse.
(4) Howlett v. Rose (1990): if excuse if discriminatory, it is not valid. State statute cannot
waive immunity to state claims and not federal claims.
(5) Felder v. Casey (1988): rule discriminated against the precise type of civil rights action
that Congress had created in 1983thus, rule limiting jurisdiction is not valid.
(6) Alden v. Maine (1999): Congress may not require state courts to entertain suits against
unconsenting states in any case in which, as a result of the eleventh amendment,
Congress could not force unconsenting states to submit to suit in fed court.
c. There is no commandeering problem herestate courts and judges are different from all
other state officials, and they can be required to hear federal claims.
4. Supreme Court review of State Court decisions
A. The establishment of the jurisdiction
1. 25 of the Judiciary Act of 1978 provided that a final judgment or decree in any suit, in the
highest court of a State may be re-examined and reversed or affirmed in the SCT of the U.S.
upon a writ of error.
2. Martin v. Hunters Lessee (1816) [opinion by Story]

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a. Issue: whether SCT can hear appeals from state courts.


b. Starting point: Constitution was ordained and established not by the states in their sovereign
capacities but by the People of the United States. This provides a limitation on the power of
the states.
c. Held:
(1) Art. III gives SCT appellate jurisdiction over all cases that it does not have original
jurisdiction. There is no limitation in Art. III indicating that SCT has appellate
jurisdiction only over cases in federal courts. Instead, it looks to the subject matter or the
case or the parties involved. It does not preclude appellate jurisdiction over state court
cases.
(2) If SCT had no appellate jurisdiction over state court decisions, then they would not be
able to hear federal claimsfederal judicial power extends to all cases arising under the
Constitution, and the Constitution would not allow the fencing off of those federal claims
that are first heard in state courts.
(3) Such a limitation on jurisdiction would also preclude collateral attack on state court
convictions. How could D attack a conviction for violating ex post facto clause if SCT
cannot hear appeals from state courts?
(4) If state courts continue to hear fed claims but SCT cannot review such claims, there is a
great possibility for inconsistency within federal law.
(5) There is a reason federal jurisdiction is party-basedpossible bias in state courts and the
general comfort certain parties might feel having their cases adjudicated in by federal
judges. SCT must get to hear case eventually to be able to secure a Ds right to have his
federally-guaranteed rights protected.
(6) Analogizes to removal jurisdiction as a type of appellate jurisdictionbut this kicks in
before state court has actually rendered a decision.
3. Provisions for SCT enforcement against state courts
a. Orders generally say enter judgment in accordance with this opinion.
b. If the state court refuses, the prevailing party can seek a writ of cert again to enforce the
judgment; can seek a writ of mandamus to compel state court to enforce the judgment, but
SCT will be unlikely to rule on the merits of the writ; SCT can execute judgment itself; can
seek contempt orders against state officials not carrying out SCT orders.
4. Congress deleted exception clause from 25 of judiciary act in 1867
5. Murdock v. City of Memphis (1875): As long as party is asserting he has been denied a right
guaranteed under federal law, the SCT has jurisdiction over the appeal.
a. M. is claiming he has a right under a federal statutethis is sufficient to confer jurisdiction.
b. Court draws distinction between federal questions and non-federal questions. If Court
reverses determination on federal question, it will not continue to the other questions, but will
remand for the state court to do so.
c. Although Congress deleted the section of the statute limiting SCTs review to those federal
questions presented on the face of the appeal, this does not mean Congress intended SCT
should decide the entire case. In reversing the policy of the government from its foundation
in one of the most important subjects on which that body could act, it is reasonably to be
expected that Congress would use plain, unmistakable language in giving expression to such
intention must assume that Congress intended only light treading into state law
determinations, given the nature of the federal system.
d. Rules:
(1) A federal question upon which jurisdiction is sought to be based must have been raised
and presented to the state court.
(2) The decision must have been necessary to the judgment rendered in the case.
(3) The decision must have been against the right claimed or asserted by plaintiff in error
under federal law.
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B. The relation between state and federal law


1. Substantive Law
a. Fox Film Corp v. Muller (1935)
(1) Facts: Fox sued Muller for breach of K in state court. Muller answered, asserting the
defense that the Ks were invalid under federal law. Minn court held the arbitration Ks
were not severable from the rest of the K, and that the entire K violated federal law.
(2) Respondent argued that only the question of severability was decided by the lower court,
such that there is no federal question to base SCT jurisdiction upon.
(3) Rule: where the judgment of a state court rests upon two grounds, one of which is federal
and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is
independent of the federal ground and adequate to support the judgment.
(4) Held: Severability of K is not a question of federal law. The lower court had only to
decide this question since the federal question (validity of the clause) was conceded.
Therefore, the nonfederal ground is adequate to sustain the judgment. Also, the questions
were clearly independent of each other
b. Policy reasons for Ind/Adeq doctrine
(1) respect for the independent of state courts
(2) avoidance of rendering advisory opinions
c. Effect of Ind/Adeq doctrine: If an ind/adeq state law ground exists, then federal court cannot
take review of the case, even if the state court decided an issue of federal law in conjunction
with the case. SCT has no power to fix the state courts erroneous holding until another cases
arises challenging it.
d. Four possibilities for outcomes (using Fox Film example):
(1) D wins on state law groundnonseverability. No review, because state ground is
adequate.
(2) D wins on state and federal groundsnonseverable, and K is unenforceable under federal
law. No review, because state ground is independent.
(3) D wins on federal law groundK violates federal law. Review, because no state
grounds pass upon.
(4) D loses on both federal and state grounds. Review, because federal claim has been
determined by the court, just to Ds detriment.
e. Michigan v. Long (1983): if state court decision fairly appears to rest primarily on federal
law, or to be interwoven with the federal law, AND when the adequacy and independence of
any possible state law ground is not clear from the face of the opinion, we will accept as the
most reasonably explanation that the state court decided the case the way it did because it
believed that federal law required it to do so.
(1) to rebut this presumption of federal law reliance, state court need only to make clear by a
plain statement in its judgment or opinion that the federal cases are being used only for
the purpose of guidance, and do not themselves compel the result that the court has
reached.
(2) If the state court decision indicates clearly and expressly that it is alternatively based on
bona fide separate, adequate, and independent grounds, we will not undertake to review
the decision.
(3) Theory behind rule: more respect for state courts than demanding afterwards for an
explanation of how the decision was reached.
(4) Held: state court mentioned state law only twice; therefore, relied primarily on federal
law and the SCT has jurisdiction to review.
(5) Stevens dissent: SCT should imply the opposite presumptionthat state court had
independent and adequate state law grounds. SCT should worry itself more with cases

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where state courts are not protecting constitutional rights enough. Here, state court
provided more protection than federal courtswhy go so far as to overturn this?
f. Policy reasons for Plain statement rule
(1) need to respect state court decisionsintrusive for federal court to require elaborate
explanations of their opinions
(2) efficiency
(3) state courts may not want to review already decided cases.
g. Where this becomes difficultwhen state law tracks federal law (esp. in context of
constitutional provisions). How could a state court be expected to overturn all its prior case
law and separate its analysis from federal analysis just to insulate its decisions?
Court will look to the extent to which the state court felt compelled by federal law to
decide the case in the way it did.
2. Procedural Requirements and the Preservation of Federal Issues
a. In order to invoke SCT jurisdiction for a case litigated in federal court, parties must have
properly raised the federal issue in the state court proceedings and have followed state law
procedures in doing so.
b. If any court finds the party did not properly raise the issue, it could constitute an adequate and
independent ground for a dismissal, which renders it unreviewable.
c. States are free to fashion their own procedural requirements regarding constitutional claims.
The failure to comply with these requirements is presumptively an adequate and independent
state ground for dismissal of the claim.
d. Rules:
(1) D must raise his federal constitutional argument during the lower court proceedings.
Issue must be raised and objections must be reserved. See Cardinale v. La (1969)
(a) Jurisdictional reasons:
(b) Prudential reasons: record on the issue may be inadequate or unclear if issue was not
properly raised below. Constitutional avoidanceit is generally better for claims to
be decided on nonconstitutional grounds if possible.
(c) Raised means the claim had to have been raised belowthe specific argument
made in regards to that claim can change. See Yee v. City of Escondido; Vachon v.
NH (even though argument below was not raised as a due process claim, it was
sufficiently raised; Struve thinks this is the outer reaches of the doctrine).
(2) A state court procedural requirement does not count as an independent and adequate
ground for dismissal if the requirement is unduly burdensome or inconsistently
applied.
(a) See Staub v. City of Baxley (holding that a local requirement that D identify the
specific sections of the ordinance she believes violate her rights is not an adequate
nonfederal ground of decision in this case).
(b) Frankfurter dissentour federalism.
(c) Unduly burdensome: the general rule is that the assertion of federal rights should
not be defeated by local procedures. They must serve a legitimate state purpose, and
if an alternative, less burdensome procedure would serve the same state purpose,
failure to comply with the procedure is not adequate [Struve says this arg has never
been picked up in the case law.]
(3) A state procedure that violates the constitution would not constitute an adequate ground,
so long as the SCT finds that the procedure violates the constitution. (violates DP)
(4) State court cannot have too much discretion to excuse procedural violations. If the rule is
discretionary, then there is a fear it will be applied only against parties asserting federal
constitutional rights.

