Spiegel—Spring 2015
Federal Courts Outline
I.
INTRODUCTORY MATERIAL
a. Separation of Powers
i. Problem 1: FL courts sided with husband of Terri Schiavo and allowed the feeding
tube removed. Congress tries to pass a law granting FL Dist Ct jurisdiction for
Terri’s parents to bring suit to sustain her life. Basically allows a de novo suit.
Prevents fed judge from abstaining. Can Congress do this? Issues/questions:
1. Does this involve a fed Q?
2. Congress is implicitly telling the court how to decide by saying FL court got it
wrong
3. Can they make review de novo? Federalism issues? Habeas model?
4. Abstention: judge-made doctrine, so statute can override
b. Protection of Constitutional Rights and Federalism
c. Parity
i. Neuborne: Ideological as well as institutional differences: 1. Technical
competence: Federal judges are more educated. There are fewer positions, so more
selective. Better pay & more prestige, so draws from higher tier. Better resources
(clerks). More responsive to individual rights and liberties. More
sophisticated/complicated arguments; 2. Psychological mindset: Federal judges
more likely to be higher socioeconomic class and more in tune with the elite
tradition to uphold the Constitution, meaning substantive due process and bill of
rights. States are more subject to politics; 3. No majoritarian pressures: Life tenure,
can’t decrease salary, so no fear of reprisal. State judges have to worry about
elections.
ii. Hunter
iii. Problem 2: Parity issues. Would you want your case in fed or state court?
II.
CONGRESSIONAL AUTHORITY
a. Congressional Power to Restrict Jurisdiction (Appellate, not original)
i. Art III, Section 2: “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 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 Congress shall make.”
1. The view is that if Congress does not grant jurisdiction, it created an
exception.
ii. Art I, Section 8, Clause 9: “Congress shall have the power . . . To constitute
tribunals inferior to the Supreme Court”
iii. So what is Congress’s power? Seems almost unlimited, but cases suggest there has
to be some way of getting to SCOTUS with constitutional claims. Stripping
jurisdiction of constitutional claims requires a clear statement. Exception can’t
remove the rule?
1. Traditional view (lesser implied power view): Congress has plenary power of
appellate jurisdiction of SCOTUS and lower fed courts. However, the
iv.
v.
vi.
vii.
Supremacy Clause forbids Congress from depriving state courts jurisdiction to
decide constitutional questions that come before them in the ordinary course
of litigation. Under this view, states are the ultimate protectors of Const.
rights. “… 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.”
2. Essential functions thesis (Exceptions view): Exceptions can’t swallow the
rule, so Congress can’t remove essential functions. The core must be
preserved. Congess’s exceptions cannot violation other Const rules like DP or
habeas. There has to be SOME alternative remedy. What is the “judicial
function?” What is core to that?
Best interpretation to follow: Congress has full power to regulate and limit
SCOTUS appellate jurisdiction so long as it does not violate due process. Possible
limitations have been suggested:
1. Congress may eliminate specific avenues for SCOTUS review as long as it
does not eliminate ALL avenues.
2. Although Congress may eliminate SCOTUS review of certain cases within the
federal judicial power, it must permit jurisdiction to remain in some lower
federal court.
3. If Congress were to deny ALL SCOTUS review of an alleged violation of
constitutional rights—or go even further and deny a hearing before any
federal judge on such a claim—this would violate due process of law.
Ex Parte McCardle (1869) (pg270): McCardle, imprisoned in a military
commission for writing inflammatory editorials during the Reconstruction era,
petitioned for a writ of habeas corpus under the Act of February 5, 1867. While his
case was pending in SCOTUS, Congress repealed that Act. Can they do that? Yes.
Congress had explicitly and constitutionally removed its jurisdiction over the case.
The Court will not inquire into the motives of the legislature. It can only
examine Congress’s power under the Constitution, and the power to make
exceptions to the appellate jurisdiction of the Court is given by express words.
Notable: Court found a way to take appellate jurisdiction (certiori). Can read this
to mean that Congress can limit jurisdiction as long as there is an alternative way
to SCOTUS. Q: Can Congress take appellate jurisdiction away from SCOTUS?
Sheldon v. Shill (1850) (pg275): Michigan bank gave loan to Michigan citizen
(Sheldon); then assigned note to NY bank (Sill). Sill (NY) sued Sheldon (MI) in
federal court under diversity jurisdiction. Can Congress limit diversity jurisdiction
through § 11 of the Judiciary Act of 1789 that excepted diversity jurisdiction when
diversity was created by an assignment? Yes. “The political truth is, that the
disposal of the judicial power (except in a few instances) belongs to Congress;
and Congress is not bound to enlarge the jurisdiction of the Federal courts to
every subject in every form which the Constitution might warrant.” Case
stands as strong precedent for proposition that because Congress has discretion to
create lower federal courts, Congress also possesses authority to determine their
jurisdiction.
Webster v. Doe (1988) (pg276): P was fired from CIA allegedly because he’s gay.
Sec403(c) allows wide discretion to director over termination. Violation of
constitutional rights? Is it even reviewable by the courts? YES. Unanimous that
viii.
ix.
x.
xi.
statute precluded review of statutory claims. Read statute as not excluding
constitutional claims. “[W]here Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.” O’Connor dissent:
Separation of powers argument. Looks at structure of Const. As a nat’l security
matter, this one is for the President. Neither Court nor Congress should meddle.
Scalia dissent: Stripping jurisdiction does not pose a difficult constitutional
question; Congress has plenary pwr through Exceptions clause. And there are other
areas where Court doesn’t grant const. relief (b/c can’t review cong. membership;
PQs; sovereign immunity).
Limitations
1. External: Procedural due process, signaling out certain groups (equal
protection), substantive due process, discrimination against a claim. Basically,
a Congressional exception to jurisdiction cannot otherwise violate the Const.
2. Internal: Justice Story argument: “Judicial power shall be vested in SC &
inferior Courts” means ALL judicial power must go to one or the other. But
full judicial power has never been vested in federal courts so that argument
doesn’t have much leverage. Akhil Amar argument: All cases, but not all
controversies. Once again inconsistent with the way things have been done.
Essential function thesis: Exceptions can’t remove the rule, so Congress can’t
strip an essential function.
Hamdan v. Rumsfeld (pg282):
Boumediene v. Bush (pg283):
Problem 3: Abortion problem
1. Alt A: "States have the power to prohibit or regulate abortion in any manner
that the state deems to be in the public interest, notwithstanding any decision
of the U.S. Supreme Court to the contrary."
a. State Courts have all jurisdiction.  Unconstitutional, would need an
amendment.
2. Alt B: “"Notwithstanding any other provision of law, the U.S. Supreme Court
shall not have jurisdiction to review, by appeal, writ of certiorari, or
otherwise, any case arising out of any State statute that regulates or prohibits
the performance of abortions."
a. SC does not have jurisdiction to review.  Congress can make
exceptions, period (McCardle). Not affirming it means excluding it.
Specifically repealing jurisdiction definitely means exception. Don’t look
to Congress’s motive. BUT, in McCardle, there was still another habeas
alternative. Last paragraph implies there must be some way to get to
SCOTUS.
3. Alt C: “"Notwithstanding any other provision of law, the Federal District
Courts shall not have jurisdiction over any case arising out of any State statute
that regulates or prohibits the performance of abortions."
a. Federal Courts do not have jurisdiction to review.  Art III says
Congress can make federal courts, so the lesser implied power is that they
can create them with whatever jurisdiction they want (Sheldon v. Sill).
Congress passed statute to ignore assignment in diversity cases that was
upheld. But is a constitutional case different from diversity?
4. Alt D: “Notwithstanding any other provision of law, the U.S. Supreme Court
shall not have jurisdiction to review, by appeal, writ of certiorari, or
otherwise, any case arising out of any State statute that regulates or prohibits
the performance of abortions. The Federal District Courts shall not have
jurisdiction of any case or question which the Supreme Court does not have
jurisdiction to review under this section."
a. Both B & C.  Constitution prevents suspension of habeas. Procedural
due process issue? Webster v. Doe. Does stripping jurisdiction cause
serious constitutional question? External and internal limitations.
b. Article I/Article III Courts
i. Three types of courts Congress can assign power to: Legislative courts,
administrative agencies, adjunct courts (magistrates).
1. Legislative Courts: Fed court as de novo review of questions of law and
power to relitigate constitutional facts
2. Administrative:
3. Adjunct:
ii. Congress can assign judicial power to an Art I but only in three categories:
1. Territories (DC, Guam, Puerto Rico)
2. Courts martial
3. Public rights matters (Disputes between gov’t and people, excluding criminal
matters)
a. Not meant to be a rigid bright-line category. Is it so closely integrated
into a public right regulatory scheme as to be a matter appropriate for
agency resolution? FIFRA adjudication counts (Thomas).
iii. Where do we draw the line?
iv. Art I court cannot make final judgments on state law claims (Stern)
v. What considerations/factors matter?
1. Can final judgment be rendered?
2. Is there review by Art III court? What kind?
3. Can binding orders be issued?
4. Did Congress create the right?
5. How much control does Art III court have over?
6. How broad is jurisdiction? Lots of cases or specialized few?
vi. Balancing approach (Schor) has been rejected/in dissents, and majority view has
moved back toward N Pipe. Three categories, but public rights have been read
broadly.
vii. Northern Pipe Line Construction Co. v. Marathon Pipe Line Co. (1982)
(pg345): N. Pipe sued Marathon Pipe for breach of contract in KY Dist Ct. Then,
N. Pipe filed for bank’y in MN Bank’y Ct. N. Pipe also filed same breach of
contract claim against Marathon Pipe in MN Bank’y Ct. Details on Bankruptcy Cts
(Bank’y Act of 1978): Judges appointed to 14 yr terms; had broad jurisdiction to
decide private civil disputes (‘all civil proceedings arising under the Act or arising
in or related to cases arising under it’); had all pwrs of a court of law or equity;
appeal before bank’y appellate panel reviewable in U.S. Ct. App under “clearly
erroneous standard.” Can Congress assign judicial power to an Art I court or
adjunct court? YES but not in this case. Bankruptcy courts were
unconstitutional because they were legislative courts entrusted with deciding
private law matters. Matters because the judges don’t have the same protections as
Art III. In the three categories, the court recognized exceptional powers bestowed
upon Congress by Const or historical consensus which are not present here.
Rejects argument that bankruptcy law is a specialized area where Congress has a
particularized need that warrants distinctive treatment. This contention has no
limiting principle and would completely supplant the entire system of adjudication
in independent Art III courts and would replace with a system of specialized
legislative courts.
