FEDERAL COURTS
CONTENTS
Background Information ...............................................................................................................................................3
Article III, Section 2 ....................................................................................................................................................3
Federalism, Separation of Powers, and other Policy Considerations ........................................................................3
Marbury, Erie, and Chevron ......................................................................................................................................3
Course Overview ...........................................................................................................................................................4
Justiciability of a Federal Case ......................................................................................................................................4
Advisory Opinions ......................................................................................................................................................5
Standing .....................................................................................................................................................................6
Mootness ...................................................................................................................................................................8
Ripeness .....................................................................................................................................................................9
Congressional Authority Over the Distribution of Judicial Power ...............................................................................9
Congressional Power to Limit Federal Court SMJ ......................................................................................................9
Congressional Power to Assign Cases to Non-Article III Courts ...............................................................................10
Administrative Courts ..........................................................................................................................................11
U.S. Magistrate Courts .........................................................................................................................................11
Legislative or Article I Courts ...............................................................................................................................12
Federal Power Over State Courts ...............................................................................................................................13
State Courts and Federal Cases: Exclusion, Removal, And Obligation ....................................................................13
Excluding State Courts from Federal Claims ........................................................................................................13
Federal Officer Removal as Way of Excluding State Courts on Case-By-Case Basis ............................................14
Obliging State Courts to Hear Federal Claims ......................................................................................................15
Supreme Court Review of State Court Decisions .....................................................................................................15
Relevant Statutes about Supreme Court Review of State Court Decisions .........................................................17
Jurisdiction and Lawmaking Authority of the Federal Courts ...................................................................................18
Federal Common Law ..............................................................................................................................................18
FCL in Suits Where U.S. is a Party [Public Rights] ................................................................................................19
FCL in Suits Between Private Parties: Boyle & Military Contractor Defense .......................................................19
FCL From Jurisdictional Grants [Where Congress/Constitution Acted] ...............................................................20
Preemption ..........................................................................................................................................................22
SMJ of the District Courts ........................................................................................................................................22
Constitutional Scope of Federal Court SMJ .........................................................................................................22
Scope of Statutory Grant of Federal Question Jurisdiction (28 USC § 1331) .......................................................23
Declaratory Judgments ........................................................................................................................................24
Removal ...............................................................................................................................................................25
Federal Question SMJ Due to Preemption ..........................................................................................................25
Supplemental Jurisdiction ...................................................................................................................................25
Diversity Jurisdiction ............................................................................................................................................26
Sovereign Immunity and Suits Challenging Official Action ........................................................................................26
Sovereign Immunity and Ex Parte Young Doctrine ..................................................................................................26
State Sovereign Immunity ...................................................................................................................................27
Ex Parte Young Doctrine ......................................................................................................................................28
Abrogation of State Sovereign Immunity ............................................................................................................29
Civil Rights Claims Under 42 U.S.C. § 1983 (and Bivens) .........................................................................................29
42 USC § 1983 – Cause of Action Statute ............................................................................................................29
Federalism-Based Limits on Federal Court Jurisdiction .............................................................................................32
Anti-Injunction Act ...............................................................................................................................................32
Exhaustion of State Remedies .............................................................................................................................33
Pullman Abstention and Related Doctrines .........................................................................................................33
Younger Abstention .............................................................................................................................................35
Parallel Proceedings.............................................................................................................................................36
BACKGROUND INFORMATION


Qualities of a federal case:
o Issue courts can resolve (not advisory opinion) w finality (no executive revision and
rarely legislative revision)
o Brought by the right person or people (standing)
 People who are injured and can identify a responsible party against whom court
can grant relief
o Brought at right time, when issue is ready for decision (ripeness) and court’s decision
will mean something to parties (not moot)
Federal vs. state courts:
o State courts: General SMJ – State court system can hear every kind of case unless
excluded by federal law
o Fed courts: Courts of limited SMJ
 Constitution must authorize and federal statute must grant SMJ to courts
 Not self-executing – Need Congress
 Congress has broad power to choose, if stays within Article III catalog of cases
ARTICLE III, SECTION 2

Article III, § 2: Judicial power shall extend to –
o All cases (1) arising under the Constitution, laws of the US, and treaties made; (2)
affecting ambassadors, other public ministers and consults; (3) of admiralty and
maritime jurisdiction
o To controversies (4) to which the US is a party; (5) bw 2 or more states; (6) bw state and
citizens of another state; (7) bw citizens of different states; (8) bw citizens of the same
state claiming lands under grants of different states; (9) bw state (or citizens thereof)
and foreign states, citizens, or subjects
o Original jurisdiction in Supreme Court: Cases affecting ambassadors, other public
ministers, and consuls and those in which a state is a party
o Appellate jurisdiction in Supreme Court: Shall have in all other cases with such
exceptions and under and under such regulations as Congress shall make
FEDERALISM, SEPARATION OF POWERS, AND OTHER POLICY C ONSIDERATIONS



Federalism: Appropriate allocation of authority bw federal and state governments
Separation of Powers: Whether the judicial, legislative, or executive branch has the power to
regulate
Courts try to avoid constitutional questions – Try to avoid reaching issues on other grounds
MARBURY, ERIE, AND CHEVRON


Marbury, Erie, & Chevron: Canonical cases about the identity and role of federal courts
o Address separation of powers and federalism
Marbury v. Madison:
o
o
o


Political discretion vs. legal questions – What can the court review?
Judicial review of constitutionality of legislation
“Saying what the law is” – Within the province of the court
 Once it is a legal question, court can say what the law is
Eric Railroad Co. v. Tompkins: State law vs. general law vs. federal law
o Ability of federal courts to make up law (general law) is very different from state courts’
ability to make up law (state law)
o Federal law: Constitutional, some federal common law (controversial)
o Can decide state questions but recognize supremacy of state courts in this area
 Must accept what states say about state law
Chevron USA v. NRDC: Federal courts and administrative state
o Deference on questions of legal interpretation (not saying what the law is)
COURSE OVERVIEW

Limits on federal jurisdiction:
o Requires federal SMJ
o Decision not create lower courts through the Constitution
o Justiciability concerns
JUSTICIABILITY OF A FEDERAL CASE




Justiciability: Whether the case is amenable to judicial resolution
Where do justiciability concerns come from?
o Article III: Power to resolve cases or controversies
Policy and Theory Issues Behind Justiciability
o Two types of cases:
 Private – Sometimes seen as core, “real” cases
 Public – Sometimes seen as raising political issues
o Courts are passive recipients of disputes – Should not be proactive in identifying social
problems or developing cures
o Role of courts – law vs. politics?
 Decide concrete, private disputes vs. oversee government operations and get
involved in politics?
 Avoid conflict with executive, legislature, or states vs. impose judicial will?
 Issue by issue typically – Okay to impose will in some areas but not
others
 How much does judge risk being called a political actor?
o Passive virtues – Sometimes better to slow down and not decide until you really have to
and hope the issue will be dealt with in the political realm
 Consider whether there is a way to postpone or avoid merits?
 Criticism: Method of denying access to federal courts if want to avoid ruling on
the merits or avoid discussing controversial issues
o Leads to doctrinal inconsistency
Concerns regarding justiciability:
o
o
o
What matters a federal court can handle?
 Advisory opinions
 Political questions
When matters can be brought?
 Ripeness
 Mootness
Who can bring matters in court?
 Standing
ADVISORY OPINIONS





Do not allow advisory opinions – Federal courts should not make general statements about
meaning of laws outside context of cases or controversies
o BUT in practice, judges sometimes give advisory opinions as “private citizens”
o Prohibition does not extend to state courts
Justification:
o Separation of powers – Pulls court into political discussions of executive branch
 BUT ridiculous to assume that no politics is brought into court’s judgment (e.g.
affects how interpret the Constitution)
 Article II Opinion Clause carries negative implication that President cannot ask
judges for opinions, only heads of department
o Checks and balances
What about certain types of decisions?
o Operating retroactively? Not always advisory
 Court will apply if after conduct but before case is final
o Purely prospective? Likely advisory
 BUT court never held that would violate Article III
o Alternate holding? Not advisory
 Courts do this all the time
 Could be viewed as advisory if you take strict view of advisory opinion
o Decisions where court is unsure about SMJ? Is advisory if no jurisdiction
 Scalia: Cannot assume you have jurisdiction when deciding matter
 Federal courts have limited jurisdiction (vs. states which can hear any
cases unless jurisdiction explicitly denied)
o Declaratory judgments brought under 28 U.S.C. § 2201(a)? Not advisory
 Supreme Court upheld constitutionality of Declaratory Judgment Act [Aetna Life
Insurance]
 Requires a “case of actual controversy” [MedImmune]
 Dispute bw adversarial parties relating to legal rights and obligations
 Definite and concrete dispute
 Justification: Decision has “force and effect of a final judgment”
Executive Revision – Not permitted
o Hayburn’s Case: Executive revision not permitted if acting in judicial role
 Constitution insulates court from non-judicial duties – Because law permitted
executive revision, would illegally require court to take on non-judicial duties
 Separation of powers issue – Protect decisions from revision by other branches
Legislative Revision – Sometimes permitted
o