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5. Federal Habeas Corpus/Military Tribunals


6. Federal Common Law
A. Defining Primary Obligations
1. Assuming that there is no statutory law that explicitly governs the question, when should the
federal courts fashion a federal rule of decision to deal with the question?
2. Erie RR: there is no general federal common lawcourt must decide which state law to apply in
diversity cases.
3. The Theory: DOench Duhme & Co., v. FDIC (1942)
a. Suit to recover on a note payable to an IL bank. Suing FDIC, which had insured the bank.
b. Held: it was unnecessary to determine which states law applied because the liability of
petitioner on the note involves decision of a federal, not a state, question. There is a federal
policy to protect respondent, and the public funds which it administers, against
misrepresentations as to the securities or other assets in the portfolios of the banks which
respondent insures or to which it makes loans.
c. Concurrence by Jackson: This case is not entertained by the federal courts because of
diversity. It is here because a federal agency brings the action, and the law of its being
provides that All suits of a civil nature at common law or in equity to which the Corporation
shall be a party shall be deemed to arise under the laws of the United States. The federal
courts have no general common law But this is not to say that wherever we have occasion
to decide a federal question which cannot be answered from federal statutes alone we may not
resort to all the source materials of the common law, or that when we have fashioned an
answer it does not become a part of the federal non-statutory or common law.
4. Clearfield Trust v. U.S. (1943)
a. Suit against Bank to recover on the value of a check; Bank raises defense of unreasonable
delay in US bringing the case.
b. Held: Rule of Erie does not apply to this action. The rights and duties of the US on
commercial paper which it issues are governed by federal rather than local law. In the
absence of an applicable Act of Congress it is for the federal courts to fashion the governing
rule of law according to their own standards.
c. Why? Interest in uniformityapplying state law would subject identical transactions to the
vagaries of the laws of the several states.
d. Therefore, source of the law must be the general commercial law that was developed before
Erie became the rule.
5. Arguments against federal common law:
a. federalismcommon law is the province of the state courts.
b. SOPjudges are not policymakers/lawmakers
6. Clearfield does not require the application of uniform federal law to all questions in federal
government litigation.
a. United States v. Kimball Foods (1979): issue is whether the priority of the governments liens
as against competing liens was governed by ordinary state commercial law rules or by a
federal common law rule.
(1) Federal law governs questions involving the rights of the US arising under nationwide
federal programs.
(2) In the absence of a statutory rule of decision, Clearfield directs federal courts to fill the
interstices of federal legislation according to their own standards.
(3) But when there is little need for a nationally uniform body of law, state law may be
incorporated as the federal rule of decision.

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7.

8.

9.

10.
11.

b. See United States v. Standard Oil (1947): although liability of D to US for injuring a soldier
is a question of federal law, not state, it is also a question of fiscal policy that is within the
province of the Congress, not the courts.
c. Reconstruction Finance Corp v. Beaver County (1946): because uniformity was unattainable
under the statute before the Court, and local taxation was geared to concepts of real property
that are deeply rooted in state traditions and laws, real property should be defined under state
law so long as the definitions do not discriminate against the government.
d. De Sylva v. Ballentine (1956): because the statute deals with family relationships, it makes
sense to refer to the ready-made body of state law defining this relationship and status.
e. But see Choctaw Indians v. Holyfield (1989): definition of domiciled should come from
federal law. general assumption that in the absence of a plain indication to the contrary,
Congress when it enacts a statute is not making the application of the federal act dependent
on state law.
When should state law apply?
a. where the federal government has no lawmaking authority
b. where Congress could make law but has not done so
c. where federal law calls for application of state law as part of the scheme
d. where federal common law incorporates state law
Absent an indication by Congress that state law is supposed to fill into federal common
law/statutory law, courts will assume there should be uniform federal application.
Delegations
a. There are places in the law where the Congress has invited federal courts to create federal
law. Examples: Fed. R. Evid. 501; Sherman Act 1
b. There are also places in the law where Congress has told federal courts to borrow state law.
Examples: Fed. R. Evid. 501; Rules of Decision Act , 28 USC 1652.
c. There are places where federal common law is strictly prohibited: common law crimes;
general rules of tort liability.
Textile Workers Union v. Lincoln Mills (1957): union seeking order compelling ER to arbitrate
under 301 of LMRA
a. Two theories of 301
(1) merely gives federal district courts jurisdiction in controversies that involve labor
organizations
(2) authorizes federal courts to fashion a body of federal law for the enforcement of these
collective bargaining agreements and includes within that federal law specific
performance of promises to arbitrate grievances under such agreements.
b. Court accepts latter theoryin order to effectuate the purpose of the statue, courts must be
able to award remedies such as specific performance of the arb clause.
c. Struve thinks it is dicey to justify the application of federal common law based on a grant of
jurisdictionwould this argument then apply in diversity cases?
Choice of law within federal regulatory programs. General rule: if Congress has occupied the
space with legislation, then it is not a proper subject for federal common law. See Interstate Water
Pollution Cases.
Act of State Doctrine: courts of the US will not inquire into the public acts of sovereign state
governments unless there is a treaty allowing for such. In Sabbatino, the Court held that the
scope of the act of state doctrine must be determined according to federal law.

B. Enforcing Primary Obligations


1. Implied private rights of action for statutory violations
a. Historical Precepts
(1) Texas & Pacific RR v. Rigsby (1916): decided under Swift v. Tyson regime, it confronted
the question of whether the standards of care defined by a federal statue applied to a tort
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action. Court created the substantive standards of liability applicable to a common-law


negligence claims brought in federal court.
(2) Bell v. Hood (1946): implied that a right of action could be implied under the
constitution. Not clear how this relates to the question of implying rights of action under
statutes, seeing as constitutional claims have always been considered different.
(3) JI Case v. Borak (1964): held that a private party could sue for violations of the proxy
rules under the 34 Act. Theory was that private enforcement was a necessary supplement
to agency enforcement.
b. Application: Cannon v. University of Chicago (1979)
(1) Issue is whether P has a private right of action under Title IX of the Civil Rights Act
(2) Held: she does.
(3) Analysis: Court applies Cort v. Ash test
(a) Whether statute was enacted for the benefit of a special class of which P is a member.
(b) Whether the legislative history of the statute permits such an interpretation.
(c) Whether the implication of a private remedy would frustrate the underlying purpose
of the legislative scheme.
(d) Whether the subject matter of the statute involves an area that is basically the concern
of the states.
(4) Application in this case:
(a) P is supposed to benefit from the statute
(b) Legislative history indicates Congress intended Title IX to track Title VI, and that
section has a private right of action under it. Therefore, Title IX must have been
intended to have one as well. Congress has not done anything in the context of this
statute to prevent court from implying a private right of action.
(c) Intent of the statute is to protect individual rights and to get institutions to stop
discriminating. Private enforcement clearly would not frustrate this.
(d) This is a federal statute in an area largely ignored by the states.
(5) Although the Court implied a private right of action here, it recognized that the better
route would have been for Congress to enact one explicitly.
c. Questions:
(1) Is it better to put the burden on Congress to indicate its intent to have a private right of
action, or to indicate its intent not to?
(2) Why is it bad for courts to create private rights of action? Because they are expanding
their own jurisdiction, which is strange for an institution that has limited jurisdiction.
d. Since Cannon, the Court has required clear evidence that Congress has intended there to be a
private right of action. But, it has not taken away any rights it has already granted.
e. Related questionwhether there exist private rights of action under regulations interpreting
statutes. Anderson v. Sandoval: must look to the relationship between the regulation and the
statute. Is the regulation part of the interpretation that gives the right of action?
f. Implied rights of action for Contribution. Texas Industries: delegation to courts to develop
antitrust rules does not extent to the development of remedial rules like contribution.
2. Procedural Rules in Cases Involving Federal Rights
a. Statutes of Limitations
(1) 28 USC 1658 provides a 4 year SOL for all civil actions enacted after 1990, but is not
applicable if the substantive statute provides for its own SOL.
(2) Alternative to 1658 when statute does not provide its ownborrowing from state
statutes.
(3) See also Tolling statutes. Johnson v. Railway Express: there is no special tolling statute
for 1981 claims to bring them in line with Title VII claims, even though they are
substantively similar. Instead, should keep it in line with state tolling rules.

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b.

c.
d.

e.
f.

(4) Board of Regents v. Tomanio (1980): adopt not only state SOL but also tolling rules.
Since 1983 is deficient because it does not provide its own SOL, and there is no
inconsistency between policy of 1983 and state statute, can borrow from there.
Where to borrow from? Analogize federal claim to a state claim.
(1) Ex: Owens v. Okure: 1983 can be analogized to personal injury statutes under that law.
(2) Rule is always to go from the broader statute, not the more narrow statute that also seems
analogous.
What state? Must apply choice of law rules.
Can also borrow from federal statutes
(1) McAllister: Cannot borrow shorter SOL for similar federal claims if there is an analogous
federal statute that provides an SOL
(2) DelCostello: borrow federal law SOL because state SOL would interfere with federal
statute. Must make sure state SOL is sufficient to fill in the gaps but still effectuates the
purpose of the federal statute.
Survival of 1983 actionscan borrow survival rule from state law
Compare to survival rules for Bivens actionsmust use federal common law

3. Remedies for Constitutional Violations


a. Ward v. Love County (1920)
b. Bivens v. Six Unknown Named Agents (1971)
(1) Issue: Whether a violation of 4A by federal agent acting under color of authority give rise
to a cause of action for damages consequent on unconstitutional conduct.
(2) Facts: Petitioner was arrested and searched without probable cause in violation of 4A by
an FBI agent. Seeks federal court action for damages.
(3) D argues that Constitution should be considered a defense for a state tort law action.
When sued for invasion of privacy, agents can argue it was a valid search. If shown that
agents had violated 4A, valid search defense would disappear.
(4) Held: Cause of action exists directly under constitution. Can infer a private right of action
against federal officers.
(5) Justification: There is no tort remedy designed for this situation to go only to state court.
The harm of violating someones constitutional rights is great. A cause of action arising
under the federal constitution is distinct from one arising under state law. As the Court
said in Bell, where legal rights are invaded, federal statute provides for general right to
sue for such invasion, federal courts may use any available remedy to make good wrong
done. From this, the Court gets precedent for the idea that a jurisdiction grant may
ground authority to formulate federal common law remedies and the right to sue for
relief.
(6) But see Malesko: Rehnquist says Borak is more limited that the Court has been
construing it. There are not as many causes of action that can be implied under it.
c. Davis v. Passman: upholds availability of Bivens action in DP violation. Courts are the
defenders of the constitution; when there is no other available relief, courts must step it.
d. Times when Bivens is not available (see Carlson v. Green for discussion):
(1) Special factors counseling hesitation (SFCH)
(a) The Military. See Wallace v. Chappell: No Bivens claim. Art. I gives Congress
plenary power over the military. This is a special relationship, the Court should not
mess with it, and it is clearly a special factor. The Court would mess with the
relationship by imposing damage liability.
(b) US. v. Stanley (1987): Former military man brings action against civilian doctors
who used him for LSD experiments. No Bivens action here because military as
defendant is a SFCH. OConnor believes that what the military did was really bad
and requires judicial review.