1. Brennan plurality opinion:
a. Leg cts only permitted in a few instances, and bank’y fits in none of these
categories:
i. Territories: DC, Guam, Puerto Rico. No sovereign state.
ii. Courts Martial: Subject matter to which we grant “extraordinary
control” to political branches of gov’t.
iii. Public rights matters: Disputes between the gov’t and others,
excluding criminal matters.
b. Leg cts can only be used as adjuncts to Art III cts under limited
circumstances, and this isn’t one of them. Appellate review is not
enough. “Our precedents make it clear that the const req for the exercise
of the judicial pwr must be met at all stages of adjudication.” Concern
that Congress will always win with White’s balancing test. Concern that
Congress will use that to aggrandize own power.
c. Adjunct courts are allowed  Precedent, admin agencies, magistrate
judges. Question is whether the act has retained the essential attributes of
the judicial power in Art III tribunals. The court finds it impermissibly
vests all the essential attributes of the judicial power to adjunct.
Basically, adjunct courts must be subject to sufficient Art III control.
d. Distinguished from Crowell Employee Comp. Comm’ns: Worker’s
Comp for ship employees. Hearing would occur but there was no power
to enforce compensation orders. This was approved because Congress has
more power over a Congressionally created right. N. Pipe is different
from Crowell because leg ct 1) Congress didn’t create the right, the state
did; 2) Jurisdiction is far more broad; 3) lower standard of review &
enforcement power.
e. Distinguished from Raddatz crim law magistrates: Raddatz adjuncts also
operated with significantly more involvement by Art III judges.
Magistrate judges decide pre-trial motions, but decisions are subject to de
novo review.
2. Alternative holding: State common law rights must be protected by Article III
courts. Brennan’s goal is for core of Art III cts to be immune to Congressional
tinkering. State common law rights is bridge to const rights.
3. White dissent:
a. Proposed functional approach focusing on whether the particular court
undermines separation of pwrs and judicial independence.
b. Balancing test: Weigh burden on Art III values against values Congress
hopes to serve through use of Art I cts. Balance comes out on Congress’s
side in this instance: Small burden on Art III values (as a leg ct designed
to deal with issues of little interest to political branches, little fear that
Cong. is creating Art I cts to aggrandize its own pwr). High leg interest in
keeping bankruptcy proceedings together; not creating several hundred
new bank’y judges with life tenure.
viii. Moving away from N. Pipeline
1. Thomas v. Union Carbide Agricultural Products (1985) (pg370): Under
FIFRA, scheme set up to prevent free-loaders. One manufacturer registers
pesticide and other manufacturers compensate registrant. Disputes settled by
binding arbitration. Appeal available only for claims like fraud. Can Congress
assign this private law dispute to a non-Art III ct? Narrow understanding of N.
Pipe. decision established only “that Congress may not vest in a non-Art III ct
the pwr to adjudicate, render final judgment, and issue binding orders in a
traditional contract action arising under state law, w/o consent of the litigants,
and subject only to ordinary appellate review.” So, Public rights category is
not mean to be a rigid, bright-line category. FIFRA adjudication “is so
closely integrated into a public right regulatory scheme as to be a matter
appropriate for agency resolution.” Notable: Virtue of certainty in N. Pipe
start to disappear.
2. Commodity Futures Trading Commission v. Schor (1986) (pg31
coursepack): Schor (trader) files complaint against Conti (broker) in CFTC,
claiming violations of the Commodities Exchange Act. Conti counterclaims in
CFTC. Can CFTC hear state law counterclaims? Yes. Court endorsed
balancing test in appraising constitutionality of leg cts (without overruling N.
Pipe) and approves CFTC hearing state law counterclaims. Art III has two
protections: 1. Ensuring fairness to litigants through independent
judiciary. Here, litigants waived this protection when they consented to
CFTC proceedings as alternative to fed cts.; 2. Maintaining structural rule
of judiciary re Separation of Pwrs. SCOTUS rejected formalistic/unbending
rules and instead focused on several factors, none of which was dispositive of
constitutionality: 1. Extent to which “essential attributes” of judicial pwr are
reserved to Art III cts; 2. Extent to which non-Art III forum exercises the
range of jurisdiction and pwrs normally vested only in Art III cts; 3. Origins
and important of right to be adjudicated; 4. Concerns that drove Congress to
depart from requirements of Art III.
a. How did this not overrule N Pipe?
ix. Moving back toward N. Pipline
1. Stern v. Marshall (pg47 coursepack): Anna-Nicole Smith case. Was bank’y
ct’s decision re defamation was a “core” matter?
a. Significance of question: If bank’y ct has authority to enter final
judgment, then it can be first claim, to be reviewed on appeal. However,
if bank’y ct can’t enter final judgment, then Texas has first claim, to be
reviewed on appeal.
b. Roberts opinion (formalist approach):
i. Was this a “core” proceeding? YES
ii. As core proceeding, is statute constitutional? NO.
iii. Bankruptcy judge deciding a state law claim, entering final
judgment, violates Article III of Constitution.
iv. Writes about N. Pipe as the major case
v. Bank’y Cts aren’t territorial, courts martial, or public rights
courts/cases.
vi. Distinguishes Thomas as a federal law case
vii. Distinguishes Shore as claim more “necessary” to grant jurisdiction to
agency
viii. Distinguishes Granfinanceiera, S.A. v. Nordberg as a case falling
within public rights. Uses this case as support that maybe Thomas and
Shore weren’t as conclusive as they seemed to be.
ix. Distinguishes Crowell as an adjunct ct case
c. Scalia concurrence: Majority muddied the waters! Argues for historical
test: Argues an Art III judge is required in all fed adjudications unless
there is a firmly established historical practice to the contrary. Crowell is
an administrative agency case, what’s at issue here is a court. These are
different and merit different treatments.
d. Breyer Dissent: Balances …
i. Nature of claim in favor of Article III jurisdiction, BUT …
ii. Counterclaim is related to existing claim; here we have sufficient
control by Article III courts (appointment of bank’y judges &
review); consent; legislative rationale
x. Wellness v. Sharif (2013) (handout): Circuit court decision on appeal to SCOTUS
currently. Listened to oral arguments in class. Main question is can a bankruptcy
judge reach final judgment? Can the challenge by waived? Spiegel thinks they will
probably dodge the question and decide this isn’t a Stern claim. Lower court ruled
that the bankruptcy judge could not enter final judgment and that a constitutional
objection based on Stern is not waivable.
xi. Problem 4: Want to appeal magistrate decision against client. Challenging having
magistrate judge decide case.
1. Two approaches to the problem: N. Pipe & Stern OR Stern with Schor
underlying.
2. N. Pipe approach: Not any of categories for exceptions for Art I courts. But
magistrates are adjunct, so can use Crowell as Congressionally created right.
No specialized area or limited jurisdiction.
3. Court would probably followed multi-faceted Roberts approach
4. Questions
a. Coercive consent?
b. How important is it that an Art III judge renders final judgement?
c. How much control do judges have over magistrates?
c. Congressional Power to Expand Jurisdiction
i. Is Art III ceiling of fed jurisdiction? No. Congress seems to have broad power to
expand whenever fed law is potentially important part of case.
ii.
iii.
iv.
v.
1. 28 U.S.C. § 1331: “The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the U.S.”
SCOTUS interprets § 1331 much more narrowly than language in Const.
(Verlindon). A case arises under fed law if it is apparent from the face of P’s
complaint either that P’s cause of action was created by fed law or is based on
state law, but a fed law that creates a cause of action is an essential component
of P’s complaint.
How do we know when a case “arises under” the Const and laws of the U.S.?
1. When cause of action is created by fed law (fed statutes; fed admin regs; fed
common law).
2. When cause of action is created by Const (except full faith and credit clause of
Art IV § 1).
3. Sometimes when there is a state law cause of action, but fed law is an
ingredient of the case.
Tidewater Transfer (pg322):
Osborn v. Bank of US (1824) (pg324): States didn’t like McCulloch v. MD
holding that it was unconstitutional for state of MD to tax Bank of U.S. Ohio, e.g.,
still tried to collect $50,000 tax. Bank asked d ct to enjoin OH from collecting tax.
Meanwhile, state sent officers to bank and seized $120,000 from bank. Fed officers
recaptured $98,000 from state treasury. Bank sued in fed ct to recover additional
monies, and fed ct issued judgment in its favor. Does fed ct have jurisdiction to
hear the bank’s suit? 2 parts: Whether the act of Congress had created fed
jurisdiction, and whether, under the Const., Congress had the pwr to create
jurisdiction. Holding: Statute was a clear authorization of fed ct jurisdiction (bank
capable “to sue and be sued … in any Cir Ct of the U.S.”). Because the Bank of
the U.S. was created by fed law, any action brought by it arose under fed law.
Fed judicial pwr is co-extensive with the fed leg pwr and fed judiciary may be
given authority to construe and enforce every fed statute. Under Const, a case
“arises under” fed law whenever fed law “forms an ingredient of the original
cause … [even though] other questions of fact or of law may be involved in it.”
1. Stands for proposition that the Const permits Congress to create fed ct
jurisdiction whenever fed law is a potential ingredient in a case.
2. Broadest reading: Any federal question or hint of one means proper
jurisdiction. (Obviously rejected. The jurisdiction statute does not create the
claim. This would extend fed jur to everything and anything.)
Textile Workers Union v. Lincoln Mills (1957) (pg327): Is § 301 of Taft-Hartley
Act (granting jurisdiction over breach of contract suits for violations of labor
management agreements in industries affecting interstate commerce)
constitutional? YES. Fed ct jurisdiction appropriate because Congress
intended for the fed cts to create a fed common law of labor management
contracts.
1. Harlan/Burton concurrence: Jurisdiction is appropriate on theory of protective
jurisdiction.
2. Frankfurter dissent: Protective jurisdiction must be limited to diversity
jurisdiction (available on theory that state tribunals are inadequate to
determine state law).
vi. Protective Jurisdiction?
1. When Congress authorizes fed ct jurisdiction because it believes that fed ct
availability is necessary to protect an important fed interest.
2. Implied in Osborn, but court has sort of moved away from it in Mesa, while
still leaving the door open.
3. Verlinden B.V. v. Central Bank of Nigeria (1983) (pg335): Dutch corp.
brought suit in fed ct against Nigeria co. claiming breach of contract.
Jurisdiction based on Fed Sovereign Immunities Act of 1976 that granted fed
cts authority to hear suits by an alien against a foreign state. Congress can
create fed ct jurisdiction for suits involving foreign commerce? YES. So
long as the fed law to be applied does more than merely create jurisdiction, it
is a basis for fed ct jurisdiction if it is potentially important in the outcome of
the litigation. “By reason of its authority over foreign commerce and foreign
relations, Congress has the undisputed pwr to decide, as a matter of fed law,
whether and under what circumstances foreign nations should be amenable to
suit in the U.S.” “[T]he jurisdictional provisions of the Act are simply one part
of this comprehensive scheme.” Notable: SCOTUS didn’t have to decide
Verlindon based on broadest reading of Osborn, so it declined to opine on
whether it is correct.