Plaut: Can Congress reopen cases that are final?
 No – Once the federal judiciary is done with a case, it is done
o Congress can change substantive law while case is pending but before final judgment
o PA v. Wheeling Bridge and Miller v. French: Federal courts decide cases with finality and
conclusiveness BUT Congress can revise the law
 Wheeling Bridge: Congress can waive res judicata effect of case in future cases
(restricting its preclusive effect)
 Miller: Current law can change scope of injunction
 Judgment is final but effects of judgments can change with current law
Problem 1: 18 U.S.C. § 3184 Extradition
o Question: Whether the judge is acting in a judicial role in an extradition hearing?
o Possibly not acting in judicial role
 May not be as decisions subject to review by Secretary of State
 Executive revision not permitted if acting in a judicial role
 Not a final judgment – Nothing to appeal from
 Argued that is performing Article 1 function and exercising legislative power
o BUT some courts say that is like a warrant in other contexts – Have a privilege to
execute or not execute
STANDING


Must establish for each form of relief sought
Standing Elements:
o Direct, personal injury
 Concrete and particularized – More than someday intentions
 Consider: Provide specific details about injuries?
 Ensure stakes and limits of ruling well understood
 No taxpayer standing [Fairchild & Frothingham v. Mellon]
 Is a generalized grievance
 BUT allowed in Flast v. Cohen: Need (1) logical link bw taxpayer status
and type of legis enactment attacked AND (2) nexus bw status and
nature of infringement
o BUT since restricted – Hard to:
 Valley Forge & Hein: Must be taxing and spending
activity by Congress – i.e. authorized by legislative act
(not executive)
 Winn: Doesn’t apply to state or voluntary activity
 LA v. Lyons: Lacked standing for injunction bc failed to show that threat of
future injury (chokehold) was real and immediate
 Difficult bc had two burdens:
o Allege that would have another encounter w police
o Show that chokeholds were policy or police always use them
 Probabilistic harms
 Clapper: Reject standing in national security case based on speculative
chain of possibilities




Susan B. Anthony: Substantial risk of administrative proceedings against
group if backed by additional threat of criminal prosecution established
standing
o Injury is fairly traceable to alleged conduct
o Court can redress injury
Standing – Prudential Limitations:
o No generalized grievances [Fairchild & Lujan]
 GG: General interest in requiring govt to be administered according to law
 Must be a specific, personal harm – Cannot be a generalized grievance because
it applies to everyone (felt broadly) if you are able to show that you are harmed
 Generalized grievance best entrusted to political process (separation of powers)
 Example case with GG: Someone using federal judiciary to make policy point
 LA v. Lyons: Injunction against chokehold is GG
 Allen v. Wright: Do not have standing to challenge IRS not denying tax-exempt
status to racially discriminatory schools
 Not an injury: Stigmatic harm – Government providing financial aid to
discriminatory private schools
o Diff between feeling hurt in nonconcrete and concrete way
o Must be personally denied equal treatment
 Is an injury: Being deprived of opp to attend a segregated school
o Problem with causation – Purely speculative that withdrawing
tax exemption from schools would make difference
 Possible that court does not want to make a decision here
o Third Party Standing
 What make a third party standing case [Craig v. Boren]? Faced an injury (e.g.
economic injury) and defended by raising rights of others
 BUT in Cohen, was also asserting her own right not to be sanctioned
under unconstitutional law
 Consider: Can all 3d-party standing cases be fit under first-party standing mold?
 Is it permitted?
 Traditionally: Can only assert own rights
o BUT prudential and not required by Article III
 Now: Can allow - Ask:
o Relationship bw litigants seeking 3rd party standing and those
whose rights they want to assert?
o Impediment to 3rd parties’ effective assertion of own rights?
Standing of Legislators – 3 situations:
o Legislators who lose on vote try to challenge statute
 No standing – Fight another day
o Legislators lose on vote and claim there was something fishy about process keeping
them from winning
 Coleman: Standing because votes are nullified
o Legislators who seek to defend constitutionality of statute when executive branch
refuses to do so
Role of Congress
o Lujan – Congress cannot confer standing on someone who does not meet injury
requirements BUT can elevate status of injury that was previously inadequate in law


o Congress can create rights with clear boundaries as to what those injuries/rights are
Organizational Standing
o Sierra Club v. Morton: Sierra Club needed to allege injury to its members as needed
actual or imminent injury in fact
To establish standing:
o Complaint must have plausible allegations
o Opposition to motion for SJ requires affidavits or declarations
o Trial might require testimony
MOOTNESS









Definition: No longer a disagreement for which the federal court can find a remedy
o Not mooted based on merits – e.g. low likelihood of success
o Depends on how you frame pleading and relief asked for – Some remedies might
become moot while still can recover others
Case can still be moot even if case is capable of repetition with other plaintiffs – Bc particular
plaintiff will never be subject to violation again
o BUT not always moot if unreasonable to expect challenge to make its way through the
courts within a single cycle AND similar issues will likely arise in future [e.g. Roe v. Wade]
 Reasonable expectation of recurrence?
Criminal cases – Criminal conviction not moot once finish serving sentence because may
continue to suffer mark of a criminal record
With voluntary cessation – Heavy burden that action will not reoccur
o Vitek/Laidlaw: Absolutely clear will not reoccur
o Burden on defendant to show violations not likely to be ongoing
If moot, case is dismissed and may be vacated – Typically civil cases
Settlements
o Plaintiff agrees = Moots case
o Plaintiffs does not accept = Does not moot [Campbell Ewold]
o What if settlement comes on appeal from plaintiff’s victory?
 Munsingwear: If becomes moot on appeal, vacates lower court’s judgment
 BUT if mooted bc of settlement, precedent has value and does not result in
automatic vacatur of lower court’s judgment
 Policy: Don’t want to allow defendants to automatically make cases
moot by buying settlements
Is mootness simply standing set in time frame?
o Laidlaw: Sort of but not quite because more complicated
 Once there is standing, case is not moot because under current circumstances
the P could no longer show standing
 Sometimes lower burden for standing
Mootness: Article III or prudential doctrine?
o Possibly both?
 Scalia – Article III
 Rehnquist – Prudential
o Perhaps Article III core but large portion of policy choice
When dealing with state courts, Supreme Court dismisses petition but does not vacate
o BUT mootness remains question of federal law so long as case is in federal court
RIPENESS






Definition: Prevent adjudication in federal court of disputes that remain too ill-defined for
proper judicial resolution [not truly adversary or harm not imminent]
o Injury is speculative and may never occur
o Pre-enforcement review typically analyzed under ripeness tho also implicates standing
Purpose: Prevent courts from entangling themselves in abstract disagreements over policies
AND protect agencies from judicial interference until admin decision formalized and effects felt
Ripeness test – Abbott Labs v. Gardner:
o Fitness for judicial resolution – Timing
 Purely legal issue?
 Further administrative procedures contemplated?
 Final agency action?
 Past exposure not ripe unless continuing adverse effects
 Factual record?
o Hardship on the parties – Injury
 Effect on day to day business?
 Could cause severe and unnecessary harm?
Courts tend to be more forgiving in admin law context
Relevance of:
o Federal Declaratory Judgment Act – less concern about ripeness?
o Passive virtues / Article III values re: advisory opinion, generalized grievances, avoiding
conflict with other branches, concern about merits?
 Want to avoid these – e.g. generalized grievances
o Burden vs. benefits
Ripeness and Criminal Statutes
o Difference bw justiciability and remedy –
 Is the challenge to the statute ripe? (justiciability)
 Should the court enjoin enforcement of the statute (remedy/equitable
discretion) – are there other remedies?
o Ripeness –
 Turns on credible threats of prosecution
 OR on harm caused by anticipatory actions of 3d parties
CONGRESSIONAL AUTHORITY OVER THE DISTRIBUTION OF JUDICIAL POWER


Constitution [Article III] does not create lower federal courts – Congress does
Congress general cannot limit or add to original jurisdiction of Supreme Court [cases]
CONGRESSIONAL POWER TO LIMIT FEDERAL COURT SMJ


About appellate jurisdiction of federal courts
Question: If statute is enforced through private right of action, where should plaintiffs be
allowed to sue?
o Answer: Wherever Congress decides – options:





 Federal court
 State court (plus federal court?)
 Adjudicated by federal agency
Power derives from Article III, § 2
o Article III is max amount of jurisdiction that can be given
o BUT Congress doesn’t have to give courts all of Article III jurisdiction
Since rejected case – Martin v. Hunter’s Lessee: “Shall extend” language in Article III requires
Congress to exercise power to create lower federal courts
Foundational Case – Sheldon v. Sill:
o Congress, having the power to establish the courts, must define their jurisdictions
o Having a right to prescribe, Congress may withhold from any court of its creation
jurisdiction of any of the enumerated controversies
o Decision void if court decides case and then determines no jurisdiction
Foundational Case – Ex parte McCardle:
o Without jurisdiction, court cannot proceed at all in any cause
o Jurisdiction is power to declare the law and, when it ceases to exist, the only function
remaining to the court is to dismiss case
Can Congress preclude SMJ in any court and thus preclude all remedies? Unclear answer
o Approach as a framework of arguments rather than clear answer
o Diversity jurisdiction: Can probably withdraw Supreme Court jurisdiction
o Statutory claims: Congress could eliminate all SMJ over statutory issue [Battaglia]
 E.g. potentially over abortion
o Constitutional claims:
 No preclusion of SMJ over constitutional issue [Battaglia – 2d Cir]
 Used statutory construction to avoid deciding issue of precluding constitutional
claims from review in any court [Webster v. Doe]
 Court will not easily find that Congress tried to eliminate all jurisdiction
over a particular kind of case.
 Some habeas remedy [Felkin] & maybe takings remedy required by Constitution
 Possibly some Due Process remedy required by Constitution
 Immunity means some rights claims do not get litigated on merits but courts are
there [diff from precluding SMJ]
o Emerging idea: Limits on what Congress can do with this power
 Balancing test: Is judiciary still able to produce essential functions?
 Consider: Does Congress allow alternative methods of seeking review in
federal court? [Felker]
 Congress can tell courts what rule to apply [e.g. apply substantial deference] but
cannot tell how to rule – Harms essential function of the judiciary, which is to
decide cases
o Policy considerations:
 Separation of powers – How do courts and Congress interact?
 Federalism – Concern about impact on state governments and courts?
CONGRESSIONAL POWER TO ASSIGN CASES TO N ON-ARTICLE III COURTS