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(c) Federal Personnel Policy: Congress has paid continuing attention to developing
statutes and regulations regarding federal employment policy. See Bush v. Lucas.
(d) Social Security: Schweiker v. Chilicky: Suit by SS recipients that were cut off and
then reinstated as part of change in rules. In response to change in rules, Congress
enacted statute providing remedies for those cut off (mostly compensatory remedies).
Although the system set up by Congress did not provide adequate remedies and there
was no express intent to have remedies replace Bivens remedies, still no cause of
action. The fact that Congress has enacted a remedial statute addressing THIS
EXACT problem and has not included punys, and that Congress is attending to the
problem, it is SFCH.
(e) FDIC v. Meyer (1994): Bivens action does not extend to suits against federal
agenciesonly against federal officials.
(f) Malesko (2001): relying on Meyer, holds no Bivens claim against private company
operating a prison. The purpose of the claim is to deter individual federal officers
from violating the constitution. There is no reason why a P should be able to go after
a private contractor just because it cant get at an agency.
(2) Affirmative action by Congress that is:
(a) specifically intended to replace implied remedy, and
(b) equally effective. See Carlson v. Green (1980): Petitioner is mother of prisoner who
died in prison. Suit under 8A. Court holds that she has a cause of action under Bivens
paradigm, even though she could have sued the fed govt directly under FTCA. But,
because Congress did not intend FTCA to replace Bivens actions, and because
remedies under FTCA are not as good as those provided by federal courts (state law
inconsistency, no punys, no jury), it cannot be considered a replacement. BUT SEE
SCHWEIKER v. CHILICKY
e. Does this make sense? Court is Schweiker seemed to collapse the two-prong limitations
question into one, finding that ANY Congressional action is a SFCH.
f. Is Bivens constitutionally required? There is a constitutional obligation to provide a remedy
in two settings.
(1) 5A Just Compensation Clause
(2) Where no adequate remedy pre-payment in tax challenge, state is under DP obligation to
provide a refund remedy.
g. Struve: If we imply a right of action to protect the interests of securities holders, we should
imply a right of action to protect those whose constitutional rights are being violated.
7. Federal Question Jurisdiction
A. Constitutional Grant
Art. III 2 cl. 1: Judicial power shall extend to all case, in Law or Equity, arising under the
Constitution, the Laws of the United States
1. Osborn v. Bank of the United States (1824): stands for the principle that the constitutional grant
of subject matter jurisdiction is broader than the statutory grant.
a. Bank of the U.S. seeking injunction against enforcement of Ohio tax laws; after Ohio
officials seized the money, Bank filed amended bill in federal court seeking to get its money
back. Basis of suit is state law (conversion), and defenses by Ohio will be based in state
law (tax law as justification).

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b. But, because Bank is a creature of federal law, it will eventually have to raise a federal
argument challenging the application of the state law to this Bank. This provides enough of a
federal question for the case to come with the scope of the Constitutional grant.
c. Analysis:
(1) Ability of Bank to sue in federal court comes from its authorizing statuteallows Bank
to sue and be sued in any Circuit Court of the U.S. This clearly gives the Bank the
power to sue in fed courts. Question is whether that provision of the statute is within the
constitutional grant.
(2) Constitutional question: what does it mean that federal courts have been vested with
judicial power?
(a) Existence of non-federal questions: prohibiting federal court jurisdiction whenever
non-federal questions existed in a case would prove too muchevery case has more
issues than just those governed by federal law. No case exists where every part of it
depends on federal law.
(b) Original vs. appellate jurisdiction: In cases that fall within the SCTs original
jurisdiction, Congress cannot assign lower federal courts concurrent jurisdiction.
Therefore, if these lower courts were not given original jurisdiction of some cases,
then it might prevent the effective exercise of the SCTs jurisdiction. The SCT would
have nothing to review. Consequently, there is no argument that Congress is
incapable of giving Circuit Courts original jurisdiction in any case to which appellate
jurisdiction extends.
(c) These principles are specifically applicable to the Bank. The Bank is a creature of
federal law; therefore, when it involves itself in legal disputes, principles of federal
law are implicated. The Bank can act only if authorized by statute.
(d) This is different from the case of a naturalized citizen, because that person is no
dependent on federal law for the full breadth of his legal rights.
2. Textile Workers Union v. Lincoln Mills (1957)
a. In determining that 301 of the LMRA allowed the federal courts to create a body of
substantive federal common law in reference to labor disputes, the majority pretermitted the
Constitutional issues it would have had to address if 301(a) had been read solely as a grant
of subject-matter jurisdiction.
b. Burton concurrence: jurisdiction is constitutional under the theory of protective jurisdiction.
Because Congress could have legislated substantively and thereby could give rise to litigation
under a statute of the US, it can provide a federal forum for state-created rights.
c. Frankfurter dissent
(1) Variant Theory of jurisdiction: Applied in Osborn, Pacific RR Removal Cases, and in
bankruptcy cases. These are exceptional cases that potentially involve federal questions
not apparent on the face of the complaints.
(2) Protective theory of jurisdiction: This theory would vastly extend the principles of
Osborn, and would allow for the extension of jurisdiction even when no substantive
federal law is present in the background of the case.
(3) Mishkin theory: regulation of a field. Under this theory, jurisdiction would be extended in
order to protect the legislation Congress has already enacted in the field generally.
(4) Alternative theory: Union is a juristic entity whose rights to enter into Ks were created by
the federal law and must be protected in the same way.
Rejects all these theories as a basis for jurisdiction. The history of Art. III suggests that
the are is not great and that it will require the presence of some substantial federal interest,
one of greater weight and dignity than questionable doubt concerning the effectiveness of
state procedure.
3. Important reasons for federal question jurisdiction: need federal courts to explicate the law; need
federal courts to enforce the law.
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4. Bankruptcy: Court has construed federal question jurisdiction in this context broadly.
a. Federal cases: Initial petition, suits in law or equity against the assignee.
b. The right of Congress to set up a uniform BR system was upheld in Lathropjustified by the
avoidance of expense and delay in this important time.
c. Northern Pipeline (1982): struck down parts of the BR Act of 1978 because cases were being
heard by non-Art. III judges in violation of Art. III. But, the Court upheld the grant of federal
court jurisdiction over these cases.
5. Foreign Sovereign Immunities Act
a. Established when and how suits could be brought against foreign states in federal and state
courts, and classified when a foreign state is not immune from such a suit.
b. Verlinden B.V. v. Central Bank of Nigeria (1983): federal question exists in these cases to
justify arising under jurisdiction. The threshold question will always be whether the party
is immune or excepted from immunity under the statute. Necessarily, the grant of jurisdiction
is permitted. [Case could not be brought under alienage jurisdiction because neither of the
parties was Americanhad to rely on arising under jurisdiction.]
B. Statutory Grant
1. The Judiciary Act of 1789 did not provide a grant of federal subject matter jurisdiction. Plaintiffs
who sought to recover under federal statutes had to do so in state court.
2. Judiciary Act of 1875 provided the first grant of federal question jurisdiction, but plaintiffs had to
meet an amount in controversy requirement. Also provided for removal jurisdiction, but allowed
only defendant to undertake such removal. Also provided that remand provisions were not
appealable.
3. Current states still limit removal power to defendants and do not allow remands to be appealed,
but there is no longer an amount in controversy requirement.
4. Propriety of jurisdiction is an issue the court can raise sua sponte. IT is the duty of the court to
see to it that the jurisdiction of the Circuit Court, which is defined and limited by statute, is not
exceeded.
5. Well-pleaded complaint rule
a. Louisville & Nashville RR v. Mottley (1908): Whether the case arises under the laws of the
U.S. is determined by whether federal question is part of a well-pleaded complaint. If it is
not, then jurisdiction does not extend. Cannot base jurisdiction on question of whether
defendant is likely to raise a federal law defense.
b. Well-pleaded complaint rule is related to issue of removal. The general removal statute has
been limited to cases falling within the original jurisdiction of the district court. Thus, a case
like Mottley for example, if brought in state court, could not be removed to federal court,
even though the federal issues raised by the defendant were the decisive issues in the
litigation. Debates about the need for a federal forum seem to apply only to plaintiffs,
because here, under this rule, defendants cannot get themselves into the federal forum.
6. Presence of a federal issue in a state-created cause of action: Holmes test
a. American Well Works v. Layne & Bowler (1916) Holmes test for determining whether case
is within federal question jurisdiction. A suit arises under the law that creates the cause of
action. In this case, the patent question was merely a factual dispute that made up one
element of the case. The case itself was a libel and slander case, which is a state law claim.
b. Smith v. Kansas City Title & Trust (1921)repudiation of the Holmes Test: although the
cause of action giving rise to the suit is one from state law, the controversy concerns the
constitutional validity of an act of Congress which is directly drawn in question. Therefore,
a federal question was presented. Here, the case questioned the validity of the Federal Farm
Loan Act.
c. Merrell Dow Pharmaceuticals v. Thompson (1986)