4. Mesa v. CA (1989) (pg340): CA issued criminal complaints against 2 USPS
drivers involved in serious accidents. Defendants removed cases to fed ct
under 28 U.S.C. § 1442(a)(1) that permits removal of a criminal prosecution
to fed ct when defendant is “Any officer of the U.S. or any agency thereof …”
SCOTUS interprets statute to avoid const question. Removal jurisdiction
cannot be based on mere fact that defendants are fed officers under 28 U.S.C.
§ 1442(a)(1) (a pure jurisdictional statute). Instead, must assert a fed defense.
No need to adopt theory of protective jurisdiction in this case because
SCOTUS does “not recognize any fed interests that are not protected by
limiting removal to situations in which a fed defense is alleged.” But left door
open for protective jurisdiction.
a. Brennan concurrence (thinking about recent local hostility to fed
authority in school desegregation): Court has left open the possibility that
where a fed officer is prosecuted because of local hostility to his function,
‘careful pleading, demonstrating the close connection between the state
prosecution and the fed officer’s performance of his duty, might
adequately replace the specific averment of a fed defense.”
5. Gutierrez de Martinez v. Lamagno (1995) (pg342): Lamagno, a special
agent of DEA collided car with another car in Colombia. Colombians filed
diversity action against Lamagno in fed d ct of his residence. U.S. Attorney
filed Westfall Act certification. Because, under Fed Tort Claims Act, U.S. is
not liable for “any claim arising in a foreign country,” Ps appeared to be
without remedy. Was Lamagno acting within the scope of his employment
(challenging Westfall Act certification)? Westfall Act certifications are
subject to judicial review in fed ct because a case under the Westfall Act
‘raises a question of substantive federal law at the very outset.’ (quoting
Verlindon). And once in fed ct, case gets to stay even if certification is
rejected. Why? U.S., at least temporarily, is sole defendant in case. Whether
employee was within the scope of his fed employment is a sufficient fed
question to bring case into fed ct. Once in fed ct, considerations of judicial
economy, convenience, and fairness to litigants are enough to keep it there
even if certification is rejected.
a. Souter dissent: In requiring a fed d ct, after rejecting the AG’s
certification, to retain jurisdiction over a claim that does not implicate fed
law in any way, SCOTUS approaches the limit of Art III’s “arising
under” clause, “if it does not cross the line …”
6. So Osborn implies protective jurisdiction, but Court has shied away from it.
It’s there, but it’s unsure.
vii. Problem 5
1. Proposal 1: A statute providing rules for interpreting contracts between
pipelines subsidized by the Federal government and their subcontractors. The
statute further provides that “there shall be jurisdiction over all contract
disputes between the pipelines and their subcontractors in Federal Court and
all such cases filed in state court can be removed to Federal Court.”
a. Less intrusive. Probably safer because it establishes fed q.
2. Proposal 2: A statute providing that “the pipelines subsidized by the Federal
government can sue or be sued in any Federal Court where venue was
otherwise proper and that all such cases filed in state court can be removed to
Federal Court.”
a. Purely jurisdictional. Different from Osborn because pipelines are under
state law (incorporated in sate=existence is question of state law) whereas
bank was federal law. Lincoln Mills was federal common law question,
so can’t do that here. Is it more intrusive on states?
i. Protective jurisdiction argument: Frankfurter, Lincoln Mills: Federal
interest in pipeline so fed courts should be available to protect is. Reinterpretation of Osborn. Congress could take the greater step of
saying federal law supersedes all state law with interstate pipelines,
so why can’t they take the lesser step with less intrusion on states and
merely confer jurisdiction?
ii. “Prop 2 is fed law so all claims arising from it would be fed Q”—NO.
Jurisdictional statutes do not create a claim. This would extend fed jur
to everything and anything. (O’Connor in Mesa).
iii. Art III argument: No text. Not in Art III list of people/entities
protected.
iv. Mesa: Protective jurisdiction door still open. Didn’t reach Art III
question: Interpreted jurisdictional statute to require some fed q jur.
Implies protective jurisdiction is not a valid argument but doesn’t
strike it down.
v. Structural argument: Fed interest. Under Art I. Reason for
jurisdiction. Less intrusive on states to allow Congress to confer
jurisdiction instead of superseding state law.
1. Counterargument: It would be too easy, so actually more
intrusive. Getting Congress to supersede state law would be very
difficult and rare. As a theoretical matter it’s less intrusive, but as
a practical matter it would end up being more so.
III.
STATE COURTS AND APPELLATE JURISDICTION
a. Congressional Control
i. When do state courts have control over federal claims and what is Congress’s
control over that?
1. Normal rule: Concurrent jurisdiction.
2. Exceptions: Within Art I power, Congress can make some claims exclusively
in fed court with 1. Explicit language in legislation; 2. Unmistakable
implication from legislative history; or 3. Clear incompatibility.
3. Gulf Offshore Co. (pg30):
4. Tafflin v. Levitt (1990) (pg31): Do state cts have concurrent jurisdiction to
hear civil RICO claims? NO. Statute itself is completely silent. Concurrent
state court jurisdiction over civil RICO claims would be denied only “by an
explicit statutory directive, by unmistakable implication from legislative
history, or be clear incompatibility between state-court jurisdiction and federal
interests.” Background presumption of concurrent jurisdiction, however
Congress has authority to remove concurrent jurisdiction from state cts
simply by: 1. Explicit language in legislation; 2. Unmistakable implication
from legislative history; 3. Clear incompatibility. State cts are competent
and tasked with upholding the constitution; states might be the only courts left
(aside from SCOTUS) so have to let state courts hear fed claims. “Nothing in
the language, structure, leg history, or underlying policies of RICO” precluded
st ct jurisdiction.
ii. When can state refuse to hear federal questions?
1. They can’t. They have a duty to hear federal questions unless they have a
neutral excuse. (Haywood majority says neutrality is necessary but not
sufficient). Procedural rules are neutral unless outcome-determinative.
2. Broad view: State cts with general jurisdiction cannot decline to adjudicate
fed claims for reasons reflecting disagreement with fed policy (Testa,
Howlett, Haywood).
3. Middle ground: State cts with jurisdiction to hear “analogous” state claims
cannot discriminate against fed claims by excluding them from state-ct
jurisdiction. (Testa, Howlett)
4. Narrow (J. Thomas) view: States should be free to discriminate against fed
claims so long as the approach is genuinely jurisdictional.
5. Haywood v. Drown (2009) (pg32): Prisoner wants to file a § 1983 suit in
state ct. Files pro se and gets dismissed under NY law providing that all law
suits against correction officers acting in the scope of employment be brought
in ct of claims and state substitutes as defendant. This scheme where claim
must be under state law (not § 1983) involved less discovery, no jury trials, no
punitive damages, 90 day notice period. “States lack the authority to nullify
a fed right or cause of action they believe is inconsistent with their local
policies.” For state to nullify a cause of action, state rule must be a
neutral rule of judicial administration (see Howlett), balanced against fed
interest. SCOTUS viewed NY law as a disagreement with the federal policy
6.
7.
8.
9.
that prisoners may file § 1983 claims (NY essentially conceded this in oral
argument). NY might have had a stronger case if it heard no § 1983 cases, and
not just § 1983 claims filed by a certain class: prisoners. Fed interest in
forcing NY to hear this case (answering Q: Why force state court of general
jurisdiction to hear a claim against its will?): This statute is about state
misbehavior: Enforcement of a federal law against state officials. It looks
unseemly/offensive for state judges to reject federal policy (Supremacy
Clause). Fed interest in not having it appear that there’s an alien force
imposing itself in state business. Fed cts want cooperation from states to
enforce in a common enterprise.
a. Thomas concurrence: Prisoner can still file in federal court, so rule is
jurisdictional. States should be free to discriminate against fed claims so
long as the approach is genuinely jurisdictional. Forcing states to take
cases is an intrusion on state sovereignty.
Testa v. Katt (1947) (pg52): State courts must hear federal question cases
(Madisonian compromise)
FELA Cases
a. Mondou v. NY (1912) (pg53): Matters arising under [FELA] may be
enforced as a right, in the courts of the States when their jurisdiction, as
prescribed by local laws, is adequate to the occasion.
b. Douglas v. NY (pg53):
c. McKnett v. St. Louis (1934) (pg54): “[T]he Fed Const prohibits state
courts of general jurisdiction from refusing to [hear case] solely because
the suit is brought under a fed law…. A state may not discriminate
against rights arising under fed laws.”
d. Herb v. Pitcairn (pg54):
e. Missouri South RR v. Mayfield (pg54):
Howlett v. Rose (1990) (pg55): Former high school student sued high school
officials in FL state ct under § 1983 challenging an allegedly illegal search
and wrongful suspension from school. FL Ct App: State law of sovereign
immunity barred suit. SCOTUS: State law of sovereign immunity cannot not
be used by a state ct to deny recovery under § 1983. Under supremacy clause,
federal law trumps state law. States must enforce federal laws, including §
1983 cases. State cts cannot discriminate against fed law claims unless
state has a valid, neutral excuse (FELA precedent, e.g. Mondou, McKnett).
Fed law cannot force states to create a ct system. We take state cts as we
find them. Anti-commandeering cases (e.g. Printz): It’s too much an
intrusion on states for fed gov’t to remake the state ct systems. Here, ct
procedure was not neutral because defendant wouldn’t have sovereign
immunity under state law.
Johnson v. Fankell (1997) (pg58): Law suit against state liquor agency;
former employee sues for damages under § 1983. Defendants moved to
dismiss case with qualified immunity defense. State trial court rejected
defense. Interlocutory appeal issue: In fed ct, if defendants lost sovereign
immunity defense, they would have an immediate interlocutory appeal
(interest in not having state officials go to trial in cases which they’re
ultimately going to win). § 1983 itself does not include interlocutory appeal
provision (instead, it’s fed common law). Idaho state court did not have an
interlocutory appeal procedure for § 1983 sovereign immunity cases.
SCOTUS decided states need not allow interlocutory appeals for the
denial of immunity in suits against government officials. We take state
courts as we find them, and this is not an outcome-determinative rule.
Neutral procedural rule and no interference with enforcement of fed interest.
10. Printz??? SCOTUS invalidated fed law that required state and local law
enforcement personnel conduct background checks before issuing permits for
firearms.
iii. Duty of state courts to apply federal procedures
1. Take states as we find them, only enforce federal procedure when outcomedeterminative (Johnson rule)
2. Felder v. Casey (pg63):
3. Dice v. Akron, Canton & Youngstown RR Co (1952) (pg64): Who hears
factual question on written release? Judge or jury? If Ohio law on release
governs, RR wins. If federal law on releases governs, P wins. EITHER
divining Congressional intent OR protecting access to juries which we think is
important.
a. Frankfurter dissent: We take state cts as we find them; this is an intrusion
on Ohio ct system. If there’s going to be such an intrusion, it’s up to
Congress to authorize it.