Relevant constitutional text – If applied formalistically, admin adjudications don’t meet these
requirements:


o 7th Amendment – Right to jury
o Article III – Judicial power shall extend to all cases
o 5th Amendment – Due Process
o Article III, Section 1 – Judicial power shall be vested in Supreme Court and inferior courts
Relevant history:
o Congress always taken cases that could be in Article III courts and given them to nonArticle III courts, tribunals, boards, commission, etc.
o Judges never decide everything in cases – e.g. juries
Relevant theories:
o Adjunct theory – Think of admin agency as assistant to court (like jury)
o Admin agencies have too much independence
ADMINISTRATIVE COURTS



Are these constitutional?
o Generally: Okay under Article III so long as there is a meaningful role for federal courts
(e.g. legal review)
o Typically justified under Article III rather than Article I
Crowell v. Benson – Private rights:
o In private rights case, Congress can allow admin tribunal to determine facts w finality
 No threat to “essential attributes of judicial power”
 [Deference on facts]
o Suggests that cannot vest admin tribunal w final authority over law
 Preserves legal review by federal courts
 Federal courts decide whether order was “in accordance with law”
o Intermediate category of jurisdictional facts
 In cases brought to enforce constitutional rights, federal court decides facts and
law – Requires de novo review in these cases
 [In practice, tend to defer to admin courts’ interpretations of law]
o Justification: Relieve federal court of burden
Public rights – Can be vested in admin courts:
o Types of public rights –
 Claims against US for money, land, or other things
 Disputes arising from coercive govt conduct outside of criminal law
 Immigration cases
o Congress has more power to allow admin adjudication of public rights than private
U.S. MAGISTRATE COURTS





Type of legislative court
Magistrate handle pretrial and discovery proceedings, reviews motions, and more
Adjuncts to district court that district courts delegate power to
o Easier to determine that constitutional because under control of federal district courts,
which retain “essential attributes of judicial power”
Authorized to do nearly anything in civil case and a lot in criminal case
Can make conclusive findings in evidentiary hearings [Raddatz]

Consent is important factor
o Can do criminal jury selection if parties consent
 Peretz – Okay bc consent
 Gomez – Bad bc no consent
o Can preside over civil trial if parties consent
LEGISLATIVE OR ARTICLE I COURTS







Courts created by Congress under Article I (power to create tribunals inferior to Supreme Court)
o Hear cases falling within Article III Section 2
o Judges do not have protection of Article III
Categories of legislative courts:
o Territorial – About powers in U.S. territories, including DC
o Military
o Public rights disputes – Matters bw government and persons subject to its authority in
connection with performance of constitutional functions of executive/legislature
 E.g. Federal claims, tax, veterans’ benefits
o Bankruptcy – More than claims against debtors
Not adjuncts to courts – Courts do not retain essential attribute
No consistent overriding approach to this
Northern Pipeline – Bankruptcy courts: Article III jurisdiction cannot be conferred on non-Article
III courts (bankruptcy courts)
o No majority
o Non-Article III bankruptcy courts created by 1978 statute not consistent w Constitution
o Brennan plurality – Encroached on powers of Article III courts
 Not legislative courts – Go beyond historically-based exceptions & involved
private rights
 Are not adjuncts to courts – Federal courts do not retain essential attributes of
supervision and control
 Here, bankruptcy courts could enforce own orders and had jurisdiction
over all cases related to bankruptcy; district courts had limited review
[clearly erroneous]
 Congress could retain power to assign matters to non-Article III tribunals BUT
limited to rights created by federal statute and powers had to be narrower than
what an Article III court could exercise
o Rehnquist concurrence – Bankruptcy courts could not have such broad authority
 These are traditional common law claims to be tried by Art III courts
 Bc of power, goes too far to call them adjuncts
o White dissent – Should use balancing test in which benefits of legislative courts weighed
against its effect on separation of powers and judicial independence
 In other words: Article III values vs. congressional goals
Thomas v. Union Carbide: Uphold use of arbitration
CFTC v. Schor: Established balancing test [functionalist approach]
o Admin agency may in some cases exert jurisdiction over state-law counterclaims
o Article III protects personal right to have claims decided before real [Article III] judges
who cannot be affected by politics
o




Article III protects judiciary by barring congressional attempts to transfer jurisdiction to
non-Article III tribunals for purpose of taking power from Article III courts
o Consider following factors –
 Extent to which “essential attributes of judicial power” reserved to Article III
courts – E.g. judicial review by Article III courts?
 Extent to which non-Article III forum exercises range of jurisdiction and powers
normally vested in Article III courts – E.g. Can enforce own orders?
 Origins and importance of right to be adjudicated
 Concerns that drove Congress to depart from reqs of Article III
Granfinaciera: Private right so therefore right to jury
Stern v. Marshall: Adjusted balancing test in dissent
o Bankruptcy court (non-Article III court) lacked authority to enter final judgment
o Majority – Applied multi-factor formalism, including:
 Not in traditional Article I categories – Especially not public rights case
 State common law claims – Private dispute
 Actual courts not part of agency
 Has power of court
 No consent
 Worried about pragmatism – Slippery slope eroding Article III values
o Dissent – To determine whether non-Article III court can rule on issue [functionalist]:
 Nature of claim to be adjudicated
 Nature of non-Article III tribunal
 Extent to which Article III courts exercise control over proceeding
 Presence or absence of parties’ consent
 Nature & importance of legislative purpose served by grant of adjudicatory
authority to tribunal w judges who lack Article III’s tenure and compensation
procedures
Wellness v. Sharif: Returned to Schor’s pragmatism and considered consent
Different Approaches in Bankruptcy Court after Stern v. Marshall:
o Hear counterclaims and fraudulent conveyance claims but maybe some caveats
o Provide recommendation to district court which conducts de novo review
 Treats bankruptcy courts as adjunct for counterclaims
o No authority over this kind of proceedings [involving counterclaims]
o Allow parties to consent to jurisdiction
FEDERAL POWER OVER STATE COURTS


Article III: Does not require exclusive vesting of federal issues in federal courts and does not say
that state courts can hear issues
Supremacy Clause: Judges in state courts bound by Constitution and federal laws
STATE COURTS AND FEDERAL CASES: EXCLUSION, REMOVAL, AND OBLI GATION
EXCLUDING STATE COUR TS FROM FEDERAL CLAIMS

Presumption of concurrent jurisdiction in federal and state courts
o

Hamilton in Federalist Papers: Assumes state courts will hear federal question cases
unless Congress expressly prohibits
o Mims v. Arrow Financial Services: Despite fact that Telephone Consumer Protection Act
only provided cause of action in state court and did not mention federal court, Supreme
Court said federal courts had SMJ as well bc presumption of concurrent SMJ so strong
 Permissive grant of jurisdiction to state courts does not deprive US district
courts of federal question jurisdiction
o BUT Congress can expressly exclude state court SMJ over federal question
What does it take to divest state courts of SMJ over federal questions?
o Tafflin v. Levitt - Applies 3-part test
 O’Connor majority - Are there any of the following? [Dual sovereignty creates
presumptive state power to hear federal claims]
 Explicit statement
o Mere grant of jurisdiction to federal court does not satisfy this
 Unmistakable implication from legislative history
 Clear incompatibility bw state court jurisdiction & federal interests
o Factors to consider:
 Desirability of uniform interpretation
 Expertise of federal judges in federal law
 Assumed greater hospitality of federal courts to
peculiarly federal claims
 Scalia concurrence – Concerned about 3-part test: Not a fan of implied exclusion
or legislative history
 Supremacy Clause makes one system of combined federal and state law
for every state
o Yellow Freight – Moves closer to Scalia’s view requiring express exclusion
 Lack of express exclusion of SMJ is strong and arguably sufficient evidence that
Congress made no change
o Easier case to allow exclusion with federal statutory rights – e.g. patents
FEDERAL OFFICER REMOVAL AS WAY OF EXCLUDING STATE COURTS ON CASE-BY-CASE BASIS




28 USC 1441 – Permits removal in civil cases
Tennessee v. Davis: Removal of cases to federal courts does not impede on state’s rights
28 USC 1442(a) – Federal officer removal
o Civil action or criminal prosecution commenced against US or agency or US officer in an
official or individual capacity for any act under the color of law (including apprehension
or punishment of criminals) may be removed
o For those charged criminally, typically have federal defense – e.g. immunity
Idaho v. Horiuchi – Federal officer removal defense [when charged under state criminal laws]:
o Supremacy Clause protects federal agents facing state criminal charges for actions taken
during the course of duties
o Federal law defense – To be immune, must do no more than is necessary and proper in
performance of duty
 Need honest & reasonable belief that actions necessary in performing duty
o Importance: Stops state from frustrating federal action
o
Here: Court did not dismiss – Based on facts, not sure if this is something reasonable
person would have done [outer limits of federal officer removal defense]
OBLIGING STATE COURTS TO HEAR FEDERAL CLAIMS