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(1) Issue: Whether in a state law complaint that alleges a violation of federal law but that
does not give rise to the cause of action, the complaint presents a federal question.
(2) Facts: Ps claim that Ds misbranding of drugs in violation of the FDCA proximately
caused the injury. Cause of action is negligence.
(3) Factors to consider:
(a) Congressional Intent: no cause of action was included in the FDCAseems to
indicate that Congress did not expect the FDCA would be a basis for federal court
jurisdiction.
(b) Whether Ps part of class for whose benefit the statute was passed
(c) Purpose of the underlying legislative scheme
(d) Whether the cause of action is a subject traditionally relegated to state law.
(4) Held: No federal question presented. 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.
(5) Analysis: The significance of the necessary assumption that there is no federal private
cause of action cannot be overstated. The ultimate import of such a conclusion is that it
would flout congressional intent to provide a private federal remedy for the violation of
the federal statute.
d. What is left of Smith after Merrell Dow? Not really an issue because the vast majority of the
cases are screened out at the Holmes test stage and do not get so far as to weigh the next level
of cases against each other.
e. [See discussion on how jurisdictional question relates to question of implied remedies, 933]
7. Declaratory Judgment Act 2201
a. A declaratory judgment actions turns a potential defendant into a plaintiff.
b. In such a suit, how do the rules of federal question jurisdiction apply?
c. Skelly Oil v. Phillips Petroleum (1950)
(1) Facts: Skelly Oil had agreed to sell Phillips natural gas; K gave Skelly power to terminate
the contract at any time if FPC had not issued a certificate of convenience and necessity
to a 3d party to whom Phillips intended to resell the gas. Skelly informed Phillips it
would terminate the contract, because FPC was only issuing conditional certificate by
deadline date. Phillips brought DJ action seeking determination that the K was still in
effect.
(2) Held: No federal question presented.
(3) Analysis: Under the well-pleaded complaint rule, an action by Phillips to enforce its
contract would not present a federal question. If but for the availability of the
declaratory judgment procedure, the federal claim would arise only as a defense to a
state-created action, jurisdiction is lacking.
d. Franchise Tax Board v. Construction Laborers Vacation Trust (1983)
(1) Facts: Tax Board sued CLVT for damages for failing to comply with three tax levies and
a declaratory judgment that the Trust had to comply with all future tax levies. The
question of whether the Trust had to comply with future levies was determined by
whether ERISA preempted the States power to levy funds held in trust.
(2) Held: Case was not within removal jurisdictionthere is no federal question presented.
(3) Analysis:
(a) Well-pleaded complaint rule applies to this case, even though it may produce
awkward results. Even when neither the obligation created by state law nor the
defendants factual failure to comply are in dispute, and both parties admit that the
only question for decision is raised by a federal preemption defense, the rule applies.
(b) Skelly Oil applies to DJs brought under state law, even though the case was limited to
federal law DJs.

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(c) Under Skelly Oil, there is no federal question presented. If the Tax Board had
brought suit to enforce the liens, it would not have mentioned ERISA in a wellpleaded complaint; CLVT would have brought it up as a defense. This is insufficient
to raise a federal question.
(d) Although Skelly Oil presents one way of looking at the case, court could posit
another hypowhat if CLVT had sued Tax Board for violating 502(a)(3) of ERISA
to get an injunction to prevent the Board from levying taxes on the Trust? Then
ERISA claim would have been on the complaint. BUT, Court holds that ERISA is
limited in allowing only certain parties to enter federal courtthose parties that
Congress presumed would need a federal forum to further the statutes purposes. The
parties here do not count.
(e) The fact that ERISA confers exclusive federal jurisdiction on claimspreempting
state tort or contract claimsdoes not matter. Here, preemption is still merely a
defense. Distinguishes Avco Corp. v. Aero Lodge (LMRA).
8. Injunctions: same rules apply to parties seeking injunctions as to parties seeking DJs. See Wycoff.
C. Removal
1441: Except as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed by the
defendant or defendants,
1446(a): A defendant or defendants desiring to remove any civil action or criminal prosecution from a
State court shall file in the district court of the United States for the district and division within which
such action is pending a notice of removal signed pursuant to Rule 11 and containing a short and plain
statement of the grounds for removal, together with a copy of all process, pleadings, and orders served
upon such defendant or defendants in such action.
(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall
give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such
State court, which shall effect removal and the State court shall proceed no further unless and until the
case is remanded.
1447
1450
1651
1. 1441(a) allows for removal of any case when the court would have had jurisdiction.
2. 1441 does not allow for the removal of cases based on federal defenses. The federal question
must have been pleaded in the complaint for the case to fall under federal court removal
jurisdiction.
3. The Complete Preemption Rationale for Removal
a. A claim of federal preemption is usually a defense to a state-law coercive action, and thus
typically does not furnish a basis for removal. But if the plaintiffs claim, albeit cast as a
state-law claim, is itself really a federal claim, removal will be permitted on the ground that
the plaintiff should not, by artful pleading, be allowed to negate the defendants removal
rights.
b. See Avco Corp v. Aero Lodge (1968): a claim that D had violated a collective bargaining
agreement, although labeled as a state contract claim, necessarily arose under 301 of the
LMRA and was therefore removable by the defendant.
c. Complete Preemption Doctrine: once an area of state law has been completely preempted,
any claim purportedly based on that preempted state law is considered, from its inception, a
federal claim, and therefore arises under federal law.

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d. Also applies in context of ERISA 502(a)(1)(B) (civil enforcement provision). State tort and
contract claims brought by EE against ER are completely preempted by ERISA provision;
thus, state court actions artfully pleading around ERISA still present a federal question. See
Metropolitan Life v. Taylor (1987).
4. Removal Jurisdiction and Procedure
a. 1446: file notice in fed court; file notice with opposing party; file notice with state court.
Only when all three steps are complete is removal complete.
b. Can only remove within 30 days of D being served in the lawsuit, and after having notice that
the case was removable.
c. Shamrock Oil & Gas v. Sheets (1941): only defendants can remove cases. Even plaintiff
against whom counterclaims have been filed cannot remove. Court will look only to the
original claim to see whether removal can be premised on it.
d. Effect of state court actions before removal? See Granny Goose Foods v. Teamsters (1974)
where court held that an ex parte temporary restraining order issued by a state court prior to
removal remains in force after removal no longer than it would have remained in effect
under state law, but in no event does the order remain in force longer than the time
limitations imposed by Rule 65(b).
[Any More Notes from 3/21??]
D. Supplemental Jurisdiction
1367: In any civil action of which the district courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy under Art. III. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of additional parties.
1. As Justice Marshall said in Osborn v. Bank of the United States, the Court should have the power
to decide the whole case, even if it involves both federal and state claims.
2. Old rules:
a. Siler v. Louisville & Nashville R. Co. (1909): held that federal courts can resolve claims
under state law even when there is no diversity between the parties. (Decided before FRCP
enacted) Policy reasons:
(1) Avoidancefederal court should have power to decide case on state grounds so as to
avoid the constitutional question if possible.
(2) Interest is deciding the entire case in one shot.
b. Hurn v. Oursler: must draw distinction between two types of pendent state claims. If the
claims are really just two theories within the same cause of action, then the state claim is
pendent to the federal claim. If the claims actually allege two different causes of action (ex:
regarding two different events), then the second should not supplement the federal claim.
3. The Rule: United Mine Workers v. Gibbs (1966)
a. Facts: P sues union for violation 303 of LMRA and for tortious interference with Ks (state
claim).
b. Issue: Whether the district court properly entertained jurisdiction of the claim based on
Tennessee law.
c. Theory: Pendent jurisdiction exists whenever there is a claim arising under the Constitution,
the Laws of the United States and the relationship between that claim and the state claim
permits the conclusion that the entire action before the court comprises but one constitutional
case.
d. Rule: The state and federal claims must derive from a common nucleus of operative fact. If
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judicial proceeding, then, assuming the federal issues are substantial enough to confer subject
matter jurisdiction, there is power in the federal courts to hear the whole.
e. BUT, doctrine of pendent jurisdiction is one of discretion, not of plaintiffs right.
Considerations:
(1) whether federal claims was dismissed before trialshould dismiss state claim
(2) whether refusing to exercise pendent jurisdiction would require P to bring the federal
claims in state court to Ps and federal law detriment.
f. Held: exercise of jurisdiction was within Courts discretion.
4. Diversity Jurisdiction
a. 1332
b. In the context of class actions, diversity is only determined by the citizenship of the class reps
as compared to the D. Does not look at the citizenship of the putative class members.
c. Owen Equipment v. Kroger (1978): Ps claim against Owen cannot be heard by federal court.
(1) There is no independent basis of federal jurisdiction over the respondent state0law tort
action against the petitioner.
(2) CA relied upon the doctrine of ancillary jurisdiction; federal jurisdiction is also limited by
Acts of Congress.
(3) 1332 requires complete diversity of citizenship. When P amended her complaint to
include a charge against Owen, complete diversity was destroyed just as surely as if she
had sued Owen initially.
(4) Requirement of complete diversity must be strictly construed.
(5) Concern that any other ruling could be used strategically against the courts to join parties
after federal jurisdiction is established.
d. 1367:
(1) (b) In any civil action of which the district courts have original jurisdiction founded
solely on [diversity], the district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made parties under (joinder rules)
when exercising supplemental jurisdiction over such claims would be inconsistent with
the jurisdictional requirements of section 1332.
excludes claims by plaintiffs against persons made parties under Rules 14, 19, 20, or 24, as
well as persons proposed to be joined as plaintiffs under Rule 19 or seeking to intervene as
plaintiff under Rule 24.
(2) (c) District courts may decline to exercise supplemental jurisdiction over a claim if
(3) (d) Tolls statue of limitations while claim is pending and for a period of 30 days after it is
dismissed.
e. Hypothetical:
Kroger (Iowa res.) sues OPPD (Neb res.). Joins Owen (Neb. & Iowa res.)
If OPPD impleads Owen, can court take jurisdiction?
(a) Must meet Gibbs standard it does
(b) OPPD brought in Owen, not Kroger not problem imagined in
Kroger because OPPD doesnt control litigation
(c) Discretion
If Kroger then sues Owen?
(a) Must meet Gibbs standard
(b) BUT, Owen was brought in pursuant to R. 14 and claim was made by
a P; jurisdiction would be inconsistent with 1332.
cannot take jurisdiction