4. Brown v. Western RR of Alabama (1949) (pg66): SCOTUS reviewed
pleadings under fed pleadings rules because strict state pleading rules
interfered too much with enforcement of federal right.
5. Jackson v. Denno (pg69):
6. Chapman v. CA (pg 69):
b. Supreme Court Review of State Court Decisions
i. Constitution
1. Once a state takes a case it must decide the case in conformity with fed law
(Supremacy Clause).
2. SCOTUS has constitutional authority to review state ct judgments (Martin v.
Hunter’s Lessee).
3. Authority on review is limited to federal questions (Murdock).
4. Exceptions:
a. When the state law issue is integrally tied to a fed question (antecedent)
(Indiana ex rel. Anderson; Standard Oil).
b. When SCOTUS smells something fishy:
i. A dramatic change in state law indicating that something
discriminatory is going on. (Indiana ex rel. Anderson v. Brand).
ii. Court departure that isn’t a change in the law, but instead doesn’t
have substantial support in prior law. “I’m surprised the court did
that/was willing to take that step in a direction where it hadn’t gone
before.”
1. The less there’s precedent in the state, the more we have to look
at the rules elsewhere to get an understanding of rights.
2. Look for whether other states have different laws/interpretations.
c. To avoid a federal constitutional question (Standard Oil).
d. When federal precedent has changed (State Tax Comm’n v. Van Cott).
e. To promote uniformity (Moore v. Chesapeake & Ohio Ry. Co.).
f. When state has a mistaken conception of federal law (California v.
Byers).
5. Martin v. Hunter’s Lessee (1816) (pg78): Conflicting claims to land in
Fairfax, VA; VA ct decided for Hunter, finding Martin didn’t have valid claim
because VA took property before treaties were signed. SCOTUS reversed
(holding federal treaty was controlling). VA declared that the SCOTUS lacked
the authority to review state ct decisions because US and VA are co-equal
sovereigns. SCOTUS said when addressing a federal/constitutional issue,
SCOTUS has authority to review state court judgments. Jurisdiction
extends to cases, not courts. Structure of Const presumes that SCOTUS can
review state ct decisions: Const created SCOTUS with original and appellate
jurisdiction but no lower cts. In order for SCOTUS to have appellate review of
any case, must be able to come from state cts. Const is based on a recognition
that “state attachments, state prejudices, state jealousies, and state interests
might sometimes obstruct, or control, or be supposed to obstruct or control,
the regular administration of justice.” Necessary to promote uniformity.
6. Murdock v. City of Memphis (1875) (pg81): Murdock’s ancestors conveyed
land to Memphis for the purpose of creating a naval depot. Deed of sale
provided that land would revert to grantors or their heirs if the U.S. did not
use the land for the specified purpose. Murdock sued city when U.S. decided
not to create depot. Court held issue presented did not involve fed law (was a
state property law thing). § 25 of Judiciary Act of 1789 explicitly prevented
SCOTUS from reviewing state ct decisions on state law questions. Act of
1867 omitted language, but Congress’ unmistakable intent was to prevent
such review. If Congress really wanted to change scope of review, Congress
has to be more specific. Therefore, SC review of state court decisions is
limited to federal questions.
7. Indiana ex rel Anderson v. Brand (1938) (pg83): Teacher claimed local
gov’t’s decision to fire her violated the Const’s prohibition—in Art I § 10—of
state impairments of the obligations of contracts. State ct: Fed impairment of
contracts clause doesn’t kick in because there was no contract. Issue is
whether there was a contract under state law. Court held there was a contract
under IN law and it was impaired by gov’t action. Explaining Why SCOTUS
Could Decide State Law Q: Antecedent state law question (When a
question of state law has to be decided before getting to a federal Q)—there is
a class of cases with constitutional implications that depend on state law
definitions. Contracts is one of these areas. If we gave states unfettered
discretion, they could define things to avoid constitutional issues. “Even
though the constitutional protection invoked be denied on non-federal
grounds, it is the province of this Ct to inquire whether the decision of the
state ct rests upon a fair or substantial basis.”
8. Standard Oil Co of CA v. Johnson (1942) (pg89): State gasoline tax law
taxed exempted sales to the U.S. gov’t and its departments. State was taxing
Army Post Exchanges. Did Army Post Exchanges fit w/in the statutory
exemptions? CA based its state law definition on fed law and interpreted term
incorrectly. Exchanges are instrumentalities of the U.S. and therefore should
be exempt under CA law. Explaining Why SCOTUS Could Decide State Law
Q: SCOTUS could have based its decision directly on the Const, holding it
unconstitutional for CA to tax fed military base exchanges, but avoided the
constitutional question by interpreting the CA law to not impose such a
tax. Notable: On remand, CA could have disagreed that it wasn’t using fed
law in its state law definition and instead was using its own definitions. Here,
SCOTUS is issuing something more like an advisory opinion.
9. State Tax Comm’n n. Van Cott (1939) (pg91): UT attorney deducted fed
wages earned by employment for 2 fed agencies in state income tax return.
State taxing authorities denied exemption. State ct: Relied in part on
SCOTUS’s Graves case. SCOTUS: On same day, overruled Graves.
Remanded case to Utah, freeing state of constraint of thinking they had to
comply with a certain federal law. Essentially, SCOTUS says “we’ve
changed our law, so we’ll give you a chance to revise your decision
accordingly.” Federalism issues: UT can decide who/what to tax as long as
it’s not based on misinterpretation of fed law. On remand: State ct affirmed its
decision, holding it had correctly interpreted the intent of the UT leg and so its
prior decision was still correct, even though not compelled by Graves.
10. Moore v. Chesapeake & Ohio RR (1934) (pg92): Injured RR worker sought
damages under state statute providing remedy for injuries suffered while
working on an intrastate RR. State law: Employees cannot be found liable of
contributory negligence if employer’s violation of Fed Safety Appliance Acts.
Does case fall w/in fed question jurisdiction of d cts? “Complaint set forth a
cause of action under the KY statute and, as to this cause of action, the suit is
not to be regarded as one arising under the law of the U.S.” Notable:
While foreclosing original jurisdiction in fed cts, SCOTUS maintained it
would have appellate jurisdiction over any question “relating to the scope of
the Fed Safety Appliance Acts.” Uniformity concerns.
11. CA v. Byers (1971) (pg93): Hit-and-run statute requires the driver in a car
accident stop at the scene and give his/her name and address. Is 5thA privilege
against compulsory self-incrimination infringed by CA’s hit-and-run statute?
CA ct: Upheld statute after interpreting it to impose a “use” restriction on
required disclosures, even though without “use” restriction, fed constitution
decisions raised “substantial hazards of self-incrimination.” SCOTUS:
Correct CA ct interpretation of fed precedent, saying privilege would not
be violated by enforcement of statute without “use” restriction.
ii. Adequate and Independent State Grounds
1. Fed courts will not review decisions of state courts based on adequate and
independent state law grounds
a. Adequate: Even if the federal grounds were wrongly decided, it would
not affect the outcome of the case.
2.
3.
4.
5.
b. Independent: If a state court’s interpretation of its state provision was
based on federal case law interpreting an identical federal provision, it is
not independent.
c. If it is unclear whether the decision turned on state or federal law, the
Court will assume that there is no A&I state grounds unless the state
court expressly stated its decision rests on state grounds (Michigan v.
Long).
***Ask: Holding state grounds decision constant, if fed question were
reversed, would that change the result?***
Michigan v. Long (1983) (pg96): SCOTUS didn’t think it was clear whether
MI S Ct intended to rely separately on the MI Const. The MI S Ct referred to
it twice in opinion, but otherwise relied exclusively on fed law. SCOTUS will
presume that there is not a state law basis for a decision unless the state’s
highest ct provides a clear statement that decision was grounded on state
law.
a. Stevens dissent: Would rather standard be presume state grounds unless
clearly stated otherwise. Purpose of SCOTUS is to assure the vindication
of fed rights; there is no reason for review absent a claim that the state is
infringing on someone’s const liberties.
Cases suggest SCOTUS will usually get more involved with increased federal
interest or if something fishy is going on (Bush v. Gore)
a. Novelty: The more novel the rule, the easier time the federal court has in
saying state can’t do that to block federal right.
b. Inconsistency: The more inconsistent state is in application, the easier
time the federal court has in saying state can’t do that to block federal
right.
c. Importance of federal interest
d. Unimportance of state interest: arid and meaningless ritual.
e. Something about historical context or particular thing makes state court
choices look suspicious.
Bush v. Gore (2000) (pg105): FL recount laws antecedent Q to fed Q of
whether Art III, Sec 1, Clause 2 was violated. Court has to decide whether FL
fairly interpreted state law in order to uphold Const. SCOTUS decides
counting uncounted votes in FL, without preset standards, violated equal
protection. Basing decision on FL law, SCOTUS reversed FL S Cts
interpretation of state law and ended the recount.
a. Rehnquist: Justifications for more searching review:
i. 1. Is there something fishy going on? FL court “impermissibly
distorted” FL law – plainly departed from the legislative scheme
ii. 2. Context: This is about the presidential election, something in which
the fed ct has increased interest in involvement. This particular
constitutional provision requires a more searching analysis;
iii. 3. 3 U.S.C. § 5 Safe Harbor Clause. Immunity from challenge for
elected officials who are elected by a certain date. Reasonable
hypothesis that Florida judiciary was trying to take advantage of this
clause. Does Rehnquist convert reasonable hypothesis into a
statement of fact which might not actually be true?
b. Souter/Breyer dissents: Agreed that counting uncounted votes without
preset standards violated equal protection, but argued SCOTUS should
remand case to FL cts to decide how to proceed under FL law, including
the possibility of the FL Supreme Ct setting standards for the recount.
c. Ginsburg dissent: Concedes maybe Rehnquist is correct that Florida court
interpretation of FL law wrong, but disagreement is not enough,
SCOTUS should defer to state court interpretation of state law if
reasonable. Fair grounds to support Florida interpretation is enough.
Court should only take a look to see if anything fishy is going on.
6. NAACP v. Alabama ex rel Patterson (1958) (pg121): NAACP was held in
contempt for not releasing member names. AL SC refused to hear NAACP’s
appeal because they sought review by cert rather than mandamus. SCOTUS
says this is unusual. Can’t use this procedural issue to block fed claim.
Mandamus is permissible remedy, but not the only one. Nothing in the prior
state cases suggests that mandamus is the exclusive remedy for reviewing
state ct orders for contempt judgments. There is not an independent and
adequate state ground of decision when the state ct creates a new
procedural rule that would foreclose SCOTUS review.