Presumption of concurrent jurisdiction: State have power and authority to hear federal claims
Must state courts hear federal claims if they do not want to? Probably
o If courts generally available, can’t discriminate against federal claims [Testa & Haywood]
 States must provide some court to hear concurrent SMJ federal claims
 Cannot deny hearing by claiming that they are laws emanating from a foreign
sovereign [Testa]
 Cannot deny hearing even if disagree w underlying policy
o Can refuse federal claims if have [nondiscriminatory] “valid excuse”
 Herb v. Pitcairn: Allocation of SMJ among state courts okay
 Probate court not required to hear Title VII cases
 Withdrawing SMJ only from federal claims not permitted
 Perhaps exclude some nonresident/FNC claims? [Douglas v. NY]
 But reasonable state court requirements might still fail if burden federal rights
[Felder v. Casey & Haywood?]
If state courts hear federal cases, what are the procedural rules?
o Generally, federal claims get same treatment as state claims – “Reverse Erie”
o BUT sometimes state procedures must give way to federal procedures to ensure full
vindication of federal rights
 Patsy & Felder – 1983 cases
 Cannot impose state admin exhaustion or notice requirements onto fed claims
SUPREME COURT REVIEW OF STATE COURT DECISIONS



Supreme Court docket is discretionary
Supreme Court does not interpret state law – Answers federal questions not state issues
Adequate and Independent State Ground (AISG) Doctrine
o Fox Films & Michigan v. Long: No jurisdiction to review if decision rests on state-law
ground of decision that is independent & adequate
o Sometimes AISG is clear:
 State court decides § 1983 claim or motion to suppress entirely on federal
grounds – No AISG issue and Supreme Court has SMJ
 State court decides tort or K case entirely on state law (w no lurking due process
issues) – No AISG issue and Supreme Court has no SMJ
o Sometimes AISG is less clear [e.g. with mixed cases]
 Issues of state law as antecedent (state law precedes federal law) or as parallel
(but possibly entwined with federal law)
o Justification:
 Does not make sense for Supreme Court to make decision that could be
overruled by state court – Want their word to be law
 Avoid advisory opinions
 Respect state sovereignty
o
o
o
o
Basic doctrinal questions:
 Is state court decision independent of federal law?
 Was federal issue properly presented to the state courts?
 Was the state law basis for decision adequate?
Independence – What to do when state court opinion ambiguous about resting on state
or federal law?
 Four options:
 Seek clarification by vacating and remanding to state court?
 Resolve ambiguity by examining state law?
 Presume rests on state law and dismiss for lack of SMJ?
 Presume rests on federal law and hear case?
 Michigan v. Long [chose option 4] – Two steps: [On test, consider if another
option—e.g. remanding for clarification—would have been better]
 Determine what state court actually said
 Supreme Court can review state court judgment when:
o (1) State decision fairly appears to rest primarily on federal law
or is interwoven w federal law; AND
 Interwoven example: State and federal constitutional
provisions identical and court considered state and
federal precedent
o (2) Adequacy and independence of state law ground not clear
from face of opinion
Properly Presented – Was federal issue properly presented?
 Cardinale v. Louisiana – Doctrine:
 Supreme Court has jurisdiction to review decision of state court on
federal issues – Therefore, if federal issues are not raised in state court,
no jurisdiction to review anything
o Unclear how firm this is or if this is prudential
 Does not make sense to hear case bc:
o Possibly sketchy and unhelpful record
o State courts should have first chance to decide meaning of state
statutes
o Case might be decided on state law instead of federal law
 Essentially: Idea of exhaustion w jurisdictional overlay
 Limitations/Complications to Cardinale Rule:
 Limit: Presentation requirement does not apply when state supreme
court decision creates federal issue
o E.g. State court holding violates Constitution through content or
implementation
o Bouie v. City of Columbia: State supreme court changes law of
trespass – Supreme Court said was unforeseeable change in law
(denial of due process)
 Complication: Might be difficult to tell whether issue was presented
Adequacy – Determining whether state law basis for opinion was adequate:
 Staub – Supreme Court said Georgia holding [rejecting challenge of state statute
because plaintiff did not specify section of challenged statute] was inadequate
 Pointless requirement under circumstances


 Inconsistently followed by Georgia courts
Doctrine: State law that is basis for decision of state courts must be adequate
 Comply with due process and/or prudential concerns – e.g.
foreseeability [novelty], reasonableness
 Must be consistently applied by state courts
o BUT existence of state court discretion does not create
inconsistency
o Need to show arbitrary or unreasonable inconsistency
 Cannot be burdensome or pointless requirement
Consider: Whether decision by Supreme Court on federal law claim would
change the result?
RELEVANT STATUTES ABOUT SUPREME COURT REVIEW OF STATE COURT DECISIONS


Judiciary Act off 1789:
o A final judgment or decree in any suit, in the highest court of law or equity of a State in
which a decision in the suit could be had,
 [1] where is drawn in question the validity of a treaty or statute of, or an
authority exercised under the United States, and the decision is against their
validity; or
 [2] where is drawn in question the validity of a statute of, or an authority
exercised under any State, on the ground of their being repugnant to the
constitution, treaties or laws of the United States, and the decision is in favour
of such their validity, or
 [3] where is drawn in question the construction of any clause of the
constitution, or of a treaty, or statute of, or commission held under the United
States, and the decision is against the title, right, privilege or exemption
specially set up or claimed by either party, under such clause of the said
Constitution, treaty, statute or commission,
 may be re-examined and reversed or affirmed in the Supreme Court of the
United States upon a writ of error.
o Creates appellate jurisdiction over rejection of federal arguments or claims
 Claimed error must appear “on the face of the record”
28 USC § 1257
o Final judgments or decrees rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of certiorari
 [1] where the validity of a treaty or statute of the United States is drawn in
question or
 [2] where the validity of a statute of any State is drawn in question on the
ground of its being repugnant to the Constitution, treaties, or laws of the United
States, or
 [3] where any title, right, privilege, or immunity is specially set up or claimed
under the Constitution or the treaties or statutes of, or any commission held or
authority exercised under, the United States.
o Review available when highest state court declines to hear the case, which means lower
court decision stands as final word from state cour
 BUT must seek final level of discretionary review even if futile
JURISDICTION AND LAWMAKING AUTHORITY OF THE FEDERAL COURTS


3 areas of federal SMJ authorized by Constitution:
o Federal question jurisdiction
o Diversity of citizenship jurisdiction
o Supplemental jurisdiction
Concern: More power federal courts possess, the more federal courts conflict with other
branches of state and federal government [separation of powers] and the more work they take
away from state courts [federalism]
FEDERAL COMMON LAW






Erie: No federal general common law – BUT not quite true
o Argument against FCL: Separation of power – Would confer on judiciary discretion just
short of legislative power
BUT federal common law still exists:
o Jurisdictional grants from Congress for courts to develop substantive law
o Area where fed rule of decision necessary to protect uniquely federal interests
o Where federal or Constitutional interests at stake
 Boyle
 Clearfield
Only create federal common law when no constitutional provision, statute, treaty, or regulation
is at issue --- Otherwise, state law fills void
Federal Common Law Contexts:
o Procedural rules in federal court (other than FRCP)
 Courts need to be able to process cases
o Rules of decision in federal court (other than state law or express federal statutory
provisions)
 Courts agree that this is legit at least in some circumstances
o Implied causes of action to enforce federal statutory rights [interstitial lawmaking]
 Based on text, intent, partnership bw courts & Congress
o Implied causes of action to enforce Constitution?
o FCL as reason to go to federal court?
Criminal common law:
o No federal common law of crimes in federal system [might be federal statutes]
 BUT are defenses in federal criminal law
 Also inherent and supervisory authority – e.g. contempt power, formulate and
apply standards for enforcement
o States decide whether to have common law of crimes
 Often supplements statutes or defines statutory language
 Most states use for defenses
Civil common law:
o Federal system includes federal common law in some civil cases
o Federal common law is preemptive – Overrides state law
FCL IN SUITS WHERE U.S. IS A PARTY [PUBLIC RIGHTS]

Basic structure – Clearfield & Kimbell Foods [where Congress has not acted]:
o Typically apply test where one party is the US (not bw private parties)
o (1) Is there a uniquely federal interest at stake?
 Competence: Justification that there should be federal common law here?
 Federal interests include:
 Uniformity – Federal program managed nationwide
 Foreign relations law
 Concerns proprietary interests? E.g. money
 Would applying state law frustrate objectives of federal programs?
o (2) If so, what should the federal common law rule be?
 Discretion: Use discretion to craft federal common law rule or adopt state law
 Option 1 – Choose law of state, particularly if localized transaction
[Kimbell Foods – Presumption in favor of this]
o Boyle: Apply state law unless there is a (1) conflict or (2) state
law frustrates the specific objectives of federal legislation
o Consider: Will this hinder uniformity in laws?
 Option 2 – Adopt a federal common law rule
o In deciding what that rule is:
 Look to general law (tho not much left)
 Look to Restatements
 Majority view among states
 Minority view of states if better on policy grounds
FCL IN SUITS BETWEEN PRIVATE PARTIE S: BOYLE & MILITARY CONTRACTO R DEFENSE