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8. Constitutional Litigation
A. The 11th Amendment and State Sovereign Immunity
Amendment XI: The Judicial Power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
1. Historical background
a. 1793: Chisholm v. Georgia decided order for the State of Georgia to pay Chisholm for debts
incurred during the Revolutionary War. Case brought in federal court because Chisholm was
not a resident of Georgia. Two Justices argued that sovereign immunity was inconsistent with
the principle of popular sovereignty established by the Constitution, and two others argued
that the text of Article III evidence the States surrender of sovereign immunity as to those
provisions extending jurisdiction over suits to which States were parties.
b. In response, Congress adopted 11A in 1798 to make sure states could not be sued by private
parties intent was to overturn the case law developed in Chisholm. The fear expressed in the
debates was that the federal government could take a right secured by the states and use it to
hurt them by making their courts available. Cases based on diversity jurisdiction were the
only difficult ones because federal question jurisdiction had not been developed in 18 th
century.
c. The 11th Amendment does not apply to the appeal of state court convictions. See Cohens v.
VA. A writ of error is not a suit.
d. After the Civil War, southern states were again indebted to many private parties. Many of
these parties would find residents of the state to sue the state for repayment of these debts to
avoid the restrictions of the 11th Amendment. In Hans v. Louisiana, the Court held that an
unconsenting state is immune from suits brought in federal courts by her own citizens as well
as by citizens of another state. Court held that it would be more of an insult to the dignity of
the state to be sued in federal court than in state court, and it would not be fair to allow Hans
to sue when citizens of all other states do not have such a privilege.
2. What does the 11th Amendment mean? 11A is a mere codification of the understanding that
states could not be sued in federal court. This understanding is evidenced by reading Federalist 81
and understanding the purposes of limited federal courts under Art. III. 11A may only have
reversed Chisholm on its facts, but it reinforced the construction ideal of Art. III. The Plan of the
Convention would never have been agreed to if the States had understood that they would be
subjected to suit by individuals.
3. What is the State?
a. Because only states are protected by 11A immunity, the Court must determine whether quasistate and multi-state agencies are states. See Hess v. PATH (1994): Injured RR workers
brought FELA action against PATH, which is a bistate railway. Even though PATH seems to
be politically controlled by the state, financially, it is an independent entity whose debts do
not fall upon the states. Given that a theory supporting 11A immunity from damages suits is
subjecting the state to judgments to its citizens, the fact that the states are not obligated to pay
PATHs debts means they will not be subject to judgment.
b. 11A immunity does not apply to municipalities. See Mt. Healthy. If directors of an agency
are appointed by the state but the financial liabilities of the agency are left to the municipality,
there is no 11A immunity. See Auer v. Robbins.
4. Exception to the doctrine:
a. Ex Parte Young (1908): AG of Minnesota enjoined from prosecuting RR for violations of a
state law.

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(1) If the act the state official seeks to enforce is alleged to be unconstitutional, the act is an
illegal act upon the part of a state official in attempting by the use of the name of the
State to enforce a legislative enactment which is void because unconstitutional.
(2) The state has no power to impart to him any immunity from responsibility to the supreme
authority of the united states.
(3) Rule: State sovereign immunity does not prohibit a suit seeking an injunction against a
state official in his official capacity.
(4) DOUGLAS: this distinction is stupid because prospective relief could end up costing the
state just as much as retrospective relief does (from Edelman)
b. Edelman v. Jordan (1974):
(1) Facts: Class action for injunctive and declaratory relief against state officials
administering a welfare program. Plaintiffs sought retrospective benefits and injunctive
relief barring future unconstitutional actions. Relief awarded in Ex Parte Young was
prospective only. This type of relief is permitted. In contrast, a suit requiring the payment
of a substantial amount of money is barred by 11A. (Prospective-retrospective
distinction).
(2) Held: Plaintiffs can obtain prospective relief, but not retrospective. Payment of damages
out of the states treasury is subjecting the state to suit, which is prescribed by 11A.
(3) Theory: Prospective vs. Retrospective relief: 11A clearly bars retrospective relief because
it forces the state to pay money on an order of the federal courts. Prospective relief must
be considered an injunction against the state officer in his official capacity, not against the
state [but still state action]. The difference is a legal fiction: the Court adopts the theory
that a state officer, acting in accordance with a state statute that is found to violate the US
Constitution, is not acting within his role as a representative of the state. (Magic circle
explanation). Equitable relief is not more than a requirement for the officer to get back
into the magic circle of permissible state activities.
Diversity Jurisdiction
Fed Question
Jurisdiction

Money
No 11A
No Hans v. La

Injunctions
No 11A
Yes Ex Parte Young

(4) What is prospective relief?


(a) Court ordered school district to pay for improving its reading, in-service teacher
training, testing and counseling. Even though this involves much cash, it is
prospective relief because it will get the schools up to the level of non-segregated
schools. Why not retrospective? See Milliken v. Bradley. Citizens not raiding the
coffers of the state treasury. Must look at the purpose of the award, which is to
obtain a prospective goal.
(b) Quern v. Jordan (1979) order to state officials to send explanatory notice to members
of the plaintiff class falls on the Ex Parte Young side of the relief line. The notice is
more properly viewed as ancillary to the prospective relief already ordered by the
court.
(c) Green v. Mansour (1985): But, if there is no possibility of prospective recovery, the
notice relief is no more than compensatory or deterrent and those interests cannot
outweigh the interests in preserving 11A immunity.
(d) Attorneys fees. If they were ancillary to obtaining prospective relief, then the state is
subject to them. Similarly, the state is subject to enhancement of the fees as
compensation for late payment. See Missouri v. Jenkins.
5. Pennhurst State School & Hospital v. Halderman (1984)

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a. Facts: Residents of the hospital asserted federal and state claims against the state agency
running it.
b. Held: The Eleventh Amendment bars relief based on state law.
c. Theory: Ex Parte Young exception does not apply in the context of state law. The need to
reconcile that competing interests of state dignity and federal law supremacy are absent when
P alleges a state official has violated state law. Also, it is difficult to think of a greater
intrusion on state sovereignty than when a federal court instructs state officials on how to
conform their conduct to when state law. Such a result conflicts directly with the principals
of federalism that underlie the Eleventh Amendment.
d. Alternatives after Pennhurst:
(1) file federal and state claims in state court, but then must give up right to federal forum
(2) file federal claim in federal court, but then must either forgo state law claim or file a
second lawsuit in state court asserting the state law claim [raises problems of abstention,
preclusion]
6. Abrogation by Congressional Act: Seminole Tribe v. Florida (1996)
a. Issue: To what extent can Congress abrogate sovereign immunity when it creates a private
right of action?
b. Facts: Tribe was suing under IGRA, seeking order against Florida to require them to
negotiate in good faith with the Tribe.
c. Rule: Two requirements for abrogation:
(1) Congress must have clearly intended to abrogate the immunitymust provide an
unmistakably clear statement of its intent to abrogate.
(a) Why have clear statement rule? The Congress must realize it is legislating against a
common law background of state sovereign immunity.
(b) Also important for Congress persons to be politically accountable for their actions.
(2) Congress must have acted pursuant to a valid exercise of power when abrogating.
d. Valid exercise of power:
(1) Old rule: Union Gas (holding that the Commerce Clause granted Congress the power to
abrogate state sovereign immunity).
(2) Union Gas is overruled here.
(3) Florida Prepaid v. College Savings Bank (1999): Suing Florida for violation of Patent
Remedy Act. Taking of property is a constitutional violation only if it was done
intentionally and there was no remedy for compensation in state courts. Because the Act
prohibits all takings of patents, it reaches beyond those actions which are constitutional
violations. No other good reason to prohibit it not like takings of patents by states
happens every day.
(4) Since Art. I does not provide Congress the power to abrogate state sovereign immunity.
Thus, any legislation enacted based on power granted by Art. I will not abrogate,
regardless of whether it makes a clear statement.
e. Failure to find abrogation is not disastrous for federal law. If necessary, the U.S. can sue
Florida, and if Florida consents to suit in state court, then the SCT will eventually have
review of it.
f. Ex Parte Young does not apply in this context: the Act lays out a complicated scheme through
which a tribe gets the state to negotiate. If it could just go to Court and enjoin the Governor,
the whole scheme could be avoided.
7. Does abrogation still exist? Only under 5 of 14A according to Fitzpatrick.
a. Why? The adoption of 14A radically altered the relationship between the federal government
and the states, giving the federal government immense power to enact remedial legislation.
See Ex Parte Virginia.
b. Fitzpatrick v. Bitzer (1976): Plaintiffs sued for sex discrimination under Title VII for the
states retirement benefit plan. Court held that 11A does not bar a backpay award

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(retrospective relief) since the penumbra of 11A is limited by the enforcement provisions of
5 of 14A. Because Congress was authorize to enact Title VII under 5, plaintiffs must be
authorized to sue the state under it.
c. Rule: Statutes enacted in furtherance of the Fourteenth Amendment providing private parties
rights against state governments supercede the principles of sovereign immunity. 14A >11A
no immunity.
d. Test: must determine whether Congress had proper power to enact the statute under 14A;
must be proportional and congruent. See Katzenbach v. Morgan, South Carolina v.
Katzenbach: upheld constitutionality of Voting Rights Act even though the specific actions
prohibited were not prohibited in the Amendments. Congress can also prohibit facially
neutral actions that could lead to Constitutional violations.
(1) City of Boerne: Religious Freedom Restoration Act was overbroad. Congress cannot tell
courts how to interpret 14A. If Courts say P does not have 14A right, the Congress
cannot change that determination.
(2) Kimel v. Florida Board of Regents (2000): Suing Florida for violation of ADEA and
amendment which applied it to the states. Because age is not a suspect classification
under EP clause, there must be only RB for classifications. Here, the statute prohibiting
discrimination is not based on an action prohibited by the constitution. Congress cannot
create unconstitutional acts that the Court does not recognize; therefore, does not
supercede rights under 11A.
(3) Garrett (2001): Because persons with disabilities do not comprise a suspect class,
Congress cannot heighten the level of scrutiny applied to them. Thus, the ADA does not
provide a congruent and proportional remedy to the harm sought to be prevented.
Must identify a history of discrimination by the government to justify such legislation.
8. In State Court: Alden v. Maine (1999):
a. Facts: Alden brought action against employer (State of Maine) for violations of FLSA.
Dismissed from Federal Court on 11A grounds, refiled in state court.
b. Theory: Sovereign immunity of the states neither derives form nor is limited by the terms
11A. It is a fundamental aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain today except as altered by the
plan of the Convention or certain Constitutional Amendments. This structural principle is
not directly related to the scope of the judicial power established by Article III, but inheres in
the system of federalism established by the Constitution. In exercising its Article I powers
Congress may subject the States to private suits in their own courts only if there is
compelling evidence that the States were required to surrender this power to Congress
pursuant to constitutional design. The Supremacy Clause enshrines as the supreme law only
those federal Acts that accord with the constitutional design.
c. Our federalism: forcing Maine to stand suit subjects it to the indignity of being hauled into
court.
d. SOP: forcing a states executive or administrative branch to stand suit in court threatens to
reallocate the responsibilities between the branches of state government.
e. This is OK because states will subject themselves to suit in their own courts when the
political consequences of invoking immunity will be too much to bear. Also, the plaintiff can
always sue the state officials in their individual capacities for refusing to make the state
subject to suit, and the federal government can always sue the state.
f. Finally, any other conclusion would have been anomalousthe Court already held that
Congress cannot abrogate sovereign immunity for suit brought in federal courtcannot have
different results in different courts.
g. Held: Congress lacks power under Art. I to abrogate state sovereign immunity in state court.
h. Distinguishing prior precedent:

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(1) Nevada v. Hall (1979): held there was no sovereign immunity bar to California courts
hearing a damages action against Nevada. But this holding never subjected a state to suit
in its own courts. That is the real harm.
(2) Reich v. Collins (1994): held that the state must allow taxpayers to seek a refund in state
court (post-deprivation remedy) for his taxes already paid. But this holding was
constitutionally requireddue process is guaranteed by 5A. The remedy under the FLSA
was only statutorily required.
(3) Hilton: held that when a state is engaging in a field governed by federal law, the state
consent to the waiver of SI. But this holding does not apply because parties did not
contest sovereign immunity.
(4) Howlett v. Rose (1990): held that a state court could not refuse to hear a 1983 suit. But
this case did not address the question of whether the state in the first place could compel
an unconsenting state to be sued.
9. Struves Big Thoughts: Article III was included, and courts were created, by the constitution for a
reason. Explanations include the idea that there should be a remedy for every violation of federal
law. Article III also contemplates suits against states. But Seminole Tribe and Alden seem to
have taken away the principle that for every right there must be a remedy.
10. Whats left?
a. Suits brought under statutes authorized by 5 of 14A
b. Consent/waiver of SIbut there is no more implied consent. Nonetheless, there can be
conditional waivers required under the Spending Clause, so long as they are not coercive
under Dole.
c. Suit by U.S. or another state
d. Suits brought in another states courtsbut effects of standing doctrine and minimum
contacts may make this route difficult.
e. Ex Parte Youngfor prospective relief against state officials. But see Idaho v. Coeur
DAlene Tribe (1997): Tribe sought a declaratory judgment, which seems to be prospective
relief, but Court held it was outside the scope of the Ex Parte Young exception. Kennedy
writes an opinion based wholly on the balancing test argument, joined by Rehnquist, and
holds that the Court must balance the importance of the supremacy interest with the negative
impact is has on the state. Because this has a big time impact on the state of Idaho and its
rights, the challenge cannot be heard.
f. Suits against officers in their individual capacities.
g. Suits against local governments.
B. Federal Protections Against State Action
1. The Cause of Action: 42 USC 1983
a. Every person who, under color of [law] subjects or causes to be subjected any citizen of the
U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
b. The history
(1) The problem was not the unavailability of state remedies to deal with the deprivation of
constitutional rights, but the failure of certain States to enforce the laws with an equal
hand
(2) Rep. Lowe (Kansas): the local administrations have been found inadequate or unwilling
to apply the proper corrective
(3) Rep. Burchard (Illinois): But if its statutes show no discrimination, yet in its judicial
tribunals one class is unable to secure that enforcement of their rights and punishment for
their infraction which is accorded to another, the State has not afforded to all its
citizens the equal protection of the laws.

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2.

3.

4.

5.

(4) Rep. Shellabarger: The model for the KKK act will be found in the [ 242]. This section
has been construed in Classic and Screws to define actions under color of law to include
any action made possible only because the wrongdoer is clothed with the authority of
state law.
(5) Sherman Amendment: Proposed to the KKK Act in 1871 but eventually rejected. The
Amendment would have held all the citizens of a municipality responsible for the costs of
mob violence occurring within it. It was based on the theory that the citizens of the town
should take the responsibility of securing the rights of those living within it. If they fail in
this task, they must be held responsible. The amendment was rejected by the House
because certain representatives insisted that they would reject the bill unless the liability
upon towns and counties go[es] out. From this rejection, the court has implied that
Congress had no power to force liability upon cities and municipalities. But, in Monell,
the Court held that this limitation on Congressional power to levy liability existed only
when it would impose liability for nonperformance of a duty which Congress could
not require municipalities to perform.
The justification
a. Resolution of constitutional violations is the highest calling
b. National rights deserve national remedies
c. The violation of rights through state action is really bad and should not be considered the
same as a tort or criminal action committed by a private person.
d. The judicial forum offered by state and local governments may not be independent of state
political actors.
The framework
a. Person: includes any person in his individual capacity as well as cities and municipalities.
[School Board injunction cases, Monell]
b. Color of law: includes actions in pursuance to law and taken in violation of state law if they
were done with a use of power possessed through the law (pretext of law). [Monroe]
c. Deprivation: must be read in the background of tort liability; no specific intent requirement.
[Monroe]
d. Rights privileges and immunities: includes anything in the constitution. Must be construed
more broadly that the Court did so in Slaughterhouse. [Monroe]
Suits Against Officers
a. When a suit named an individual officer, the suit is against him in his individual capacity.
Therefore, he pays if liability is foundnot the government. Accordingly 11A is
inapplicable. But individuals may have immunity defenses available (qualified or absolute).
b. When a suit names an individual officer in his official capacity, the suit is really against the
government entity.
(1) In 1983 suits for equitable relief, 11A does not apply (Ex Parte Young)
(2) Immunities by individual officers might still be a problem
c. The difference: for suits in equity, there is no difference. But for suits seeking monetary
damages, it is important to know who is paying, so determine what immunities should apply.
Who can be sued?
a. Police officers/State and City Officials are acting color of law when acting as officers,
even if they are doing so in violation of state or municipal law. Can be sued in their individual
capacity.
(1) Monroe v. Pape (1961): 1983 creates a federal remedy, cognizable in federal court,
against a state official for violation of federal rightseven if the officials conduct is
wholly unauthorized under state law.
(a) Suit against Officer Pape and the City of Chicago under 1983 for violation of
Monroes constitutional rights under 4A. Officer Pape arguments:

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(b) RPI have been construed narrowly (see Slaughterhouse cases) to apply to those rights
that are peculiarly national. wrong
(c) 1983 requires a finding of specific intent. 1983 is different from 242 because
it is a civil statute that does not require a mens rea finding. 1983 should be read in
the background of tort liability
(d) official cannot be acting under color of law when he acts in violation of it. Color
of law must apply to more than just unconstitutional laws. The Court recognizes that
officials are given immense power by the state when they are agents of the state.
There is a possibility of misuse of this power at any time, and the statute was
intended to protect people against this misuse however it occurs. Relies on stare
decisis and the decision in US v. Classic defining color of law in this manner.
(e) Frankfurter dissent: there must be an important distinction between actions done
with the approval of law (or customary interpretation of the law) and those done in
violation of such. Federalism: the burden of protecting its people must be left to the
state governments, while the federal function should be invoked only when the local
political system fails. Fear of having uniform standards and methods of protecting
civil rights advantage to having a variety of practices. If the federal government
always steps in, local governments are more able to shirk their responsibility and
there may be a backlash against the federal courts. There is a benefit to restraining
the use of federal power not the best allocation of resources to use it when state law
can address the violation.
(2) To recover under 1983, P must establish injury resulting from an unconstitutional state
action.
(a) Definitions of state action:
(b) Some relationship with the state (like partial funding).
Nexus requirement the violation must be related to the state relationship in that
the action of the funded agency may be fairly treated as that of the State itself.
See Rendell-Baker. Similarly, it would help if the State had provided significant
encouragement for the private actor to commit the unconstitutional action. See
American Manufacturing v. Sullivan. The mere fact that a private business is
subject to extensive state regulation does not by itself convert its action into that
of the State if it cannot be shown that the State had no relationship to the
challenged action.
Symbiotic relationship the degree of interaction between the state and
challenged entity is ongoing and repetitive.
(c) Public function an entity that carries out an activity that is uniquely a state action is
subject to liability. See West v. Atkins. Because the state has an obligation to provide
medical services to prisoners, it cannot avoid liability for the constitutional violations
caused while carrying out those duties if it has delegated them to an outside
contractor.
(d) Action taken by state but motivated or directed by a private party action must be
fairly attributable to the state.
Deprivation must have been caused by the exercise of some right or privilege
created by the State
The party charged with the deprivation must be a person who may fairly be said
to be a state actor.
See Lugar v. Edmondson Oil. Plaintiff must allege the state statute used by
private party to cause the violation as being unconstitutional. Private party will
be considered a State Actor if he is invoking the aid of state officials to take
advantage of state-created attachment procedures.