IV.
FEDERAL QUESTION JURISDICTION
a. Arising Under
i. This confuses you because the Court is all over the place and hasn’t really come up
with a set-in-stone test. Just apply the Grable test, but take into consideration other
precedents.
ii. Art III, Sec 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 . . . .”
iii. 28 U.S.C. §1331: “The district courts shall have original jurisdiction of all civil
actions arising under the Const, laws, or treaties of the U.S.” Courts have
interpreted this provision more narrowly than identical language in Const.
iv. 4 Types of Federal Questions:
1. All fed: Creates fed question jurisdiction always.
2. All state: No fed question jurisdiction unless have const specialized
jurisdiction statute (e.g. Verlindon).
3. Fed cause of action w/ state element: Creates fed question jurisdiction always
(Holmes rule in American Well Works: suit arises under the law that creates
the cause of action).
4. State cause of action w/ fed element: Creates fed question jurisdiction
sometimes (e.g. Smith; Moore)
a. Centrality: How central to the case must the federal question be? Can it
lurk as far behind as Osborn seemed to suggest?
b. Placement: Jurisdiction under §1331 requires P’s claims to be based on
federal law. Federal defenses do not count. P’s response to anticipated
defenses also do not count (Mottley). Must ascertain those matters that P
must plead to state a claim. It does not matter what the complaint actually
says, but what a properly pleaded complaint would have said (wellpleaded complaint rule).
i. Skelly Oil: For declaratory judgment cases, ask whether some other
suit—an ordinary coercive action on the same facts—would come
within the ordinary fed Q juris. Doesn’t follow the well-pleaded
complaint rule. “Alternative coercive action”=traditional coercive
relief that could have been filed in federal court.
v. Test (from Grable): Does the state-law claim necessarily raise a state federal
issue, actually disputed and substantial, which a federal forum may entertain
without disturbing the balance of fed and state responsibilities?
1. Grable rule is black letter law, but application is murky. Best to apply
narrowly.
2. I think the thrust of any inquiry (Grable, Merrell Dow, Smith, Moore, etc.) is
how important is the federal interest?
a. But it is still unclear whether the fed interest has to be significant,
substantial, serious, important (all words used by the court). In Gunn,
Roberts says the claim is not of the nature that would have any sort of
significance in the fed system. Says to look to importance to federal
system as a whole, not federal interest in specific case. Gunn also
suggests that if the case is “backward-looking” or would not have an
effect on the development of a relevant body of federal law, then there is
no important fed interest in hearing the case. No threat to uniformity
suggests no important fed interest.
b. Not dispositive. Still need to assess whether exercising jurisdiction would
disrupt normal currents of litigation.
i. Unclear which way volume cuts. Increase in volume would suggest a
higher need for the court to take the cases, but would also suggest a
bigger invasion. Lower volume suggests there’s not a big need, but
also suggests there’s a lesser burden on federalism. The court seems
to have followed the latter reasoning.
c. Absence of a federal private right of action (Holmes rule) is relevant
evidence but not dispositive.
d. Have to think about Congress’s intent. Implying a right to sue in absence
of affirmative direction from Congress is something the Court is very
hesitant to do
vi. Louisville & Nashville R.R. v. Mottley (1908) (??): The Mottleys got lifetime RR
passes in a settlement, then Congress passed a law banning lifetime RR passes. RR
failed to honor contract & Mottleys sued in fed court. They win, but SC says no
jurisdiction because no fed Q. The fed Q must be stated in P’s cause of action.
It’s not enough that P’s response to D’s defense would touch on constitutional
arguments. Only look to well pleaded complaint to ascertain whether fed Q.
vii. American Well Works (1916) (pg555): Holmes rule: A suit arises under the
law that creates the cause of action. P made/sold pumps on which had held or
had applied for patents. D claimed P’s pump infringed on D’s patent and
threatened suit. P sued for libel and slander. Does business libel case arise under
fed statute providing exclusive fed jurisdiction over “any civil action arising under
viii.
ix.
x.
xi.
any Act of Congress relating to patents”? NO jurisdiction. Fed question exists only
if the cause of action arises under fed law. Notable: This is a restrictive view of
“arising under.”
1. Holmes rule is one of inclusion, not exclusion, meaning it’s a floor. (See next
case)
Shoshone Mining Co. v. Rutter (pg556): Not every cause of action created by
federal law presents a case arising under fed law. Congress created a system for
issuing mining patents on fed lands, allowing adverse suit. The Court ruled that the
creation of this adverse suit did not necessarily create fed court jurisdiction
because the determination of the right to possession may not involve any questions
of fed or const law.
Smith v. Kansas City Title & Trust Co (1921) (pg556): Ps challenged a
company’s purchase of securities as actionable under state corporate law. Alleged
bonds were issued in violation of the Const and thus the corporation could not
lawfully purchase them because of a state statute delineating permissible
investments. Fed ct has jurisdiction when the right to relief depends upon the
construction of the Const or laws of U.S., and such fed claim is not merely
colorable and rests upon a reasonable foundation. Notable: SCOTUS took a
broader view of “arising under” jurisdiction than Holmes in American Well
Works.
1. Holmes dissented, applying the Holmes rule and finding the case arose under
state law.
Moore v. Chesapeake & Ohio RR (1934) (pg558): Injured RR worker sought
damages under state statute providing remedy for injuries suffered while working
on an intrastate RR. State law: Employees cannot be found liable of contributory
negligence if employer’s violation of Fed Safety Appliance Acts. Does case fall
w/in fed question jurisdiction of d cts? “Complaint set forth a cause of action
under the KY statute and, as to this cause of action, the suit is not to be
regarded as one arising under the law of the U.S.” Notable: While foreclosing
original jurisdiction in fed cts, SCOTUS maintained it would have appellate
jurisdiction over any question “relating to the scope of the Fed Safety Appliance
Acts.”
1. Merrell Dow reconciles Moore and Smith by saying difference in nature of
fed issues at stake compelled the different results (n.12).
Merrell Dow v. Thompson (1986) (coursepack pg61): Casts doubt on Smith but
doesn’t overrule it. Ps sue on 6 different grounds after they took Bendectin and
babies had birth defects. 5 were grounded in state common law, 1 in fed law
(negligence standard: under fed law, misrepresentation on label is negligence per
se.) Under Osborne, easily no jurisdiction. Under Holmes Rule in American Well
Works, easily no jurisdiction. But don’t want to overrule Smith. Decision: No
federal jurisdiction. Congress didn’t intend to create private right of action in
FDCA. Implying a right to sue in absence of affirmative direction from Congress
is something the Court is very hesitant to do (see Creating Fed Questions p.22).
(Neither parties had an incentive to come to the court and argue the FDCA creates
an implied cause of action/private right to sue.) Instead, Congress’ intent was to
provide only administrative causes of action. Move back toward Holmes rule.
1. Big print: If there’s no fed cause of action, and if Congress isn’t explicit
about giving fed jurisdiction, then we’ll assume there’s no fed
jurisdiction.
2. Little print: Door is still open for fed jurisdiction in cases where fed law at
issue has a certain nature, like Smith.
3. Brennan dissent: if there’s a substantial question of federal law, which there is
here, case belongs in federal court under § 1331. Start with underlying
assumption that 1331 puts case in fed court and only remove in light of
evidence that Congress intended it not to be.
4. Note: Footnote 12 (important for later cases): No brightline rule. The
difference in results between Smith and Moore was the difference in the
nature of the federal issue at stake.
xii. Grable & Sons Metal Products Inc. v. Darue Engineering & Manufacturing
(2005) (pg561): P brought state quiet title action, claiming that record title was
invalid because the IRS didn’t give proper notice of the property’s seizure as
required by fed statute. Statute itself does not provide cause of action, making it
seem like Merrell Dow. But Court finds jurisdiction, so how does it deal with
Merrell Dow? Says must be read as a whole and can’t have meant overturning
years of precedent (Smith) by adopting Holmes rule. Points to Footnote 12 saying
there’s no brightline rule. Concludes Merrell requires weighing interests. Absence
of federal private right is relevant but not dispositive. A “federal court ought to be
able to hear claims recognized under state law that nonetheless turn on substantial
questions of fed law” so as to allow litigants to “resort to the experience,
solicitude, and hope of uniformity that a fed forum offers on fed issues.” Court
should also consider: 1) the strength of the fed interest (characterize as a tax case,
so important fed interest and no upset in fed/state balance; and 2) the implication
on volume of cases (in this case, it wouldn’t increase fed workload that much
because it applies to only a small number of cases). Test that comes out of this
case: Does the state-law claim necessarily raise a state federal issue, actually
disputed and substantial, which a federal forum may entertain without
disturbing the balance of fed and state responsibilities? “The meaning of the
federal tax provision is an important issue of fed law that sensibly belongs in fed
court.” This is a rare instance of a state quiet title action involving contested issues
of fed law, so it will not disrupt normal currents of litigation.
1. Thomas concurrence: SCOTUS applied precedent correctly but Thomas
would consider overruling precedent. Jurisdictional rules should be clear:
whatever the virtues of Smith, they are outweighed by the messy application
of the rule. Would return to Holmes rule.
2. Remaining questions: How should cts apply Grable test? Do all parts need to
be met for a fed ct to have “arising under” jurisdiction of a state law claim
with an embedded fed statutory component? Is a plaintiff’s claim to § 1331
jurisdiction less fragile and factor dependent when the embedded fed
component is a constitutional issue?
xiii. Empire Healthchoice v. McVeigh (2006) (pg73 coursepack): Health insurance
carrier for fed employees brought action against a former fed employee’s estate,
seeking benefit reimbursement on the ground that the estate recovered damages for
injuries in a state court tort action. Decision: NO jurisdiction. Courts should
apply Grable elements vigorously. There is only a “special and small category”
or cases which assert a state law cause of action but nonetheless satisfy each of the
Grable factors and thus arise under fed law. Courts should await a clear signal
from Congress before treating such auxiliary claims as arising under the laws of
the US. Says Grable was a special and small category, was exemplary.
1. Distinguishes from Grable: Fed issue in Grable was a “pure issue of law” that
could be settled “once and for all and thereafter would govern numerous”
cases concerning a fed agency. In contrast, the nonstatutory reimbursement
claim in Empire HealthChoice where no fed agency was a party was “poles
apart” from the “slim category” of cases that Grable represented
xiv. Gunn v. Minton (2012) (handout): Whether a state law claim alleging legal
malpractice can be heard in fed court. Applying the Grable test, the court finds NO
jurisdiction. Claim does not arise under fed law. Roberts restricts “substantial” to
mean important to the fed system as a whole, not just significant to suit. This
case isn’t substantial because it’s backward-looking (almost hypothetical) and
wouldn’t undermine the development of uniform body of patent law. State courts
will follow federal law. Roberts get rid of “Congressionally approved” language
(???). Arguably, the federal balance question is most important (if it upsets the
balance, then it’s substantial.)
xv. Declaratory judgments
1. Federal declaratory judgment statute (28 U.S.C. §2202) permits fed court to
issue DJ in case of actual controversy within its jurisdiction. Its relationship to
§1331 ix complex. The rule from Skelly Oil is that §2202 provides a fed cause
of action but does not expand fed subject matter jurisdiction. Therefore, DJ
cases are not judged by the well-pleaded complaint rule, but rather whether
some other suit (an ordinary coercive action on the same facts) would come
within the ordinary fed Q juris.