Boyle is example of situation where court decided to create FCL in suit between private parties
o Justified based on fact that federal interest was so strong
Boyle v. United Technologies Corp. – About the FCL military contractor defense
o Applied to Clearfield & Kimbell Foods tests
o Requirement 1 – Competence: Implicates unique federal interest – Preempts state law
and replaces w federal common law (military contractor defense)
 Implicates fed government’s interest in procuring equipment (even though is
suit bw private parties) – Will affect terms of K by raising price or causing
contractor to decline to manufacturer
o Requirement 2 – Discretion: Sig conflict exists bw identifiable fed interest and state law
 As significant conflict exists, should adopt a federal common law rule
 Design of military equipment was discretionary and thus exempted from liability
under the Federal Torts Claim Act, contrary to state law
 FTCA said claimants may not recover tort damages against US for
actions of the US made in the exercise of discretion
 Contractors designs were discretionary and thus entitled to same
protection as would apply if government designed equipment
 [Does not apply to goods reasonably available on the market]
o Solution: Apply federal common law military contractor defense

Boyle Implications:
o Questions of whether Boyle applies in all contractor cases [always competency] or
whether this is a fact-based inquiry
o Seems like Boyle settles question of competency and remaining question is in discretion
o Boyle can apply in non-military context
FCL FROM JURISDICTIONAL GRANT S [WHERE CONGRESS/CONS TITUTION ACTED]



Comes up where Congress created legal requirement but failed to establish cause of action for
private parties to enforce that requirement in suit
Generally – FCL from jurisdictional grants [where Congress/Constitution acted]:
o Implied grants of authority to create FCL from Constitution:
 Admiralty – Conferred by Article III
 Disputes bw states – Original Supreme Court jurisdiction
o Implied grants of authority to create FCL from statutes:
 Given jurisdiction over cases but no body of law to apply or do not provide all
details on enforcement
 E.g. where there is an implied right of action
 Supreme Court: Congress intended federal courts to develop federal common
law to fill gaps rather than rely on state law
Statutory Implied Rights of Action – Timeline of cases:
o J.I. Case v. Borak: Imply private rights when “necessary to make effective the
congressional purpose” – Court is partner w Congress in carrying out statute
 Question: Does necessary mean reasonable or needed?
o Cort v. Ash/Cannon v. U Chicago:
 4-part test for implied private right to cause of action –
 Is P one of class for whose benefit statute was enacted?
 Any indication of legislative intent to create or deny remedy?
 Is it consistent w underlying purposes of legislative scheme?
o Will it help achieve purpose of statute?
 Any concerns about displacing state law?
o Area traditionally relegated to state law?
 Powell’s dissent: Separation of powers is at risk
o Alexander v. Sandoval: Narrows Cannon
 Indicates best for Congress to act instead of Court
 Focus solely(?) on congressional intent to create private right & private remedy
 Without private remedy, cannot create cause of action
 Eliminates 4-part test
 Intent exists but not written into statute only in extraordinary
circumstances
 Where Congress created express means of enforcing a standard set forth in
statute, suggests intent to preclude other enforcement mechanisms
 Can Sandoval be distinguished from Cannon bc Cannon deals w statute and
Sandoval deals w regulation?
o In applying these tests to determine if implied right of action exists, consider:
 Does statute focus on regulated entity or individual?
 Other methods of enforcement?


Separation of powers & federalism [bc displacing state law] issues w implied rights of action
Implied Right of Action to Enforce Constitution
o Due Process – Taxes cases:
 Ward v. Love County: Paying taxes was not voluntary so obligation to imply
cause of action (rooted in 14th Amendment)
 McKesson: DP compels state to provide remedy when taxed first and challenge
validity of statute later
 Reich: DP compels state provide clear, certain remedy (pre or post deprivation)
 Alden: Reframes Reich – If held out remedy ahead of time as “clear and certain,”
state must provide it
 After Alden, what happens if isn’t clear and certain remedy before deprivation?
 Unresolved – Possibilities:
o No remedy
o No constitutional requirement
o Unnecessary because of state sovereign immunity
o Suing state officers for violating federal rights
 Generally: Some implied right to seek injunctive relief
 But are concerns about this:
o Create tension w sovereign immunity
o Concerns about injunctions that affect state $
 Shaw v. Delta Air Lines: Fed courts can enjoin state officials from interfering w
fed rights
 Ex parte Young: Can go into court and sue state official to enjoin them from
violating Constitution
 Personal action – If no basis in Constitution, not acting for the state
 When sued in this respect, stripped of official character
 Only about injunction – Does not address damages
 § 1983: Create cause of action to seek damages against state officials
 What about damages against federal government and its officers?
 Sovereign immunity
 FTCA – Waives immunity for many tort claims where U.S. is Defendant
 Bivens – Claims against fed officers
 Intersects w immunity for officers
o Absolute if exercising judicial, prosecutorial, legislative functions
o Qualified unless conduct violated clearly established federal law
 Bivens: Right to seek damages from fed officer for violating constitutional rights
 Viewed as fed official counterpart of 1983 claims – Unlike 1983, allows
claims against fed officials (not protected under 11th Amendment)
 Can bring against individual officers – Not agencies or supervisors
 Considerations:
o Special factors counseling hesitation?
o Any explicit congressional declaration of an equally effective
alternative remedy?
 Must receive damages or nothing [only one remedy]
o Because wholly past action [injunction would not help]
 Wilkie v. Robbins: Reframed Bivens

If there is constitutionally recognized interest adversely affected by
actions of federal employees, then:
o Alternative existing process that provides convincing reason not
to create Bivens remedy?
o If no process, only recognize a Bivens remedy after exercising
judgment, including asking whether there are special factors
counseling hesitation
 Basically, what are all reasons we wouldn’t want it?
PREEMPTION




Presumption against preemption
Preemption doctrine:
o Express preemption – Statute includes a preemption clause
o Implied preemption – Two kinds:
 Field preemption: Congress occupied field and there is no room for state law
 Conflict preemption where –
 1) Party cannot comply w both federal and state law at same time; or
 2) State law is obstacle to accomplishment of congressional objectives
(most controversial)
Preemption policy considerations:
o Federalism – Reluctance to displace state law in areas where states already regulate
o Separation of powers – Congress gets to legislate and make policy
Can sue in federal court to enjoin state statute that is preempted by federal law
o Does not come from Constitution
o Comes from tradition of equity and history
o From 42 USC § 1983 (suits against state actors who violate federal constitution & laws)
SMJ OF THE DISTRICT COUR TS

For federal court to have jurisdiction, requires:
o Statutory authority
 Special words: Sue and be sued – But don’t always need this exact language
o Constitutional authority
CONSTITUTIONAL SCOPE OF FEDERAL COURT SMJ



Article III § 2: Judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the US, and treaties
Constitutional grant of jurisdiction over actions considerably broader than that granted under 28
USC 1331 (federal question statute)
o Anything falling within 1331 also falls within Constitution
o Sometimes courts will step in and give the court additional jurisdiction (somewhere bw
1331 and Constitution)
Osborn v. Bank of the US – Reaches of constitutional grant of federal question jurisdiction
o

Judiciary can receive jurisdiction to the full extent that the Constitution allows –
Congress can give circuit courts original jurisdiction in any case to which appellate
jurisdiction of Supreme Court extends
o Two different ways to interpret holding:
 If you have an issue that will be decided that’s about federal law, could be
enough for SMJ
 If constitutional question forms an ingredient of the original cause, could be
enough for SMJ --- Broader than first option
Essentially: If you can find something for federal court to decide relating to federal law, might be
enough to give the federal court jurisdiction
SCOPE OF STATUTORY G RANT OF FEDERAL QUESTION JURIS DICTION (28 USC § 1331)



28 USC § 1331: District courts shall have original jurisdiction in all civil actions arising under the
Constitution, laws, or treaties of the US
o Laws – Includes fed common law (implied causes of actions) & express causes of action
o Presume concurrent jurisdiction
o Importance of removal – State to district court
 1441 – Follow well-pleaded complaint rule
3 approaches (discussed below):
o Need federal cause of action – American Well Works
o Federal ingredient (move toward Osborn) – Smith
o Lots of discretion (grey area) - Grable
Arising Under Jurisdiction
o Summary of Jurisdiction
 1331 requires at least that P have federal claim of some kind
 Best if federal claim is based on federal cause of action
o L&N RR v. Mottley – Well-pleaded complaint:
 Well-Pleaded Complaint Rule: Must bring federal claim, so ask if there is a fed
question on the face of a well-pleaded complaint (not same as actual complaint)
 Cannot look to counterclaims or defenses
 Clarifies that 1331 is narrower than Article III
o American Well Works – Federal claim not federal element:
 “A suit arises under the law that creates the cause of action”
 Fed question if fed law create cause of action – Otherwise, state question
 Judge Friendly – Rule that is more useful for inclusion than exclusion
o Smith v. Kansas City Title – Fed element not fed claims (broad conception of SMJ):
 P claimed state law prevented company from investing in illegal bonds and
claimed fed bonds at issue were unconstitutional
 Fed court has jurisdiction where:
 Right to relief depends on construction/application of Constit or US laws
o Plaintiff’s case stands or falls on fed statute/Constitution
 Claim rests on reasonable foundation
o Merrell Dow v. Thompson – Possibly conflicts w Smith:
 State tort claim of negligence relief on violation of fed law – FDCA has no
express or implied cause of action
 No Fed Q SMJ bc would flout congressional intent