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See Edmonson v. Leesville Concrete. Defendants exercise of peremptory


challenges was pursuant to a course of state action and is therefore subject to
constitutional requirements. (1) Actor relied on government rights and privileges,
and they would have no power outside the setting established by govt; (2)
Action in question involves a traditional governmental function; (3) Power of
action is aggravated in a unique way by the incidents of governmental authority.
b. Cities/Municipalities can be sued directly when the action that is alleged to be
unconstitutional implements or executes a policy promulgated by those whose edicts or acts
may fairly be said to represent official policy.
(1) Monell v. City of New York (1977): Overrules Monroe v. Pape which said that person
does not include cities and municipalities. Only when execution of a governments
policy or custom, whether made by its lawmakers or by those whose edicts or acts may
be fairly said to represent official policy, inflicts the injury that the government as an
entity is responsible under 1983.
(a) The Court had decided the merits of a score of cases brought under 1983 in which
the principal defendant was a school board and had found them to be persons under
1983 for the purposes of injunctive relief.
(b) Monroe was decided wrongly in that it relief on the Courts interpretation of the
debate over the Sherman Amendment to the KKK Act. The opponents to the
Amendment did not object to it because they felt they had no power to levy liability
on cities, but because they believe they had no power to levy liability on
cities/municipalities to obligate them to keep the peace when those cities were not
obligated to do so by their state charters. Cannot be charged with liability for
nonperformance of a duty which Congress could not require municipalities to
perform. Similarly, it is clear that in adopting the KKK Act, Congress intended it to
apply to takings by cities. It doesnt make sense to exempt cities from liability for
takings and to impose that liability only upon officials of the government.
(c) The plaintiff must prove some policy or custom, because Congress did not intend
cities to be held liable merely under a respondiat superior theory. The strong
causation language in Monell and the amendment of 2 to apply only to those who
neglected or failed to stop group violence (over Shermans suggestion of holding
everybody) implies that Congress intended not to impose any vicarious liability.
(d) But see Owen v. City of Independence Missouri (1980): No qualified immunity for
municipalities. Chief of Police brought 1983 action against city, council members
and city manager alleging he was discharged without notice, hearing, and in violation
of his due process rights. Monell held that 1983 was intended to encompass
municipal corporations as well as natural persons. Nonetheless, on several occasions,
the court has found a tradition of immunity so firmly rooted in the common law and
supported by such strong policy reasons that Congress must have specifically
mentioned if it wished to abolish the doctrine with the adopted on 1983. But, there
is no history of immunity for municipal corporations and neither history nor policy
supports a construction of 1983 that would justify the qualified immunity the city
seeks.
(2) Policy and Policymakers
(a) City of St. Louis v. Praprotnik (1988): Determining the policy maker is a matter of
state law. Praprotnik was fired by his supervisor after he successfully appealed a
disciplinary action to the Civil Service Commission. P argued that his firing was in
retaliation for his appeal, and that it violated his First A rights. Brought 1983 action
against City. Court held that the supervisors could not be considered policymakers,
and as a result, it was not proven that he had been fired in accordance with a city

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policy. Just because supervisors had the power to hire and fire did not authorize them
to establish employment policy for the city.
(b) Authority to make municipal policy may be granted directly by a legislative
enactment or may be delegated by an official who possesses such authority.
(c) Deliberate indifference: If the city or policymakers of the city are deliberately
indifferent to the violation of constitutional rights, that inaction can be considered a
policy to subject the city to liability. Specific example: Failure to train. BUT, there
must be a clear line of proximate causation before the court will hold the city liable
for the indifference. Can be KNOWN or OBVIOUS
(d) City of Canton v. Harris (1989): Harris was arrested and was ill during the process of
her arrest. Police did not provide her with medical care. Alleges the failure to train
the police on what constitutes a need for medical was a violation of her rights. Court
held that a deficiency in city policy can be the basis for liability in 1983 action if
the deficiency is at the level of deliberate indifference to the constitutional violations
that may result from the deficiency. Case remanded for determination.
(e) These rules are different from those applicable to fed gov. Under the FTCA, the U.S.
is liable on a respondiat superior theory. The exception is where acts are taken in due
care of a statute or regulation, whether valid or not.
c. Summary: Ways to hold a city liable
(1) Official enactment
(2) Official decision
(3) Binding delegation from policy maker to an executive official
(4) Covert command must show that real policy is not the official policy
(5) Ratification
(6) Deliberate indifference (known)
(7) Deliberate indifference (obvious)
(8) Custom
d. States and State Agencies as Defendants
(1) See Will v. Michigan Dept. of State Police (holding that neither a state nor a state official
acting in an official capacity is a person under 1983, at least when sued for
retrospective relief.
(2) Section 1983 does not contain a clear statement waiving immunity for states. Given the
fact that states have 11A protecting them from suit in federal courts, it does not make
sense that Congress would enact a statute giving private parties more rights by bringing
action in state court. Thus, states are not persons under 1983 and cannot be sued in state
court under it. The court does not have to reach the 11A question.
(3) Objections to Will: Section 1983 was adopted before Congress was aware of the clear
statement rule and before they could have understood how the court would construe 11A
immunity.
6. 1983 as a Remedy for the Violation of a Federal Statute
a. Maine v. Thiboutot (1980)
(1) Issue: Should 1983 be interpreted as limited to actions claiming violations of equal rights
statutes?
(2) Facts: P brings action for denial of welfare benefits in state court where the statute had no
application.
(3) Held: P does not have to assert denial of equal rights to state a claim under 1983. No
contrary legislative history warrants departure from the plain text of the statute.
b. Limitations
(1) Middlesex County: Plaintiffs may not receive remedies other than those expressly
provided in the regulatory statutes. Under the statute cited, Congress provided a

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comprehensive enforcement mechanism. The provisions foreclosed implied private


actions and supplanted any remedy otherwise available under 1983.
(2) Wright v. Roanoke Redevelopment Authority: 1983 provides a remedial cause of action
unless the state actor demonstrates by express provision or other specific evidence from
the statute itself that Congress intended to foreclose private enforcement. Here, federal
law created enforceable rights, and HUDs power to audit and cut off funds were
insufficient to indicate congressional intent to foreclose enforcement under 1983.
c. Remedies in other circumstances:
(1) Preemption claims: Golden State Transit Corp v. LA (1989): The availability of a 1983
remedy turns on whether the statute, by its terms or interpreted, creates obligations
sufficiently specific and definite to be within the competence of the judiciary to enforce,
is intended to benefit the putative plaintiff, and is not foreclosed by express provision.
(2) Dennis v. Higgins (1991): A violation of the dormant Commerce Clause is cognizable in
an action under 1983.
7. Official Immunity from Suit
a. General
(1) Absolute Immunity official cannot be liable for suit when acting within the parameters
of his official capacity, even if there is a showing of malice or ill will.
(2) Qualified Immunity official cannot be liable for suit when acting within the parameters
of his official capacity unless there is a showing of malice of lack of a good faith belief in
the constitutionality of the statute.
(3) When determining whether immunity doctrines apply to 1983, must look to whether the
immunity was clearly established in the common law at the time the KKK act was
adopted.
b. Qualified Immunity
(1) The idea: Pierson v. Ray (1966): A policemans lot is not so unhappy that he must
choose between being charged with dereliction of duty if he does not arrest when he has
probable cause and being mulcted in damages is he does. Therefore, they should not be
liable if they acted in good faith and with probably cause in making an arrest under a
statute that they believed to be valid.
(2) Old doctrine. Qualified immunity exists unless:
(a) they knew or reasonably should have known that the action they took within their
sphere of official responsibility would violate the constitutional rights of the plaintiff
affected [objective standard], or
(b) if they took the action with the malicious intention to cause a deprivation of such
rights or other injury to the plaintiff [subjective standard].
(c) BIG THEORY: zone of discretion on unsettled questions of law unless intent to
violate rights
(3) Example: school board officials. See Wood v. Strickland.
(a) School officials are entitled to a qualified good-faith immunity from liability for
damages under 1983.
(b) Justification: School board officials are asked to make discretionary decisions on a
regular basis. Denying any measure of immunity in these circumstances would
contribute not to principled and fearless decision making but to intimidation and
would deter qualified candidates from taking such positions.
(4) Subjective analysis is too much effort! See Harlow v. Fitzgerald (1982)
(a) New Doctrine: A court evaluating a qualified immunity claim must first
determine whether the plaintiff has alleged the deprivation of a constitutional
right, and, if so, proceed to determine whether that right was clearly established
at the time of the violation. Subject beliefs about the constitutionality of the
conduct play no role in this analysis.

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(b) Because qualified immunity is an affirmative defense that must be pleaded by the
defendant, the subjective inquiry into malice is a lengthy and disruptive analysis.
This subjective inquiry is incompatible with the principle that insubstantial claims
should not proceed to trial. Government officials performing discretionary function
generally are shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonably person would have known or which the official actually did know.
Because subjective good faith is often regarded as inherently requiring resolution by
a jury, many of these cases must proceed to trial, and this is bad (great big policy
argument).
(c) Eliminating the subjective prong of immunity analysis does not eliminate the need
for it in other constitutional claims. The doctrines adopted regarding motive do not
apply to the merits of constitutional questions. Plaintiffs raising these arguments do
not have to establish by clear and convincing evidence the existence of animus to
avoid dismissal on summary judgment.
(5) What is a Clearly established constitutional right?
(a) Doctrine: Clearly established means that the contours of the rights must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. His very action need not previously have been held
unlawful, but in the light of pre-existing law its unlawfulness must be apparent.
(b) Just because a right is clearly established in regulations or state law does not mean
the federal constitutional right is clearly established. Defendant does not forfeit
qualified immunity just because the right is established by state or municipal law. See
Davis v. Scherer.
(c) Clearly established is determined by the objecting legal reasonableness of the action;
court must determine whether a reasonable in the defendants position could have
believed that the action was constitutional. It does not matter whether the defendant
actually believed the action to be constitutional. This doctrine allows officials a zone
of discretion on unsettled questions of the application of settled law.
(d) Anderson v. Creighton (1987):
Facts: FBI officer participated in warrantless search of plaintiffs home. P filed
Bivens action for violation of his 4A rights.
Held: A warrantless search would have been constitutional if it was supported by
probably cause or exigent circumstances. Whether the agents conduct comported
with 4A is determined by an objective analysis of whether a reasonable agent
could have believed plaintiffs warrantless search to be lawful, in light of clearly
established law and the information the searching agents possessed.
(e) Obviousness: even if the law isnt technically settled in an area, if the action was
obviously violating some sort of right, the official is not entitled to immunity. See US
v. Lanier. Clearly established means that the official must have had fair warning
about what is constitutional, or his actions must have been apparently unlawful.
(f) Big theory: Court is attempting to protect officials from the penalty of litigating
claims when the are not morally culpable and are trying to ensure that the prospect of
drawn out litigation does not deter state actors from participating in legitimate
activities in pursuance of the official duties.
(6) Appealability
(a) A denial of a defendants claim of qualified immunity is an immediately appealable
collateral order. The purpose of immunity is to prevent immune defendants from
having to stand trial. See Mitchell v. Forsyth.
(b) The collateral order doctrine has been limited to those questions addressing the legal
issue of whether a legal right was clearly established. When the question on summary
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judgment is whether the violation actually occurred, appeal of that determination


must wait until the trial is concluded. See Johnson v. Jones.
c. Municipal Immunity
(1) There is no qualified immunity on behalf of cities and municipalities. Cities are strictly
liable for constitutional violations committed on their behalf and cannot assert a goodfaith affirmative defense. Legislative history indicates municipal immunity did not exist
at the time 1983 was adopted.
(2) The policy arguments that favor giving qualified immunity to state actors are less
compelling when made on behalf of municipalities.
(3) Remember Monell: City can only be held liable if there is a provable policy that is
unconstitutional.
(4) But, municipalities are not liable for punitive damages for their violations of
constitutionally protected rights. See Newport v. Fact Concerts.
d.