2. Skelly Oil Co v. Phillips Petroleum Co (1950) (pg570): We don’t think
Congress, in passing Declaratory Judgment Act, meant to expand fed
jurisdiction, so rule becomes, declaratory judgment gets to fed ct only in
suits for which alternative coercive actions that would have been filed but
for the declaratory judgment action could be filed in fed cts.
a. Question remaining: Which parties you look at to decide if there is an
alternative coercive action that could have been filed in fed ct (the
alignment question). Franchise Tax picks up here.
3. Franchise Tax Board v. Construction Laborers Vacation Trust (1983—
Pre Grable) (coursepack pg81) WTF AM I EVEN SUPPOSED TO DO
WITH THIS: Complaint: Count 1, CA agency files suit in state court; claims
trust owes $380.56 for 3 individuals for whom the trust was liable. Count 2,
requests declaratory judgment that under CA law ERISA doesn’t preempt
agency’s authority to collect delinquent taxes from trust. Procedural history:
Trust removed case to fed ct. Fed D Ct denies Franchise Tax’s motion to
remand. 9thC reverses on merits; says ERISA preempts agency’s authority.
SCOTUS must examine whether D can remove, and that depends on whether
there was original jurisdiction. They find there was not. The issue of
preemption is a defense, not sufficient for removal under the well-pleaded
complaint rule. For the declaratory judgment, however, the well-pleaded
complaint rule isn’t followed, and instead have to apply the Skelly Oil rule
and examine the alternative coercive actions. The court has to decide whether
the doctrine of Skelly Oil limits original fed court jurisdiction under 1331
when a question of fed law appears on the face of a well-pleaded complaint
for a state law declaratory judgment. The court decides “fidelity to its spirit”
leads them to extend Skelly Oil to state DJs. Otherwise, Skelly Oil would
become dead letter. Applying Skelly Oil rule: P’s alternative coerceive
action=A suit for enforcement of CA tax board (coercing to enforce). No fed
question, so no fed jurisdiction. Defendant’s alternative coercive
action=Under ERISA statute (§ 502(a)(3)), Trust could have sued for
injunction that the franchise tax board cannot levy against them because
ERISA preempts their authority. Reliance on preemption and fed law (n.21
leaves door open to getting around Tax Injunction Act). SCOTUS
acknowledges precedent for looking at defendant’s alternative coercive action:
patent cases. But refuses to extend that line of cases to Franchise Tax (“We
think not.”) Why? Not very clear … “practicality and necessity.” “Good
reasons why fed court should not entertain suits by States to declare the
validity of their regulations despite possibly conflicting fed law.” States are
not prejudiced and they have their own means. ERISA gives the trust the
power to go to federal court, but it was CA that chose to sue, and CA is not
harmed by being in state court. Reluctance to move case into federal court
derives from identify of parties, federalism “comity” … deference to state,
especially in their taxing schemes. Brennan doesn’t say where on the spectrum
between “patent cases only” and “always” the court will look at defendant’s
alternative coercive actions in declaratory judgment cases. Part 3B on
complete preemption: ERISA does not establish complete preemption.
a. Narrowest reading (looking to D’s): Fed cts can only take original
jurisdiction by looking at defendant’s claims in patent law.
b. Broadest reading (looking to D’s): We generally look to defendants, but
not here because plaintiff filing claim is the state/because plaintiff is
filing under state tax claim.
b. Preemption
i. Arguing preemption is like saying there is not state law claim.
ii. Preemption can be express or implied.
1. Express preemption clauses will be narrowly construed
2. Implied preemption
a. Actual conflict between state and federal law requirements, whether by
commanding conduct inconsistent with that required by the federal rule
or by forbidding conduct that the federal rule is designed to foster
(Haywood)
b. State prevents achievement of federal objectives. Even if enacted for
some valid purpose and not merely to frustrate federal law.
c. Field preemption. If it appears that Congress intended to occupy the
entire field, thus precluding any state or local regulation. Look to
regulatory scheme to deduce Congress’s intent.
iii. Beneficial National Bank v. Anderson (2003) (pg582): Ps promised tax refund
check from Ds—somehow violated state usury laws. Ds removed to fed court
arguing Nat’l Bank Act completely preempted state usury claim (preemption is
not just a defense), basically arguing there is no state claim. Court agrees. So how
do we know if there is complete preemption?
1. List of statutes from the past where court has decided before
2. How do we decide new cases to add to the list?
a. Expressly provided for by Congress
b. When fed statute wholly displaces state-law cause of action through
complete preemption (cool, thanks for nothing Stevens)
3. How does we know in this case?
a. Intent of Congress
b. Precedent
c. “Special nature of federal banks” aka protective jurisdiction
d. Hostility?
4. Scalia dissent: Precedent doesn’t make sense, and we’re stuck to them. BUT,
the Court shouldn’t take line of cases any further. 2 reasons why it’s a bad
idea for court to expand complete preemption: 1. Institutional competence/fear
of court overreaching. If we are going to get rid of the well-pleaded
complaint rule, Congress should do this, not the Court. 2. There’s no reason to
distrust state courts in this area as opposed to any other area.
iv. Avco Corp v. Machinists (1968) (pg590): State claim for breach of a labormanagement contract could be removed to fed ct because “the preemptive force of
§ 301 [of the Labor Mgmnt Relations Act of 1947] is so powerful as to displace
entirely any state cause of action.”
v. Problem 6
1. Part A: Lawsuit in fed court seeking DJ that Mass law prohibiting contract for
nuclear waste to be void, arguing this is unconst. Alt. argues that law is
preempted.
a. No fed Q juris. Look to alternative coercive actions. P’s is a suit for
breach of contract, so no fed q. D doesn’t have one, so no fed q. No fed
statute creating any claim to sue.
2. Part B: Suit against AG requesting a declaration that the AG cannot lawfully
enforce the statute against pre-enactment contracts because such enforcement
would violate the constitutional prohibition against impairment of contracts.
Alternatively the lawsuit requests that the statute be declared unconstitutional
because the field has been preempted by the Federal Government. AG has
threatened suit.
a. Fed Q juris. Alternative coercive action is against state official under
1983 for injunctive relief, so fed q.
3. Part C: Once AG made threats, D intends to stop delivery. Can these new
claims against D be joined to the lawsuit against the Attorney General and if
so, would there be now be Federal jurisdiction over those claims?
a. Yes, fed Q juris. Supplemental. C works if B works.
4. Part D: State officials sued first in state court for a declaration that statute as
applied to pre-enactment contracts was valid. Could P remove?
a. Maybe. P’s alternative coercive action is state claims, but D’s is 1983, so
fed claims. So the question is whether P or D’s matter. “We think not” of
Franchise Tax: Practicality or necessity? Only about specific tax matter?
Can you never remove a state against its will? Need to apply test using
differences factors: State interest vs fed interest in nuclear regulation.
V.
ABSTENTION
a. Anti-Injunction Act
i. §2283: “A court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or effectuate its judgment.”
1. Exceptions
a. Express authorization from Congress
i. Can be implied if there is a showing of the creation of an equitable
remedy in state court that would be frustrated without falling under
exception
ii. §1983 is
b. Necessary in aid of jurisdiction
i. Narrow. Must actually interfere with functioning of court.
ii. Both courts have concurrent jurisdiction, so there needs to be a
greater justification for granting the injunction. The state court needs
to actually interfere in some way.
c. To protect or effectuate judgments
i. Who knows what that actually means
ii. Atlantic Coastline Railroad Co. v. Brotherhood of Locomotive Engineers
(1970) (pg804): After a fed judge denied employer’s requested injunction to
prevent union from picketing on its property, a state judge granted the injunction.
Subsequently in the Jacksonville case, SCOTUS held that unions have a federallyprotected right to picket that may not be interfered with by state ct injunctions. The
state judge denied the union’s request to dissolve the injunction, and the union
asked a fed judge to enjoin enforcement of the state court injunction. Holding:
§2283 barred a fed injunction because such an injunction was neither
necessary to “protect or effectuate” the federal court’s denial of the original
injunction, nor “necessary in aid of” the fed court’s jurisdiction.
1. Protect and effectuate judgments: Can’t enjoin state ct through protect or
effectuate fed ct’s judgment exception because the state ct granted injunction
on different grounds than fed ct (this is where dissent disagrees).
2. In aid of jurisdiction: Can’t enjoin state ct through necessary in aid of
jurisdiction exception because SCOTUS read exception narrowly: “the state
and fed cts had concurrent jurisdiction in this case, and neither ct was free to
prevent either party from simultaneously pursuing claims in both courts….
Therefore the state cts’ assumption of jurisdiction over the state law claims
and the fed preclusion issue did not hinder the fed ct’s jurisdiction so as to
make an injunction necessary to aid that jurisdiction.”
iii. Toucey v. New York Life Ins. Co. (1941) (pg811): Express exceptions can be
implied.
iv. Mitchum v. Foster (1972) (pg815, 91 coursepack): §1983 is an “express
exception” to §2283. Therefore, the Anti-Injunction Act does not bar §1983
injunctions against state proceedings. The very purpose of §1983 is to interpose the
fed cts between the States and the people, as guardians of the people’s fed rights,
and the statute expressly authorizes “a suit in equity” as one means of redress.
Strong legislative history indicating that Congress intended §1983 as an exception
to §2283. Implied express exception requires Creation of equitable remedy in fed
court and showing that remedy would be frustrated without it falling under
exception to §2288.