Compared to Smith? Look to nature of federal interest [Constitution in Smith vs.
statute here]
o Grable – Addresses Smith/Merrell Dow issue:
 4-part balancing test (not rule): Is the federal issue
 Necessarily raised – Can you prove claim wo raising issues of fed law?
 Actually disputed – Did they engage in that kind of conduct?
 Substantial – Goes to nature of the interest
o Gunn v. Minton: Means important to the federal system as a
whole (rather than important to case) – e.g. taxes
o Consider: Binding? If in state court, not binding on fed courts
 Allow it will not disturb congressionally approved balance of fed & state
responsibilities
o How would it affect distribution of cases in state & fed courts?
o Empire Healthchoice: No SMJ for fact-bound and situation
specific cases (versus questions of law)
o Gunn v. Minton: Is it something states are typically responsible
for? – e.g. attorney conduct
 Rejects idea that no federal cause of action precludes federal SMJ
Some laws provide for exclusive federal court SMJ & depart from well-pleaded complaint rule
o E.g. 28 USC § 1338 – Exclusive jurisdiction over any claim for relief arising under an Act
of Congress related to patents, copyrights, etc.
Exclusive state court SMJ over federal questions – Possible but rare
o Mims v. Arrow Financial Services: Fed courts also have SMJ even when statute only talks
about state courts (and not fed courts)
 Federal question jurisdiction existed bc presumption of concurrent jurisdiction is
even stronger when question is whether Congress divested fed courts of SMJ
(versus whether Congress divested state courts)
o Shoshone Mining: No federal SMJ where fed law provided process for issuing land
patents and process included fed cause of action in which merits turned on state law
DECLARATORY JUDGMENTS



Federal Declaratory Judgment Act – In any case of actual controversy within its jurisdiction
o Are DJs advisory opinions or real adjudications?
 Real adjudications – Preclusive and have effect of final judgment
o How does DJ statute impact federal court SMJ?
 Cannot frame as DJ claim (e.g. think this law is unconstitutional) to overcome
well-pleaded complaint rule
 Ask: Case within Article III SMJ? Does it fall within FDJA?
Skelly Oil v. Phillips Petroleum – Getting into fed court:
o DJ Act doesn’t expand 1331 federal court SMJ – Only have jurisdiction that already have
o Ask: Whether case could have been brought in fed court without DJ mechanism?
Franchise Tax Board v. CLVT – Using Fed Declaratory Judgment Act:
o DJ mechanism available if either party could have brought non-DJ case in fed court
o SMJ limits on DJ mechanism also apply to state law DJ claims that are removed
o State enforcement exception:



Trust could have brought non-DJ fed claim so DJ would ordinarily be available –
BUT apply federalism exception based on state enforcement
Defendant can’t turn state enforcement action into fed claim
Reasoning: Get in way of state sovereign functions
REMOVAL

Ordinary removal: 28 USC 1441
o Remove if case could have been filed originally in fed court
 Includes DJs – Can remove if satisfies Skelly Oil test
o All Ds must agree to removal
o Well-pleaded complaint rule for fed q, or complete diversity
o Federal defenses not basis for removal
FEDERAL QUESTION SMJ DUE TO PREEMPTION

Complete preemption removal (1331) – Beneficial National Bank v. Anderson:
o State law claim, fed law preempts – So fed law provides complete defense
 Not just fed law defense – In fact, state law claim is fed claim
o Fed Q SMJ exists under § 1331 for claims brought under state law when state law is
federally preempted IF:
 Fed law completely preempts (“wholly displaces”) state law
 Fed statutes also create express fed cause of action
o Narrow exception – Rarely applies
o Armstrong: Based on common law and not Supremacy Clause
SUPPLEMENTAL JURISDI CTION



May apply where case contains claims that aren’t fed questions or among diverse parties
UMW v. Gibbs: Fed courts have SMJ over case but not claim [federal common law answer]
o Case includes all claims that derive from common nucleus of operative fact
3 scenarios:
o Claim 1 fed question & claim 2 state law [pendant claim] – Apply Gibbs
o P brings fed question claim & D wants to assert state law counterclaim [ancillary claim]
 Includes third party claims by defendants
 Compulsory counterclaim is part of case
 Some permissive counterclaims allowed but others not
 Problems in diversity cases
o P has fed claim against D1 & state claim against D2 arising out of same incident
[pendant party SMJ]
 Supreme Court limits this (Finley) bc adding parties goes too far beyond clear
congressional authorization
 BUT Congress then codifies law and overrules Finley – 288 USC § 1367(a)
 “Except as provided in subsections (b) and (c), . . . in any civil action of
which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United
States Constitution. Such supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.”
 Exxon Mobil Corp v. Allapattah:
o Joinder of additional parties language doesn’t exclude div cases
o Civil actions over which court would have original SMJ = Case
with claim satisfying federal SMJ
o Can exercise sup juris over additional Ps whose claims do not
satisfy minimum amount in controversy req if part of CNOP of
case where Ps do allege sufficient amount in controversy
 BUT are concerns when would destroy complete diversity
City of Chicago: Supp juris applies to removed cases as well as cases originally filed in fed court
DIVERSITY JURISDICTION


Components of DJ:
o Diversity of citizenship
 Constitution requires minimal diversity [Tashire]
 1332 interpreted to require complete diversity [Strawbridge v. Curtiss]
 Special diversity statutes:
 Federal interpleader statute, 28 USC 1335 – Minimal diversity
 Multiparty, multiforum jurisdiction, 28 USC 1369 – Minimal diversity
only for cases involving accident that kills at least 75 people
o Amount in controversy
 Constitution does not require any amount in controversy
 1332 requires $75k as amount in controversy
 Aggregation rules: Multiple Ps cannot aggregate claims to reach $75k
DJ & sup jurisdiction:
o P sues D – Diversity exists plus amount in controversy; D bring in 3rd party D who is
diverse from D but not P; P brings claim against 3rd party D, breaking diversity [Kroger]
o Supreme Court says diversity statute does not allow this – Would allow P to sue person
it would not have otherwise been able to sue in fed court
o See supplemental jurisdiction for more information
SOVEREIGN IMMUNITY AND SUITS CHALLENGING OFFICIAL ACTION


Generally: Immunity is about when a plaintiff can drag the government into federal court
Example waiver of immunity – APA: 5 USC § 702: Action in court seeking relief other than money
damages and stating claim that an agency/officer/employee thereof acted or failed to act in an
official capacity or under color of legal authority shall not be dismissed nor relief denied on the
ground that it is again the US
o APA allows judicial rev (express cause of action) & statutorily waives sovereign immunity
SOVEREIGN IMMUNITY A ND EX PARTE YOUNG DO CTRINE

Sovereign Immunity Generally
o Federal sovereign immunity
 Constitution does not expressly recognize fed sovereign immunity for fed govt
 Fed govt waived much immunity thru statutes
 Typically limited to where Congress clearly consented to type of claim
and form of remedy against US
 Examples of waiver:
o Tucker Act – Contracts, takings
o Federal Tort Claims Act
o APA waiver (5 USC 702) for suits seeking “relief other than
money damages”
o State sovereign immunity
 Constitution recognizes SI for states thru 11th Amendment restriction on SMJ
 States waive SI for suits in state court (but not necessarily also in fed court)
o Exceptions
 Ex parte Young – Federal and state officers
STATE SOVEREIGN IMMU NITY



Leading up to the 11th Amendment
o Article III: Allows fed courts to hear controversies bw state & citizens of another state
 Appears to allow fed question and diversity claims against feds & states
 Could argue: Gives SI in state courts when sued by citizens of own states but
waives in other instances
o Chisholm: Fed courts have SMJ over suits by citizen of 1st state against 2nd state
o 11th Amendment: Overruled Chisholm – SMJ does not extend to suits against a State by
citizens of another state or citizens of a foreign state
o Hans v. Louisiana: States cannot be sued by own citizens
11th Amendment (Granting SI) Doctrine – About Federal Court SMJ:
o Generally: When applied, is absolute bar (no SMJ) to private federal court suit against
state or state-level officials in official capacity
 Applies with diversity and federal question
o Limits on the 11th Amendment:
 Appeals to Supreme Court of state-initiated suits (Cohens)
 Suits by other states and U.S. in fed court or courts of another state
 Will U.S. or another state sue on your behalf?
 States surrendered immunity by ratifying Constitution
 States can waive or consent (Lapides) – e.g. through removal
 Congress sometimes can abrogate immunity
 But cannot typically require state to be sued in own courts on fed
question issue
 Local governments are not the state (Lincoln County) – can sue Multnomah
County, school boards
 Officer suits under Ex parte Young and § 1983
 Waivers of immunity under state law for state law claims
 Related to state waiver and consent
11th Amendment Theory:
o
o
Text – Juris does not extend to any suit against one of the United States by citizens of
another state or by citizens/subjects of any foreign state
 Literally covers diversity claims AND fed Q claims where also diversity
 Does not cover non-diverse fed Q claims
Theories about 11th Amendment:
 Immunity theory – 11th Amendment constitutionalizes common law SI (more
than the text); Hans
 Current doctrine
 Essentially all immunity
 Congress cannot override unless Constitution allows
 Diversity – Rejects Hans; 11th Amendment bars state law diversity suits but not
fed question suits
 Existing statutory grant of fed question SMJ allows suits against states
 Separation of powers – Same basic 11th Amendment result as diversity theory
but recognizes state common law immunity
 Congress has power to override state common law immunity
EX PARTE YOUNG DOCTRINE