Absolute Immunity.
(1) Available to
(a) Judges
(b) Prosecutors
(c) Legislatorsfrom speech and debate clause
(d) President of US
(2) Immunity is only available when the officials are acting in their own functions. For example,
judges acting administratively do not count. Prosecutors must be associated with the judicial
phase of the prosecution to receive the immunity. If they are engaged in investigatory parts of the
job, there is no absolute immunity.
(a) Idea. Enforcement of 1983 against these people could have a chilling effect on their
activities and there is no need to do this. Judges should not be faced with the fear that
unsatisfied litigants may hound them with litigation charging malice or corruption and should
not be intimidated into making determinations that do not accord with justice.
(b) EXCEPTION: Judges are not immune from prospective relief. See Pulliam v. Allen.
Procedure: declaratory relief must be granted before injunctive relief unless the harm is likely
to occur immediately. In those situations, the court can grant a preliminary injunction.
(according to amendment to 1983)

Relief
Damages

Legislator
Absolute
Tenney

Judge
Absolute
Pierson

Prosecutor
Absolute
Yselli

State
Absolute
11A (in fed)

Inj.

Absolute
Sup. Court
of VA

Limited by
1983
amend

Equity

None

Executive
Qualified
Harlow,
Pierson, Wood
None
Ex Parte
Young

City
None
Owen,
Newport
None

Private
None
None

9. Judicial Federalism
A. Statutory limits on federal court jurisdiction
1. Tax Injunction Act
2. Johnson Act: fed courts cannot enjoin state enforcement of utility rates.
3. Anti-Injunction Act
a. 28 USC 2283: A court of the US may not grant an injunction to stay proceedings in a State
court except as:
(1) expressly authorized by Act of Congress, or
(2) where necessary in aid of its jurisdiction, or
(3) to protect or effectuate its judgments.

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b. Expressly authorized by Act


(1) Example: 1983 abrogates the Anti-Injunction Act
(2) See Mitchum v. Foster (1972): 1983 fulfills the requirements of the expressly
authorized exception to 2283.
(3) Test: whether an Act of Congress, clearly creating a federal right or remedy enforceable
in a federal court of equity, could be given its intended scope only by the stay of a state
court proceeding.
(4) Held: The purpose of 1983 was to empower federal courts to enjoin state court
proceedings that violate civil rights. Injunctive relief against state courts may be
essential to preserve someones constitutional rights.
(5) It is not essential that the statute specifically mention it intends to enjoin state court
proceedings. Although the court cites a number of statutes that make such a clear
statement, it is not an essential element. And none of those statutes specifically mentions
the AIA.
c. In aid of its jurisdiction
(1) Typical case is in rem action any action involving property and the courts need to
obtain control over it
(2) Has expanded the in rem analogy to include class actions.
d. To protect or effectuate its judgments
(1) has been interpreted narrowly
(2) Under this exception, an injunction is available only if questions in the state court action
are the same as those already decided by the federal court. See Chick Kan Choo: Ps fed
court suit was dismissed on two grounds. Held D cannot get fed court to enjoin
subsequent state proceeding because the fed determination in first case may not be the
same as the state court determination in the second case. Because preclusion does not
necessarily apply, it is not necessary to effectuate its judgments for the fed court to
enjoin state court.
(3) Otherwise, the federal court does not need an injunction to effectuate its judgments
because no judgment has actually been made.
(4) BUT SEE Parsons Steel: cannot get an injunction to overturn a state court decision once
it has already been rendered, even if the question has already been determined in fed
court. While state court may disagree with fed court, and one of them must be wrong, it
would be disastrous for the fed court to overturn the state courts decision. If state court
had not yet rendered decision, it would have been OK.
B. Equity, Comity and federalism
1. Abstention because of unsettled state law
a. One of the reasons for the creation of the federal courts is the idea that federal courts are
necessary for the vindication of rights, especially constitutional rights. Federal question
jurisdiction could be seen as a response to state court failure to protect individual rights. This
theory both supports and defeats the argument for increased abstention of federal courts.
b. Pullman abstention
(1) Pullman, the case
(a) RR challenged a RR Commn regulation. Argued regulation was not authorized by
Texas law, and that it violated the federal constitution.
(b) Held: this is a sensitive subject that can be avoided by focusing on the question of
state law alone. Issue may be able to be avoided with a definite ruling on the state
issue.
(c) Frankfurter does not take the easy (and defensible) way out by relying on the
distinction between equity and law jurisdiction. Instead he relies on principles of
federalism, which clearly share no history with equitable principles.

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(2) Rule: Federal courts should stay their determinations of federal constitutional challenges
to state statutes until the highest court of the state has had the opportunity to interpret the
challenged statute
(3) Purposes:
(a) enhances comity
(b) may make the federal constitutional question disappear
(c) state court interpretation will be binding on the state courts
(d) Also allows the Court to dodge a challenging question that may not turn out well.
(4) Drawbacks:
(a) fed court is declining to hear a case properly before it
(b) additional cost and delay for the plaintiff
(c) Cohens v. VA: to fail to exercise jurisdiction given would be treason to the
Constitution
(d) SOP: Congress has decided how federal courts will relate to state courts (by defining
federal court jurisdiction), and the Court has upset that balance by choosing to
abstain.
(5) Why is this not treason to the Constitution? Distinction between equity and law. Equity
jurisdiction has always been discretionary, especially as compared to legal jurisdiction.
Argument that because we have power, we must exercise it, is not as strong in the
context of equity.
(6) Some weirdness: Pullman allows a federal court to abstain even if the Ps have not
brought the state law claim in state or federal court. Court can recognize a state law
question that should have been raised, and stay on the principle that it should have been
raised.
(7) England reservation: allows a litigant to return to federal court for a de novo review of his
reserved federal claims once the state court proceedings are over avoids the preclusive
effect of an adverse state court determination. P must make it clear that he does not want
the federal question determined by the state court, but he must also inform the state court
that a federal question is pending.
(8) Federal court can only claim abstention if P is asserting a federal constitutional claim
along with his state claim.
(9) State issues must be
(a) unsettled
(b) susceptible of a limiting construction (Harrison, Midkiff)
(c) unique to state law. If state constitutional issue is asserted, and state constitutional
provision tracks the federal, there is no reason to abstain under Pullman (see
Constantineau).
c. Burford Abstention
(1) Federal courts should dismiss cases in which the state has an overriding interest in
adjudicating. Usually limited to regulatory matter where there is a complicated system of
adjudication already established, or where the intrusion of federal adjudication might
handicap state government.
(2) Quackenbush v. Allstate (1996) Brought in context of a Burford abstention; if P is
seeking damages, federal courts cannot abstain by dismissing and remanding, but still
can stay the case. Usually Burford abstention cases are dismissed, because there is
nothing to wait for, just a good reason to get rid of the case. (Compare to Pullman, where
the fed courts are waiting to see if something good will come back to them.)
2. Exhaustion of state nonjudicial remedies
a. Federal courts will not hear Ps claim against a state officer if he has failed to exhaust his
administrative remedies against the officer. See Prentis.

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b. Patsy: such exhaustion is not required in 1983 actions.


3. Abstention because of pending state proceedings
a. Equitable Abstention under Younger v. Harris
(1) Facts: P brought 1983 claim in federal court alleging violations of 1A, 14A; sought
injunction against state court prosecution under what he argued as a statute that violated
his constitutional rights.
(2) Held: While Harris has standing to bring the suit because he is currently being prosecuted
(contrast to intervenors), the federal court must abstain from issuing the injunction.
(3) Rule: Federal court cannot enjoin a state court criminal proceeding. Must dismiss federal
action if:
(a) there is a duplicative state proceeding going on that implicates important state
judicial system interests
(b) the party had sufficient opportunity to air its constitutional claims in the state court.
(4) Why? Equity jurisdiction is discretionary, and this is not a good place to use it.
(5) Extension to quasi-criminal civil actions under Huffman
(6) Extension also to damages actions. See Samuels. Payment of damages for
constitutional violations is just as disruptive as the issuance of an injunction.
(7) Pennzoil v. Texaco: suit seeking to enforce a state court judgment
(a) Judgment against Texaco for substantial $$. Texaco 1983 action against Texas that
the proceedings violated constitutionally protected rights.
(b) Holding: Younger applies
(8) Policies of Younger have been held applicable even within a pending court martial
prosecution.
b. Declaratory Judgments: Stoeffel: If state prosecution is threatened but not undertaken,
possible criminal D can get a preliminary injunction against prosecution. But, this must
happen before prosecution.
c. Exceptions:
(1) Bad faith prosecution/harassment: must show evidence of bad faith (Dombrowski). SCT
has not, post-Younger, found harassment.
(2) Patently, flagrantly unconstitutional statute.
(a) Must show entire statute to be unconstitutional.
(b) Will not apply Younger to stop an incompetent state administrative agency. [???]

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