1. Note: Mitchum gets you around §2283 but not around Younger. Still have to
get over that hurdle.
v. Vendo Co. v. Lektro-Vend Corp. (1977) (pg816):
vi. Parsons Steel, Inc. v. First Alabama Bank (1986) (pg817):
b. Concurrent Litigation
i. Generally, both courts will go forward with parallel proceedings, even if
duplicative, and then deal with res judicata issues. Fed courts will abstain in
extraordinary circumstances. CO River most likely can be read as its own
category/outlier for extraordinary circumstances.
ii. Colorado River Water Conservation District v. US (1976) (pg778): US sues
thousands of Ds over water rights in CO. There is ongoing state litigation over
water rights, and Ds move to join US as a party to those proceedings pursuant to
McCarran Amendment. Ds ask fed court to abstain. District Ct does, Circuit Ct
reverses, SC reverses back. Fed court unquestionably has jurisdiction, so why is
abstention appropriate? Doesn’t fit under any of the other categories. Court applies
rule that fed courts will abstain in a small number of cases with extraordinary or
exceptional circumstances with clearest justification. Does NOT stand for the
proposition that fed courts should abstain whenever there is parallel state
proceedings. Justifications for abstaining in this case: 1. Fed proceedings are not
very far along; 2. Extensive involvement of state rights; 3. Distance between
district court and division 7 is 300 miles (inconvenience to parties); 4. US
participates in other divisions; 5. Statutory purpose of McCarren Amendment was
to avoid piecemeal litigation over water rights.
iii. Brillhart v. Excess Ins. Co. of America??? (1941) (pg787)
iv. Problem 7: Complaint alleging age discrimination under fed law in fed court. Also
files in state court alleging Labor Board erred in not finding discrimination under
state law. D files motion in fed court to stay state court proceedings. Fed court
decided to stay its own proceedings pursuant to CO River.
1. P argues fed court abused its discretion by staying the federal action under the
Colorado River doctrine because exceptional circumstances did not exist for
the court to abstain from exercising its jurisdiction. Arguments for P: Consider
factors…
a. Distance?
b. Avoidance of piecemeal litigation?
c. Filed at same time
d. = No exceptional circumstances?
2. D argues court erred as a matter of law by not staying the state court action
because §633(a) of the ADEA prevents the plaintiff from maintaining parallel
state and federal age discrimination lawsuits. Arguments for D: Consider
factors…
a. Fed litigation not that far along
b. Dist. Ct is best positioned to decide its own abstention (might be a
dangerous argument, exceptions are supposed to be narrow, presumption
is that courts are supposed to review)
c. P has two cases
d. Policy against piecemeal litigation
3. Anti-injunction argument: Statute authorizes it, so express exception. Could
argue it’s not explicit? Distinguish from 1983 as narrow in light of unique
history?
c. Pullman
i. Abstention is appropriate when there is:
1. A constitutional question
2. No parallel state proceeding(s)
3. A relevant and applicable state statute that is unclear and unconstrued
a. NOTE: Only highest court in state can authoritatively interpret statutes
ii. Railroad Commission of Texas v. Pullman Co. (1941) (pg757): Trains that ran
through Texas with only sleeping car had porters in charge of sleeping car. Trains
that had more than one sleeping car were run by conductors. At time, porters were
black, conductors were white. Porters received more pay per trip when train had a
sleeping car (than a train without a sleeping car). Conductors union filed complaint
with RR Commission because they wanted to get the extra funds when there was a
sleeping car. RR Commission enacted rule that all sleeping cars required
conductor. RR sued RR Commission (in part because new rule cost RR more)
claiming, among other things, that rule violated federal constitution. Federal
questions: violations of due process, equal protection, and commerce clause.
SCOTUS’ Concern: Court doesn’t want to get into hot issue of race relations: “it
touches a sensitive area of social policy upon which the fed ct ought not to enter
unless no alternative to its adjudication is open.” Holding: Fed ct may abstain
where 1) there’s an un-construed and unclear state statute 2) challenged on
federal constitutional grounds, and 3) an interpretation of the state statute
might obviate the need to reach the constitutional question.
iii. Siler v. Louisville & Nashville R. Co. (1909) (pg760):
iv. Wisconsin v. Constantineau (1971) (pg762): Chief of police, without notice to P,
posts P’s name in all town liquor stores, so that P cannot buy liquor for a year. P
brings a § 1983 action alleging violation of due process under fed and state consts
and requests injunctive relief. Holding: No Pullman abstention because the issue
of state law is not unclear.
v. Government Employees v. Windsor (1957) (pg765):
vi. England v. Louisiana state Board of Medical Examiners (1964) (pg766): File in
state court, talk about state claims. Include in record your intent to reserve federal
issues for later development in federal court. Unclear how much you need to do to
successfully reserve federal issue. You might have to do a full brief on the issue.
vii. Harris County Commissioners v. Moore (1975) (pg769):
viii. Problem 8: State wants fed court to abstain in case dealing with 8th A cruel and
unusual punishment and lethal injection
1. Arguments for abstention
a. Unsettled area of state law by highest state court
b. Sensitive policy issue
c. Could resolve case to avoid Const Q
d. Statute ambiguous?
i. How ambiguous does it have to be?
ii. Does it depend on how much they want to avoid the Const Q?
2. Abstain if parallel state const? No. They’re everywhere. Would be like
abdication of fed juris.
3. If abstention, go back to state court, what are options?
a. Agree to have in state court to deal with both
b. OR reserve disposition of fed Q (go back to state court but fed court gets
juris back after state construes own statute)
d. Younger Abstention
i. Federal courts will not enjoin ongoing state criminal proceedings, civil
enforcement proceedings (quasi-criminal), or pending civil proceedings
involving certain orders uniquely in furtherance of state court’s ability to
perform their judicial function unless bad-faith prosecution or patently &
flagrantly unconstitutional statute.
ii. Background
1. Douglas v. City of Jeanette (1943) (pg702): Jehovah’s Witnesses prosecuted
for distributing religious literature without a permit in violation of local
criminal ordinance file a claim in federal court seeking injunction against
further prosecutions under ordinance. The Court ruled that courts of equity
will not enjoin state criminal prosecutions unless there is a showing of a
danger of irreparable harm, which petitioners did not show. Harm is
incidental to every criminal proceeding, and state courts are final arbiters of
meaning and scope of its laws.
2. Dombrowski v. Pfister (1965) (pg703): §1983 suit against Louisiana state
authorities seeking to enjoin enforcement of two statutes aimed at restricting
Communist activity. Alleged authorities were threatening prosecution in order
to harass members. Court finds a defense in state’s criminal prosecutions
would not adequately vindicate constitutional rights and petitioners have
shown irreparable injury. Harassment constituted an independent basis for
equitable relief.
iii. Younger v. Harris (1971) (pg705):
1. Harris was indicted on violation of CA Syndicalism Act, later found
unconstitutional. He filed a §1983 complaint in federal court, alleging 1st
Amendment rights are being violated and asking for an injunction to stop state
proceedings against him.
2. Court holds that enjoining state proceedings is a violation of national
policies: Equality, comity, and “Our Federalism.” Harris still has a
criminal defense remedy in state court, which can adequately handle
constitutional challenges. Narrows Dombroswki.
iv. Exceptions to Younger Abstention
1. Bad-faith prosecution (Dombrowski)
2. Patently & flagrantly unconstitutional statute (any cases on this?)
v. When does Younger apply? Only three categories, after Sprint.
1. Ongoing state criminal prosecutions
2. Civil enforcement proceedings/Quasi-criminal
a. Characteristically initiated by the state to sanction the fed P for some
wrongful act
b. Trainor v. Hernandez (1977) (pg739): Civil proceeding brought by the
state in its sovereign capacity to recover welfare payments Ds had
allegedly obtained by fraud
c. Huffman v. Pursue, Ltd. (1975) (pg747): OH officials brought a civil
action in state court to abate the showing of obscene movies in D’s
theater. Younger abstention was appropriate because the state was a party
and the proceeding was in aid of and closely related to the state’s
criminal statutes.
d. NOPSI v. Council of City of New Orleans (1989) (pg749):
e. Middlesex: State-initiated administrative proceedings against a lawyer for
violation of state ethics rules. Younger abstention is warranted when: 1.
An ongoing state judicial proceeding, which 2. Implicates important state
interest and 3. Provides an adequate opportunity to raise fed challenges.
These factors are not dispositive, but rather additional factors to be
considered before invoking Younger. These factors cannot be divorced
from the quasi-criminal context.
f. Moore v. Sims (1979) (pg751): State-initiated proceeding to gain custody
of children allegedly abused by their parents
3. Pending civil proceedings involving certain orders uniquely in furtherance of
state court’s ability to perform their judicial function. “Implicate a state’s
interest in enforcing orders and judgments of its courts.”
a. Juidice v. Vail (1977) (pg748): Civil contempt order.
b. Pennzoil Co v. Texaco Inc (1987): Requirement for bond pending appeal.
vi. Declaratory Judgments
1. Samuels v. Mackell (1971) (pg716): Extends Younger to declaratory
judgments. Same equitable principles relevant to propriety of injunction
must be taken into account. Same disruption of state proceedings.
2. Perez v. Ledesma (1971) (pg717): Plaintiffs sought declaratory and
injunctive relief against state prosecution against them for violating obscenity
laws. District Court ruled arrest of Ps and seizure of property was invalid and
ordered suppression of evidence. Supreme Court reversed on grounds that
propriety of arrests and admissibility of evidence are matters to be resolved by
state and defendants can present federal constitutional claims in state court.
Nothing in the record suggested bad faith prosecution or harassment.
3. Steffel v. Thompson (1974) (pg725): Two differences from Younger: 1. No
pending state criminal proceedings and 2. Seeking declaratory judgment.
Question: Is declaratory relief precluded when a state prosecution has
been threatened but is not pending and a showing of bad-faith
harassment has not been made? Ruling: No. Since there are no pending
state court proceedings, the principles relevant in Younger are not as strong.
Declaratory relief was meant to act as alternative when injunction not
available. In fact, principles of federalism compel allowing declaratory relief.
vii. Relationship to Mitchum: Mitchum said §1983 is express exception to §2283
Anti-Injunction, so why would the Court decline jurisdiction? First, Mitchum was
decided after. Second, Younger was decided on principles of federalism. Basically,
a §1983 case gets you around §2283, but not around Younger.
viii. Hicks v. Miranda (1975) (pg 735): Limits Steffel (solves the race to the
courthouse problem). State judicial proceedings determined D’s material to be
obscene. Ds filed in federal court asking for injunction against enforcement of
obscenity law because unconstitutional. The day after, state filed criminal
prosecution. Court ruled can’t avoid Younger simply because there were no
pending state criminal proceedings at time federal case was filed if nothing of
substance on the merits has occurred in the federal case yet.
ix. Wooley v. Maynard (1977) (pg738): P sought to enjoin future enforcement of law
against obscuring a license. Had been prosecuted and convicted under statute three
times previously. Court distinguished from Huffman and held fact that P had
been prosecuted in the past did not preclude relief when seeking to bar all
future prosecutions (none were currently pending against him).
x. Sprint Communications, Inc. v. Jacobs (2013): Narrows scope of Younger to
only three categories. Seemingly eliminates principles of federalism rational.
xi. Problem 9:
xii. Problem 10: Attached discussion.
VI.