Ex Parte Young Doctrine – Allows fed courts to enforce Constitution and fed statutes against
states despite existence of fed sovereign immunity
o Sue for prospective injunctive relief when officer is violating federal law or
Constitution
 Not about violations of state law
o Applies to fed and state officers – Does not apply to states or agencies
o Reasoning: Suit for injunction is not against state – If conduct violates fed law, it is void
and officer is stripped of sovereign protection
 Not a constitutional doctrine – Thus, easy to displace or apply case by case
o Justification:
 Claims consistent practice – Some tradition of officer suits to restrain illegal
official conduct
 Bad to force people to risk severe criminal penalties in order to assert fed claims
against state statutes that burden liberty
o Limits of EPY:
 Formal pleading rule – Must name officer as D
 Prospective equitable relief, not retrospective monetary relief
 Young – Cannot use suits to stop pending criminal proceedings (but can
use Younger doctrine)
 But can seek prospective monetary relief if ancillary (indirect effect on
treasury or insubstantial & supports main relief)
 Not vehicle for enforcing state law (Pennhurst)
 If have fed & state claims, means parallel litigation or 1 suit in state ct
o Available for state compliance w fed law and not state
compliance with state law – Cannot use pendant or supp juris to
bring in those state law claims

o
o
Every state has state law version of EPY doctrine for enforcement of
state law
 Can be displaced by Congress – e.g. if Congress adopted specific scheme for
enforcement (other remedy) of federal law against state (Seminole Tribe)
 Even if that other remedy is unlawful abrogation – then have no remedy
 Not implied from Supremacy Clause (Armstrong)
Discretionary doctrine w case-by-case assessment
Consider: Everything court says is ruse to get around 11th Amendment and enable
officer suits to control states
 Fiction bc every actioTn of the state requires acting thru person
ABROGATION OF STATE SOVEREIGN IMMUNITY


Congress has limited power to abrogate state sovereign immunity – Need:
o Clear statement of intent to abrogate
 Puts state on notice and allows state to choose if choice is possible
 No constructive waiver
o Constitutional power to abrogate – Need specific constitutional provision to have power
to abrogate immunity (not enough that subject is exclusively under fed control)
 Fitzpatrick v. Bitzer: 14th Amendment § 5 (carry into effect) – Yes
 Justification: 14th Amendment was intended to limit state sovereignty
 But see Boerne: Only abrogate where regulation is congruent and
proportional to violation of constitutional rights
o Look for pattern of constitutional violations
o “Of national import”
 Seminole Tribe: Commerce & Indian Commerce Clauses – No
 Overruled Union Gas – Said could abrogate under CC
 Central VA v. Katz: Bankruptcy Clause – Yes
Suits in State Courts
o Most states have waivers of at least some immunity – e.g. Oregon Tort Claims Act
o Alden v. Maine: Congress cannot compel state courts to hear federal question claims
against state
 Justification:
 Immunity part of constitutional plan
 Dignity of states
 Worried about state finances
 Bizarreness: Congress can regulate states directly but cannot create remedies
against state directly in state or fed court when they violate fed law
 Unless Congress has abrogation power or DOJ brings suit
 Individual P must use officer suits – 1983/EPY for injunctions & 1983 for
money
CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983 (AND BIVENS)
42 USC § 1983 – CAUSE OF ACTION STAT UTE




Authorizes suits against state official for violations of Constitution and federal laws
o But does not authorize suits against the State – To allow, would require Congress to
amend law (Supreme Court determined not an abrogation)
o Does not authorize suits against fed officials [Bivens does this]
o Officer immunity doctrines still apply
42 USC § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or DC, subjects or causes to be subjected any citizen of the U.S.
or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by Constitution and laws shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress…
o Overcomes states sovereign immunity
o Overlaps with EPY and Bivens doctrine (overlaps with Bivens on merits and defenses)
 Bivens: Right to seek damages from officer for violations of constitutional rights
 See FCL From Jurisdiction Grants for more information
Elements of a § 1983 Claims:
o Every person who
 Includes people and municipal corporations/agencies
 No supervisory liability [Iqbal] – Unless supervisor themselves caused harm
 See municipality doctrine below
o Under color of any statute, ordinance, regulation, custom, or usage, of any State
 Means actual & apparent authority – Asserting their power as an official?
 Conduct only made possible bc clothed w authority of state law?
 Conduct attributable to govt in broadest constitutional sense
 Includes actions taken pursuant to custom or usage – e.g. failure to
train, single policy decision
o But for agencies, excludes liability for random acts of officials
(e.g. negligence)
 Does not mean that there must have been law authorizing conduct
 Includes both violations conducted under authority and abuse of
authority [whether or not state law condemns action]
 Does not apply to private actions
o Subjects or causes to be subjected
o Any citizen of the U.S. or other person within the jurisdiction thereof
 Case pending about whether boy shot across border in Mexico is subject to
jurisdiction of US
o To deprive any rights/privileges/immunities secured by the Constitution and laws
 Violates Constitution or federal law – e.g. 4th Amendment, Due Process Clause,
defamation (if stigma plus), statutes
 Applies to statutes if are individual grant of rights
o Shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress
 Action at law – Get some kind of damages
 Get all types of ordinary tort damages – Equity, compensatory & punitive
damages
Monroe v. Pape: Federal remedy available despite state constitutional provisions providing
similar protections as Constitution and § 1983
o Federal remedy totally independent of state remedy
o



Justification for this conclusion: §1983 meant to offer remedy where was a state remedy
but was not available in practice
Municipal Liability Doctrine
o Monell – Municipality liable under § 1983
 NYC policy requires pregnant employees to take leaves of absence
 Easy case because city policy applied broadly
o Oklahoma City v. Tuttle: Not liable – Can’t rely on single unusually excessive use of force
 Police officer accused of excessive force when responding to robbery – Single
incident
 Based on failure to train theory – Canton v. Harris
 Failure to train: Where amounts to deliberate indifference to rights of
person with whom police come into contact
o Owen v. City of Independence: City liable
 City council adopts motion to release report that cast an employee in a bad light
leading to employee discharge
 Council decision on specific situation was sufficient to make policy – Decision of
one high official can be official policy and impose city liability
 Municipalities don’t get qualified immunity
Justification:
o For officers, same as EPY
o For local officers and governments, not protected by 11th Amendment
1983 & Immunity Doctrines – Officials can still assert official immunity doctrines:
o Qualified immunity
 Shields from damages liability unless:
 Conduct violated clearly established statutory/Constitutional rights; and
 Rights are those which reasonable person would have known [Harlow]
 Does not apply to injunctions [e.g. EPY]
 Justification:
 Exists to make sure “insubstantial lawsuits” do not go to trial
o Bare allegations of malice not enough to overcome immunity
 Important to compensate but worried about groundless claims
o Groundless claims impose social costs – Expense of litigation,
diversion of official energy, deterrence
 Anderson v. Creighton: Objective legal reasonableness under QI assessed in light
of clearly established rules that are specific not general
 Unlawfulness must be apparent
 Focus on specific conduct – Is the specific conduct unconstitutional?
 Mullenix: QI protects all but the plainly incompetent or those who
knowingly violate the law
 Source of authority for clear established law:
 Supreme Court
 Probably Court of Appeals
 Not district courts
 Assert QI in motion to dismiss and/or motion for summary judgment
o Absolute immunity – Applies if acting in legislative, judicial, or prosecutorial capacity
 For judges, legislators, prosecutors, and President
 Applies to all suits for damages





Legislators have absolute immunity from injunctive relief
Judges receive some protection from injunctive relief under § 1983
Presidential immunity doesn’t extend to aides and cabinet officials
Immunity from having to litigate – Not just liability
Focus on functions, not status:
 Prosecutors – AI for functions relating to courtroom advocacy but not
admin tasks or legal advice [unless about advocacy]
FEDERALISM-BASED LIMITS ON FEDERAL COURT JURISDICTION
ANTI-INJUNCTION ACT


AIA 28 USC § 2283: A court of the United States may not grant an injunction to stay proceedings
in a State court except (1) as expressly authorized by Act of Congress, or (2) where necessary in
aid of its jurisdiction, or (3) to protect or effectuate its judgments
AIA Doctrine: Absolute ban on fed court granting injunction of state court unless within an
exception [Atlantic Coast Line & Mitchum]
o Only for ongoing state court proceedings
o 3 express exceptions:
 Expressly authorized
 Mitchum test to qualify as express exception:
o Fed law need not contain express reference to AIA
o Fed law need not expressly authorize injunction of state court
proceedings
o Congress must have created a specifically and uniquely fed right
or remedy, enforceable in fed court, that would be frustrated if
could not enjoin state proceeding
 Other words: Whether law could only be given intended
scope by stay of state court proceeding
 Mitchum interprets exceptions loosely but Vendo may narrow – Lots of
uncertainty now
 Includes 1983 actions – Concerned w fact that states couldn’t protect
rights guaranteed under the 14th Amendment
 Criticism: Does not look like express authorization but instead a test for
implying authorization
 In Aid of Jurisdiction
 Courts confirmed “res” exception [even Toucey] - Implied exception that
court that first assumes jurisdiction over property may exercise that
jurisdiction to the exclusion of other courts
 Legislative history confirms fed court power to enter orders that deal w
removal issues & prevent state court from continuing w case
 Apparently not used to protect exclusive SMJ in federal court
o Could instead: Remove, move to dismiss for lack of jurisdiction
 Avoid Relitigation
 About ensuring respect for preclusive effect of fed court judgment
o Deal only w respect for effect of the actual judgment