11th AMENDMENT
a. Similar to abstention in that it assumes fed Q juris, but there are other reasons to not
have the case in court. More federalism concerns.
b. **Only applies to original jurisdiction, does not apply to appellate**
c. Introduction
i. Chisholm v. GA (pg1016): Court found state owed money on a debt to a citizen of
another state.
ii. 11th Amendment: “The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”
1. Direct response to Chisholm case, however, intent is unclear. Narrowest view
is that is mean states can’t be sued in diversity cases. Another reading
(accepted by the courts) is that it meant to resurrect the original understanding
and set clock back to common law at time when Const. was passed.
2. LITERALLY only prohibits suits of citizens of one state or foreign state
against a state, but has been read more expansively.
iii. Hans v. Louisiana (pg1018): P argues 11th A doesn’t bar citizens suing their own
states. Court rejects this arguing, saying that interpretation would be absurd.
Instead, 11th A turned things back to the way they were at the time of passing the
Const. It was understood that the right of a state not to be sued is inherent in
sovereignty. Historical context: During Reconstruction, so the Court doesn’t want
to clash with Southern states by requiring them to pay debts.
d. What is barred?
i. Actions against state gov’ts for damages
ii. Actions against state gov’ts for injunctive or declaratory relief where the state is
named as a party
iii. Actions against state gov’t officers where the effect of the suit will be that
retroactive damages will be paid from the state treasury
iv. Actions against state gov’t officers for violating state law
v. Barred by doctrine of sovereign immunity:
1. Suits against a state gov’t in state court, even on fed claims, without consent.
(Alden v. Maine)
2. Adjudicative actions against states and state agencies before fed admin
agencies (Fed Maritime Com v. SC State Ports Authority)
e. What isn’t barred?
i. Actions against local gov’ts (cites and counties)
ii. Actions by the US gov’t or other state gov’ts
iii. Bankruptcy proceedings. Exercise of Congress’s Art I power to create bankruptcy
laws, thus not barred even though they have direct impact on state finances (TN
Student Assistance Copr v. Hood; Central VA Community College v. Katz).
iv. If the state consents to suit
f. Exceptions
i. Certain actions against state officers
1. Injunctions (Ex Parte Young)
2. Monetary damages FROM OFFICER, paid out of his/her own pocket. By
acting outside scope of federal law, the officer is stripped of his representative
capacity
3. Prospective payments from state. Fed court may hear action for damages
against state officer where the effect will be to force the state to pay money in
the future to comply with the court order (Ex Parte Young). However, barred
if action will result in retroactive damages to be paid from the state treasury
(Edleman).
a. Ex. P sues State Commissioner of the Dept of Public Welfare for failing
to comply with federal welfare regulations. The fed court can order future
compliance with fed regulations, even if this will result in costing the
state a large amount of money in the future. However, the fed court
cannot award back payments of amounts previously improperly withheld
because the order would require payment from the state treasury.
ii. Congressional abrogation
1. Congress can remove states’ 11th A immunity under its power to prevent
discrimination under 14th A
2. Art I powers do NOT include power to abrogate (Seminole Tribe), except
proceedings against bankruptcy laws (Katz).
a. Narrowest reading of Seminole Tribe is that Congress can’t abrogate
pursuant to the Indian Commerce clause, and it can be said that the other
Art I powers have not been decided and are up to debate because dicta.
iii. ***SEE handout for 11th A interpretive theories.***
g. Ex Parte Young (pg1021): Appeal from contempt proceeding, so just an underlying
case to the main one. State argues suing the AG is the same as suing the state, so it’s
barred by 11th A. Court gets around this argument and Hans by saying AG acted
illegally and therefore lost the protection of the state. “An illegal act upon the part of
a state official in attempting by the use of the name of a state to enforce a legislative
enactment which is void because unconstitutional.” So, Ex Parte Young stands for
proposition that you can get around 11th A by suing state officials instead. But that
doesn’t automatically get you in the clear.
h. Edelman v. Jordan (pg1032): Suit against commissioner over welfare benefits. Easy
case. Under Young, injunctive relief is fine. But what about restitution? No. Violates
11th A. Distinguishes from Young because the money would be paid by the state, not
the individual. Even though injunctive relief often has economic impacts, those are
incidental. Waiver will be found only by “the most express language or by such
overwhelming implications from the text as will leave no room for any other
reasonable construction. Remedial power is limited to prospective injunctive relief
and may not include a retroactive award which requires the payment of funds
from the state treasury.
i. Ford Motor Co v. Department of the Treasury (pg1043): Not suit against state
itself, but against the state officials charged with administration of welfare laws. The
court found that the case against the department and the individuals as the board
constitutes an action against the state. Payments would clearly come out of the state
treasury. The fact that the state had consented to suit in its own courts was not
dispositive on the 11th A issue. No waiver of SI.
j. Milliken v. Bradley (pg1044): Court upheld a school desegregation order requiring
the expenditure of state as well as local funds for educational components of the
desegregation decree, including remedial reading programs. Court reasoned that this
fit within Edelman exception for prospective compliance. The fact that the programs,
designed to wipe out continuing conditions of inequality produced by an, inherently
unequal dual school system, are compensatory in nature does not change the fact that
they are part of a plan that operates prospectively to bring about the delayed benefits
of a unitary school system.
k. Rosado v. Wyman (pg1045): §1983 did not displace state’s immunity under 11th A,
so relief must be limited to equitable relief.
l. Will v. Michigan Department of State Police (pg1046): States are not “persons”
under §1983. Intent to make states directly liable had not been shown with the clarity
required to support the conclusion that Congress meant to alter the usual
constitutional balance between states and fed gov’ts. To reconcile to Ex Parte Young,
the court says “of course a state official in his or her official capacity, when sued for
injunctive relief, would be a person under 1983 because official-capacity actions for
prospective relief are not treated as actions against a state.
m. Hafer v. Melo (pg1047): P can choose whether to sue individual or in official
capacity. Suing in individual capacity is not a suit against the state. The
distinction between official and individual capacity does not turn on the capacity in
which D acted but rather in which D has been sued.
n. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy Inc. (pg1047):
o. Nevada v. Hall (pg1049): 11th A does not bar suits against states in other state
courts. Ps sued NV officials in CA court.
p. Pennhurt State School & Hospital v. Halderman (pg1050): 11th A bars relief for
a claim based on violation of state law.
q. Consent and Congressional Abrogation
i. States can waive 11th A immunity and consent to be sued in fed court. Must be
given by state’s legal representative or by statute. Statutes will be narrowly
construed. States that participate in fed programs impliedly have consented to suit.
ii. Congress can abrogate but only by very clear/explicit statement. (Because 11th A
only refers to judicial power, not leg power).
iii. Parden v. Terminal RR (pg1052): The court allowed suit against the state-owned
railway because states had surrendered a portion of their sovereign immunity
when they granted Congress the power to regulate commerce. Since imposition
of the FELA right of action upon interstate railroads is within the congressional
regulatory power, application of the act cannot be precluded by SI. Since AL had
begun the operation of its railroad some 20 years after the enactment of the FELA,
they had thereby accepted the condition to be amenable to suit, thereby consenting.
iv. Fitzpatrick v. Bitzer (pg1053): Congress can override 11th A immunity insofar
as it was acting to enforce the 14th A. 1972 amendment to Civil Rights Act
explicitly authorized fed courts to award money damages against a state found to
have engaged in employment discrimination. 11th A is limited by Sec 5 of 14th A.
v. Quern v. Jordan (pg1054): No clear statement in 1983 of intent to strip away
immunity.
vi. Hutto v. Finney (pg1054): Attorney fees awarded against a state under Civil
Rights Attorney’s Fees Awards Act permissible. Congressional intent was plain
that attorney’s fees were imposed as part of the costs and therefore distinguishable
from retroactive liability.
vii. Atascadero State Hospital v. Scanlon (pg1055): Elevated “clear statement”
standard. Although the legislative history seemed to indicate that Congress
intended remedies authorized by the act would be available against states, the court
barred suit because congressional abrogation will only be found “by making its
intention unmistakably clear in the language of the statute.”
viii. Pennsylvania v. Union Gas Co (pg1056): Congress can override 11th A SI
through commerce clause power. Overruled by Seminole Tribe.
ix. Seminole Tribe of FL v. FL (pg1056): Art I cannot override 11th A SI. Indian
Gaming Regulatory Act imposed obligation on states to negotiate with tribes over
gambling. Tribes sued under the statute alleging FL was not making a good-faith
effort. The court found that Congress had clearly and unmistakably overrode 11th
A SI to make suits amenable to damages, but they found this was not a valid
exercise of its Art I power. Rehnquist reasons that the 14th A came after the 11th A
but Art I came before (chronologically), so it can override but Art I cannot as a
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
way to deal with Fitzpatrick. Union Gas is overruled. Defends Hans—While not
literally in text, the purpose of 11th A was to return to preexisting era/common law;
fed Q juris didn’t exist yet so they didn’t have to deal with it/didn’t think of it.
1. Souter dissent: Hans was wrongly decided, but shouldn’t be overruled. Can be
distinguished because in that case there was no statute purporting to abrogate.
SI was a common law principle, therefore it can be overridden by statute by a
clear statement.
Alden v. Maine (pg1076): Can Congress use Art I powers to expressly
abolish/abrogate SI from private suits in state courts over a cause of action to
enforce fed law? No. Immunity of a sovereign in its own courts has always been
understood to be within the sole control of the sovereign itself. Congress cannot
subject states to private suits by Art I powers, not even through necessary and
proper clause as means of achieving objectives within scope of enumerated
powers. Even more offensive to state sovereignty. Kennedy wants a balancing test
but doesn’t get a majority. O’Connor rule is “rule, exception” but can be read
almost as a balancing test as well.
1. Ways to enforce Const against states, Post-Alden
a. Good-faith compliance by states
b. Suits by US gov’t
c. Ex Parte Young prospective relief against state official
d. Congressional abrogation under 14th A
e. Consent
f. Waiver (spending clause)
i. No SCOTUS case has accepted this but it has assumed Congress has
that power
g. Suits against counties and/or municipalities
i. But have to be responsible for uncosnt. Behavior
h. Individual damage actions against state officials in individual capacity
i. Qualified immunity
i. Under bankruptcy law
College Savings Bank v. FL Prepaid Postsecondary Education Expense Board
(pg1082):
FL Prepaid Postsecondary Education Expense Board v. College Savings Bank
(pg1102):
Kimel v. FL Board of Regents (pg1104):
Board of Trustees of Bama v. Garrett (pg1104):
Tennessee v. Lane (pg1105):
Coleman v. Court of Appeals of MD (pg143 coursepack): Family Medical Leave
Act sex discrimination case. The court found that the provision for unpaid leave
for selfcare, unlike the provision for childcare leave, was not enacted pursuant to
14th A and therefore could not abrogate 14th A. Suit barred.
Central VA Community College v. Katz (pg1085): Excepted bankruptcy from
reasoning of Seminole Tribe, allowing suit.