Chick Kam Choo: Could relitigate FNC because only
holding that there was no claim under Texas law was at
risk & Texas could differ from fed on if was forum
 Law applied might differ
 Concluded that fed forum not appropriate but
did not rule on state forum
o Limited by Full Faith and Credit Statute
 Resolve doubts in favor of allowing state court proceedings to continue
 Critique: Could instead raise preclusion doctrine in federal court
 Parsons Steels: Party wins in federal court and asserts preclusion in
state court, based on fed court judgment, but state court rejects
preclusion claim
o Held: State court should give preclusive effect to fed court
judgment but no injunction against state court that refused
preclusion – Instead, fed court must give state court judgments
their preclusive effect
o 1 implied exception:
 When U.S. is plaintiff and seeks injunction against state proceedings to protect
federal interest [Leiter Minerals – Enjoined state proceeding over title to
mineral rights]
 Judgments fraudulently obtained in states courts might be excepted too?
History of AIA:
o Began as prohibition w judge-made exceptions
o Toucey – Disapproved of judge-made exceptions, except for the res exception giving
precedence to court that first assumes jurisdiction over property
o 1948 revision of statute has legislative history:
 General statement in legislative history that new statute restore basic decision
as generally understood and interpreted prior to Toucey decision
EXHAUSTION OF STATE REMEDIES


Exhaustion of state administrative remedies
o Generally must exhaust state admin remedies before suing in fed court
o BUT do not have to exhaust admin remedies before bringing a 1983 suit in fed court
 Some exceptions – e.g. PLRA restrictions on prisoner suits
Exhaustion of state judicial remedies
o Must exhaust before filing federal habeas corpus
o Do not have to exhaust before filing 1983 action
PULLMAN ABSTENTION AND RE LATED DOCTRINES


Abstention doctrines only used in rare circumstances – Tho lower court uses more often
Pullman Abstention – Involves fed constitutional question
o Fed court has SMJ over case but abstains in favor of state court litigation when case
involves a fed constitutional question




Does not apply to fed statutory questions [Propper] – Thus maintains goal of
avoiding constitutional questions and limits impact on fed SMJ
o Requirements for applying Pullman Abstention:
 Case presents state grounds and fed constitutional grounds for relief
 Resolving constitutional q could create needless friction w state policy
 Sensitive area of social policy
 Proper resolution of state ground for decision is uncertain
 Is statute new? Any precedent?
 Any reasonable room for different construction of statute?
 State ground is capable of resolving controversy – Can avoid fed constitutional
question
o Fed court retains jurisdiction over case while parties go to state court
 State court results have preclusive effect on fed proceedings
o Pullman is federal equity case, but also applies to:
 Damages actions
 Federal question cases that are also diversity
 1983 cases [Harrison v. NAACP]
o Justification: Avoid friction w state policies & wasting judicial resources by making
decision which could be displaced by state adjudication
o Tension: Have proper SMJ but doctrine allows refusing SMJ
o Concern: Create delays but not as significant as it once was in part due to certification
Alternative to Pullman: Certification
o Nearly every state permits fed courts to retain jurisdiction over a case but certify
questions about the meaning of state law
o State court answers certified question and fed litigation moves on
Burford Abstention – State admin actions
o Fed court will decline to interfere w actions of state admin agencies: [NOPSI]
 When difficult qs of state law and issues of substantial public import whose
importance transcends the results in the case at bar; OR
 Will effect be more than in case at hand?
 Where fed review would disrupt state efforts to establish coherent policy with
respect to matter of substantial public concern
o Justification: In these cases, state courts partnering w admin agencies to run program
 Interrupting admin review process that would lead to creation of admin law
 Is admin review process more about adjudication or rulemaking?
o Fed question, but court dismisses and state court handles entire case
o Dismissal only applies to equitable relief [Quackenbush]
 BUT can stay a damages case
Thibodaux Abstention – Eminent domain & condemnation [esp sensitive & important area]
o Should abstain from adjudicating unclear state law issue in diversity cases to avoid
friction with state
o Elements of Thibodaux Abstention:
 Unclear state law
 Sensitive matter of great importance to state
o No federal question; diversity case w issue of condemning local property and parallel
state declaratory judgment proceeding
 Supreme Court stays suit and waits for state court proceedings to end
 Was about a particularly sensitive and important area
Eminent domain – Special and peculiar bc intimately involved w sovereign prerogative
esp when issues involve allocations of power
 Don’t want to get in middle of state law dispute about who can do what
How to think about Burford and Thibodaux?
o Might be one-off doctrines – Essentially used only in those specific cases
o Reflect “amorphous notion” that when state issues are sufficiently difficult, important,
and bound up w other issues, fed court should abstain
o

YOUNGER ABSTENTION



Basic Younger Abstention Doctrine:
o Fed court may not enjoin [Younger] or issue declaratory judgment for [Samuels v.
Mackell] a pending or imminent state criminal (and other) proceeding [Younger]
 BUT can issue declaratory judgment against threatened state criminal
proceeding [Steffel v. Thompson]
 Supreme Court has not decided yet if applies to suit for damages
o Must dismiss claim seeking declaratory or injunctive relief against state crim proceeding
o 3 instances where applies:
 Criminal prosecutions
 Civil enforcement proceedings brought by state
 Civil proceedings involving certain orders
o Exceptions – Younger does not apply where:
 Bad faith prosecution or harassment – No post-Younger Supreme Court cases
(only Dombrowski discussed in Younger) show this though
 Patent and flagrant unconstitutionality – No Supreme Court cases
 Trainor suggests that this might not be allowed – Would be
disrespectful to state courts to assume can’t determine on own?
 “Other extraordinary circumstances”
 E.g. Gibson v. Berryhill – No deference to biased state agency
o NOPSI & Sprint: Younger meant to be multi-factor balancing but is used for
extraordinary circumstances
Justification for Younger doctrine:
o Want to avoid interfering with legitimate activities of states or intruding on states
o Efficiency – Avoid duplicative legal proceedings
Younger in Civil Proceedings
o State-initiated civil enforcement proceedings: Can apply
 Huffman v. Pursue – Civil enforcement proceedings brought by state (closely
related to criminal statutes) more akin to crim prosecution than most civil cases
 Trainor – Civil enforcement proceeding brought by state to recover fraudulently
obtained welfare payments
o Civil proceedings not initiated by state: Maybe? Unclear – But have allowed in some
circumstances where involved important state interest
 Judice v. Vail & Pennzoil – Private party initiated w constitutional challenges to
state enforcement mechanisms
o State administrative proceedings: Seems to apply to state admin proceedings






Middlesex Cty. Ethics Committee – Attorney discipline proceedings ultimately
supervised by state Supreme Court
 Ohio Civ. Rights Commission – State-initiated admin proceedings to enforce
state interests; school have chance to raise 1st Amendment claim in state court
Remedies and Timing
o Pending prosecution – Cannot allow injunction or declaratory judgment [Younger &
Samuels]
o Imminent prosecution – Cannot allow injunction or declaratory judgment if state
proceedings instituted before fed court proceedings discuss merits [Hicks]
o Threatened prosecution – Can allow declaratory judgment [Steffel v. Thompson]
 Lack concerns leading to application of Younger doctrine
o Mere existence of criminal law – Problem with standing
o Continuing conduct – Stronger argument for fed equitable intervention (not applying
Younger)
o Applies even where interference sought by individuals who are not parties to state case
Considerations in determining if Younger applies:
o Degree of intrusion
 Based in part on timing
 Enjoining more intrusive than declaratory relief
o Conduct individual is engaged in
o Will plaintiff be able to raise claim elsewhere
Focus on criminal enforcement w secondary focus on state enforcement in general
Younger and AIA are separate doctrines – Younger applies to § 1983 but AIA does not
o 1983 is exception to AIA – Fed court could issue injunction against state court
proceedings in 1983 action wo concern for bar in AIA
o Unclear whether to follow Younger (barring injunction) or AIA exception (allowing
injunction)
Younger vs. Pullman:
o Younger – State proceeding either has been or is about to be commenced and entire
case should be litigated in that proceeding
 Relinquishment of fed jurisdiction
o Pullman – Whether federal Ps (as condition for fed courts adjudicating their claims)
should have to obtain state court resolution of state law issues
 Postponement
PARALLEL PROCEEDINGS



When come up? Parallel state & fed proceedings involving litigating the same issue twice
Sprint & NOPSI: Existence of parallel proceedings not enough – No requirement of deference to
state court proceedings reviewing executive or legislative action
Colorado River: Generally cannot dismiss or stay fed claims bc of parallel state proceedings
o “Virtually unflagging obligation” to exercise jurisdiction
o May dismiss parallel cases only in exceptional circumstances (factors below)
 Tougher standard than standard for abstention – Applied rarely
 Flexible, discretionary standard
o Factors (when fed & state proceedings) suggesting there might be extraordinary
circumstances allowing abstention:



o
State court more geographically convenient?
State court may have to assume jurisdiction over thing [property]?
Avoid piecemeal litigation? – Most important
 Moses H. Cone: If you have different claims in different courts, not kind
of piecemeal litigation this doctrine is going after
 Order in which jurisdiction was obtained
Applies to dismissal and injunction – Not declaratory judgment